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High Court of New Zealand Decisions |
SUBJECT TO S125 DOMESTIC VIOLENCE ACT
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV-2003-485-2714
UNDER the Domestic Violence
Act 1995
IN THE MATTER OF an Appeal Against the Making of a
Protection Order
BETWEEN M
Appellant
AND M
Respondent
Hearing: 21
September 2005
Appearances: T Ellis for Appellant
D La Hood for Respondent
Judgment: 6 October 2005
RESERVED JUDGMENT OF MILLER J
[1] The appellant broadcast e-mails, faxes, and oral communications, to
politicians
and others, claiming that the respondent, her brother, raped her when she
was aged 11, some 40 years ago.
[2] In the Family
Court, Judge Grace concluded, after hearing from a number of
witnesses, that the allegation of rape was unfounded. He found that
it was the
appellant's purpose to shame the respondent by disseminating the allegation.
[3] The Judge held that her behaviour
was psychological abuse and harassment
of the respondent for the purposes of the Domestic Violence Act 1995:
For any person
to be subjected to the number of e-mails and faxes that have
been disseminated about them, raising such a sensitive and damning
allegation would clearly be most unwelcome. It has the potential for
M V M HC WN CIV-2003-485-2714 6 October 2005
damaging that person's reputation and belittling them in the eyes of the
community at large. I have no doubt that
that would constitute
psychological abuse and harassment, and therefore falls clearly within the
definition of "violence"
in terms of the definition in s.3.
[4] The Judge found that the appellant intended to continue disseminating the
allegations
unless restrained. He made a final protection order, attaching two special
conditions to it:
[Mrs M] is not either personally
or through any agent to send or disseminate
any e-mail, fax, letter or correspondence of any description whatsoever
which refers to any allegation that [Mr M] has in any way raped or sexually
abused her as a child.
[Mrs M] is not
either personally or through any agent to disseminate orally
to any member of the public any allegation that [Mr M] has in
any way raped
or sexually abused her as a child.
[5] The appellant maintains her allegations were true, but for purposes
of this
appeal Mr Ellis accepted that the Judge's findings of fact were open to him. He
contended that the Judge erred in that:
a) He wrongly found that the appellant's behaviour constituted
psychological abuse or harassment, and
therefore had no jurisdiction
to issue a protection order.
b) The special conditions precluding dissemination
of e-mails, faxes, or
letters of any description, or oral communications, containing the
allegation
of rape were unduly wide and were imposed without
consideration of the New Zealand Bill of Rights Act in respect of
the
right of freedom of expression. Particulars given are that the orders
would prevent any communication
with police to further her criminal
complaint of rape, or pursuit of a civil proceeding, or pursuit of
psychological counselling.
The Domestic Violence Act 1995
[6] The object of the Act is to reduce and prevent violence
in domestic
relationships by recognising that domestic violence, in all its forms, is unacceptable
behaviour and ensuring that
there are effective legal protections for its victims.
"Domestic violence" receives an extended definition in s3, which provides so far as
relevant:
3 Meaning of "domestic
violence"
(1) In this Act, domestic violence, in relation to any person, means
violence against that person by
any other person with whom that person is,
or has been, in a domestic relationship.
(2) In this section, violence
means--
(a) Physical abuse:
(b) Sexual abuse:
(c) Psychological abuse,
including, but not limited to,--
(i) Intimidation:
(ii) Harassment:
(iii) Damage to property:
(iv) Threats of physical abuse, sexual abuse, or
psychological abuse:
(v) In relation to a child, abuse of the kind set out in
subsection (3) of this section.
(4) Without limiting subsection (2) of this section,--
(a) A single act may amount to abuse for the purposes of that
subsection:
(b) A number of acts that form part of a pattern of behaviour
may amount to abuse for that purpose,
even though some or
all of those acts, when viewed in isolation, may appear to be
minor
or trivial.
