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S v S [2017] NZHC 1574 (7 July 2017)

Last Updated: 11 August 2017

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004

AND 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

_{www.justice.govt.nz/courts/family-court/legislation/restrictions-on-publications}

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2711 [2017] NZHC 1574

_{JUDGMENT OF KATZ J}

This judgment was delivered by me on 7 July 2017 at 3.30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Holbrook Law, Auckland

Snedden & Associates, Auckland

Counsel: P Main, Barrister, Auckland

A Morahan, Barrister, Auckland

S D Cummings, Barrister, Auckland

S v S [2017] NZHC 1574 [7 July 2017]

Introduction

[1] The appellant (“Mr S”) and the respondent (“Ms S”)¹ were married for approximately 11 years. They separated in 2012 and their marriage was dissolved in

2014. There are three children of the marriage. Since their separation, the parties have had extensive involvement in proceedings in the Family Court relating to both relationship property issues and the care of their children.

[2] On 30 August 2016 Mr S applied for and obtained, on a without notice basis, a temporary protection order under the Domestic Violence Act 1995 (“Act”). In a judgment dated 27 October 2016 Judge B H S Neal discharged that order.² Mr S appeals that decision. He says that the Judge erred in declining to make the protection order final.

Background

[3] 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 is effective legal protection for victims of domestic violence.³ A protection order may be granted when the following criteria are satisfied:

(a) the applicant is or has been in a domestic relationship with the respondent;⁴

(b) the respondent is using, or has used, domestic violence against the applicant, or a child of the applicant’s family, or both;⁵ and

(c) the making of an order is necessary for the protection of the applicant,

_{or a child of the applicant’s family, or both.}⁶

¹ For ease of later citation, this case may be reported and cited as Sutherland v Sutherland (which

_{are not, of course, the parties’ real names).}

2. S v S [2016] NZFC 8740 at [60]. Woodhouse J granted a stay of that judgment pending the outcome of this appeal, on 31 October 2016: S v S [2016] NZHC 2591 at [4].

³ _{Section 5(1).}

⁴ _{Section 7(1).}

⁵ _{Section 14(1)(a).}

⁶ Section 14(1)(b).

[4] Judge Neal found that Ms S had engaged in domestic violence in the form of psychological abuse against Mr S, primarily through the sending of bulk emails to third parties that contained offensive and personal material relating to Mr S. The Judge concluded, however, that a final protection order was not necessary for Mr S’s protection.

[5] Mr S’s notice of appeal raises a number of grounds, many of which were not pursued at the appeal hearing. The remaining grounds of appeal are, in essence:

(a) Did the Judge underestimate the scope of the psychological abuse that had occurred?

(b) Did the Judge err in finding that a protection order was not necessary in all the circumstances?

[6] The principles applicable to an appeal against the making of a protection order were summarised by Moore J in Davis v Devon as follows:⁷

[18] In relation to an appeal against the making of a protection order different appellate principles apply depending on which element under s

14(1) is the subject of appellate scrutiny.

[19] The factual finding that domestic violence has been used by the respondent is subject to the ordinary appellate principles which also recognise the natural advantage a first instance Judge has in seeing and hearing the witnesses giving evidence. The second element, namely whether the making of an order is necessary for the protection of the applicant, is discretionary in nature. As such different appellate principles are engaged.

[20] This aspect was discussed in Surrey v Surrey where the Court of

Appeal stated:

[69] 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 come to the conclusion that he or she did.

_{(Footnotes omitted).}

⁷ Davis v Devon [2016] NZHC 209.

Did the Judge underestimate the scope of the domestic violence that had occurred?

[7] Judge Neal was satisfied that a number of bulk emails that Ms S had sent to various academics, politicians and media outlets, and to Mr S’s employer and colleagues, constituted domestic violence for the purposes of the Act.⁸ Those emails included extremely serious allegations regarding Mr S, including that he had sexually abused the couple’s daughter. The Family Court had previously considered that allegation to be unfounded. Ms S’s emails also disclosed information relating to the parties’ court proceedings (the disclosure of which would appear to breach statutory suppression requirements) and other matters of a “most personal nature”.⁹

Judge Neal held that to the extent the emails contained information about the parties’ private issues they amounted to psychological abuse, and hence domestic violence, against Mr S.¹⁰

[8] Mr S had also argued that a number of Facebook posts and “tweets” sent by Ms S amounted to psychological abuse. The Facebook posts do not appear to be in evidence before me, although at least some of the tweets are. In the tweets Ms S referred to “judicial harassment and intimidation” and referred to Mr S as a

“stalker”.¹¹ In one tweet she posted: “protection order given to someone who has

battered the children and I, destroyed our property”. Two tweets contained images. One is a handwritten drawing, seemingly done by a child, implying sexual abuse. The other is a photograph of a child’s closed eye, showing bruising on the eyelid. Ms S asserts that the first picture was drawn by the parties’ daughter and that the photograph is a photo of their son, showing an injury to his eye inflicted by his father. There is no evidence, however, that these descriptions of the images were included with the relevant tweets. It appears, however, that the same images may have been attached to one or more of Ms S’s emails.

