Brown v Green
[2024] NZHC 1156
•9 May 2024
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 Judge’s reasons for finding that the order was necessary resulted from the three categories of error namely the failure to defer to receive a non-violence report, the erroneous factual findings and the breach of natural justice.
[10] Mr Brown says that in making the decision that the protection order was necessary, the Judge did not have relevant information available in particular a report as to his attendance at a non-violence programme.
[11] Upon making a protection order the Court must direct a respondent to undertake an assessment for a non-violence programme and attend any appropriate programme2.
[12] Prior to making the decision, the Judge knew that Mr Brown had completed the mandatory eight hours required for the non-violence programme. But because Mr Brown had voluntarily sought additional sessions the report was not yet available. Counsel for Mr Brown submits that the Judge erred by failing:
(a)to defer the decision as to whether a final order was necessary until Mr Brown had completed the extra programme sessions, and the non‑violence programme report was available;
2 S188(1) of the FVA
(b)to take in account the fact that Mr Brown had completed the non- violence programme mandated by s 188 of the FVA; and
(c)to give sufficient weight to the fact that Mr Brown had completed the mandatory programme.
[13] The fundamental issue on appeal is whether the making of a final protection order was necessary in terms of s 79 of the FVA. Mr Brown states that the Judge should have continued the interim protection order until the report regarding his engagement with the non-violence programme was available.
[14] Mr Brown says that the report was critical information unavailable to the Judge and that this error rendered his participation, engagement with and completion of the mandatory non-violence programme nugatory. Therefore, he says the Judge undermined a mechanism specifically designed and provided by the FVA to achieve the purpose of the FVA, namely, to stop and prevent family violence.
[15] Mr Brown says that the report, when eventually provided to the Court on 6 November 2023, was favourable to him and pointed strongly against the necessity test being met. Mr Brown submits that the Judge ought not to have substituted his own views of Mr Brown’s “insight” over that of the mandatory s 204 report.
[16] Mr Brown’s position is that the Judge relied on demeanour which is not a reliable indication of credibility and reliability, or by analogy assessments of “insight” or “behaviour regulation” because giving evidence is stressful and may cause a witness to react in a certain way.
[17] In respect of the second ground of appeal Mr Brown says that the Judge relied on factual errors and failed to consider relevant factors including the downstream effects on the family, the negative consequences on Mr Brown’s livelihood, and the welfare of the children. The protection order prohibits Mr Brown holding a firearms licence which is an important part of the family’s life and work.
[18]The factual errors alleged by Mr Brown relate to the following incidents:
(a)30 August 2023 — Mr Brown purportedly passed Ms Green heading towards her on the other side of the road before turning around and following her.
(b)28 November 2023 — Mr Brown was “unwilling to concede that the children had witnessed at least some of the 29 November violence”.3
[19] Mr Brown says that the above findings were unavailable on the evidence and demonstrated an unduly prejudicial view of him.
[20] Mr Brown says that the Judge relied on allegations of further family violence which were minor at best and in themselves would not have warranted the making of a protection order. The allegations of further violence included allegations of yelling at Ms Green’s partner and psychological abuse of the children. Mr Brown says that the alleged psychological abuse arose in the context of Ms Green unilaterally and unlawfully relocating the children and changing their schools. Mr Brown says that the children subsequently maintained their wish for more substantial contact with him and contact improved.
[21] Mr Brown says that the two allegations of contact directed at Ms Green arose from events occurring within the “normal human condition of social intercourse”. The first occurred at a rugby prizegiving which both Mr Brown and Ms Green attended. Mr Brown says that he tried to maintain distance between himself and Ms Green. The second incident involved Mr Brown ‘tailgating’ Ms Green. Mr Brown disputes that he was ‘tailgating’ Ms Green stating that they were both due in the same court at the same time and were travelling on the only road possible.
