Blh v Mnl

• Jurisdiction: New Zealand
• Judgment Date: 18 February 2014
• Neutral Citation: [2014] NZHC 194
• Date: 18 February 2014
• Docket Number: SC 56/2013
• Court: High Court

Between

BLH

Appellant

and

MNL

Respondent

[2014] NZHC 194

SC 56/2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Appeal against a finding in the Family Court (FC) that the appellant mother had been violent towards the respondent father, together with an application for a stay preventing the FC from continuing to the next stage in the proceedings — FC had held found violence towards each other by both mother and father and under s60(4) Care of Children Act 2004 (COCA) (parenting order in favour of violent parent could be made if satisfied there would be no violence to child having regard to natters in s61 COCA) — mother said that finding of violence was a final determination allowing as appeal under s143 COCA (Appeals to High Court) — competing High Court decisions on issue — whether there was jurisdiction to appeal the finding that the mother had been violent under s143 COCA.

Appearances:

S R Jefferson QC for appellant

J E McLennan for respondent

J R Robertson for child

JUDGMENT OF FOGARTY J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 4.00 pm on Tuesday 18 February 2014

Introduction

1 The parties to this marriage are mother (appellant) and father (respondent), of a son. Currently, by their agreement, both have access to the son. Each of them regards the terms of access as unsatisfactory. Both have applied to the Family Court for Parenting Orders. The mother has included in her argument, allegations that the husband is violent. She relies on allegations of violence against her. The husband has replied by arguing she has been violent to him.

Relevant law and process to date

2 By law, violence is of considerable relevance to the terms of any Parenting Orders. This is by reason of the Domestic Violence Act 1995, replicated in the Care of Children Act 2004 in ss 59, 60 and 61. Proof of domestic violence will be relevant to any Parenting Orders, even if the domestic violence has never been against children.

3 Mr Jefferson QC explained that therefore in this context, an application for Parenting Orders raises a preliminary question: was there domestic violence? If the answer is yes, that is a “funnel” down which the analysis thereafter continues. Sections 59, 60 and 61 provide:

59 Application of section 60

• (1) Section 60 applies to proceedings–

  • (a) relating to an application under this Act for any of the following:

    • (i) an order about the person or persons who have the role of providing day-to-day care for a child:

    • (ii) an order about contact with a child:

    • (iii) the variation or discharge of, or of any condition of, an order in subparagraph (i) or subparagraph (ii); and

  • (b) in which there is a violent party.]

• (2) Section 60 applies to proceedings specified in subsection (1) whether or not those proceedings also relate to any other matter (whether arising under this Act or any other enactment).

60 Procedure for dealing with proceedings in section 59(1)

• (1) Repealed.

• (2) Repealed.

• (3) In proceedings to which this section applies in accordance with section 59 (the proceedings), the court must not make–

  • (a) an order giving the violent party the role of providing day- to-day care for the child to whom the proceedings relate; or

  • (b) any order allowing the violent party contact (other than supervised contact) with that child.]

    (3A) Subsection (3) is subject to subsection (4).

• (4) In the situation in subsection (3), the Court may make an order in subsection (3)(a) or (b) if, after complying with section 61, the Court is satisfied that the child will be safe while the violent party–

  • (a) provides day-to-day care for the child; or (as the case may be)

  • (b) has contact with the child.

• (5) If, in the situation in subsection (3), the Court is not satisfied as provided in subsection (4), it may make an order for supervised contact between the child and the violent party, and, if it does so, the Court must specify in the order whether the supervised contact is to occur–

  • (a) under the supervision of an approved provider; or

  • (b) in the immediate presence of a person approved by the Court (for example, a relative, a friend of the family of the child, or any other person whom the Court considers suitable).