(5) Behaviour may be psychological abuse for the purposes of
subsection (2)(c) of this section
which does not involve actual or
threatened physical or sexual abuse.
[7] The Court may make a protection order
if it is satisfied that the respondent is
using, or has used, domestic violence against the applicant and the making of an
order
is necessary for the applicant's protection. Section 14(5) provides that when
deciding whether to make a protection order the Court
must have regard to the
applicant's perception of the nature and seriousness of the behaviour, and its effect
on the applicant.
[8] Section 19 prescribes standard conditions of every protection order. One of
the standard conditions is that the respondent
must not engage, or threaten to engage,
in behaviour, including intimidation or harassment, which amounts to psychological
abuse
of the protected person. Under s27 the Court may impose any conditions that
are reasonably necessary, in the Court's opinion, to
protect the protected person from
further domestic violence.
First ground of appeal: was the appellant's behaviour psychological
abuse or
harassment?
[9] The Judge found that the appellant had circulated an e-mail and faxes to
virtually every Rape Crisis
Centre in New Zealand, the Prime Minister, various
Ministers of the Crown and other politicians, and other people throughout New
Zealand. The allegation made in each case was the respondent raped her when she
was aged 11. She also laid a complaint with the police
in May 2003 and she sought
a protection order. The Family Court orders were made on the respondent's
cross-application. I infer
that the cross-application was brought only in respect of
the circulation of the email and faxes and other messages broadcast by
the appellant.
Submissions
[10] Mr Ellis submitted that the Judge failed to analyse whether the behaviour
actually constituted
psychological abuse or harassment. Relying on Westcott v
Schoeler (2001) 20 FRNZ 381, he argued that behaviour may qualify as
psychological abuse only if it is either one of the specific behaviours listed in
s3(2)(c)(i)
to (v), such as harassment or intimidation, or if it subjected the victim to
the abuser's will to the extent that the victim's will
was overborne. He accepted that
the appellant's communications were disturbing and may even have been offensive
and shocking, but
submitted that the respondent's will was not overborne. He also
argued that the appellant's behaviour was not harassment, appealing
to the definition
in the Harassment Act 1997:
3 Meaning of "harassment"
(1) For the purposes of this Act, a person harasses
another person if he
or she engages in a pattern of behaviour that is directed against that other
person, being a pattern of behaviour
that includes doing any specified act to
the other person on at least 2 separate occasions within a period of 12
months.
(2)
To avoid any doubt,--
(a) The specified acts required for the purposes of subsection (1)
may be the
same type of specified act on each separate
occasion, or different types of specified acts:
(b) The
specified acts need not be done to the same person on
each separate occasion, as long as the pattern of behaviour
is
directed against the same person.
4 Meaning of "specified act"
(1) For the purposes of this Act, a
specified act, in relation to a person,
means any of the following acts:
(a) Watching, loitering near, or preventing
or hindering access
to or from, that person's place of residence, business,
employment, or any other
place that the person frequents for
any purpose:
(b) Following, stopping, or accosting that person:
(c) Entering, or interfering with, property in that person's
possession:
(d) Making contact
with that person (whether by telephone,
correspondence, or in any other way):
(e) Giving offensive material
to that person, or leaving it where
it will be found by, given to, or brought to the attention of,
that person:
(f) Acting in any other way--
(i) That causes that person ("person A") to fear for
his
or her safety; and
(ii) That would cause a reasonable person in person A's
particular circumstances to fear for his or her safety.
(2) To avoid any doubt, subsection (1)(f) includes
the situation where--
(a) A person acts in a particular way; and
(b) The act is done in relation to a person
("person B") in
circumstances in which the act is to be regarded, in
accordance with section 5(b),
as done to another person
("person A"); and
(c) Acting in that way--
(i) Causes person A to fear for his or her safety; and
(ii) Would cause a reasonable person in
person A's
particular circumstances to fear for his or her
safety,--
whether or not acting in that way causes or is likely to cause person
B to fear for person B's safety.