[22] Mr Brown concedes that Ms Green’s fears were reasonable when the temporary protection order was made but says that objectively the risk of future family violence has diminished to the point where, having regard to all relevant factors, fears of such a risk are no longer realistic or reasonable.
3 Referring to the violent incident in November 2022.
[23] The third ground of appeal relates to an alleged breach of natural justice. Mr Brown says that he was denied the right to give evidence-in-chief about allegations relied on by the Judge as the basis for adverse findings.
[24] Mr Brown says that he raised his right to reply to Ms Green’s affidavit evidence on multiple occasions. Mr Brown says that having declined to strike out affidavit evidence from Ms Green relating to an incident on 25 May 2023, on the basis that the evidence would only have “limited weight”, the Judge proceeded to rely on the evidence and give significant weight to it.
[25] Mr Brown complains that his 12 October 2023 closing written submissions have been wholly ignored and the Judge failed to take into account factors set out in those submissions. Mr Brown emphasises that the allegations of past family violence were limited to a context which no longer exists — Mr Brown and Ms Green cohabitating in a deteriorating relationship.
[26] Mr Brown says that the decision to make the protection order final was premature and that making a final protection order in the circumstances could be seen as punitive — undermining the effectiveness of the FVA.
Ms Green’s submissions
[27] Ms Green submits that the Judge was correct to find that the protection order was necessary.
[28]Ms Green emphasises that Mr Brown has accepted the following violence:
(a)On 29 November 2022, Mr Brown punched Ms Green around the head and body resulting in significant bruising. During the attack Mr Brown called Ms Green a “dirty cheating whore”. Mr Brown agrees that it was a violent attack. During the assault a mirror was broken. Mr Brown smashed Ms Green’s plants and threw some of them on the lawn. Following the attack Mr Brown smashed Ms Green’s phone. To punish Ms Green, Mr Brown posted photos of the damage to social media because he wanted to tell the whole world Ms Green was a whore.
(b)Around July 2022, Mr Brown threw a Pyrex dish towards Ms Green,
breaking it, and told Ms Green to “fuck off”.
(c)Around July 2022, Mr Brown made Ms Green delete a friend from social media.
(d)At one point in the relationship, Mr Brown punched a hole in the wall and the bathroom door.
(e)On 29 January 2023, in breach of his bail conditions Mr Brown drove past Ms Green’s partner and called him “a gutless piece of shit”.
(f)On 25 May 2023, Mr Brown in a phone call with the three children referred to Ms Green’s partner as a fuckwit.
[29] Ms Green submits that her subjective fear of Mr Brown is not unreasonable based on the November 2022 assault alone. Apart from the November assault, there is other repetitive violence which Mr Brown has accepted as set out above, at [28].
[30] Ms Green submits that Mr Brown failed to demonstrate responsibility for his behaviour instead continuing to justify it. By way of example Ms Green relies on Mr Brown’s explanation for driving past her partner and verbally abusing him. Mr Brown said:
This occurred during a time when I was permitted very little contact. My hurt at [Ms Green’s partner’s] betrayal of me and his involvement with my partner behind my back and in my home was compounded when I saw him with my son.
[31] Ms Green submits that Mr Brown feels the circumstances in which the relationship ended justify his behaviour.
[32] She says at the time of the hearing Mr Brown had completed the compulsory attendance at the living without violence programme and was attending further voluntary sessions. However, he had not gained any apparent insight into how his actions and behaviour impacted Ms Green and their children. Ms Green points to
examples in the evidence where Mr Brown appears to justify actions which could be described as either physically or psychologically abusive.
[33] Ms Green submits that, even in a court setting, Mr Brown was unable to refrain from behaviour that was aggressive and demeaning in nature. During the hearing Mr Brown swore at counsel on more than one occasion. Further, the Judge found that Mr Brown was loud and aggressive without realising it.
[34] In respect of the failure of the Court to defer the matter until the report was available, Ms Green says firstly, there is no requirement for the Court to have reference to the report. Secondly, even if the Court had done so it would not have made a difference in this case.
