KM V TVL CA758/2013 [2014] NZCA 218

KM V TVL CA758/2013 [2014] NZCA 218 [3 June 2014]NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995,ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO11D OF THE FAMILY COURTS ACT 1980.FOR FURTHER INFORMATION, PLEASE SEEHTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY-COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.IN THE COURT OF APPEAL OF NEW ZEALANDCA758/2013[2014] NZCA 218BETWEEN KMApplicantAND TVLRespondentHearing: 12 May 2014 (further submissions received 13 May 2014)Court: Ellen France, Randerson and French JJCounsel: Applicant in personC F Rieger for RespondentJudgment: 3 June 2014 at 10 amJUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B No order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Ellen France J)Introduction[1] Ms KM seeks leave under s 93(1) of the Domestic Violence Act 1995 to appeal against a decision of Dobson J in the High Court.1 Dobson J upheld a decision of the Family Court declining KM leave to make an application to discharge a protection order.2 The High Court also upheld the decision of the Family Court barring KM from bringing a further application for leave to seek a discharge prior to 18 February 2015. This application for leave to appeal, which is opposed, focuses on the latter decision.Background[2] The background to the application is summarised in this Court's recent decision involving the same parties.3 We largely adopt that description.[3] TVL obtained a protection order on an interim basis in 2007 against KM, his former partner. The order was made under the Domestic Violence Act. The protection order was made permanent in April 2008. The order was extended toTVL's current partner in May 2010. As this Court noted:4There have been numerous breaches of the protection order by KM. KM has, on more than one occasion, been sentenced to terms of imprisonment for those breaches and associated convictions for violence. She is currently serving a term of imprisonment of two years and one month which relates to charges of intentional damage and breach of the protection order following an incident on 2 December 2012.[4] In a recent judgment in a judicial review proceeding brought by KM, Ronald Young J noted that KM has been charged with three alleged breaches of the protection order in November and December 2013.5 She has pleaded not guilty and is awaiting a case review hearing.1 KM v TL [2013] NZHC 2479.2 KM v TVL [2013] NZFC 1241.3 KM v TVL [2014] NZCA 17.4 At [2]. The Supreme Court declined KM leave to appeal against her current term of imprisonment: [KM] v R [2014] NZSC 48.5 KM v TVL [2014] NZHC 945 at [6]. Ronald Young J in that judgment concluded that KM should not have been banned from defending the application for the final protection order but declined to grant relief given the delay, the existence of appeal rights, their exercise and the factKM's conduct "easily" justified the issue of a protection order: at [45].[5] After KM was unsuccessful in seeking a discharge of the protection order in 2011, Judge Ellis in the Family Court directed that KM must first seek leave before making any further application for a discharge.6[6] KM took that step in August 2012. Her application for leave was declined by Judge Johnston on 18 February 2013 after a hearing that day.7 Judge Johnston alsoconsidered "[t]he time ha[d] come" for "some restriction to any further applicationfor discharge" and ordered that no further application for leave to apply for a discharge of the protection order was to be made before 18 February 2015.8 KM'sappeal against this decision was dismissed by Dobson J in the judgment for which leave to appeal is sought. In concluding that the order preventing KM from making further applications to apply for a discharge until the stated date was not in error, Dobson J stated:9Barring a litigant access is not a step to be taken lightly, but numerous Family Court Judges have grappled with Ms M's obsessive opposition to theexistence of a protection order, which the record shows continues to bejustified. Each unsuccessful initiative by Ms M would have caused stress and expense to Mr L. A balancing of interests is involved .[7] We add that KM has also applied unsuccessfully to vary the protection order and for a protection order in her favour against TVL.The application for leave[8] Section 93(1) of the Domestic Violence Act provides that a party to an appeal to the High Court from a Family Court decision may, with the leave of this Court, appeal to this Court on a question of law. To justify a second appeal, the question of law the applicant wants to raise must be capable of bona fide and serious argument and of sufficient importance to outweigh the costs and delay of a further appeal.10[9] The first question KM wishes to advance is whether the Family Court had power to restrict her from bringing a further application to discharge the protection6 KM v TVL FC Lower Hutt FAM-2007-032-944, 16 August 2011 at [40].7 KM v TVL, above n 2.8 At [25].9 At [25].10 Renshaw v Underhill [2008] NZCA 308 at [5]; L v W (No 3) [2004] NZFLR 429 (CA) at [10].order. She raises a related issue of whether it was appropriate to use s 27 of the Domestic Violence Act to limit her ability to make further applications. Section 27 gives the court making a protection order the ability to impose special conditions where the court considers that is "reasonably necessary" to protect the protectedperson from further domestic violence by the respondent. KM says there is no power to restrict her access in this way and she points out there is no specific power in the Domestic Violence Act permitting the Family Court to limit the making of applications. Further, in her submission s 27 is inapplicable because the making of the order was not reasonably necessary for the protection of TVL or of his partner.[10] The second question KM wishes to raise relates to the adequacy of the noticeshe received of the respondent's application that she be barred from making furtherapplications for a set period of time. She says it was not sufficient because while she was made aware of the application the information given to her was in very general terms.