Guram v Guram
[2021] NZHC 3153
•23 November 2021
NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, 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://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1607
[2021] NZHC 3153
UNDER the Family Violence Act 2018 IN THE MATTER
of an appeal from a decision of the Family Court at Manukau on 14 July 2021
BETWEEN
BALKAR GURAM
Appellant
AND
KULPREET GURAM
Respondent
T
Associated Respondent
Hearing: 3 November 2021 Appearances:
D Rajapakse for the Appellant B Castelino for the Respondents
Judgment:
23 November 2021
JUDGMENT OF GORDON J
This judgment was delivered by me on 23 November 2021 at 12 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Ogles Podwin & Associates, Auckland
Castlefinn Law Ltd, Auckland
Counsel: D Rajapakse, Auckland
GURAM v GURAM [2021] NZHC 3153 [23 November 2021]
Introduction
[1] The appellant, Balkar Guram, appeals the decision of Judge J G Adams in the Family Court at Manukau delivered on 14 July 20211 refusing to make a protection order against the respondent, his wife Kulpreet Guram,2 and the associated respondent, her son T.3
[2] Mr Guram alleges that he was mistreated physically, psychologically and financially. He says he fears Mrs Guram and/or T will upload onto the internet a video they took of him in humiliating circumstances. He says if this happened, it would affect his reputation in India where he has family, including his mother and a daughter.
[3] The Judge was left in doubt about the allegations of physical and psychological abuse.4 He said he did not find Mr Guram had demonstrated that he had been subject to a course of financial abuse.5 The Judge was also unable to positively find that there was a video as alleged by Mr Guram and accordingly he dismissed the application for a protection order.6
Background
[4] Mr Guram and Mrs Guram are both from the Punjab state in India. They met on a dating website in 2017. At that time, Mr Guram was living in India. Mrs Guram was living in New Zealand with her two sons from a previous marriage. As at the date of Mrs Guram’s affidavit of 23 March 2020, her older son, T, was aged 17 and her younger son, B, was aged 11 years. Mr and Mrs Guram married in India on 28 February 2018. The two sons attended the wedding.
[5] After the wedding, Mrs Guram and her sons stayed with Mr Guram for several weeks travelling in India and then returned to New Zealand. Mrs Guram told
1 [G v G] [2021] NZFC 7044.
2 The names of the appellant and respondent are not their real names. I have used assumed names to avoid the risk of identifying the respondent’s two sons.
3 Although “T” is now 18 years of age, his name is anonymised, so as to avoid the risk of identifying his younger brother who is referred to in the judgment. (They both have a different surname from their mother).
4 At [19].
5 At [11].
6 At [21].
Mr Guram she would attend to his immigration matters and sponsor his application for a visa under the partnership category. There is disagreement over the amount of money Mr Guram remitted to New Zealand for that purpose.
[6] Mr Guram ultimately obtained a visitor’s visa and he arrived in New Zealand on 13 March 2019.
[7] Mr Guram says that Mrs Guram controlled all their finances and the financial abuse began soon after he arrived in New Zealand. He says Mrs Guram got him a job as a cleaner and required him to work in violation of his visa conditions. Mr Guram says he felt obliged to do so. He says in his culture it is the norm to provide for your family. Mr Guram provided some details of his work in market gardens. He said he also worked with Mrs Guram cleaning houses. Mrs Guram, in her affidavit, says that her husband never worked and was never required to give her money.
[8] Mr Guram says the first occasion of physical abuse occurred around a week after he asked his wife for $20 to have a haircut as whatever he earned was controlled by his wife. His request was refused. This was in around May 2019. Mr Guram says that Mrs Guram and her two sons assaulted him one evening because he refused to go to work. He says Mrs Guram yelled at him and she and her two sons chased him with an iron rod when he was trying to get out of the house. He says the younger son, B, had a hockey stick. I note that in the previous month, B had been suspended from school because of physical threats he made to another student. I will return to that issue.
[9] Mr Guram’s evidence is that on the occasion referred to above in May 2019 he was unable to talk to anyone because of the language barrier. It is not disputed that he has very limited English. Mr Guram says he could not telephone the Police because he had left his phone at home but he managed to speak to an Indian couple who took him back home. Mr Guram says he was terrified of Mrs Guram and the two boys. Mrs Guram denies that anything of the kind happened. She also says that Mr Guram is of a big build. Mr Guram responds that T is six feet tall and strongly built. With the three of them together against him, his build had no effect.
[10] The first of a number of incidents reported to the Police occurred on 15 June 2019. Mr Guram’s evidence was that while he was making dinner for himself (he says he was the only vegetarian in the family) T was cutting B’s hair in the kitchen. Mr Guram says some of B’s hair fell on his food. Mr Guram told T to cut B’s hair in the bathroom. Both Mr Guram and T began yelling at each other. Mr Guram says that T took the hair clippers he was using and attacked Mr Guram’s left hand. Mr Guram says that Mrs Guram then came towards him and started choking him. He says he ran from the house.