[35] Counsel for Ms Green submits that the Court understood Mr Brown had completed the living without violence programme and was engaging in further sessions. The issue is what the attendee gained from attendance at the programme.
[36] Ms Green submits that the onus was on Mr Brown to demonstrate countervailing factors telling against the necessity for a protection order. Ms Green says it was open to Mr Brown to give evidence of the insights he had gained and his understanding of how his behaviour impacted Ms Green and their children. It is submitted that Mr Brown failed to demonstrate that he can utilise the tools learnt, nor did he show that he has gained insight into his behaviour and how it affects others.
[37] The non‑violence programme report is now available to the Court and as the appeal is by way of rehearing it is appropriate for this Court to consider it.
[38] Counsel for Ms Green submits that the loss of Mr Brown’s firearms license is irrelevant to the matters that the Court must consider.
[39] In terms of the factual errors alleged by Mr Brown, Ms Green says it was open to the Judge to make those factual findings. Ms Green submits that the factual findings were not material in any event and, on the agreed facts alone, the finding that Ms Green’s fear was reasonably held is appropriate.
[40] In respect of the alleged breach of natural justice, Ms Green does not agree that there was a breach of natural justice. She submits that Mr Brown filed evidence about the incidents on 25 and 26 May 2023 namely an affidavit from Mr Brown’s neighbour who had supervised access visits (dated 28 August 2023) which sets out what occurred. Ms Green says that evidence of the neighbour largely supports her case. Further, the incidents on 25 and 26 May 2023 were the subject of cross-examination and Mr Brown did have an opportunity to give his version of events to the Court.
Approach on appeal
[41] The appeal is by way of rehearing.4 The appellate court must form its own view of the evidence.5 If the appellate court comes to a different view to the trial judge the appeal must be allowed.6 It is for the appellant, however, to show that the Judge erred either by pointing to an error in the assessment of the evidence or by pointing to a miscarriage of justice which occurred for some other reason.
[42] Not every error in the assessment of evidence will result in a successful appeal. The error must lead to a miscarriage of justice either because of a real risk that, without the error the appellant would have secured a more favourable result; or because the error made the trial unfair.7
[43] Further, not every error or irregularity will result in an unfair trial. The assessment is to be made in respect of the trial overall.8 What is required is a fair trial not a perfect trial.9
[44] Mr Brown cited N v S which makes a distinction between the approach on appeal for each leg of the enquiry namely whether there has been family violence and whether a final protection order is necessary.10
4 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [20] and [26].
5 Austin, Nichols & Co Inc v Stiching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] and [16].
6 Sena v Police, above n 4, at [38].
7 Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [67].
8 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [35].
9 E (CA727/09) v R [2010] NZCA 202 at [67]–[68]; R v Matenga [2009] NZSC 18, [2009] 3 NZLR
145 at [30]; and Ellis v R [2011] NZCA 90 at [58] citing R v Find [2001] 1 SCR 863.
10 N v S [2019] NZHC 2905 at [13].
[45]That approach was disproved in SN v MN where the Court of Appeal said:11
[46] We are satisfied, in any event, that this Court’s statement in Surrey that the finding on necessity is for appellate purposes a discretionary decision which is not subject to the ordinary principles applicable to a rehearing, as stated in Austin, Nichols & Co Inc v Stichting Lodestar, has not survived the later decision in Kacem v Bashir. In that case the Supreme Court considered a comparable assessment by the Family Court of the “best interests” of children under s 5 of the Care of Children Act 2004. Kacem affirms that a decision is not of itself discretionary because it involves factual evaluation and a value judgment. A determination of what was in the best interests of the child in that relocation case was a matter of assessment and judgment, not one of discretion. In the present case the Family Court Judge’s decision on necessity was of a similarly evaluative nature. As with the first stage of the inquiry, s 14(1)(b) requires that the Family Court be satisfied an order is necessary. An appellate court must scrutinise the first-instance decision accordingly.