[11] TVL opposes the application. The submission is that there is jurisdiction to impose a special condition restricting access to the Court under s 27 of the Domestic Violence Act and that KM had sufficient notice of the application. In these circumstances, it is submitted that the proposed appeal raises no bona fide question of law. TVL also says that the interests of justice do not favour a grant of leave for two reasons. First, the continued litigation has the effect of sustaining a communication and contact with TVL and his partner which, if not occurring as part of the court process, would be a breach of the protection order by KM. Secondly,TVL says that any appeal would be nugatory as KM's actions demonstrate that theprotection order remains necessary. Accordingly, any reversion back to the Family Court will not alter the current position.Our assessment[12] The question about the scope of the Family Court's power to controlproceedings it considers are an abuse of process is in issue here for two reasons. First, as KM notes, the Domestic Violence Act is silent on the point. A contrast can be drawn with s 163 of the Family Proceedings Act 1980 which contains a specificpower to control for abuse of process. However, r 194 of the Family Courts Rules 2002 gives the Family Court power to stay or dismiss proceedings where, among other things, the proceedings are an abuse of process. The Family Court has decided that r 194 applies in domestic violence proceedings.11 Further, there are cases recognising the inherent powers of inferior courts to control an abuse of process.12[13] Secondly, it is not entirely clear whether Judge Johnston found that the order made was necessary to protect TVL and his partner because of ongoing abuse or because of abuse of process more generally. On this aspect, Dobson J said:13 it was open to Judge Johnston to treat [the] protracted history asconstituting a form of abuse of the Court's process, thereby triggering the Court's jurisdiction to impose constraints on further applications of the sametype by Ms M.[14] Section 27, as we have foreshadowed, states that the court may imposespecial conditions on a protection order as are "reasonably necessary, in the opinionof the court, to protect the protected person from further domestic violence by therespondent, or the associated respondent, or both". Accordingly, to found a basis for the order made (if it was considered to be made under s 27), it would have to be shown that the proceedings were effectively a form of psychological abuse and so within the definition of domestic violence.[15] Section 3(1) of the Act defines domestic violence as "violence against [a] person by any other person with whom that person is or has been in a domestic relationship". Section 3(2) states that "violence" includes both physical and psychological abuse. Psychological abuse is defined as relevantly including, but is not limited to:(i) intimidation:(ii) harassment:(iii) damage to property:(iv) threats of physical abuse, sexual abuse, or psychological abuse:11 RGPY v AL (2005) 24 FRNZ 369 (FC).12 For example McMenamin v Attorney-General [1985] 2 NZLR 274 (CA) at 276; and Zaoui v Attorney-General [2005] 1 NZLR 629 (SC) at [35].13 At [24].[16] The terms of a protection order may be varied under s 46 and the respondent submits that may have provided another source of power to make the order in issue but that seems an unlikely basis for the order made.[17] As to the question of notice, KM accepts that she received a copy of a memorandum dated 7 February 2013 from then counsel for TVL prior to the hearing in the Family Court on 18 February 2013. The memorandum stated: "Counsel will also request that the Applicant is banned from making applications to discharge the protection order for a specified period of time." As noted, Judge Ellis at an earlier point in time had made an order banning the applicant from making applications to discharge the protection order without leave but without any time bar on the making of a leave application.[18] KM filed submissions for the hearing on 18 February. In those submissions she opposed the request for a ban "for a specified period of time because Judge Ellishas already put in place adequate protection" for the respondent and it was not KM's fault that the respondent "decided to muck around with the Family Court procedure".These submissions were dated 12 February 2013. Accordingly, Dobson J said:14Ms M was afforded an opportunity to be heard at the 18 February hearing onthe necessity and appropriateness of the new condition. Ms M's submissions record that she argued against any ban, and that the argument ended with an unresolved difference between the parties and the Judge as to the appropriate length of any ban.[19] It follows from this discussion that it is possible to identify questions of law that arise on the proposed appeal. However, whether a second appeal is warranted on these questions also has to be considered in light of the matters raised by TVL. We have evidence before us of the very real strain and drain on resources that this ongoing litigation has caused TVL and his partner. On its own, that factor would not necessarily have dissuaded us from giving leave. However, when we add to that the fact that the appeal would serve no practical purpose, the balance in our view is against the grant of leave. The reality is that between now and the expiry, in February 2015, of the Family Court order barring her from applying for leave to14 At [17].apply for a discharge of the protection order, it is unlikely that KM would get leave and equally unlikely that the order would be discharged.Decision[20] For these reasons, the application for leave to appeal is dismissed.[21] We decline to make an order for costs on the application. Although she hasbeen unsuccessful, KM's application raises issues which the Court should consider atsome point. Certainly, we do not consider the question of the Family Court's powerto make an order such as it did in this case is clear cut. Further, given, as Dobson Jsaid, "[b]arring a litigant access to the courts is a relatively drastic step",15 it may well be that a more formal application and notice should have been provided to KM. That may, for example, have enabled her to obtain some advice or further develop her own argument on the point.Solicitors:Thomas Dewar Sziranyi Letts, Lower Hutt for Respondent15 At [25].