Black v Banks [2016] NZHC 2492 (19 October 2016)

Last Updated: 1 November 2016

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

HTTP://WWW.JUSTICE.GOVT.NZ/FAMILY-JUSTICE/ABOUT-US/ABOUT- THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000746 [2016] NZHC 2492

BETWEEN	BLACK Appellant
AND	BANKS Respondent

Hearing:	5 October 2016
Appearances:	M D W King & R Allison for the Appellant S van Bohemen & A Bayliss for the Respondent
Judgment:	19 October 2016

_{JUDGMENT OF NATION J}

[1] The appellant (Ms Black) and respondent (Mr Banks) began a relationship in

2005. They married on 27 November 2010. They separated in April 2012. They had two children under five when they separated. Ms Black also had two children from an earlier marriage. (Because of suppression of the parties’ names, this judgment is being anonymised. The names of Black and Banks will be used in any report of the judgment. Those names are fictitious.)

[2] Although Ms Black and Mr Banks separated in April 2012, they continued to work together in a business and continued to have some involvement with each other outside work and on an intimate basis. Around May 2015, Ms Black changed the

_{locks on her home.}

BLACK v BANKS [2016] NZHC 2492 [19 October 2016]

[3] In July 2015, Ms Black filed a without notice application for a protection order in the Family Court. On 3 July 2015, a Family Court Judge granted a temporary protection order on that without notice basis and on the basis of Ms Black’s affidavit, noting:

The past physical violence alleged against the respondent is of serious concern but of more recent times, the evidence persuades me of ongoing disempowering psychological abuse (abusive language, threats, harassment and intimidation) that of itself makes a strong case for immediate protection.

[4] Mr Banks was directed to undertake an assessment and attend a non-violence programme. Mr Banks filed an objection to that direction and an affidavit in support of his intention to appear and to dispute the temporary protection order. Ms Black filed an affidavit in reply.

[5] There was a hearing in the Family Court on 8 September 2015. Both Ms

Black and Mr Banks gave oral evidence and were cross-examined.

[6] Judge Somerville gave judgment that day.¹ He found the parties had been in a domestic relationship. There had been domestic violence through psychological abuse but he concluded a protection order was no longer necessary. Ms Black has appealed against that decision.

Leave to appeal out of time

[7] There was a delay in Ms Black’s filing her notice of appeal because of having to wait for the grant of legal aid.

[8] Leave is granted.²

Approach on appeal

[9] Ms Black has a right to appeal this decision of Judge Somerville, with the appeal proceeding by way of rehearing.³

¹ _{[2015] NZFC 7881.}

² _{Domestic Violence Act 1995, s 91(2); High Court Rules, r 20.4(3).}

³ Domestic Violence Act 1995, ss 91(1) and (2); District Courts Act 1947, s 75.

[10] Because this appeal is against only the second aspect of the Judge’s decision,

it is an appeal against a discretionary decision:⁴

This means that to succeed in an appeal, an appellant must show that the Judge acted on a wrong principle, that he or she failed to take into account some relevant matter, that he or she took into account some irrelevant matter or that he or she was plainly wrong – i.e. that the Judge could not legitimately have to come to the conclusion that he or she did.

Did the Judge consider whether past domestic violence was part of a pattern of behaviour?

[11] Ms Black’s first ground of appeal was:

Under s 14(3) of the Domestic Violence Act 1995 the question of whether the Respondent’s past domestic violence formed part of a pattern of behaviour in respect of which the Applicant, or a child of the Applicant’s family, or both, need protection is a mandatory consideration when assessing if a final Protection Order is necessary. This mandatory consideration was not taken into account by His Honour.

[12] The Judge said at the outset of his judgment that he was applying the Court of

Appeal’s judgment in Surrey v Surrey.⁵

[13] In Surrey, the Court of Appeal stated:

[99] Without limiting the matters that the court may consider in determining whether the making of an order is necessary, it is mandatory under s 14(3) of the DV Act that the court consider whether the past domestic violence forms part of a pattern of behaviour in respect of which the applicant, or a child of the applicant’s family, or both, need protection. Given the protective purpose of the DV Act (as shown by the objects in s 5), there should be a liberal interpretation of the phrase “pattern of behaviour”, such that any repetitive conduct (even if it was of a sporadic nature or formed a series of different types of violence) can be seen as forming a pattern of behaviour.