(footnotes omitted)
[46] The Supreme Court in Kacem v Bashir affirms that a decision is not of itself discretionary because it involves factual evaluation coupled with a value judgement.12 The question of whether a protection order is necessary is evaluative not discretionary. The appeal therefore falls to be considered under the usual approach to appeals by way of rehearing.
The Family Court decision
[47] The Family Court decision dated 16 November 2023 dealt with both care of children issues (including an interim guardianship application in relation to schooling, interim care and contact) and whether the protection order would be made final.
[48] The hearing took place on 12 October 2023. In the morning prior to the commencement of the hearing, the Judge met with two of the children, 13-year-old Jack and 10‑year-old Matthew in the presence of their lawyer at their request. The youngest child, Ella, aged five years old, did not want to meet the Judge.
[49]Evidence was then heard from Mr Brown, Ms Green and Ms Green’s partner.
11 SN v MN [2017] NZCA 289, [2017] NZFLR 436.
12 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
[50] At the conclusion of the hearing, the Judge issued a results decision. The condition for supervised contact with the children was removed (although this did not actually take effect until a later hearing in November). Interim parenting and other orders were continued, and timetabling directions were made. The temporary protection order dated 23 December 2022 was discharged and a final protection order was made in favour of Ms Green against Mr Brown.
[51] The reasons decision was issued on 16 October 2023. The Judge set out the two-step process to be followed under s 79 of the FVA. The Court may make a protection order if satisfied first that the respondent has or is inflicting family violence against the applicant (and/or child of the applicant’s family) and second that an order was necessary to protect the applicant (and/or child of the applicant’s family). When considering whether to make an order, the Court must have regard to an applicant’s perception of the seriousness of the behaviour and the effect of that behaviour upon themselves. The Judge said correctly that the evidence must support the subjective perception of the applicant and the Court’s task is to objectively assess the reasonableness of that perception in terms of s 79(b) of the FVA. The Judge also noted that the perception and motive of the respondent is irrelevant no matter how well intentioned they might be. The onus is on the applicant for the order to satisfy the Court on the balance of probabilities that the respondent has been violent and that her subjective fear of future violence is reasonable. Once that is proved, the onus shifts to the respondent to raise countervailing factors weighing against the necessity for a protection order.
[52] The Judge canvassed the evidence of earlier threatening and bullying behaviour including an incident when Mr Brown picked up a Pyrex dish and hurled it through two rooms, smashing against the side of a bath and just missing Ms Green’s legs.
[53] The Judge set out briefly the incident on 29 November 2022 which occurred in the context of their relationship breakdown when Ms Green told Mr Brown that she had fallen in love with someone else. Mr Brown assaulted Ms Green for about half an hour, punching her in the head, back and body while yelling and swearing and calling her names. The children heard and saw that incident which resulted in
Mr Brown being arrested, issued with a police safety order and charged for the assault on Ms Green. The photographs of Ms Green show extensive bruising to her body including a fat lip, bruised face and black eye.
[54] The Judge referred to further incidents including an incident on Saturday 28 January 2023 when Ms Green and her partner were parked in their vehicle and Mr Brown drove past, gesturing out his window and yelling verbal abuse. The Judge found that Mr Brown had returned moments later, driving past again and yelling further abuse. This was in breach of his bail conditions to have no contact with Ms Green or her partner.
[55] The Judge referred to a further incident during the weekend of 27/28 May 2023 when Mr Brown became angry and yelled in front of the children upon finding out that Ms Green was pregnant to her partner and that she had applied to change the children’s school. The incident resulted in one of the children, Matthew, running away from the contact visit.
[56] Having canvassed Mr Brown’s response to the allegations of physical and psychological violence, the Judge found on the balance of probabilities Mr Brown was physically and psychologically violent to Ms Green and that the children were exposed to the violence and at times were direct victims of Mr Brown’s psychological abuse.