[11] Mr Guram says he met a person whom he knew from working at Uber Eats, who took him to the Papakura Police Station. Mr Guram says, however, Mrs Guram followed him and arrived at the Police station not long after he did. Mr Guram says because of the language barrier he could not tell his side of the story to the Police properly and there was no interpreter present. The Police Family Violence Reports (FVR)7 refer to an event of 16 June 2019. Mr Guram is reported as saying he was being mentally tortured and that he wanted his passport back so that he could go back home to India. He said he had told his wife that and she had refused to hand over his passport.
[12] Mrs Guram’s version, which is also recorded in the FVR, is that Mr Guram was the aggressor and had challenged T to a fight and punched him. She said Mr Guram hit her as she tried to separate them. Mrs Guram also alleged that Mr Guram kicked B in the back before B ran off. Mrs Guram did not wish the Police to take statements from the two boys. The upshot was that, despite Mr Guram denying assaulting family members, the Police issued him with a Police Safety Order (PSO) for five days.
[13] The Police wrote to T in a letter of 12 August 2019 advising that the Police had completed their investigation and no further Police action would be taken. The letter records that Oranga Tamariki (OT) had been advised of the allegation that Mr Guram assaulted T and that OT had been updated by the Police on the outcome. There is no evidence of OT taking any action.
7 The Police Family Violence Reports were introduced by consent on the second day of the two day hearing.
[14] Mr Guram returned home on 21 June 2019. He says he was nervous living at home as he did not know what Mrs Guram and her two sons would do next.
[15] He says on 20 July 2019, he and Mrs Guram had an argument because he had asked her for $5 to top up his mobile phone and she refused. She told him to leave the house. He stayed the night with someone he knew from a local petrol station and the following day Mrs Guram came and took him home. Mrs Guram denies all these events occurred.
[16] Mr Guram said he was very stressed and was always on edge. He said he felt unsupported in a foreign country where he could not speak the language. He felt he was being exploited by Mrs Guram.
[17] The next significant event reported by Mr Guram occurred in September 2019. He says he was preparing his food at home. Mrs Guram was at home with her two sons along with two of T’s friends whom Mr Guram describes as well built and either of Māori or Pacific Island descent. Mr Guram says that T and his two friends started teasing him and his vegetarianism and made some cuts on him with a knife. Mrs Guram did nothing to stop them. Mrs Guram, T and his two friends held him down and forced a piece of meat into his mouth. He says that they took off his clothes (except it seems his t-shirt) and made a video recording threatening him that if he made a complaint or told anyone, the video would be made viral. Mrs Guram and T deny all of this. Mrs Guram says, in any event, Mr Guram is not a strict vegetarian.
[18] Mr Guram did not make a complaint to the Police at the time. He says he was very humiliated and scared and had been threatened that if he did complain the video would be shared and it would go viral. He says he went and slept in his car. Mr Guram ultimately made these allegations in a written complaint to the Police on 28 November 2019, when he was assisted by a lawyer. He says he does not have a copy of the video. He was only ever shown it on T’s phone.
[19] Mr Guram says that in September 2019, Mrs Guram threatened that if he did not pay $30,000 to her or transfer her name on title to a property in India, she would cancel and withdraw her sponsorship of Mr Guram’s visa. Mrs Guram denies making
that threat. She did subsequently withdraw her sponsorship. I will address that issue later in this judgment.
[20] Mr Guram next describes events which allegedly occurred at the family home on 12 October 2019 and in respect of which he made a complaint to the Police at the time. Mr Guram says the night before he slept in his car in the garage. After he went inside, an argument ensued over Mr Guram’s passport and it seems also in relation to Mrs Guram’s passport. Mr Guram’s evidence is that he asked Mrs Guram to move her car so he could take his car from the garage and she refused to do so. Each alleges pushing by the other. Mr Guram also says he was grabbed at his neck by T. Mr Guram says he went across the road and spoke to a couple who are Punjabi. He says they advised him to go to the police station and he walked there. While he was waiting, Mrs Guram telephoned the Police, stating she had been assaulted.
[21] The FVR records Mrs Guram told the Police that Mr Guram had pushed her by the neck as he attempted to leave the address. The report states that the Police issued a PSO valid for five days against Mr Guram. He was allowed to go back to the property to retrieve his vehicle and his passport. The report also records that Mr Guram appeared distressed when he first approached the Police at the police station. The report says he was not easy to understand but made several mentions of his car and passport and that he wanted to go back to India. The two boys were spoken to and neither said that they had seen anything physical. Mr Guram was taken by the Police to Gandhi Nivas.8
[22] Mr Guram was charged with assault but the charge was withdrawn before his next appearance on 31 October 2019.
[23] On 16 October 2019, Mrs Guram wrote to Immigration New Zealand (INZ) saying she was withdrawing Mr Guram’s visa application. In the letter, which I will refer to later in this judgment, she made a number of allegations against Mr Guram. She did not make any of these allegations when speaking to the Police.
8 Gandhi Nivas (home of peace) is an organisation that provides emergency housing in Ōtāhuhu, Te Atatū and Papakura in Tāmaki Makaurau to men. Men are referred to Gandhi Nevis when they have had a PSO issued against them. The organisation is focused on family violence intervention and rehabilitating perpetrators of family violence.