(3) Subsection (2) does not limit the generality of subsection (1)(f).
[11] Mr Ellis submitted that `harassment'
in the Domestic Violence Act ought to
be read in a manner consistent with the definition in the Harassment Act, since the
scheme
of the latter Act is such, in his submission, that Parliament intended to
accord identical rights and obligations in relation to
all people, notwithstanding that
some would not be in domestic relationships. He submitted that the appellant's
behaviour could not
amount to harassment for purposes of the Harassment Act.
[12] Lastly, Mr Ellis contended that psychological abuse and harassment must be
construed in a manner that is sensitive
to the appellant's right to freedom of
expression.
Whether psychological abuse is confined to exploitation of power or control
over
protected person
[13] The first issue is whether, as Mr Ellis contended, the term "psychological
abuse" is confined to
behaviour that amounts to an abuse of power, except where it
amounts to harassment, intimidation, or one of the other behaviours
specified in
s3(2)(c)(i) to (v).
[14] As defined in the Act, the term includes but is not limited to harassment,
intimidation,
and threats of physical, sexual, or psychological abuse. The Oxford
English Dictionary includes in its definitions of "psychological":
Of or pertaining to the functioning of the mind, mental; affecting or
pertaining to the mental and emotional state
of a person
[15] When used as a noun, "abuse" means, according to the same dictionary:
Injury, wrong, ill-usage ....
Injurious speech .... Violation, defilement
[16] Westcott v Schoeler concerned alleged psychological abuse of a son in law by
his father in law. There was a long history of family estrangement, and the incidents
concerned arose out of three chance meetings
at which the respondent asked the
applicant's young son when he was coming to visit. Judge Moss held that
psychological
abuse must involve:
At least some elements of the items listed in s 3(2)(c) of the Act, or
behaviour which viewed
objectively, taking into account the outlook of the
applicant, [sic] the purpose and effect of creating or sustaining an abusive
power and control dynamic, whereby the victim is subjected to the imposed
will of the abuser to such an extent that
the victim perceives he or she is
unable to assert his or her own wishes.
[17] The Judge cited examples from Butterworths
Family Law Service at 7.606.
They included persistent phone calls, interfering with the victim's access to places,
waylaying, and
engaging in acrimonious conversations against the victim's will.
[18] I accept Mr Ellis' submission that Judge Moss appeared
to conclude that
unless the offending behaviour has some of the elements in s3(2)(c), such as
intimidation or harassment, it must
have the purpose and effect of creating or
sustaining such a relationship of power and control if it is to fall within the meaning
of psychological abuse.
[19] The other Family Court decisions to which I was referred recognise that
psychological abuse often
displays those characteristics but do not attempt to define
it by reference to them. In G v C (1997) 16 FRNZ 201, Judge Walsh held:
While it is impossible to define psychological abuse absolutely I think it can
be said that there
are some characteristics of behaviour that are peculiar to
psychological abuse such as:
· Behaviour which chips at
a person's confidence or is designed to "put a
person down" or humiliate that person.
· Abuse of power, which by
degrees makes another person apprehensive
and unsettled.
· Exploiting an emotional or psychological vulnerability
of another party.
· Indulging in behaviour designed to unsettle, antagonise, offend, annoy,
provoke or worry another
party.
· Implicit or explicit threats.
Those characteristics are by no means exhaustive.
[20] AS v JM, [2003] NZFLR 1057 also concerned false allegations of sexual
abuse. Following R v S [2003] NZFLR 275, Judge Callinicos held that where a
person makes false allegations against another, especially allegations of sexual
impropriety
or of a nature indicating that the person was unfit to have the care of
children, then that would amount to psychological abuse.
Such allegations could
well have the purpose and effect of creating or sustaining an abuse of power, could
exploit any emotional
or psychological vulnerability, and would be designed to
unsettle, antagonise, offend or annoy another party.
