N J M v C J M FC AK

• Jurisdiction: New Zealand
• Judge: D A Burns
• Judgment Date: 11 February 2010
• Date: 11 February 2010
• Court: Family Court
• Docket Number: FAM-2009-004-002761

IN THE FAMILY COURT AT AUCKLAND

FAM-2009-004-002761

FAM-2009-004-002762

BETWEEN

UNDER The Domestic Violence Act 1995

N J M

Applicant

and

C J M

Respondent

Apperances:

L J Kearns and S Jagum for the Applicant

G Harrison for the Respondent

D Hurd and G Collecutt for the Trust

A Gluestein for the Children

RESERVED JUDGMENT OF JUDGE D A Burns

[IN RELATION TO WHETHER THE COURT HAD JURSIDCTION TO GRANT AN OCCUPATION ORDER (AND RELATED ORDERS) UNDER THE DOMESTIC VIOLENCE ACT 1995 WHERE THE HOME IS OWNED BY A TRUSTEE]

1 On 4 November 2009 the applicant filed an application under the Domestic Violence Act 1995 seeking on a without notice basis a temporary protection order, an occupation order of a home situated at [U] Road, R and an ancillary furniture order.

2 She supported the application by an affidavit sworn by her dated 4 November 2009. In that affidavit she said in summary as follows:

• • That the parties have been in a relationship since April 2003. They were married in May 2007.

• • They separated around January 2009.

• • She had continued in occupation of the property in [U] Road. The respondent had left but returned from time to time.

• • The applicant and respondent were parents of two girls: S born 15 April 2006 and G born 27 May 2008.

• • The two girls were in the day-to-day care of their mother.

• • The respondent is the father of another female child M born 6 January 2001. The applicant said that she had become a stepmother to that child.

• • She said that the respondent had been violent to her both physically and psychologically.

• • That he was an alcoholic and also took anti-depressant medication. The medication was inconsistent with the consumption of alcohol which exacerbated mood swings and made his behaviour unpredictable.

• • That he had lied to her on many occasions.

• • That he used intimidating behaviour towards her and frequently made threats which she detailed.

• • That when he was sober he could be charming and behave impeccably. When drunk his behaviour would deteriorate which she said had put her at risk and caused significant stress.

• • She said that he was a substantial person and used money as a means of control.

• • That he would frequently be negative towards her and issued many verbal putouts.

• • She outlined the circumstances of an incident that she said occurred after Christmas 2008 in Fiji. That following that incident he had never really

• • returned to the home. She had thus remained in the property in [U] Road for the majority of 2009. She did so with the children and it had been the children's home. She gave examples of damage to property caused by him.

• • She outlined an incident that occurred following 31 October 2009 where the police became involved. She outlined threats received by her from a person employed by the respondent.

• • She said that it was important for her and the children to continue to remain living in the home in order to promote stability for the children. She sought an occupation order pursuant to the Domestic Violence Act but in the alternative if that is not available a tenancy order. She also sought an order in relation to ancillary furniture.

• • She applied for, at the same time as proceedings under the Domestic Violence Act, a parenting order under the Care of Children Act 2004.

3 The without notice application was placed before the Duty Judge in Chambers. The presiding Judge granted the application for a temporary protection order and issued a temporary protection order. The Judge placed the application for tenancy/occupation, parenting and ancillary furniture orders on notice and said in the Minute as follows:

Application for tenancy/occupation, parenting plus ancillary furniture orders to be on notice (with time for filing of a notice of defence fixed at 72 hours) because this Court is not satisfied there are grounds to make an occupation order in respect of a Family Trust in the circumstances of this case, nor do there appear to be any rights to tenant the property and it is arguable whether either party is a tenant in terms of s 52 DVA.

The presiding Judge was satisfied however that grounds were established for the issue of a protection order on or without notice. The presiding Judge directed that the trustee/s of the Trust which was referred to owning the property in [U] Road were to be given notice of the proceedings and given an opportunity to be heard. He also directed that the application to

have the respondent's daughter from his previous relationship [M] included as a protected person was to the subject of further hearing. He appointed a lawyer to represent the children and asked for the lawyer to report urgently. The respondent was directed to attend a programme.