[24] On 28 November 2019, Mr Guram presented at the Counties Manukau Police Station counter with his then lawyer. He presented a five page written statement setting out the allegations I have referred to above.
[25] The Police FVR file records that on 19 January 2020, the Police received a call from B stating that his mother and her partner were fighting and Mr Guram was threatening his mother. The Police went to the address and spoke to Mr and Mrs Guram separately. Mrs Guram said there was a verbal argument which had escalated with Mr Guram yelling at her. Mr Guram had packed his bags and attempted to leave the address. She said she had tried to stop him and they had struggled with his bags.
[26] The Police used an interpreter to speak to Mr Guram, who said he had come home from work, he was tired, that he had been working all day and Mrs Guram and the children started hassling him for money as soon as he arrived home. This caused a verbal argument and he packed his bag trying to leave. The report also records that the Police considered issuing a PSO. However, because Mr Guram himself wanted to go to Gandhi Nivas and because there had been no physical altercation, they did not issue a PSO.
[27] The next event recorded on the Police FVR file was on 6 February 2020. The file states that in the early hours of the morning, Mrs Guram called the Police, stating that Mr Guram had cut himself on the forearm and that he had pushed her and left the address by foot. The Police also received a phone call from Mr Guram stating he had been attacked by his wife and T. Mr Guram says T, using a fork, had made lacerations on his inner arms. The Police FVR records that Mr Guram was very upset and cried when he was asked about what had happened. Mr Guram said he ran from the address and asked for help at a neighbouring address and then called the Police. The report records that he was not easy to understand but made several mentions of his money and fraud action by his wife and that he wanted to go back to India.
[28] Because of Mrs Guram’s allegation that Mr Guram had cut himself, the Police took him to Middlemore Hospital for a mental health assessment. He was cleared of any mental health issues. He was served with a PSO and was taken to Gandhi Nivas.
[29] Mrs Guram’s version was, as noted above, that Mr Guram had cut himself. She said that Mr Guram pushed her as he tried to leave the house. T confirmed his mother’s version of events. The Police report states both boys were at the address at the time of the incident and that “both were happy and calm about the situation”. The Police issued a PSO against Mr Guram for five days. No charges were laid.
[30] On 13 February 2020, Mr Guram instructed Ms Rajapakse to file an application for a temporary protection order. Ms Rajapakse explains that because of the need to translate all of the evidence and the translator’s prior commitments, the application was not filed until 11 March 2020.
[31] There is a note in the FVR file dated 15 February 2020. It records that Mr Guram came into the Papakura Police Station the previous day to talk to the Police about ongoing family violence episodes between him and Mrs Guram. The report records that there was a language barrier and another constable (presumably Punjabi speaking) assisted with interpreting. Mr Guram referred to ongoing abuse from his wife. He said that she had assaulted him with a belt in the past but he did not report this to the Police as he felt he could not trust them. He said the Police continually sided with his wife because they could not understand him. He showed the Police a video of his wife standing with a belt in her hand swinging it around. However, the report states it was not possible to see whether Mrs Guram in fact hit him.
[32] The report continues that Mrs Guram came into the Papakura Police Station on 15 February 2020 to make an allegation that Mr Guram had pulled B’s towel off him and made him dance naked while taunting him. This was said to have occurred in March 2019. No complaint was made by Mrs Guram at the time of the alleged event. I refer to this allegation later in this judgment. I simply note at this point that after the Police inquiry, no action was taken either by way of warning or prosecution of Mr Guram.
[33] On 11 March 2020, Mr Guram filed a without notice application for a temporary protection order with a supporting affidavit. On 13 March 2020, Judge G S Collin directed the application proceed on notice. Mrs Guram and T filed
their notice of defence and supporting affidavits (to which Mr Guram filed an affidavit in reply and Mrs Guram and T filed further affidavits in response).
[34] Ms Rajapakse advised from the bar that Mr Guram has been served with a Deportation Liability Notice (confirming Mr Guram’s evidence that he was “on deportation at the moment”). He remains in New Zealand pending the hearing of this appeal and its outcome.
Family Court judgment
[35]Judge Adams gave an oral decision on the second day of a two day hearing.
[36] The Judge noted that “A significant feature of this case is that the parties have had no significant contact for almost one and a half years”.9 The Judge added “There is no need for them to have any future contact.”10 The Judge then said:
[4] The case for [Mr Guram] is that he fears [Mrs Guram] is motivated to harm him in the future. Despite the absence of any incident or apparent threat in almost 18 months, he says that he fears she or [T], on her behalf, will release onto the Internet a video that shows him in a poor light. He says that the video was taken on 12 October 2019,11 about three and a half months before he finally left the home.
[37] The Judge referred to S v S, which he said “requires me to pay attention to Mr Guram’s perception, but it also directs attention to the reasonableness of that perception.”12 Mr Guram had produced a number of text messages that he said Mrs Guram sent to him. The Judge described the messages as threatening because they addressed Mr Guram in a contemptuous manner. However, the Judge said the question as to who sent the text messages from Mrs Guram’s phone was not straightforward, as Mrs Guram alleged Mr Guram must have used her phone to send the messages to himself, which he then emailed to himself to keep a permanent record. The Judge said “this is a somewhat bizarre allegation, but it mirrors another allegation”, which related to Mr Guram’s injuries to his forearms. As noted above, Mrs Guram claimed Mr Guram inflicted these injuries on himself. The Judge said:
9 [G v G], above n 1, at [3].