[57] Although Mr Brown was willing to accept some of his violence, at times the Judge considered he “lacked awareness and insight into his violence and the effect on those around him.” Mr Brown minimised the length and extent of his assault on 29 November 2022 and the brutality of it. The Judge specifically accepted Ms Green’s evidence that there were times during the last four years of their relationship when she tried to separate due to Mr Brown’s psychological abuse which including calling the children “useless little cunts” and Jack a “fat lazy little prick.” The Judge found that:
[67] During [Mr Brown]’s evidence I noticed that using swear words came as second nature to him and he seemed oblivious to the fact that he raised his voice at times during his evidence, to the point of yelling/speaking loudly in an intimidating way. While [Mr Brown] views himself as a non-violent person, he now has three previous convictions for violence.
(footnotes omitted)
[58] The Judge found that there was a pattern of violence including violently throwing a Pyrex dish at Ms Green, repeatedly messaging Ms Green when she left to stay with her mother for a break from the relationship, the nature of Mr Brown’s conversation with Jack on speakerphone and abusing Ms Green’s partner when he knew Jack was in the vicinity. The Judge found that although Mr Brown initially denied driving past and verbally abusing Ms Green’s partner twice when Jack was in the car on 28 January 2023, he accepted in evidence at the hearing that he had done so.
[59] For the most part the Judge accepted Ms Green’s account of the alleged violence but found there was insufficient evidence of financial abuse.
[60] The Judge noted that the effect of Mr Brown’s violence on Ms Green was profound. She was fearful when travelling to the area where he lived and she experienced panic attacks when seeing him. The Judge found that her fear was reasonable.
[61] The evidence also demonstrated that the children had been fearful and upset at times. Mr Brown was unwilling to concede that the children had witnessed at least some of the 29 November 2022 violence, but the Judge found it was clear from the evidence that they had; and the lawyer for child observed that the effect of the violence has been long lasting.
[62] Having found that there was a pattern of violence and a reasonable subjective fear of future violence, the Judge turned to the second issue namely whether a protection order was necessary.
[63] At this stage the evidential burden passed to Mr Brown to demonstrate factors weighing against the necessity for an order.13 The Judge set out matters submitted on behalf of Mr Brown telling against such a necessity. That included that the behaviour did not form a “pattern of violence”, that the behaviour was not abusive or violent and there were extenuating circumstances for the behaviour. Other factors relied on
13 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 at [43].
included lack of communication, the change in circumstances, the children feeling safe with Mr Brown and the fact that he had completed a non-violence programme.
[64] The Judge referred to the incident where Mr Brown was attacked in the carpark when coming to court. Mr Brown’s counsel informed the Family Court that the alleged attacker was known to Ms Green’s partner. The inference was that Ms Green and/or her partner had instigated or in some way influenced the attack. However, it transpired that, although the alleged attacker was someone known to Ms Green’s partner, Mr Brown knew him better. The attacker was Mr Brown’s ex‑worker and the former partner of Mr Brown’s new partner.
[65] The Judge did not place significant weight on this but said “if this evidence is correct, it raises yet another concern about [Mr Brown’s] unwillingness or inability to face the reality of the situation and confirms his lack of insight.”
[66] Based on the findings of fact recorded, the Judge came to the view that a final protection order was necessary.
Discussion
[67] There can be no question that the Judge was correct to find that the first stage of the test must be answered in the affirmative. Mr Brown has inflicted family violence on Ms Green. Some of that violence has been heard by the children. The violence is not confined to the physical assault committed in November 2022.
[68] Mr Brown clearly regards himself as the wronged party in the relationship break up. It is understandable that he feels that way, but the residual hurt and anger that he clearly feels is sometimes expressed by abusive comments to Ms Green, her partner and the three children. Even in giving evidence Mr Brown could not resist making a derogatory comment about Ms Green when he denied throwing the Pyrex dish at her saying she was “a big target to miss”.