[100] Under s 14(3), the question as to whether the violence forms a pattern of behaviour must be considered, regardless of whether or not some or all of the behaviour in respect of which the application is made appears to be minor or trivial when viewed in isolation. Moreover, the pattern of violence must be taken into account even where some or all of the behaviour appears unlikely to recur.

⁴ _{Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 at [69].}

⁵ Above n 1, at [3], citing Surrey v Surrey, above n 4.

[14] In submissions, Mr King detailed allegations which Ms Black had made which he submitted established Mr Banks had repeatedly engaged in a pattern of abusive behaviour that amounted to psychological abuse. He also submitted that the Judge had found there had been physical violence and psychological abuse but did not address all of Ms Black’s accusations as to psychological abuse in his judgment. He submitted that, if he had given the evidence the required consideration, the Judge would have found there was a pattern of behaviour from which Ms Black needed protection.

[15] On a careful reading of the judgment, I am satisfied the Judge did adequately consider whether there was a pattern of behaviour which required him to find that there had been domestic violence.

[16] He referred to the way Mr Banks exhibited his anger on a recurring basis and how Ms Black had come to accommodate this behaviour, creating an ongoing serious problem for both parties. He mentioned the difficulties created by the intensely emotional way Mr Banks talked about issues over the children and his desire to have contact with them, thus making the discussions difficult. Again, the Judge spoke of this as recurring behaviour. He spoke of Ms Black and Mr Banks needing to have discussions to deal with issues over contact but those not taking place because Ms Black knew that, in such a discussion, Mr Banks would get upset and she would feel threatened. Again, he spoke of this as an ongoing problem.

[17] The Judge said there was evidence from Ms Black:⁶

... as to an ongoing clear pattern of abusive [behaviour] involving intimidation, threats, general abuse and swearing. She says that you become very angry at times when you are frustrated [Mr Banks] and she becomes frightened of you.

[18] The Judge referred to a particular letter which Mr Banks had sent to Ms Black in March 2016 in which he stated, because there was not going to be a reconciliation, he was going to do something about child support. The Judge said

_{that, if that letter was read through Ms Black’s eyes, it was capable of being abusive.}

⁶ At [6].

He then indicated that Ms Black was justified in saying this letter was typical of how he had been dealing with her by threats.

[19] The Judge concluded that both parties had given what they believed to be truthful evidence and acknowledged that Ms Black had experienced behaviour in Mr Banks which she considered to be abusive. The Judge discussed what he considered to be the reasons for that behaviour and Ms Black’s perception. Having done that, he found there had been psychological abuse in the relationship.

[20] Given that discussion in the judgment, I am satisfied the Judge did consider whether there was a pattern of behaviour which meant there had been past domestic violence in the form of psychological abuse. He also found there had been an admitted slap in the context of an angry exchange at the beginning of 2008 and another occasion when Mr Banks had hit Ms Black. However, the Judge said those two incidents had occurred some years ago and noted that, despite ongoing arguments and his anger, Mr Banks had been able to control himself to the extent this physical violence did not occur again.

Did the Judge take into account the effect of the psychological abuse on Ms

Black?

[21] Ms Black’s second ground of appeal was:

Under section 14 (5)(b) of the Domestic Violence Act 1995, the effect of the past domestic violence on the Applicant must be taken into account. This mandatory consideration was not taken into account by His Honour when assessing if a final Protection Order was necessary.

[22] Section 14(5) of the Domestic Violence Act makes it mandatory for the Court to have regard to:

(a) the perception of the applicant, or a child of the applicant’s family, or both, of the nature and seriousness of the behaviour in respect of which the application is made; and

(b) the effect of that behaviour on the applicant, or a child of the applicant’s

family, or both.