10 At [3].
11 The evidence suggests the video was taken in September 2019.
12 S v S [2008] NZCA 565, [2010] 2 NZLR 581.
[8] … The alternatives are either that [Mr Guram] has gone to significant lengths over a period of time to create evidence that he is a victim (when he is not), or that he is in the unfortunate situation of not being believed over and over again.
[38] Regarding the second alternative, the Judge said that if Mr Guram’s allegations were correct, he is the victim of family violence.13
[39] The Judge noted a number of Police callouts to the home where Mr and Mrs Guram lived and that Mr Guram was served with a PSO on three occasions and on one occasion he spent a night in the Police cells.
[40] The Judge referred to Mr Guram’s claim that Mrs Guram financially abused him but found Mr Guram was not subject to financial abuse. The Judge found that the marriage occurred in circumstances where Mr Guram wanted to emigrate from India to a country where he felt he had better prospects.14
[41] The Judge found that T was a credible witness. He was less confident about Mrs Guram, however, after the cross-examination of T, he was “left genuinely wondering whether Mr Guram may indeed have concocted these offensive [text] messages”.
[42] The Judge referred to the allegation in the FVR file about Mr Guram’s alleged conduct towards B that allegedly occurred in March 2019. He noted the allegation by Mrs Guram and T that Mr Guram forcibly pulled off B’s towel after B had showered and made him dance naked in front of him. The Judge said that although the material was not subject to cross-examination, it showed that the idea of taking demeaning photos and uploading them in a public domain was already part of the family narrative by March 2019.15
[43] The Judge found the parties were in a qualifying relationship under the Family Violence Act 2018 as they were married. He said he was left in doubt about Mr Guram’s allegations of physical and psychological abuse.16 However, he said even
13 [G v G], above n 1, at [10].
14 At [11].
15 At [17].
16 At [19].
if he was wrong, he was confidently of the view that there was no reasonable risk of future family violence.17 He said he was not persuaded that Mrs Guram or T had any desire to pursue a course of psychological abuse against Mr Guram.18 He also stated he was unable positively to find that there was any such video.
[44] The Judge dismissed Mr Guram’s application for a protection order because of lack of necessity.19
Approach on appeal
[45] Section 177 of the Family Violence Act 2018 (the Act) provides for an appeal from the Family Court to this Court:
177 Appeals to High Court
(a)This subsection applies to a decision of a court, in proceedings under this Act, to—
(i)make or refuse to make an order; or
(ii)dismiss the proceedings; or
(iii)otherwise finally determine the proceedings.
…
(c)A party to proceedings in which there is made a decision to which subsection (1) applies, or any other person prejudicially affected by the decision, may appeal to the High Court against the decision.
(d)The High Court Rules 2016 and sections 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under subsection (3) as if it were an appeal under section 124 of that Act.
…
[46] Under r 20.18 of the High Court Rules 2016 (HCR), appeals are by way of rehearing. After hearing the appeal, this Court may make any decision it thinks should have been made or direct the Family Court Judge to rehear the matter, consider or
17 At [19].
18 At [20].
19 At [22].
determine any matters this Court directs, or enter judgment for any party that this Court directs.20
[47] An appeal under s 177 from the decision granting or refusing to grant a protection order is a general appeal.21 It is now accepted that both limbs of the test for making a protection order are reviewable on ordinary appellate principles. The second limb of the test, whether a protection order is necessary, used to be treated as an appeal against a discretion under the Court of Appeal decision in Surrey v Surrey.22 However, the Court of Appeal in SN v MN held that aspect of the decision in Surrey did not survive the Supreme Court’s decision in Kacem v Bashir.23
[48] In a general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds reasonably differ.24 The key principles in a general appeal are:25
(a)the appellate Court is entitled to its own opinion about the facts and the law;
(b)the appellate Court is entitled to make a decision based on all the evidence presented to the lower court without necessarily deferring to the lower Court’s judgment; and
(c)where there is a question of credibility and the lower Court has had a chance to actually listen to the witnesses, some deference to the lower Court’s judgment may be appropriate.
20 High Court Rules 2016, r 20.19.
21 SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [46], citing Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [35].
22 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581.
23 SM v MN [2017] above n 21 at [46]; and Kacem v Bashir above n 21 at [33]-[34].
24 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
25 At [16], approved in H v R [2021] NZHC 1144 at [37].
Grounds of appeal
[49]Mr Guram’s grounds of appeal are as follows:
(a)The Judge made an error of law when he determined there was no necessity to make an order because there was no significant contact for almost one and a half years and there was no need for future contact;
(b)The Judge formed a subjective opinion of Mr Guram’s fear of the video going viral and did not take into consideration that Mr Guram did have a reasonable subjective fear of future violence;
(c)The Judge made an error of fact when he did not give sufficient weight to the oral and affidavit evidence provided in support of Mr Guram that provided evidence contrary to the oral evidence of Mrs Guram and T;
(d)The Judge did not give sufficient weight to the affidavit evidence provided in support of Mr Guram that provided evidence which raised significant issues with the credibility of Mrs Guram and T;
(e)The Judge gave undue weight to information in [the FVR file regarding the allegations of Mr Guram’s alleged conduct in relation to B in March 2019] and made an assumption that is not supported by factual and reliable evidence;
(f)The Judge, when making findings of credibility, gave weight to irrelevant considerations including amongst others, T’s age; and
(g)The Judge made an error of fact and law when he relied on the evidence of Mrs Guram and T that there was no reasonable risk of future family violence.