[21] I accept that
in many - perhaps most - cases, psychological abuse will involve
an attempt to establish or exploit a relationship characterised
by control over the
protected person. However, the legislature has not defined the term in that way. It is
doubtful whether any single
definition could encapsulate all forms of behaviour
affecting the protected person's emotional or mental state, still less the circumstances
in which such behaviour will amount to abuse. Mr Ellis responsibly referred me to a
paper that Judge Jan Doogue presented to the
Triennial New Zealand Law Society
Conference and 4th New Zealand Family Law Conference. She suggested that one of
the most useful
definitions is acts of commission or omission by a parent or guardian
"that are judged by a mixture of community values and professional
expertise to be
inappropriate or damaging." That open definition has much to commend it. The
question whether psychological abuse
has occurred is one of fact, and the Court may
be guided when answering it, particularly in marginal cases, by expert evidence. In
this context, of course, the acts concerned must be those of someone against whom
or in respect of whose behaviour an application
may be brought under the Domestic
Violence Act.
[22] Nor do I think it is necessary to confine `harassment' to the definition
employed in the Harassment Act. It is true that the Court may be guided by a
definition that Parliament has used in legislation that
serves an analogous purpose.
In the Harassment Act, the legislature took care to confine the term to behaviours
that might cause
a reasonable person to fear for his or her safety. The applicant must
be the immediate object of each of the behaviours listed in
s4(1)(a) to (e). In this
case, the appellant's messages were not addressed to the respondent; rather, her
purpose was to shame him
by sending the messages to others. There is no
suggestion that he feared for his safety.
[23] But the domestic context
is all-important. The term `psychological abuse' in
the Domestic Violence Act has a far more extensive meaning than harassment,
reflecting
the legislature's concern to control domestic violence in all its
manifestations. And `harassment' in ordinary usage is not confined
to behaviour that
causes the victim to fear for his or her safety. According to the Oxford English
Dictionary, it means `vexation,
worry'.
[24] In R v S [2003] NZFLR 275, Gault P observed at paragraph [1] that false
allegations of sexual impropriety and misuse of drugs "plainly constituted
harassment
amounting to psychological abuse of the protected person". In that case
the appellant had made false allegations to the Children
and Young Persons Service
that the respondent was unfit to have care of her two children as she had engaged in
sexual impropriety
and misuse of drugs. As Mr Ellis submitted, that observation was
obiter. The case was concerned with a claim that the appellant's
allegations attracted
the privilege attaching to informers. Nonetheless, Gault P clearly thought it self-
evident that such conduct
amounted to harassment for domestic violence purposes.
The New Zealand Bill of Rights Act (`NZBORA')
[25] The Family Court
Judge did not refer expressly to NZBORA, unsurprisingly
since counsel appearing before him did not invoke it. I declined Mr Ellis'
invitation
to set the order aside on the ground that the Judge ought to have considered
NZBORA in any event. There was no objection
to the point being taken on appeal.
For reasons outlined below, I have concluded that the right to freedom of expression
was a relevant
but not weighty consideration in the circumstances. Accordingly, I
approach the appeal by inquiring whether the decision that the
Judge reached was
reasonably open to him, had he taken NZBORA into account.
[26] Mr Ellis contended that NZBORA must be taken
into account, in all cases,
when considering under s14(1) whether an order is necessary to protect the applicant
or a child of the
applicant's family, and when considering under s27 whether special
conditions are reasonably necessary to protect a protected person.
In this case, he
submitted, behaviour that is justified as the exercise of a right or freedom protected
by NZBORA may not amount
to psychological abuse.
[27] An enactment that limits the rights and freedoms contained in the New
Zealand Bill of Rights Act
should be given "such tenable meaning and application as
constitutes the least possible limitation" on the rights and freedoms contained
in the
Bill of Rights: Moonen v Film & Literature Board of Review [2000] 2 NZLR 9.