[9] Domestic violence is defined in s 3 of the Act. It includes psychological abuse including intimidation, harassment, damage to property, threats of physical or

_{psychological abuse and financial or economic abuse. The term “harassment” has}

⁸ _{Above n 2, at [44].}

⁹ _{At [43].}

¹⁰ _{At [44].}

11. The tweets do not refer to Mr S by name, but the context suggests that she was targeting her comments at a partner or former partner.

been interpreted in an expansive fashion. Miller J in M v M concluded that it constituted “harassment” to use electronic media to advance false allegations against someone with whom the perpetrator was in a close personal relationship.¹² In that case the appellant had published emails, faxes and oral communications to politicians and a range of other people in which she claimed that the respondent, her brother, had raped her when she was 11 years old (some 40 years’ prior). Those claims had previously been considered unfounded in an earlier Family Court proceeding. The appellant’s aim had been to “shame the respondent by disseminating the allegation”.¹³ Much like the present case, the appellant maintained

throughout the proceedings that her allegations were true.¹⁴

[10] Miller J held that the meaning of “harassment” in the Act differs from that used in the Harassment Act 1997. Parliament has carefully directed the Harassment Act towards behaviours that would cause a reasonable person to fear for his or her own safety. By contrast, “harassment” in the Domestic Violence Act is a branch of “psychological abuse”, which has a “far more extensive meaning”. The legislature’s

concern was to “control domestic violence in all its manifestations”.¹⁵ The Judge

accepted that the Act should be given “such tenable meaning and application as constitutes the least possible limitation” on the rights and freedoms in the New Zealand Bill of Rights Act 1990.¹⁶ However, he noted that the legislature plainly intended to pass a statute that is inherently inconsistent with some of those rights and freedoms. The balance to be struck between protection from harm and the countervailing right to freedom of expression must reflect that evident legislative purpose.¹⁷

[11] The proposition that dissemination of false or unproven allegations is inherently abusive is not novel. As observed by Judge P J Callinicos in AS v JM:¹⁸

[99] To make a false allegation against a person that he or she have committed sexual abuse upon a child is at the extremes of psychological abuse. The consequences of such an allegation are far-reaching. People subjected to such allegations have been known to contemplate suicide, to

¹² _{M v M (2005) 7 HRNZ 971 (HC) at [37].}

¹³ _{At [2].}

¹⁴ _{At [5].}

¹⁵ _{At [23].}

¹⁶ _{At [27], citing Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 (CA) at [16].}

¹⁷ _{At [28], citing N v D [2001] NZFLR 491 (HC) at [38].}

¹⁸ AS v JM [2003] NZFLR 1057 (FC).

react in ways that might lead them to be charged with offences, to suffer their own psychological anxieties. I determine that the making of a false allegation by a person does come within the definition of psychological abuse within s 3 of the Act. ...

[12] In both the Family Court and this Court, Mr Cummings submitted, on behalf of Ms S, that the relevant tweets were “private” and only for her “followers”. Judge Neal concluded that there was “insufficient evidence as to the technical nature of those accounts to determine whether they were private or otherwise”. Due to his uncertainty regarding this issue, the Judge was not satisfied that the tweets amounted

to psychological abuse.¹⁹

[13] I accept Mr S’s submission that the Judge erred on this issue. The facts of Senior v Police bear some similarities to this case. That case concerned a breach of a protection order by way of postings on Facebook. The account was not connected with the victim, but it had 261 followers or friends. Fogarty J did not accept that there was a fundamental distinction between a private and a public social media platform. He observed that:²⁰

... persons who use Facebook are very aware that the contents of the Facebook are often communicated to persons beyond the “friends” who use Facebook. When information is put on a Facebook, to which hundreds of people have access, the persons putting the information on the page know that that information will likely extend way beyond the defined class of “friends”. Very strong personal abuse directed at a former partner, placed on Facebook, read by a large number of friends, some of whom will inevitably have contact in the natural social network with the person being abused, is at the very least highly reckless. It is somewhat improbable to say, which was not said here, “Oh, I never thought it was possible that the person I was abusing could possibly have known about this.”