61 Matters relevant to question in section 60(4)

In considering, for the purposes of section 60(4), whether a child will be safe if a violent party provides day-to-day care for, or has contact (other than supervised contact) with, the child, the Court must, so far as is practicable, have regard to the following matters:

• (a) the nature and seriousness of the violence used:

• (b) how recently the violence occurred:

• (c) the frequency of the violence:

• (d) the likelihood of further violence occurring:

• (e) the physical or emotional harm caused to the child by the violence:

• (f) whether the other party to the proceedings–

  • (i) considers that the child will be safe while the violent party provides day-to-day care for, or has contact with, the child; and

  • (ii) consents to the violent party providing day-to-day care for, or having contact (other than supervised contact) with, the child:

• (g) any views the child expresses on the matter (as required by section 6):

• (h) any steps taken by the violent party to prevent further violence occurring:

• (i) all other matters the Court considers relevant.

The first hearing: s 60

4 In September 2003 over two days, Judge McHardy considered the merits of the competing allegations of domestic violence, applying s 60. 1 He did so, leaving for a second hearing the application of s 61.

5 The parties agreed the reason for two hearings was pragmatic and unfortunate. The applications for Parenting Orders had been given a fixture for two days before there were allegations of domestic violence. As a result of the violence allegations, it was not possible to hear and resolve all parenting issues within the two days. The hearing date arrived after a psychiatric report had been commissioned, but before it came to hand. That meant that if the fixture was to proceed it could only deal with s 60. If the fixture did not proceed, then there would have to be a longer fixture time and such time was not then available.

6 The parties elected to proceed on the s 60 issues and defer the application of s 61. That explains the opening paragraph of the decision which is as follows:

[1] The primary issue between the parties in this matter is what is the appropriate care arrangement for their child, (jj). The focus of this particular hearing however has been only in respect of s 60 issues, allegations of physical violence having been made by each party against the other. Although the hearing dealt principally on the applicant's allegations of violence against the respondent, his allegations against her also have to be considered.

And then [14] and [15]:

• [14] It had been agreed that the focus of this hearing would be confined to the allegations of violence. The hearing was not to include an assessment that is required pursuant to s 61 of the Act. The applicant has issues with the content of the s 133 report which has been released to the parties. I was specifically asked not to read that report prior to the hearing. The only information I had in respect to the content of the s 133 report was what was referred to in counsel's memorandum to me in respect of whether the whole matter needed to be adjourned or whether there could be an initial inquiry under s 60 as to the allegations of violence.

• [15] Therefore the focus of this particular hearing was narrow. The applicant in her affidavit evidence had made 12 separate allegations of violence from the respondent to her. I have to be satisfied that on the balance of probabilities the allegations have been proven. I will deal with these allegations first. Then there needs to be findings in respect of the alleged violence on the applicant's part.

7 The Judge went on to make findings of violence by both the mother and the father, against each other. The father had accepted some domestic violence against the mother. In respect of the mother (applicant) the Judge found:

[78] It is apparent from the evidence that there has been physical violence meted out from the applicant to the respondent. These however have not been particularised and the Court has been given insufficient detail to make findings on each form of violence that has been alleged. However, there is sufficient evidence, including an admission by the applicant herself to indicate that she also falls into the category of a violent person. She is not a victim who is simply defending herself. This is a situation where the nature of the relationship was such that each party has become significantly angry with the other over the period of the relationship. This has resulted in incidents which have involved angry verbal arguments between the parties.

8 That led to the Judge's conclusion:

[80] It became obvious during the applicant's evidence that she has rationalised the dysfunction that existed in the parties' relationship on the basis that she was dealing with a violent person. She has claimed validation of this by referring to information and advice she has received from professionals, who have in the main only heard her side of the story. My findings have been that there has been physical violence in this relationship. The respondent has been physically violent to the applicant and vice-versa. There is no evidence to justify the conclusion that the applicant sought from the Court. The violence that the respondent indulged in was clearly situational. There now needs to be a safety assessment carried out which is required by s 61 if that is still considered to be necessary given the findings in this decision.

9 Both counsel were in agreement that the correct inference from the last two sentences of [80], is that the...