4 The proceedings were served together with the order shortly thereafter. As is required by the Act the New Zealand Police were notified of the issue of a temporary protection order. The criminal and traffic history of both the applicant and respondent were obtained together with any details of family violence summary reports. The criminal and traffic history for the applicant showed that she had no criminal or traffic convictions. The criminal and traffic history for the respondent showed that he had a number of convictions. He had one conviction of male assaults female arising out of an offence on 21 September 2005. That he was convicted of driving whilst disqualified on 2 November 2002. That he was convicted of breach of a protection order on 30 October 2001. He was convicted of refusing to give a blood specimen on 16 April 1999. He was convicted of wilful damage on 16 April 1999. He had a blood alcohol conviction arising of 21 December 2001 and 18 August 2001. He was convicted of two offences on 3 and 4 July 2000 of obtaining accommodation through credit by fraud. He was convicted of two charges of using a document on 26 and 22 June 2000. He was charged on 1 March 1991 of failing to provide particulars and also had two charges of common assault on 30 November 1989. The family violence reports refer to the two incidents that were referred to by the applicant in her affidavit on 1 November and 2 November when police attended the [U] Road property. There was also a further family violence summary report for an incident that was said to have occurred on 21 September 2005 at 14 Boston Road, Grafton where it was said that the complainant was Jade Ewington and the alleged offender was the respondent. The female was said to be aged 22 years and the respondent then 42. The respondent was born on 31 May 1963. The applicant was born on 14 February 1966. Accordingly the respondent is aged 46 and the applicant is aged 43.

5 The respondent filed a notice of defence to the application of the Domestic Violence Act together with a notice of intention to appear on 11 November. He objected to attending the programme and he supported his defence by an affidavit sworn on 11 November. In that affidavit he said in summary as follows:

• • That he was not an alcoholic.

• • That he was non-violent but that on occasions he had to use force in order to protect himself when under attack from the applicant.

• • That he was not a danger or risk to the children.

• • That there was nothing to justify the making of a temporary protection order.

• • He acknowledged that the relationship between the parties had been turbulent and volatile. He said that he had fully supported the applicant and the children financially since separation and had been paying a weekly allowance of between $800 and $1000 together with paying for the children's attendance at their day-care. The affidavit was relatively short and prepared at short notice.

6 In response the applicant chose to file further affidavits: one by J L S being the mother of the applicant, and R H S being the father of the applicant. A second affidavit from the applicant and an affidavit of V M who is the mother of the respondent and paternal grandmother of the children. Also an affidavit was filed by Jennifer Catley-Lewis being a friend of the applicant. Also an affidavit was filed by Jane Catley the mother of Jennifer Catley-Lewis. The purpose of those affidavits was to corroborate or confirm allegations made by the applicant.

7 In the second affidavit of the applicant she said that the respondent had acted in a very angry way and she reported in the affidavits filed as follows:

• a) That the respondent had told his own mother that her car will be repossessed.

• b) That he had made threats to his own mother to require her to pick up a car that he had lent to the applicant because the respondent had arranged for the motor vehicle driven by the applicant to be repossessed.

• c) That threats had been made to the applicant by the respondent through his employer Mr Barry Walker.

• d) That the applicant's mother had reported that the respondent had

• threatened to call in a loan which she said in fact had been a gift.

• e) That he had stopped paying any form of financial support.

• f) That he had stopped paying the fees for the day-care centre.

• g) That he had stopped the Disney Channel which she said was the children's favourite.

• h) That he had organised or arranged for her motor vehicle to be repossessed by the finance company either by not paying the hire purchase or lease costs or alternatively giving notice to the finance company that he was not going to do so.

• i) Having her forcibly removed from the home in [U] Road which involved attendances at the home of security personnel.

8 The applicant sought urgent further discovery of information. The applicant also sought the case to be set down urgently for hearing to determine the issue of occupation of the home. In addition to the removal from the home the applicant reported that she had been told that she was to go to a property in Kohimarama which apparently the respondent or the trustee had organised for her and...