Submissions
Appellant’s submissions
[50] In respect of the first ground of appeal, Ms Rajapakse submits that Judge Adams wrongly considered that 16 months without contact was a long time and therefore, there was no necessity for a protection order to be made. She submits that it is not unusual for parties not to be in contact when family violence proceedings are before the court but that is not a reason to refuse a protection order. She says the Judge pre-determined the decision before the matter was heard. The Judge viewed the application for a protection order as being for immigration purposes.
[51] Ms Rajapakse says that Judge Adams did not conduct a factual inquiry into whether s 79(a) and (b) of the Act were met, which is a mandatory requirement in an evaluative process. Ms Rajapakse submits the Judge ignored the principles of the Act and made an erroneous interpretation of the mandatory requirements of the Act. She submits the Judge was plainly wrong.
[52] For the second ground of appeal, she submits that pursuant to s 4 of the Act, Judge Adams needed to be cognisant of Mr Guram’s views unless there was good reason not to do so. Mr Guram’s case is that he is fearful Mrs Guram and T will release the video on the internet showing his naked body because he refused to pay them
$30,000 towards a deposit to purchase a house.
[53] Ms Rajapakse refers to evidence Mr Guram attempted to give, that Mrs Guram made contact with him through his mother and through an acquaintance, telling him to withdraw the proceeding. She says the Judge did not want to hear this evidence. Ms Rajapakse submits that Judge Adams formed a subjective opinion before hearing evidence.
[54] Ms Rajapakse says that Mr Guram does not want to live in New Zealand. Rather, he wants to return to India and the protection order he seeks is to protect him from future violence. Specifically, he fears Mrs Guram or T will upload the video on social media.
[55]She submits the Judge failed to consider s 89 of the Act which applies to T.
[56] In addition, Ms Rajapakse submits the Judge failed to give weight to the allegations of family violence from March 2019 to 5 February 2020. There was no cross-examination of Mr Guram on his allegations of physical violence. She submits the Judge focused solely on the existence of the video instead of reviewing all the evidence in totality to decide whether the incidents amounted to family violence.
[57] She submits that the Judge ignored Mr Guram’s views and allegations of family violence, including that he sought help from the Indian community, the temple and the New Zealand Police.
[58] Ms Rajapakse refers to the FVR file which described Mr Guram as being “distressed” and wanting to leave home on multiple occasions.
[59] Ms Rajapakse says that despite having text messages referring to the video, Judge Adams declined to find a video existed. He brushed aside fears expressed by Mr Guram, saying the video would not receive much interest on the internet. Ms Rajapakse says that is evidence of the Judge’s subjective opinion rather than consideration of whether Mr Guram’s fear was reasonable.
[60] Regarding the third ground of appeal, Ms Rajapakse again refers to Mr Guram not being cross-examined on the allegations of violence he made to the Police, the acknowledgements of complaints made by Mr Guram to the Police or the medical report he submitted. She submits Mr Guram’s evidence was credible and that Mrs Guram’s evidence was not.
[61] In relation to the fourth ground of appeal, Ms Rajapakse submits the Judge did not turn his mind to Mr Guram’s affidavit evidence. She says Mr Guram wrote his affidavit evidence in the Punjabi language and it was then translated into English. She notes that at the hearing, the Judge found that Mrs Guram’s English ability fell short of being able to swear an affidavit in English (which she had done) and that she would need an interpreter.
[62] Ms Rajapakse adds that Mrs Guram’s affidavit evidence lacked details. Some of her evidence under cross-examination was inconsistent with her sworn statements. Further, Mrs Guram (and T) at times did not have a very good recollection of the details of specific events and there were inconsistencies. She says the Judge was incorrectly lenient and incorrectly made allowances for Mrs Guram.
[63] In relation to the fifth ground of appeal, Ms Rajapakse submits that the Judge gave undue weight to information in the FVR file regarding Mr Guram’s alleged conduct towards B, which is not supported by factual and reliable evidence. She emphasises that while the Judge found that taking demeaning photos was part of the family narrative, that statement was without supporting evidence. She says it may be Mrs Guram and T’s narrative, but it is not Mr Guram’s narrative.
[64] Further, Ms Rajapakse submits the Judge made a serious error of fact in forming a subjective opinion of Mr Guram that is unsubstantiated. On that basis, the Judge doubted Mr Guram’s claims of physical and psychological violence and discredited the evidence, which Ms Rajapakse says is unfair and unreasonable.
[65] In respect of the sixth ground of appeal, Ms Rajapakse submits that Judge Adams gave weight to irrelevant considerations, such as the age of T. She submits the Judge found T credible despite his evidence being disingenuous and unreliable.