[23] In Surrey, the Court of Appeal said:

[102] The fact that Parliament has mandated that the subjective views of an applicant (or a child of the applicant’s family) regarding past violence have to be taken into account suggests that the purpose of a protection order may not only be to ensure that those who have been subjected to domestic violence in the past are safe in the future from the risk of domestic violence, but also that they feel safe from domestic violence.

[24] Mr King highlighted Ms Black’s evidence as to the effect Mr Banks’ physical violence and psychological abuse had on her. He submitted the effect of Mr Banks’ domestic violence on Ms Black was significant. Mr King did acknowledge that the Judge had touched on the effect Mr Banks’ anger had on her when commenting on Ms Black’s resultant difficulties in discussing care and contact arrangements with him.

[25] Again, on a careful consideration of the judgment, I find that the Judge did take into account the effect of Mr Banks’ conduct on Ms Black.

[26] He referred to the evidence of Ms Black that Mr Banks’ pattern of abusive behaviour, involving intimidation, threats, general abuse and swearing, causes her to become frightened of Mr Banks. He referred to the way she had reacted to Mr Banks’ conduct by accommodating that behaviour without Mr Banks truly knowing how she felt and how this had become a serious problem for both of them. He referred to the way Mr Banks’ conduct was not acceptable to Ms Black and was good reason for her to separate. He referred to the way she had not insisted that his contact with the children must be away from Ms Black’s home earlier than she did because she did not feel able to tell Mr Banks what she needed to, knowing that he would get upset and she would feel threatened.

[27] The Judge referred to the way the letter signalling an imment change in child support would be seen through Ms Black’s eyes as being abusive.

Did the Judge put undue weight on the parties no longer working in the same office without evidence to suggest that conclusion?

[28] The third ground of appeal was:

His Honour put undue weight on the fact the Applicant and Respondent were no longer working in the same office, there being no evidence before the

Court that the Applicant and the Respondent would continue to operate in separate work environments if the Temporary Protection Order was discharged.

[29] In summarising the background for the application, the Judge referred to the particular difficulties Ms Black and Mr Banks faced through having to work together during the day when they were living together but having problems in their relationship. He noted that would have been even harder after they separated. He acknowledged that Ms Black was unable to sever their business relationship because she was worried how she would cope financially and also with the care of the children. He referred to the effect the situation had on her in saying that he

understood how it would have left her feeling “very pressured”.⁷ He also referred to

the way this led to Mr Banks trying to discuss difficult issues over contact with the children at work. He acknowledged the significance of this situation in saying that a protection order was necessary in July 2016 when she made her application because “life at work was impossible”. He then went on to say:⁸

Your employer has made alternative arrangements and now the two of you are still able to work in the same business but independently of each other. So that your conflict of work no longer happens.

[30] I accept the Judge did put weight on the fact Ms Black and Mr Banks were no longer working in the same office but his actual conclusion was that they were “able to work in the same business but independently of each other”.

[31] In written submissions, Mr King properly acknowledged that, in oral evidence, Ms Black was asked if it was her intention to continue working together. She answered “No. I understand that we would not be being placed in the same premise [sic]”. Mr King acknowledged that this passage in the evidence, on the face of it, contradicted this ground for the appeal. Nevertheless, he argued that response should not be given much weight because, at the time, there had been a change in the working arrangements. This was necessary because a protection order was in place which meant they could not be together at work. With the discharge of the temporary protection order, there would no longer be that reason for them to be apart

_{at work.}

⁷ At [17].

[32] I do not consider the evidence should have been given less weight on that basis. The Judge could reasonably proceed on the basis that the employer and the parties had found a way for them to continue working for the same business but in a situation where they did not have to be in close proximity to each other. He was justified in concluding they were able to work independently of each other. It was Ms Black’s evidence that those arrangements would continue. There was no reason to think the situation at work would change if there was no protection order in place.