[69] It is also apparent that when giving evidence, Mr Brown unconsciously raised his voice prompting the following exchange with the Judge:
THE COURT:
Q. Do you think you've been yelling today in your evidence?
A. No.
Q. Okay.
[70] When asked if he was calling Ms Green a “dirty whore” during the November assault Mr Brown replied, “a dirty cheating whore, yes”. He further acknowledged that he wanted to tell the world that she was a whore and that he could not help verbally abusing Ms Green’s partner, on 28 January, despite that conduct breaching his conditions of bail.
[71] The tenor of Mr Brown’s evidence, even on paper, is that his opinion of Ms Green hasn’t changed. The Judge had the considerable benefit of observing Mr Brown in person and was entitled to form a view of how he behaved towards Ms Green and the Court. The fact that he cannot “help himself” behaving in a way that is abusive or threatening even when incentivised to do so by bail conditions or a courtroom environment is relevant to the issues that the Judge had to decide.
[72] It is true that giving evidence is stressful, but it is exactly Mr Brown’s behaviour in a stressful situation that must be assessed. Mr Brown and Ms Green cannot cease all contact; they have children in common and they will have to co‑parent for years to come. Those circumstances will inevitably involve some stressful situations and the potential for conflict.
[73] Mr Brown does show insight into his behaviour on 29 November 2022 when he beat Ms Green because she told him that she was leaving him for another man. Mr Brown accepts that he crossed a line, and he does seem to understand that his behaviour was not justified. The problem is that he regards the other incidents as minor and inconsequential.
[74] Mr Brown’s view is that, because he intends to never physically attack Ms Green again, there is no further need for a protection order. He wants Ms Green to effectively trust him on that. Understandably she does not. Mr Brown’s idea of the ‘line that he must not cross’ is set too high. He knows he must not physically assault
Ms Green or her partner, but it unclear whether he understands the concept of psychological abuse. Further, if he is angry enough or feels justified — he may be simply unable to help himself.
[75] There is no significant error of fact in the findings of the Family Court. Mr Brown accepted that he had driven past Ms Green’s partner twice on 28 January 2023. There was some dispute about whether anything was said on the second drive past, but the point is that Mr Brown did not avoid contact.
[76] As to whether the children witnessed the domestic violence on 29 November 2022, there is an element of splitting hairs in Mr Brown’s position. Two of the children heard the violence and they witnessed their mother bruised as a result of a beating.
[77] In deciding whether a protection order is necessary the level of risk of future violence is relevant, but a full enquiry with expert evidence is not required. The Court must undertake a broad-based assessment of the need for protection in the future. Regard should be had to past conduct, the seriousness of the past violence, any pattern of past violence and the subjective views of the victim.14 Whether there is a pattern of behaviour should be liberally interpreted. Any repetitive conduct even of different types of violence can amount to a pattern of behaviour.15 The cause of motivation for the violence is irrelevant. A victim of family violence is not responsible for it.16
[78] Mr Brown perpetrated one bad incident of family violence, but it was not an isolated incident. The incidents prior to the physical assault in November 2022 and the incidents after it are all part of the pattern.
[79] Mr Brown considers that, because the incidents other than the November 2022 assault, were more minor and would not alone justify a protection order, they should be disregarded. That is not correct. All of the incidents form part of the overall pattern. The prospect of ongoing further incidents of aggressive or verbally abusive contact become threatening against the background of Mr Brown previously using actual
14 LMM v JLW FC Westport FAM-2009-086-34, 7 May 2010, at [12(c)].
15 At [12(e)].
16 SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [28].
physical violence. When Mr Brown raises his voice or swears at Ms Green, he does so against a background of previous resort to physical violence. It is not unreasonable that she feels threatened by behaviour that, before the physical assault, she might not have found threatening. Mr Brown does not seem to understand that such behaviour amounts to a threat of violence. He is assessing the issue entirely from his perspective based on his intentions.
