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K v S [2021] NZHC 2082 (11 August 2021)

Last Updated: 9 November 2021

JUDGMENT OF GWYN J

(Application under s 60 Family Violence Act 2018)

Introduction

• [1] Ms K is the mother of J. On 30 March 2020, Judge T M Black in the Family Court issued a place of safety warrant with respect to J and removed J from Ms K’s care under that warrant.

K and B v S [2021] NZHC 2082 [11 August 2021]

• [2] Ms K and Mr B, Ms K’s father, have appealed that decision (as well as an evidential ruling made by the Judge in that proceeding). They have also sought judicial review of the decision and for the matter to be transferred from the Family Court to the High Court. The latter two proceedings are currently stayed pending the outcome of the substantive appeal.

• [3] Ms K and Mr B have also filed the present application (the application), under the Family Violence Act 2018, seeking a protection order under s 60 in favour of J, against the respondents, Ms S and Mr S. Mr S is J’s father, and Ms S her paternal grandmother.

• [4] The application is opposed by the respondents. Ms Barry, counsel for the respondents, has filed a memorandum dated 6 August 2021, setting out the basis of their opposition and inviting the Court to strike out the application as an abuse of process, under r 5.49 or r 15.1 of the High Court Rules 2016 or the court’s inherent jurisdiction.

• [5] Mr B and Ms K have filed a memorandum dated 8 August 2021 addressing those grounds of opposition.

• [6] Ms Forrest, who has been appointed as counsel to assist the Court in this and all related matters, has also addressed the application in a memorandum dated 8 August 2021.

• [7] At the call of this matter before me, Mr B on behalf of himself and Ms K, and Ms Barry on behalf of the respondents, agreed that it was appropriate for me to consider the arguments in relation to striking out the application on the basis of the memoranda filed and to issue a judgment accordingly.

Grounds for dismissal or strike-out

• [8] The respondents put forward a number of grounds of opposition to the application:

(a) Only the Family Court has jurisdiction to consider such an application. The jurisdiction of the High Court arises only in relation to an appeal from the Family Court.

(b) The applicants do not have standing to bring the application.

(c) The events on which the application is based have already been considered and determined by the Family Court, in the context of Judge Black’s decision, which is under appeal to this Court.

High Court jurisdiction

• [9] The application for a protection order is made under s 60 of the Family Violence Act 2018. Section 60 refers to an application being made to “the Court” for a Protection Order.

• [10] Section 8 of the Family Violence Act 2018 defines “court”:

(a) means the Family Court; and includes a Family Court Judge; or

(b) if another court has jurisdiction in the proceedings, means that court

• [11] The respondents say that the reference to another court in s 8(b) is relevant to the High Court only in relation to appeals, under s 177 of the Family Violence Act. They also note the reference in s 179 to the right to appeal a decision of a High Court on a question of law to the Court of Appeal.

• [12] The applicants say that, nevertheless, the High Court has inherent jurisdiction to deal with the application.

• [13] I accept the respondents’ submission that the Family Court – a specialist court with a specific mandate to determine applications relating to questions of family violence – is the court intended by the legislature to deal, at first instance, with applications made under the Family Violence Act 2018. The specific provisions of the Family Violence Act contemplate the High Court having only an appellate jurisdiction

in respect of such matters. While this Court does of course have inherent jurisdiction, there may be limits imposed on that jurisdiction by rules of court or rules of practice.¹

• [14] For those reasons, I would dismiss the application.

Do the applicants have standing to bring the application?

• [15] For completeness, I also address the other two grounds on which the respondents rely for strike out. The first of those is that an application for a protection order under s 60 must be made, in the case of a child under 16 years old (as J is), by a representative.² “Representative” is defined in s 8 of the Act. Relevantly it says:

(a) in relation to a child, means a litigation guardian or next friend appointed under or recognised by rules of court, or an approved organisation authorised by section 74, to take proceedings under this Act on behalf of that child:

...

• [16] The applicants do not come within that definition.

• [17] The applicants say that under s 7(b) of the Protection of Personal and Property Rights Act 1988, both of them have standing to bring the application. The Protection of Personal Property Rights Act 1988 sets up a specific regime to provide for adult guardianship and the property management of people who are considered unable to manage their own affairs. That Act does not apply in this situation.

• [18] I find that the applicants do not have standing to bring the application.

Has the subject of the application already been considered by the Family Court?

• [19] The third ground of the respondents’ objection to the application is that it relies on matters that have been the subject of determination by the Family Court, which are now under appeal to this Court (CIV-2021-485-349). That appeal has yet to be

¹ Commissioner of Inland Revenue v Redcliffe Forestry Ventures Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [25], citing Tehrani v Secretary of State for the Home Department [2006] UKHL 47, [2007] 1 AC 521 at [66].

² Family Violence Act 2018, s 62(2)(a).

determined and no fresh evidence has been filed by the applicants in support of the application.

• [20] The applicants’ statement of claim relies on what they allege is the use of force by Ms S against J, between 11 December 2017 and 26 February 2021. It refers in particular to Ms S smacking J.

• [21] I agree with the respondents that this was an issue that was squarely in front of Judge Black at the hearing on 22-25 June 2021. His Honour addressed the issue in the following terms:³

I need to deal with the matter of smacking. Ms K and her family say that J has been abused by her grandmother because her grandmother has smacked her on six or seven occasions. I accept the evidence establishes, on the balance of probability, that smacking has occurred. The smacking has consisted of taps on the hand or a light smack on the outside of her nappy. The smacking has been investigated twice by Oranga Tamariki, on each occasion Oranga Tamariki has found that J is safe in her grandmother’s care. On each occasion Oranga Tamariki has found that the smacking, while substantiated, did not meet the threshold for intervention, in other words the smacking did not of itself mean that J was unsafe in her grandmother’s care, having regard to all other matters relating to that care and to Ms S’s commitment not to repeat the smacking. I acknowledge that there was a repeat after the first report of concern. I also acknowledge that smacking children is against the law and is unacceptable. Whether smacking is physical abuse is a question of degree. The evidence does not establish that the smacking was of such a frequency or nature so as to be physical abuse.

• [22] Having had regard to that matter, as well as the other evidence before him, Judge Black dismissed Ms K’s application for discharge of the order made in favour of the Chief Executive of Oranga Tamariki pursuant to s 78(1) of the Oranga Tamariki Act 1989. The Judge also dismissed Mr B’ and Ms K Senior’s application for appointment as additional guardians. It is that decision that is the subject of appeal in CIV-2021-485-349.

• [23] I conclude that the subject matter of the application has already been considered by the Family Court in the decision which is under appeal to this Court. For that reason also the application should not be allowed to proceed.

³ Chief Executive of Oranga Tamariki v Jeram [2021] NZFC 6161, at [66]. See also at [29].

Conclusion

• [24] For the reasons set out above, I dismiss the application for a protection order, pursuant to r 5.49 of the High Court Rules 2016.

Gwyn J

Solicitors:

Janey Forrest, Wellington Reids Family Law, Lower Hutt