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Brown v Green

Brown v Green

Case [2024] NZHC 1156 9 May 2024

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NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018 AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE

FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2023-470-168

[2024] NZHC 1156

IN THE MATTER of an appeal pursuant to s 177 of the Family Court Violence Act 2018

BETWEEN

MR BROWN

Appellant

AND

MS GREEN

Respondent

Hearing: 22 April 2024

Appearances:

A F Pilditch KC and O Chapman for Appellant G Keystone for Respondent

Judgment:

9 May 2024

Reissued:
Further reissued:

10 May 2024

10 May 2024

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 09/05/2024 at 4.30pm.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:
Richmond Chambers, Auckland Jones Howden Lawyers, Matamata Kaimai Law, Bethlehem

BROWN v GREEN [2024] NZHC 1156 [9 May 2024]

Introduction

[1] This is an appeal against a decision of a Family Court Judge to grant a final protection order in favour of the respondent, Ms Green, against the appellant,
Mr Brown.1

[2] Mr Brown submits that the making of the final protection order was unnecessary having regard to the purposes of the Family Violence Act 2018 (FVA). Mr Brown says that the Judge failed to consider relevant matters and relied on factual errors and disputed assertions to make an unfair and unjust characterisation of him.

[3] Mr Brown further says that he was denied the right to be heard on factual matters which the Judge considered in making the final protection order.

Background

[4] Mr Brown and Ms Green were in a relationship for about 15 years from November 2007 to November 2022. They share three children together (Jack, Matthew and Ella). The end of the relationship was marked by a violent incident in November 2022 which resulted in Mr Brown being convicted of assault with intent to injure.

[5] Following the assault Ms Green was granted without notice orders under the FVA and Care of Children Act 2004 (COCA).

[6] On 23 December 2022, the Family Court made a temporary protection order in favour of Ms Green and the three children.

[7] A final protection order was made on 12 October 2023 following a defended hearing in the Family Court at Tauranga. The reasons for the decision were given in a judgment dated 16 October 2023.

1 These names and the names of others in this judgment are fictitious.

Mr Brown’s submissions

[8]In oral submissions Mr Brown’s counsel refined the issues as follows:

(a)Should the decision have been deferred?

(b)How erroneous factual findings occurred and the effect of such findings?

(c)Whether there was a breach of natural justice?

[9] Mr Brown says that the making of the final protection order was unnecessary having regard to the purpose of the FVA and all relevant factors. He says the…

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 Brown v Green

Details

AGLC: Brown v Green [2024] NZHC 1156
Case: [2024] NZHC 1156
Decision Date: 9 May 2024

CaseChat Overview and Summary

The case of Brown v Green is an appeal by Mr Brown against a final protection order made by the Family Court in favour of Ms Green. The appeal was heard on 22 April 2024 and judgment was delivered by Wilkinson-Smith J on 9 May 2024. Mr Brown challenges the decision to make the protection order final on the basis that the Family Court Judge failed to consider relevant matters, relied on factual errors, and breached natural justice. Ms Green submits that the protection order was necessary given the history of family violence. The appeal was by way of rehearing, requiring the appellate court to form its own view of the evidence. The court found that the Family Court decision was correct and the appeal was declined. The Family Court was correct to find that the protection order was necessary, having regard to the pattern of family violence and the reasonable fear of future violence held by Ms Green. The court found no significant error of fact and rejected Mr Brown's submission that he lacked insight into his behaviour. The court found that the Family Court was not required to defer the decision until the report regarding Mr Brown's attendance at the non-violence programme was available. The court found that the Family Court was correct to find that there was no breach of natural justice. Mr Brown had an opportunity to present evidence about the incidents relied on by the Family Court Judge. The court found that the Family Court was correct to find that a protection order was necessary to address the reasonable fear of future violence held by Ms Green. The court found that Mr Brown has a physical advantage over Ms Green and that the protection order is necessary to redress that inequality. The court found that removal of the protection order would place an unfair burden of fear and risk on Ms Green.

Orders