[33] In her affidavit of 3 July 2015 in support of her without notice application for a protection order, Ms Black referred to the way Mr Banks had abused her at work, referring in particular to an occasion two weeks previous and another on 2 July 2015. Although he disagreed as to some of the detail and said the second of these incidents related to his frustrations over contact arrangements, Mr Banks accepted that acrimonious discussions had taken place at work.

[34] With her affidavit in reply, Ms Black produced a detailed email she had sent to the company’s director on 15 June 2015 informing him of the difficulties she was having at work with Mr Banks. There was also a response from that director of the same day which indicated he had just met with Mr Banks as a result of which he considered there would be an immediate change in the situation. He nevertheless asked Ms Black to reassess the situation over the next 48 hours and to get back to him. That evidence and the director’s response suggested that he was sensitive to the difficulties the parties faced in having to work together and would want to ensure they were not in a situation where they were likely to have contact which would cause problems for them.

[35] During cross-examination, there was also this exchange:

Q. I want to talk to you just now about going forward from here, you’re no

longer working in the same area, the same space, are you?

A. No, I’m currently working from home.

17. Right, so you have no reason to see each other during the working hours?

A. No.

17. And each of you, or you certainly could take steps if you don’t want to work in the same environment, couldn’t you?

A. Yes.

17. So there’s no reason for that type of contact that you claim has happened to happen in the future, is there?

A. For the office environment, no, there’s not.

[36] At the time of the hearing in September 2015, Ms Black was not expecting the work situation to revert to what it had been previously. The Judge thus had a reasonable basis for deciding whether a protection order was necessary on the basis that they would be able to work independently of each other in the same business. (I was told at the hearing of the appeal that Ms Black is no longer working in that business.)

Did the Judge put undue weight on the fact the parties were engaged in proceedings under the Care of Children Act 2004?

[37] The fourth ground of appeal was:

Given the wide ranging allegations of Domestic Violence before the Court His Honour put undue weight on the fact the parties were engaged in proceedings under the Care of Children Act 2004 and had engaged counsel.

[38] The Judge did attach some weight to the fact the parties were involved in proceedings under the Care of Children Act 2004 to get the care of the children regularised. He referred to this expressly in his judgment but the views he had in this regard were not simplistic. He noted that they should have issued such proceedings “a long time ago” but acknowledged that Mr Banks had not wanted to

start the proceedings because it would have ended the possibility of reconciliation.⁹

Ms Black had not wanted to start such proceedings because it would bring the conflict to a head.

[39] Of significance to the Judge was the fact that, in such proceedings, they would both be able to deal with the child-related issues safely through lawyers whereas their previous discussions had been a cause of conflict, with displays of anger on the part of Mr Banks, and fear and anxiety on the part of Ms Black in

response. It was the Judge’s assessment that, through such proceedings, including the possibility of mediation, there was a reasonable prospect that issues over care of the children would diminish. Mr Banks would be a lot more relaxed and would be more like the person he “used to be at the beginning” of the parties’ relationship.¹⁰

[40] In his submissions, Mr King acknowledged that the wording of s 15 is that “a Court must not decline to make a protection order merely because of the existence of other proceedings” [my emphasis]. Mr King acknowledged that Judge Somerville’s decision not to grant a protection order was not “merely because” of the existence of the application for parenting orders. He was right to make that concession. I have just referred to the particular benefits to these parties of having childcare issues resolved through Court proceedings.

[41] In deciding that a protection order was not necessary, the Judge referred to the changed arrangements at work and how they meant Ms Black and Mr Banks could work independently of each other. He referred to the fact they had properly separated and thus had little or no contact with each other.

[42] I do not consider this was a case where the Judge considered orders were necessary for the protection of Ms Black but that those orders would be more appropriately orders as to what contact Mr Banks would have with the children or to what extent he would share in the day-to-day care of the children. In that way, the case can be distinguished from that dealt with by Moore J in a judgment of 18

February 2016.¹¹ Moore J considered it was apparent from the Family Court

judgment on appeal that the Judge had found there had been domestic violence and that the making of an order was necessary for the protection of the applicant but had decided to decline the making of a protection order in the exercise of a residual discretion.