[66] Finally, on the seventh ground of appeal, Ms Rajapakse submits that the Judge made an error of fact and law when he relied on the evidence of Mrs Guram and T to determine there was no reasonable risk of family violence. She submits Mr Guram only needed to, and did, establish on the balance of probabilities that he has a reasonable subjective fear.
Respondent’s submissions
[67] Mr Castelino, for Mrs Guram and T, submits that Judge Adams heard evidence from all the parties and heard evidence regarding specific incidents and made
credibility findings about that evidence. Therefore, he says some deference to the lower court judgment may be appropriate.26
[68] Mr Castelino submits that there was conflicting evidence on the existence of family violence between the parties.
[69] Mr Castelino submits the parties are no longer in a relationship of marriage and are not facing the “stressors of the marriage”. He adds that Mr Guram has been served with a Deportation Liability Notice and intends to relocate to India.
[70] Further, Mr Castelino submits no safety concerns exist. He says that Mr Guram does not face any vulnerabilities that require a protection order to be granted. He says that the alleged video recording is not a ground for a protection order. He says that if the video existed it would have been uploaded by now, however it is of low utility.
[71] In regard to s 83 of the Act, Mr Castelino says there is no evidence Mr Guram suffers from mental health issues or any other issues as a result of Mrs Guram’s alleged behaviour. He says Mr Guram’s perception is not reasonable. He says “Protection against an imaginary video that could go viral in the near future is an unrealistic and unreasonable fear”.
[72] Mr Castelino submits that granting a protection order is an objective exercise. He says that family violence is unlikely to occur in the future. He says “even though the situation of the [appellant] and the circumstances he is in is unfortunate it does not meet the grant of a protection order under the Act”.
Law
[73] The Act governs the making of protection orders. Section 79 contains a two- part test. It provides:
26 Austin, Nichols & Co Inc v Stichting Lodestar, above n 24, at [16].
79 Requirements for making of protection order
The court may make a protection order if it is satisfied that—
(a)the respondent has inflicted, or is inflicting, family violence against the applicant, or a child of the applicant’s family, or both; and
(b)the making of an order is necessary for the protection of the applicant, a child of the applicant’s family, or both.
[74] The definition of “family violence” is extensive.27 “Violence” means physical abuse, sexual abuse, psychological abuse or some combination of the three.
Psychological abuse is extensively defined too.28
[75] A single act may constitute abuse and a number of acts that form a pattern of behaviour may amount to abuse even if the acts, viewed in isolation, appear minor or trivial.29 The Court must consider the perception of the applicant and the effect of the behaviour on the applicant.30
[76] Section 171 of the Act provides that the standard of proof for every question of fact arising must be decided on the balance of probabilities.
[77] The second limb of the test (whether an order is necessary) requires an assessment by the Court of the need for protection in the future, having regard to the objects of the Act, the statutory factors set out in s 14, as well as any other relevant factors.31 In deciding whether an order is necessary, the Court must have regard to the perception of the applicant, the nature and seriousness of the behaviour in respect of which the application is made, and the effect of that behaviour on the applicant.32
[78] Section 171 does not apply to the necessity limb of s 79. In N v K, Downs J said:33
27 Family Violence Act 2018, s 9.
28 Section 11.
29 Section 10.
30 Section 83(1).
31 Surrey v Surrey, above n 22, at [97].
32 Family Violence Act, s 83(1)(a) and (b).
33 N v K [2021] NZHC 2213, at [36].
[36] … Must the Court be satisfied on the balance of probabilities an order is necessary? Or, is it sufficient the Court is satisfied an order is necessary; “satisfied” connoting no standard of proof and entailed no more than the “required affirmative conclusion”? I hold the latter. It is awkward to consider something more likely than not necessary. And tellingly, s 171 applies only to questions of fact. Whether an order is necessary is not really a question of fact; rather, it is a matter of judgment.
[79]I adopt the same approach.
Approach in Family Court and consequence for appeal
[80] I first make some general observations about the approach in the Family Court. Ms Rajapakse submits that the Judge did not conduct a factual inquiry under s 79(a) of the Act, namely whether Mrs Guram had inflicted family violence against Mr Guram. I do not accept that submission. The Judge said:
[19] I am left in doubt about the allegations of physical and psychological abuse, because the totality of the evidence leads me to leave alive the question whether [Mr Guram] may indeed have created the evidence upon which he mostly relies. …
[81] However, notwithstanding that finding by the Judge, it does seem that his greater focus was on the issue of necessity for the making of an order. The transcript from the lower court reveals the following statement by the Judge immediately before Mr Castelino began his cross-examination of Mr Guram:
… Mr Castelino, before you commence cross-examination I note there can be two aspects to the case that are important. One is whether the events of the past occurred in the way the applicant says they occurred, but second, even if they did, the question of whether it is necessary for the applicant’s protection that an order be made is a significant issue and that that [sic] second point is one that I am taking note of.
[82] In this Court, Mr Castelino submits the Judge directed that counsel confine themselves to necessity. The Judge did not say that. Rather, he emphasised necessity. Further, when Ms Rajapakse cross-examined Mrs Guram and T, the cross-examination addressed issues going to s 79(a), and Mrs Rajapakse was not stopped by the Judge.