The Court held that:
[17] Although other approaches will probably lead to the same result, those
concerned with the
necessary analysis and application of ss 4, 5 and 6 of the
Bill of Rights may in practice find the following approach helpful
when it is
said that the provisions of another Act abrogate or limit the rights and
freedoms affirmed by the Bill of
Rights. After determining the scope of the
relevant right or freedom, the first step is to identify the different
interpretations
of the words of the other Act which are properly open. If only
one meaning is properly open that meaning must be adopted.
If more than
one meaning is available, the second step is to identify the meaning which
constitutes the least possible
limitation on the right or freedom in question. It
is that meaning which s 6 of the Bill of Rights, aided by s 5, requires
the
Court to adopt. Having adopted the appropriate meaning, the third step is to
identify the extent, if any, to which
that meaning limits the relevant right or
freedom.
[18] The fourth step is to consider whether the extent of any such
limitation,
as found, can be demonstrably justified in a free and democratic society in
terms of s 5. If the limitation
cannot be so justified, there is an inconsistency
with the Bill of Rights; but, by dint of s 4, the inconsistent statutory
provision nevertheless stands and must be given effect. In determining
whether an abrogation or limitation of a right
or freedom can be justified in
terms of s 5, it is desirable first to identify the objective which the legislature
was endeavouring to achieve by the provision in question. The importance
and significance of that objective must then be assessed.
The way in which
the objective is statutorily achieved must be in reasonable proportion to the
importance of the objective.
A sledgehammer should not be used to crack a
nut. The means used must also have a rational relationship with the
objective,
and in achieving the objective there must be as little interference
as possible with the right or freedom affected. Furthermore,
the limitation
involved must be justifiable in the light of the objective. Of necessity value
judgments will be involved.
[28] I accept that the Domestic Violence Act may impinge upon a number of the
rights and freedoms in NZBORA, and where it does
so the Act must be construed in
the manner described in Moonen. But it will not do so in every case. And it is
inescapable, as Doogue
J held in N v D [2001] NZFLR 491 at [38], that the
legislature intended to pass a statute that is inherently inconsistent with some of the
rights and freedoms contained
in NZBORA. The balance that must be struck
between the requirements or protection of the protected person and the rights
of the
respondent under NZBORA must reflect that evident legislative purpose.
[29] N v D dealt with conditions imposed under
s27 restricting the appellant's
ability to enter Hawkes Bay. However, I accept that NZBORA may become relevant
when the Court is
deciding whether it is necessary to make a protection order under
s14(1)(b). If so, the Court must balance the respondent's rights
and freedoms where
they are affected by the proposed order.
[30] Specifically, I accept Mr Ellis' submission that a decision
to restrain a person
from identifying herself or himself as a victim of sexual abuse may affect that
person's freedom of expression.
He referred me to a decision of the Federal
Constitutional Court of Germany or Bundesverfassungsgericht, B v G Decision 1 B
v
R 131/96. It concerned the right of freedom of opinion, which is an aspect of the
right of personality protected by Article 2(1)
of the German Constitution. The
complainant had publicised allegations of sexual abuse against her father, who
sought an injunction.
The lower Court held that the allegations were true, but an
injunction was granted.
[31] The Constitutional Court reversed, holding
that the injunction was not
reconcilable with the basic right of freedom of opinion, which had been limited by
her inability to use
her name when speaking in public about sexual abuse by her
father. The Court held that she was prevented from widening the radius
of those
with whom she could communicate beyond counsellors and her immediate circle,
and could no longer appear in public as an
identifiable person. Her status as a victim
would be reinforced if she was unable to give an account in a personalised form.
[32]
The Court accepted that the respondent's right of personality had to be taken
into account. That did not extend to a right to be
presented publicly in a way that
was pleasant for him, but it did protect him against representations that distorted or
falsified,
as well as representations that might substantially interfere with the
development of his personality.
[33] The Court held that
it was necessary to balance the respondent's rights under
civil law and the appellant's constitutional right to freedom of expression.