[43] Moore J held the Judge was in error in deciding the applicant mother’s need

for protection could be more appropriately met through a direction that the father undertake and complete the parenting through separation programme with an

¹⁰ _{At [31].}

¹¹ Davis v Devon [2016] NZHC 209.

indication that he would also benefit from undertaking some therapy to address his personal issues. While Moore J did refer to s 15, he accepted that the decision not to grant a protection order was not “merely because” of the existence of the application for parenting orders. He said, consistent with the Court of Appeal’s approach in Surrey v Surrey, that s 15 underscored the emphasis which the Domestic Violence Act places on granting protection orders in appropriate cases rather than attempting to achieve a similar outcome through the making of other orders, including parenting

orders.¹²

[44] In the judgment under appeal, the Judge did not decide that, in all the circumstances, Ms Black needed the protection of continuing orders but that such orders should be orders as to the care of the children.

Was the Judge wrong to conclude that a protection order was no longer necessary?

[45] Although it was not a separate ground of appeal, in referring to these different grounds, Mr King argued that the Judge’s ultimate decision as to the necessity of permanent protection order was wrong. In particular, he argued that, if there was a finding Mr Banks’ psychological abuse formed a pattern of behaviour then, considered objectively, the Judge should have concluded that it was a pattern of behaviour from which Ms Black needed the protection of a protection order. He also argued that the inference to be drawn from the Judge’s ultimate conclusions and reasons for finding that a protection order was not necessary was that Ms Black’s subjective fears of future violence were not reasonably held. Mr King argued that the Judge’s conclusions were inconsistent with the approach mandated by the Court of Appeal in Surrey.

[46] In Surrey v Surrey, the Court said:

[71] We do not consider that in the case of protection orders there is any real discretion once a Court is satisfied that both limbs of s 14(1) of the DV Act are met. To decline a protection order in such circumstances would not accord with the protective objects of the DV Act ... and despite the permissive wording in s 14(1) of the DV Act, there can be no room for any residual discretion.

_And:

[77] In our view, all that [the applicant] was required to prove was the existence of the past violence and a reasonable subjective fear of future violence. An evidential burden then passed to [the respondent] to demonstrate factors weighing against the necessity of an order (which he did not meet in this case).

[47] In this instance, the Judge was not satisfied that both limbs of s 14(1) had been made out. On his consideration of all the evidence, he was not satisfied the making of an order was necessary for the protection of Ms Black.

[48] In Surrey, the Court of Appeal noted the advantage which the Judge in the Family Court had through seeing and hearing witnesses, having a full sense of the whole trial and the dynamics of the trial process.¹³ In this instance, there was extensive cross-examination of both parties. Through that cross-examination, the Judge was well placed to determine whether the matters which he relied on, in deciding that a protection order was not necessary, were justified. For instance, he was well placed to determine whether the extent to which Mr Banks’ psychological abuse of Ms Black and Ms Black’s understandable fears in response to this were the

result of the conflict between them over arrangements for the children and the extent to which that conflict would diminish through their now dealing with such issues with the assistance of the Family Court and lawyers. He was in a better position than I can be, in reading a transcript of evidence, to assess how Mr Banks’ unjustified denials of abuse, but also acknowledgements of abuse and apologies for it, impacted on the need for a continuation of the orders.

[49] I have carefully read all affidavits that were filed in the Family Court and the transcript of evidence given by Ms Black and Mr Banks in the Family Court. I have had regard to the nature of the psychological abuse which Ms Black had to endure and the circumstances in which it occurred. I have considered the effect it had on her and the ongoing fears and anxiety it understandably caused her. Given the conclusions which the Judge came to, it must be abundantly clear to Mr Banks that, if he wishes to have a good relationship with his children when the parents have to

share in the day-to-day care of them, he needs to deal with her with respect and consideration.

