Wood v Police

[2022] NZHC 2936

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-485-56

[2022] NZHC 2936

BETWEEN

MR WOOD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	9 November 2022
Appearances:	C J Nicholls for the Appellant T G Bain for the Respondent
Judgment:	9 November 2022
Reissued:	14 March 2023

ORAL JUDGMENT OF PALMER J

Solicitors/Counsel

C Nicholls, Barrister, Lower Hutt

Luke Cunningham & Clere, Wellington

WOOD v NEW ZEALAND POLICE [2022] NZHC 2936 [9 November 2022]

What happened?

[1]    In December 2019, a without-notice temporary protection order was made against Mr Wood, then aged 43.1 The protected people were his wife, the complainant, and his children. The order became final on 13 March 2020. Under s 90(b) of the Family Violence Act 2018 (FV Act), it is a standard condition of every protection order that the respondent not contact the protected person, with specified exceptions.

[2]    Between 25 December 2019 and 20 March 2020, Mr Wood texted the complainant. There is some suggestion that, on 21 March 2020, Mr Wood arrived at the address at which the complainant was staying and had a conversation with her but I have not seen the Summary of Facts about that. On 21 September 2020, Mr Wood was convicted of contravening a protection order and was ordered to come up for sentence if called upon within one year.

[3]    On 18 May 2021, the Family Court made a parenting order by consent, specifying that the complainant was to have day-to-day care of the children and     Mr Wood would have contact with them for specified periods. The parenting order provided:

It will not be a breach of the protection order for [Mr Wood] to communicate with [the complainant] by text message regarding the care of the children or about contact.

[4]    On 24 September 2021, three days after the one-year order to come up for sentence expired, and after he saw the complainant moving house, Mr Wood sent two text messages to the complainant regarding the children at 2.47 pm and 9.27 pm. The complainant did not reply. At 9.46 pm Mr Wood then sent another text, for which he was subsequently charged with breaching the protection order. It read:

iv known u since 2010–11yrz. Hav u made up yr mind wat u want 2 do w ths marriage (that has 2xkids needing their mum&dad).

[5]    The following day, 25 September 2021, he sent six more texts. He was subsequently charged with breaching the protection order for sending two of them:

1      To  protect the identities of the appellant’s wife and children, who are vulnerable people under    s 11D(h) of the Family Court Act 1980, this judgment has been re-issued with the appellant’s identity anonymised.

(a)at 1.43 pm, saying he had dropped a chicken on the roof of her friend’s vehicle parked near her home address; and

(b)at 6.46 pm, which baldly asked whether she was ready for a divorce or not.

[6]    Again, the complainant did not respond. The following day Mr Wood continued texting her about various topics.

[7]    On 21 September 2022, Mr Wood was found guilty after a Judge-alone trial in the District Court at Hutt Valley and convicted by Judge Sygrove of contravening a protection order, in relation to the 6.46 pm text of 25 September 2021 which did not refer to the children. The Judge held the 9.46 pm text on 24 September 2021 was permitted by the parenting order because it explicitly referred to the children. He also acquitted Mr Wood in respect of the 1.43 pm text on 25 September 2021. On the same date, Judge Sygrove fined Mr Wood $150 and ordered him to pay court costs. He appeals his conviction and sentence. The Judge’s reasons for the conviction and sentencing are not available. So I have proceeded on the basis of what his counsel advises was decided, which was straightforward and clear. Both counsel were happy to proceed on that basis.

Submissions

[8]    Mr Nicholls, for Mr Wood, submits that s 45 of the Family Proceedings Act 1947 requires that the Family Court may not dissolve a marriage unless it is satisfied that arrangements have been made for the care, maintenance and welfare of the children. Accordingly, he submits that any text about divorce necessarily implicitly relates to the care of children and the conviction should be quashed. The Police are required to prove the text did not fall within the parenting order. A parenting order trumps a protection order. The law is the law is the law, he submits. He submits that the words of the texts sent on 25 September 2021 indicate that, in Mr Wood’s mind, marriage and the care of children were interconnected. Alternatively, Mr Nicholls submits that the Judge ought to have found, on the balance of probabilities, that     Mr Wood had a reasonable excuse for sending the text – in making an honest mistake

in interpreting what was and was not allowed to be included in it. In relation to the sentence appeal, Mr Nicholls submits the conviction itself was the appropriate penalty.

[9]    Mr Bain, for the Police, submits that the exceptions to the standard no-contact condition must be read narrowly so as not to defeat the purposes of the FV Act. There is a clear legislative signal in the Act that communications that seem minor or trivial potentially have real harm and constitute family violence in the context of the relationship. A wider interpretation of the parenting order could be exploited and the divorce argument is legally irrelevant. Here, he submits Mr Wood was not really asking about the children. Mr Bain submits the sentence imposed was generous given the context of the texts and Mr Wood’s recent conviction for breaching the protection order in essentially the same way.

Should the appeal be upheld?

[10]   Under ss 232(2) and 250 of the Criminal Procedure Act 2011 (the CPA), respectively:

(a)I must allow the appeal against conviction if satisfied the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred or there has been a miscarriage of justice for any reason; and

(b)I must allow the sentence appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.2

[11]Under the FV Act:

(a)A court may make a protection order under s 79 if it is satisfied that the respondent has inflicted or is inflicting family violence against the applicant and that the making of an order is necessary for the protection of the applicant;

2      Ripia v R [2011] NZCA 101 at [15].

(b)Section 90(b) imposes as the standard condition a prohibition on a respondent making any contact with the protected person that is not contact authorised under ss 91 or 96. Section 96(1)(b)(i) provides an exception under the terms of a parenting order for care of, and contact with, children.

(c)Section 10(2) recognises that “[a] number of acts that form part of a pattern of behaviour (even if all or any of those acts, when viewed in isolation, may appear to be minor or trivial) may amount to abuse”.

(d)Section 4(b) provides that it is a principle of the Act that “decision makers should, whenever appropriate, recognise that family violence is often behaviour that appears to be minor or trivial when viewed in isolation, but forms part of a pattern of behaviour that causes cumulative harm”.

(e)Section 112 makes it an offence to contravene a protection order and creates a defence if a defendant proves, on the balance of probabilities, they had a reasonable excuse for their contravention. The excuse has to be objectively reasonable.3

[12]   The parenting order here authorises texts only about “the care of the children or about contact”. I do not accept that any text solely about divorce implicitly relates to the care of children or contact. The text at issue here, viewed in context, did not. The law regarding divorce does not change that. I agree with Judge Sygrove that is too long a bow to draw. It is not an available interpretation of the parenting order and is not an objectively reasonable excuse. I accept the Police submission that the parenting order authorises communication about the logistics of contact, any guardianship decisions which need to be made jointly, and any other matters concerning the well-being of the children which require coordination. The texts have to relate directly to the welfare of the children, in the interests of the protected persons. The complainant can always agree to greater contact.

3      R v Easton [2007] NZFLR 70 (CA) at [25].

[13]   I agree that it was open to the Judge to find that the Police proved its case beyond reasonable doubt. The parenting order did not authorise this text. There has been no miscarriage of justice. I dismiss the conviction appeal.

[14]   Nor do I consider there is any error in the sentence. The relatively small fine and costs order should act as a reminder to Mr Wood to keep within the terms of the order that he has now breached twice. If there is another breach, the penalty would no doubt be bigger.

Result

[15]I dismiss the appeal against conviction and sentence.

Palmer J