It held
that the lower Court had failed to "adequately concretise" the importance of being
able to use one's own name as an aspect
of freedom of opinion, to lend authenticity
to the complaint and so that others may contact the complainant. Nor had it
recognised that sexual abuse of children is a question substantially affecting the
public. Personifying the experience of sexual
abuse can help to counteract a social
taboo and encourage others to speak out. On the other hand, the lower Court also
failed to
address the extent to which publication would actually be harmful for the
respondent.
[34] The decision illustrates that the
right of freedom of expression extends to the
respondent's right to use her own name in connection with her status as a victim.
But
I accept Mr La Hood's submission that B v G is readily distinguishable. There
the allegations were found to be true, so the appellant's
status as a victim was not in
doubt. Had the allegations been found untrue, it is apparent from the decision that
the balance might
have swung decisively in favour of continued suppression.
[35] Mr Ellis also contended that NZBORA may be relevant under s14(1)(a)
when
the Court is determining whether the respondent used domestic violence against the
applicant. He accepted that it is unlikely
to play a role in a case of physical or sexual
abuse, since no countervailing interest will arise that might affect the Court's
characterisation
of what the respondent did. But in a case such as the present, he
submitted that the term `psychological abuse' ought to have been analysed in a way
that was sensitive
to the appellant's right to freedom of expression. He contended
that, even if her allegations were untrue, her right to freedom of
expression ought to
have been brought into the balance and, had that been done, the Judge ought to have
concluded that her behaviour,
although offensive to the respondent, was not abuse.
[36] I accept that the right to freedom of expression may become relevant
when
determining whether domestic violence has occurred in a case in which the applicant
seeks to restrain the respondent from publishing
an allegation that the applicant has
sexually abused her. The Act is concerned not only with the psychological effect of
her behaviour
on the respondent but also with the question whether what she is doing
is wrongful and so amounts to abuse. It would be difficult
to contend that the
respondent should be restrained, whatever the effect on the applicant, if her
allegations were true. In such
a case, the question whether publicity could be
described as an abuse ought to take into account the respondent's right to freedom
of
expression. Even if the allegations are or may be untrue, her right to freedom of
expression is affected, although it is obviously
far easier to characterise false
allegations as abuse.
The Judge's conclusions
[37] The Judge held that the appellant's behaviour
constituted psychological abuse
and harassment. That conclusion was plainly open to him, in circumstances in which
he had found that
the allegation of rape was untrue. Such behaviour is likely to
impose psychological pressure on the respondent. Indeed, she accepted
that her
purpose was to shame him and the chosen audience for her messages reflected that
purpose. The respondent is a person of
stature within her iwi, and she sought to
highlight what she described as iwi-sanctioned crime against women and children on
marae.
It can also be characterised as abuse, because the allegations were held to be
untrue and her messages were not designed to further
criminal or civil proceedings
founded on them.
[38] This ground of appeal fails.
The second ground of appeal: do the conditions
breach the New Zealand Bill of
Rights Act?
[39] The Judge imposed the special conditions because he found that:
The
sort of correspondence that [Mrs M] has embarked upon goes well
beyond what could be described as `usual' or communication
that would
occur in ordinary day to day existence. It constitutes a deliberate attack on
the character of [Mr M]. It
is an attack which [Mrs M] acknowledges will
not cease unless she is put in a position where she is forced to desist.
Submissions
[40] Mr Ellis contended that the special conditions were excessively wide, and
imposed without considering her right to freedom
of expression. He submitted that
the special conditions prevent any communication with counsel, for the purpose of
this appeal or
otherwise, and prevent any communication with counsel or solicitors
to bring civil proceedings. Further, the orders are contrary
to the appellant's right of
access to a Court and legal advice under s27 of NZBORA in that they prevent any
communication with the
police to pursue her criminal complaint of rape, preventing
any meaningful communication with private investigators to assist either
a criminal
or civil proceeding, and preventing her continuing with psychological counselling.
