A v G - [2019] NZHC 2404

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER

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IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV 2019-443-000019

[2019] NZHC 2404

BETWEEN
A

Appellant

AND

G

Respondent

Hearing: 4 September 2019

Appearances:

A R H Laurenson for Appellant

No Appearance by or for the Respondent

Judgment:

23 September 2019

JUDGMENT OF DOOGUE J

Introduction

[1] The appellant, Mr A, appeals a decision of the Family Court dismissing his objection to undertake an assessment and attend a non-violence programme following the making of a Temporary Protection Order pursuant to s 13 of the Domestic Violence Act 1995 (“DVA”) in favour of the respondent, Ms G.1 The Temporary Protection Order was granted on 20 March 2018 and was subsequently made final by consent on 17 September 2018.2

1 G v A [2019] NZFC 2635.
2 Domestic Violence Act 1995, s 14.

A v G [2019] NZHC 2404 [23 September 2019]

[2] The sole ground on appeal is that the Family Court Judge erred in fact and in law in concluding Mr A accepted the allegations of violence because he consented to the Protection Order being made final.

Background

[3] The relationship between Mr A and Ms G is one of step-father and step- daughter. Mr A and Ms G’s mother have been married since October 2013. Since then, Mr A and Ms G have lived at separate addresses, save for two relatively short periods of time.

[4] On 19 March 2018, Ms G filed a without notice application in the Family Court at New Plymouth seeking a Protection Order against Mr A. She also filed an affidavit in support of that application. In her affidavit, Ms G alleged that Mr A had sexually, as well as psychologically and emotionally abused her since the age of 21; a period of around four years.

[5] A Temporary Protection Order in Ms G’s favour against Mr A was granted on 20 March 2018 by Judge Russell. The protected persons named in that order were Ms G and her son, who was six years old at the time.

[6] On 23 March 2018, some three days after the Temporary Protection Order was made, Mr A filed an objection to the direction that he undertake an assessment and attend a non-violence programme on the grounds he “[was] not a violent person” and “absolutely den[ied] assaulting the applicant in any form”.

[7]On 19 April 2018, Mr A filed a:

(a)notice of intention to appear to defend Ms G’s application for a Protection Order; and

(b)without notice application to remove Ms G’s son as a protected person from the Temporary Protection Order.

[8] In his affidavit in support, Mr A again denied he had abused Ms G in any way and repeated that he was not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A v G

Details

AGLC: A v G [2019] NZHC 2404
Case: [2019] NZHC 2404
Decision Date: 23 September 2019

CaseChat Overview and Summary

The case of A v G involves an appeal by Mr A, the appellant, against a decision of the Family Court dismissing his objection to attend a non-violence programme following a Temporary Protection Order being made in favour of Ms G, the respondent. The relationship between Mr A and Ms G is that of step-father and step-daughter. Ms G filed an application in the Family Court seeking a Protection Order against Mr A, alleging he had sexually, psychologically, and emotionally abused her since the age of 21. A Temporary Protection Order was granted in Ms G’s favour, which was subsequently made final by consent. Mr A objected to the direction to attend a non-violence programme, which was dismissed by the Family Court.

The legal issues in the appeal included whether the Family Court Judge erred in fact and in law in concluding Mr A accepted the allegations of violence because he consented to the Protection Order being made final. The appeal hinged on Mr A's continued denial of the allegations of violence against him. The court had to determine whether Mr A's consent to the Final Protection Order implied an acceptance of the allegations, and whether this was a valid basis for dismissing his objection to attend a non-violence programme.

The High Court held that Mr A was not estopped from advancing his appeal simply because he consented to the making of a Final Protection Order. However, the court observed that there was a high threshold for establishing that a discharge of a direction to attend a programme is appropriate. The purpose of the Domestic Violence Act 1995 is to denounce violence in domestic relationships and provide protections for victims, which includes providing education to respondents on the adverse impacts of violence. The court found that the Family Court Judge was correct in concluding that Mr A's health issues and financial constraints did not prevent him from attending a non-violence programme. The only issue was Mr A's continued denial of the allegations of violence, which the Family Court Judge considered as an acceptance of the allegations due to Mr A's consent to the Final Protection Order. The High Court held that if Mr A had maintained his denial of the allegations with a clear qualification in his consent, it might have led to greater scrutiny by the Family Court. However, in the absence of such a qualification, the consent had the effect of negating Mr A’s continued denial. The court concluded that discharging the direction for Mr A to attend a non-violence programme would effectively mean declaring the Final Protection Order invalid, which was not the appropriate forum for such a determination. Therefore, the appeal was dismissed.

In conclusion, the appeal was dismissed, and the direction for Mr A to attend a non-violence programme stands.

Orders