[80] Mr Brown’s lack of insight into how his behaviour appears to others supports the necessity for a protection order.
[81] The fact that the non-violence report was not considered by the Judge doesn’t change the situation. It would have been open to the Judge to defer the hearing to receive the report, but he was not required to do so. There is force in the submission by Ms Green that the report is brief and really a series of tick boxes with brief comments. The experienced Judge would have been well aware of the nature of such reports. Even assuming the most positive possible report, a final protection order was justified. It is not mandatory that the Court receive the report in advance of making the decision and in this case, receipt of the report would not have changed the outcome. Mr Brown demonstrates ongoing animosity towards Ms Green and her partner despite attendance at the programme and that animosity was apparent during the hearing.
[82] Delay would also be contrary to the principle in s 4(o) of the FVA that access to the court should be speedy, inexpensive, and simple as is consistent with justice. It is difficult to see what would be achieved by deferral.
[83] Mr Brown wishes to retain his firearms licence as he is a home kill butcher and a recreational hunter. This seems to be a large part of his motivation to challenge the granting of the protection order. But even with a temporary protection order in place, he would face an uphill battle to have his firearms licence reinstated. Indeed, his conviction for family violence will likely prove a practical bar to his holding a firearms licence. That is an unfortunate consequence of the events of November 2022 but simply follows from what occurred. A relatively recent conviction for family violence is a considerable barrier to any application for a firearms licence. That is not Ms Green’s fault. It is Mr Brown’s fault for using physical violence.
[84] Deferral could not continue for the sort of period needed for Mr Brown to apply for and regain his firearms licence even if that were a proper ground to consider deferral which it is not. In JM v SC deferral for a period of six months was described as “marginal”.17
[85] So far as the alleged breach of natural justice is concerned, Mr Brown did have an opportunity to present evidence about the incidents on 25 and 26 May 2023. He provided an affidavit from the supervisor of his access visits. That affidavit largely supports Ms Green’s position in respect of the 26 May incident. Mr Brown also gave evidence and answered questions about both incidents. Counsel for Mr Brown also had the opportunity in re-examination to clarify anything about those incidents given they were raised in cross-examination.
[86] The Judge found correctly that there had been family violence and that violence was not isolated. The most serious incident involved significant physical violence. Mr Brown remains angry and hurt and has negative feelings towards Ms Green which he cannot refrain from expressing even in a courtroom environment. Mr Brown believes that he poses no future risk, but Ms Green remains scared of him, and that fear is reasonable. The Judge was correct to find that Mr Brown did not discharge his evidential burden and point to sufficient countervailing factors to demonstrate that a protection order was unnecessary. The best Mr Brown could say was that the Court and Ms Green should trust him in circumstances where he still feels animosity toward Ms Green and where he fails to recognise when he is being loud and aggressive.
[87] Mr Brown has a physical advantage over Ms Green and in November 2022 he used that physical advantage against her. She was not able to physically prevent him from assaulting her. When he raises his voice or throws something or punches a wall or drives by yelling verbal abuse, he does so with the reality of that physical advantage. Had this situation been the other way around and Mr Brown had been the person to tell Ms Green that he had formed a relationship with another woman, Ms Green would not have been able to physically attack Mr Brown in the same way. He does not have to fear that. The protection order is necessary to redress that inequality. It puts
17 JM v SC HC Rotorua CIV-2007-463-598, 9 November 2007.
Ms Green so far as possible in a position where she does not need to fear violence from Mr Brown.
[88] Removal of the protection order would place an unfair burden of fear and risk on Ms Green. It would force her to accept that her safety relies on his self -control. He has not yet demonstrated that it would be reasonable for her to be required to do so.
Result
[89]The appeal is declined.
Wilkinson-Smith J
0
6
1