[41] Mr La Hood argued that the
imposition of a special condition is an exercise
of discretion, and as such this Court ought to exercise the usual restraint on appeal.
He also submitted that the argument that the appellant is unable to further her
complaint of rape with the police or undertake psychological
counselling or
investigate her complaint in any manner rests on too wide a reading of the special
conditions. The Judge prohibited
dissemination of the allegations, and
"disseminate" carries the meaning of "scatter about, sow in various places".
The reach of the special conditions
[42] Mr Ellis did not take issue with the Judge's finding that the appellant fully
intended, at the time of the hearing two years
ago, to continue her behaviour unless
restrained. The criticism of the Family Court decision is that the special conditions
go further
than was reasonably necessary to achieve effective legal protection. In
particular, do the special conditions have the effect of
precluding pursuit of criminal
or civil proceedings, including briefing counsel, or preventing the appellant from
undergoing counselling,
as Mr Ellis contends? If so, Mr La Hood accepted they
must be modified. Mr Ellis also contended that the order went too far in
that it
precluded the appellant from speaking about the alleged rape to her 12 siblings, all of
whom are already aware of the allegation.
[43] The Judge used the word "disseminate". His choice of that word is
understandable in the circumstances, because
the application was concerned with the
appellant's campaign to shame the respondent by broadcasting her allegations so as
to give
them the widest possible publicity. The Court was not concerned with an
application to restrain her from communicating with counsel,
the police, or a
counsellor.
[44] I accept that "disseminate" has the meaning contended for by Mr La Hood.
However, it is open
to the construction that it would also prohibit communication to
counsel or advisors, which could not reasonably be considered necessary
for the
respondent's protection. Subject to the point next mentioned, I would allow the
appeal to the extent only that the special
conditions would be modified to exclude
such persons by adding to each special condition the following words:
Provided that
nothing in this special condition precludes Mrs M from
communicating with her siblings and her daughters, or her solicitors
or
counsel, or any private investigator for the purpose of preparing civil or
criminal proceedings, or any person acting
in a professional capacity as
counsellor to Mrs M.
Undertaking not to further disseminate allegations
[45] Mr Ellis'
instructions are that the appellant has complied with the order for
two years now. Through him she undertook that she would continue
to refrain from
disseminating the allegation that the respondent raped her, subject to the proviso that
she was able to communicate
with solicitors or counsel, with any private investigator
for the purpose of preparing criminal or civil proceedings, with any person
acting in
a professional capacity as counsellor to her, or with her 12 siblings and her
daughters. He invited me to discharge the
order on the ground that it is no longer
necessary. The Court has jurisdiction on appeal to make any order that the Family
Court
might have made: s91 Domestic Violence Act.
[46] Mr La Hood was taken by surprise, and I gave him time to take instructions
and file an affidavit if he wished to do so, before determining whether to allow the
appeal on the ground that the order is no longer
necessary, or whether to remit the
matter to the Family Court for determination.
[47] The respondent swore an affidavit in
which he deposed that he does not trust
the appellant to abide by any undertaking. He says the appellant has a history of
instability
and general troublemaking when she does not get her own way. He
attached a letter that has been circulated around the iwi alleging
among other things
that executive trustees and directors, of whom he is one, have failed to give full
financial expenditure reports.
He accepted that is not a breach of the protection
order, but said it shows the length to which the appellant will go to shame him.
[48] However, it appears that the appellant has not breached the protection order,
and in circumstances where she has given
an undertaking I am satisfied that it is no
longer required.
Result
[49] The appeal is allowed in part. Rather than modify the special conditions,
however,
I will discharge the order on the ground that it is no longer necessary.
[50] In the circumstances, there will be no order
as to costs.
Delivered at 11.00 am this 6th day of October 2005.
F Miller J
Solicitors:
N Dunning, Wellington for Appellant
Gilbert Swan, Wellington for Respondent
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