[14] Ms S acknowledged in evidence in the Family Court that she had almost

2000 Twitter followers at the relevant time. This is also apparent from a screenshot of her Twitter account that has been exhibited. Her tweets therefore had the potential to reach a very wide audience. Indeed the potential audience of her tweets was significantly greater than her bulk emails.

[15] Section 3(4)(b) of the Act mandates a cumulative approach to the issue of abuse, stating that:

¹⁹ _{Above n 2, at [41].}

²⁰ Senior v Police [2013] NZHC 357, [2013] NZFLR 356 at [6].

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.

[16] Applying such an approach in this case, it is my view that Ms S’s tweets should be considered together with Ms S’s emails as forming part of an overall pattern of behaviour that constituted psychological abuse of Mr S.

Did Judge Neal err in concluding that a protection order was not necessary for

Mr S’s protection?

[17] I now turn to consider the second issue on appeal, which is whether the Judge erred in concluding that a protection order was not necessary for Mr S’s protection. When considering this issue, I take into account my finding that both the bulk emails and the tweets constituted psychological abuse of Mr S by Ms S.

The test for necessity

[18] When determining whether it is necessary to make a protection order the Court must consider whether the behaviour forms part of a pattern of behaviour in respect of which the applicant needs protection even if, when viewed in isolation, some or all of the behaviour may appear minor, trivial or unlikely to recur.²¹ The Court is also required to take into account the applicant’s perception of the nature and seriousness of the behaviour, and the effect of that behaviour on the applicant.²²

However, care must be taken not to assign undue weight to the subjective perceptions of the applicant.²³

[19] In Surrey v Surrey the Court of Appeal noted that an assessment of necessity requires an assessment of the need for protection in the future, having regard to the objects of the Act, the statutory factors in s 14,²⁴ as well as any other relevant

factors.²⁵ The Court identified various factors relevant to the consideration of

necessity. One of those factors is the level of risk of future violence, based on past conduct and informed by the subjective views of the victim. Prior offending is

²¹ _{Domestic Violence Act, s 14(3).}

²² _{Domestic Violence Act, s 14(5).}

²³ _{Q v Q [2012] NZHC 1448, [2012] NZFLR 582 at [27].}

²⁴ _{Discussed above at [18].}

²⁵ Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 at [38].

considered to be the most robust predictor of future violence.²⁶ A further relevant factor is the seriousness of the past domestic violence.²⁷ Once an applicant has established past violence and a reasonable subjective fear of future violence, the onus then falls on the respondent to raise countervailing factors that weigh against the need for a protection order.²⁸

The Family Court decision

[20] Judge Neal identified a pattern of behaviour characterised by the harassment and emotional abuse of Mr S, as a result of Ms S divulging personal matters in emails sent to a large number of recipients.²⁹ He recognised a need for Mr S to be

protected from such behaviour.³⁰ However, there were significant countervailing

factors that weighed against the making of a final protection order.

[21] First, Ms S had offered an undertaking to Mr S and the Court not to send any further emails relating to the parties’ issues, or any emails whatsoever to Mr S’s employer or colleagues. (Mr S was not prepared to accept those undertakings in lieu of a protection order).³¹

[22] Second, the inability of the Court to tailor-make a protection order for the parties (directed solely to the issue of email and social media communications) weighed on Judge Neal’s decision. In particular, the Act specifies a number of standard conditions of protection orders, including non-contact provisions that cannot be varied other than by a special condition.³² A final protection order could therefore result in unforeseen and unintended consequences, unrelated to any email or social media issues. In particular, the Judge was concerned that the mere existence of the order could create “awkwardness” in the care arrangements for the children, given that Ms S has responsibility for their day-to-day care.³³ For example,

_{Ms S’s evidence is that, to avoid any risk of contact with Mr S, she is unable to}

²⁶ _{At [40].}

²⁷ _{At [41].}

²⁸ _{At [43].}

²⁹ _{Above n 2, at [48].}

³⁰ _{At [56].}

³¹ _{At [54]-[55].}

³² Such conditions are circumscribed by s 27 of the Act.

accompany the children to extra-curricular school activities, in case Mr S also attends.