[50] For this appeal to succeed, I have to be satisfied that the Family Court Judge acted on a wrong principle, failed to take into account some relevant matter, took into account some irrelevant matter or was plainly wrong. I am not so satisfied. Accordingly, I must dismiss the appeal against the Judge’s refusal to make a protection order.

Costs

[51] Through counsel’s submissions, Mr Banks sought an order that Ms Black contribute to his costs, both in relation to the appeal and also in relation to an interlocutory application she made to adduce new evidence.

[52] The interlocutory application for leave to admit new evidence related to an affidavit of Ms Black sworn on 6 April 2016. It referred to steps which had been taken in the care of children proceedings, orders that had been made for Mr Banks to have unsupervised contact and a later order that had been made on a without notice basis suspending that contact. Attached to the affidavit was an affidavit that had been sworn by Ms Black on 24 March 2016. It referred to Ms Black’s concerns over certain incidents that had occurred in 2011 and 2012, pre-dating to a considerable extent her application for a protection order in the Family Court. There was also some information as to Ms Black being told in March 2016 that a woman had gone to the Police in Wellington and made allegations as to Mr Banks indecently assaulting her as a minor some 15 years previous and of her lawyer then being told by the Police that the Police were investigating allegations of historic assaults by Mr Banks on two complainants who were then aged 7 and 9.

[53] Mr Banks filed a notice of opposition to the application on the basis the evidence was not new. To the extent it was new, it was not relevant and would be unnecessarily prejudicial. Mr Banks also swore an affidavit in which he said he knew nothing of the allegations that were being investigated but he denied them.

[54] The application for leave to adduce this evidence and the process for dealing with the substantive appeal was discussed in a telephone conference of counsel with Mander J on 11 April 2016. I was told the Judge expressed reservations as to the relevance or weight that could be given to the new evidence which Ms Black was seeking to put before the Court. Nevertheless, timetabling directions were made for submissions to be filed as to that application. Before that happened however, on 4

July 2016 Ms Black filed a notice of discontinuance as to that application.

[55] I was informed that Ms Black has been bankrupted as a result of debts she incurred in connection with a business, as I understand it, with which she and Mr Banks were associated when they were together. For Mr Banks, Mr van Bohemen accepted that there would be no utility in making an order against Ms Black personally for costs.

[56] Section 45 of the Legal Services Act 2011 says that a legally-aided person is not to be liable for costs for any more than it would be reasonable for the aided person to pay having regard to all the circumstances, including that party’s means and their conduct in connection with the dispute. Section 45(2) also states that no order may be made against an aided person in a civil proceeding unless the Court is satisfied that there are exceptional circumstances. Having regard to the matter referred to in s 45(3), I do not consider there are such exceptional circumstances.

[57] Pursuant to s 45(5), I could specify the order that would have been made for costs if Ms Black’s liability for costs had not been affected by the provisions of s 45. Mr van Bohemen asked me to make such an order. With such an order, pursuant to s

46, Mr Banks would be entitled to apply to the Legal Services Commissioner for a contribution towards his costs.

[58] In the particular circumstances of this case, I do not consider there would be any significant utility in my making any order for costs or any order under s 45(5) of the Legal Services Act. The attendances required of Mr Banks’ counsel in relation to the application to adduce further evidence were limited. Given the Family Court Judge’s finding that there had been psychological abuse and thus domestic violence, Ms Black’s anxiety at receiving information as to the Police investigations was

understandable. She abandoned her application with the benefit of views expressed informally by Mander J.

[59] Ms Black’s appeal against the refusal of a protection order was not without any merit. For Mr Banks to obtain any benefit from the making of costs orders, there would have to be submissions to the Legal Services Commissioner. Ms Black may well have to respond to those submissions. It is likely that would prolong a dispute between the parties as to matters which they now need to put behind them so that they can work constructively on ensuring their children have the benefit of a safe and positive relationship with both their parents.

[60] Mr Banks’ application for the costs orders he seeks is declined.

Solicitors:

Weston Ward & Lascelles, Christchurch

Val Munro, Barrister & Solicitors, Christchurch

Stephen van Bohemen, Barrister, Christchurch.