[83] In any event, Mr Castelino conducted a very limited cross-examination of Mr Guram which runs to only six pages in the notes of evidence. Mr Castelino covered essentially three issues: the number of times Mr Guram complained to the Police and
the issuing of PSOs; whether Mrs Guram had made contact with him after he left the family home; and whether he had made a complaint to the Police about the alleged video. In that context, Mr Castelino did put the proposition to Mr Guram that the video did not exist. But beyond that bare proposition, he did not ask any questions about the alleged incident which was said to have been recorded on video. He also asked a couple of questions regarding financial transactions.
[84] Mr Castelino did not cross-examine Mr Guram on his wider allegations of physical and psychological violence that formed the key planks of Mr Guram’s case under s 79(a). The consequence for this Court is that Mr Guram’s evidence on the alleged family violence is unchallenged (at least as far as the oral evidence is concerned). Where Mrs Guram and T gave evidence under cross-examination on the issue of family violence, the weight I will give to it is affected by the fact that Mr Guram was not cross-examined.34
[85] While the Judge did make findings of credibility, because of the limited cross- examination of Mr Guram I give less than the usual deference to the lower court’s judgment on the question of credibility than might otherwise be the case. Additionally, this Court has available to it all the affidavits and exhibits to those affidavits that were before the Judge.
Have Mrs Guram and/or T used family violence against Mr Guram (s 79(a))?
Text messages
[86] As noted above, the authorship of a series of text messages which Mr Guram annexed to his affidavit was in issue in the Family Court. Most were sent from Mrs Guram’s phone to Mr Guram’s phone and some were sent from T’s phone to Mr Guram’s phone. There was no challenge to the evidence that the text messages were sent from those two phones. But Mrs Guram and T say they did not send them, save for two which T accepted he sent. Mrs Guram and T say Mr Guram used their phones to send the texts to himself. They say he then forwarded them to his email address and then deleted the texts.
34 Evidence Act 2006, s 92(2)(b).
[87]When referring to the authorship of the text messages, the Judge put it this way:
[8] … [Mr Guram] refers, among other things, to a number of text messages that he says he received from [Mrs Guram]. Those messages are threatening, they appear to address him in a contemptuous manner, some of them direct him to clean the house or to pay money. If they were sent by [Mrs Guram], they would evidence a demeaning course of conduct. The question about who sent those texts is not straight forward. Although they were sent from [Mrs Guram’s] telephone, she alleges that [Mr Guram] must have used her phone to send these messages which he then emailed onto himself to create a permanent record. …
[88] Not only do the text messages evidence a demeaning course of conduct (if sent by Mrs Guram), but they go further. If I were to accept that Mrs Guram and T sent the text messages, that provides support for Mr Guram’s evidence that there was a video taken of him in an almost naked state with a piece of meat in his mouth. (One of the texts from Mrs Guram’s phone refers to “your naked video”) . The existence of the video was a critical issue in the Family Court. The notes of evidence record the following statement from the Judge:
I simply comment that the only – it appears to me, the only credible basis for the making of a protection order given that the parties have been apart for so long and have no need to come in contact with one and other [sic] would be if there is a video that would be embarrassing for this witness to be shown. As I understand his case he is in desperate fear that this video will be released on the internet. As I understand the respondent’s case, there is no such video, so an important part of the case will be, can I make a finding that there is such a video? I cannot invent one. I am not yet aware of any independent evidence of the video.
[89] As already noted, the Judge stated he was unable positively to find there was any such video.35 If I accept the video existed, the text messages would support Mr Guram’s position that he was psychologically abused and financially abused (the texts contain a demand for money). Further, if Mr Guram’s evidence regarding the existence of the video and threats about its release on the internet is accepted, that might tend to enhance his credibility generally and thus his allegations of physical and other psychological abuse. As noted, the Judge said he was left in doubt about the allegations of physical and psychological abuse.36
35 [G v G], above n 1, at [21].
36 At [19].
[90] And finally, the threats in the text messages are relevant in determining whether the making of a protection order is necessary.
[91] I set out the texts below. They are all written in the Punjabi language but using English characters, i.e. not using the Punjabi script. The headings indicate the person from whose phone the message was sent.
Mrs Guram: 11.36 am 15 December 2019
[Balkar] now you will not go to the police (lol), now you know that New Zealand police listens only to the woman. New Zealand police is a moron. The police will only listen to me. Nothing will happen for you if you go to Police. If you go to the police now, I will frame you in a case.
Mrs Guram: 12.02 pm 15 December 2019
If you do not listen to me now, I will get you deported to India through immigration. Keep quiet and do as I say. Just give me money after doing work.
Mrs Guram: 10.38 am 16 December 2019
You are not answering the phone. Don’t you want to go to jail again? Come home and withdraw the money from the bank, as I have to pay for the car to MTF.
Mrs Guram: 8:48 am 17 December 2019
[Balkar] where the hell are you. The housework needs to be done. [B] is coming home the house needs to be tidy. You know [B] has his approach in New Zealand police and you will go to prison.