[23] The Judge concluded that although the case was sitting on a “fine line”, there was no necessity for a final protection order.³⁴ The provision, through counsel, of Ms S’s undertaking was a key factor in the Judge’s decision. He stated that:

[59] I wish to make it clear to the respondent that the undertakings presented to the Court by the respondent through her counsel were one of the countervailing factors that I have taken into account and that should there be any breach of those undertakings it would be likely that a further protection order would be made on application.

Discussion

[24] I concur with the Judge’s view that the decision as to whether a final protection order is necessary is finely balanced. The necessity for such an order largely turns on the degree of risk that, if she is not constrained by a protection order, Ms S will continue to harass Mr S via email or social media postings.

[25] In assessing the degree of that risk it is helpful to consider the overall pattern of the offending behaviour by Ms S to date. Three separate “bursts” of email and internet activity are relied on by Mr S. The first was during the period from 23 to 29

March 2016. The second was on 8 and 9 May 2016. The third was on 30 August

2016.

[26] It is of note, in my view, that each burst of activity appears to have been triggered by events connected with the Family Court proceedings between the parties. The March 2016 emails were sent immediately following a Family Court hearing to determine Mr S’s application for wardship and parenting orders. The emails sent on 8 and 9 May 2016 (a Sunday and Monday) followed the filing by Mr S of a without notice application for a protection order the previous Thursday (5 May

2016), which the Judge directed the police to serve on Ms S. I infer that that application was likely served on Ms S shortly before her emails were sent. The 30

August 2016 emails claim that Ms S is “being attacked again with more lies” and refer to her having received, that morning, a without notice application for a parenting order.

[27] It is abundantly clear from the material before me that the Family Court proceedings, particularly those relating to the care of the parties’ children, have been deeply stressful and traumatic for both parties. Those proceedings have occurred against the backdrop of a relationship that is dysfunctional in the extreme and characterised by allegations and counter-allegations of the most serious nature. Ms S appears to have been intensely focused on what she perceives as injustices visited upon her by the justice system. As a result she has taken up arms as a “keyboard warrior”, in an apparent attempt to involve politicians, media and others in her grievances.

[28] The proceedings under the Care of Children Act 2004 appear to have been the primary trigger for Ms S’s email outbursts. However, those proceedings have now been resolved, in Ms S’s favour. Pursuant to s 139A of that Act, no new proceedings relating to parenting issues may be commenced without the leave of the Court for two years. I further note that the former family home, the occupation and sale of which was also a source of ongoing acrimony between the parties, has now been sold. Taking these factors into account, there appears to be little or no need at present for any significant ongoing contact between the parties. As a result, it is my view that the risks of further email and social media harassment of Mr S by Ms S have now diminished very significantly.

[29] In my view the Judge was correct to give weight to the undertaking offered by Ms S, through her counsel. If she breaches that undertaking she will be in contempt of court. Further, as the Judge noted, any breach of the undertaking will likely result in a further protection order being made, on application by Mr S. Although the undertaking is expressly limited to emails, and does not cover other social media activity, this simply reflects that the Judge had limited his findings of harassment to Ms S’s emails. For the reasons outlined at [13] to [16] above, I have reached a different view. Ms S should therefore not be under any illusion that she will be able to harass Mr S through other forms of social media, with impunity, if she feels so inclined. Any form of email, internet or social media harassment would likely result in a further protection order being made.

[30] Ms S is a professional woman. She is clearly deeply concerned about the implications of a final protection order being made (particularly given the broad

scope of the standard conditions, which cannot be tailored to address social media usage only). I therefore expect that Ms S will be motivated to self-regulate her own behaviour in order to avoid the risks of being found in contempt of court and, also, of a further protection order being made. This will hopefully provide an additional constraint on Ms S’s behaviour.

[31] Taking all of these matters into account, I have not been persuaded that the Judge erred in concluding that a final protection order was not necessary for the protection of Mr S.

Result

[32] The appeal is dismissed.

[33] My preliminary view is that costs should lie where they fall. I have upheld the Judge’s finding that Ms S engaged in domestic violence in the form of psychological abuse of Mr S. The decision that a protection order was not necessary, given that background, was a finely balanced one. Ultimately, if Ms S had not harassed Mr S in the manner she did, no application would have been necessary.

[34] If costs cannot be agreed based on this preliminary indication, then any memorandum on behalf of Ms S is to be filed and served by 21 July 2017 and any

_{memorandum on behalf of Mr S is to be filed and served by 4 August 2017.}

Katz J