Now you will get shot and I will kill you. You know [T] he will make the video clip of yours viral. Stay quietly. You are familiar with [T]s anger.
Mrs Guram: 10.12 to 10.14 am 18 December 2019
[T] has seen this house. [T] says to buy a house soon. [Balkar] arrange the money from India or bring it from your brother. Otherwise [T] will trouble you.
T: 11.02 and 11.04 am 18 December 2019
[92] There are screenshots of a Lamborghini motor vehicle (at 11.02 am) and a website reference on to a residential property in Conifer Grove (at 11.04 am). T accepted under cross-examination that he sent the reference to the residential property. He was not asked about the vehicle.
Mrs Guram: 10.54 pm 18 December 2019
[Balkar], [T] wants to buy this house. You arrange 30,000 Dollars from India and the rest [T] will arrange. If you don’t do this, [T]will send your naked video to India.
T: 11.25 pm 18 December 2019
I need to buy a house. Need money for that, you provide the money or else wait and watch.
Mrs Guram: 11.12 pm 19 December 2019
[T] is asking for money from India to buy a house in Conifer Grove. He wants you to arrange 30,000 dollars from India, otherwise you will not get your visa.
Mrs Guram: 10.39 am 20 December 2019
[T] was asking how long will it take for you [sic] arrange the money from India, when will your mother give the money. You know [T], he will trouble you otherwise.
Mrs Guram: 10.47 am 22 December 2019
[Balkar] where are you. Last night [T]was at Nova’s house and is unwell. Looks like he took some drugs.
Mrs Guram: (time unclear – am) 23 December 2019
I have deposited money in your account [Balkar]. You give that money to me after withdrawing 3,000 dollars, otherwise, you know what will happen.
Mrs Guram: 10:56 am 24 December 2019
[Balkar] where are you? Come to home and talk to [T] about money.
Mr Guram: 11.01 am 24 December 2019
[Kulpreet], I don’t have any money left, neither I get that from India anymore. From where shall I give money to [T] for house. I will give it to you once I get my work visa and start working. Right now I have nothing and from where shall I give the money to you. Please don’t harass me, I am already too much stressed out.
Mrs Guram: 6.22 am 1 January 2020
[Balkar] where are you this morning. Talk to [T] about the money for the house. Why have you blocked [T]’s phone? Where are you? Do you want the visa or not. Or you will go to prison. You are stuck now. Have you taken money from your aunt in Canada.
T: 9.10 pm 9 January 2020
You do the sexy dance for $20.37
Mrs Guram: 3.34 pm 16 January 2020
[Balkar], what did your aunt say about the money? When will she give the money to you? [T] was asking as we will have to see the house.
Mr Guram: 3.35 pm 16 January 2020
My aunt will give the money once she will go to Canada in February or March.
Mrs Guram: 11.01 am 19 January 2020
Where the hell are you. Come home and who will do the work, do the vacuum. Don’t you get beaten up by me and [T]?
[93] It was not put to Mr Guram in cross-examination that he had sent the above text messages. He was not cross-examined about the text messages at all. He should have been.
[94] It is not apparent why he would send the messages to himself. The Judge mentioned that one of the advantages in the marriage for Mr Guram was that he would have a hope of making his life in New Zealand because Mrs Guram had New Zealand residence.38 If that is the case, it might be thought that it would be against Mr Guram’s interest to fabricate the allegations that his wife was threatening and pressuring him in the ways set out in the texts. Her support would have been necessary for immigration purposes.
[95] Mr Guram said in one of his affidavits that he could not have been the sender of these texts as Mrs Guram’s and T’s phones were fingerprint protected. When that was put to Mrs Guram in cross-examination, she denied that was so. It is not possible to resolve that dispute.
[96] However, in the absence of any evidence indicating the reason for Mr Guram to send text messages to himself, I accept that the messages from Mrs Guram’s phone to Mr Guram’s phone were sent by Mrs Guram and the messages from T’s phone to
37 This is the second of the two messages T accepted he sent to Mr Guram.
38 [G v G], above n 1, at [1].
Mr Guram were sent by T. The consequences that flow from that finding is that the texts provide a basis to support Mr Guram’s evidence that the video did exist and that Mrs Guram made threats to him about him disseminating the video on social media.
[97] Additionally, there are other matters concerning Mrs Guram’s credibility, which I address next.
Mrs Guram: credibility issues
[98] Ms Rajapakse submits that there were significant issues with Mrs Guram’s credibility in part based upon her inconsistent evidence. First, in August 2018, while Mr Guram’s visa application was being processed, INZ received potentially prejudicial information that the relationship between Mr and Mrs Guram may not be genuine. Both Mrs Guram and T wrote to INZ confirming that the relationship was genuine and stable. Mrs Guram’s letter included the following:
… From day one, my husband has treated me and my children with respect and dignity. As a family, my husband, our children and I spent quality time for several weeks travelling and staying together while in India.
During this time, my husband provided our children with guidance and the love of a father which was a void that our children experienced before I married [Balkar Guram]. [Balkar’s] mother also treated us with kindness and provided us with guidance and moral support as a mother-in-law and as a grandmother to the children. …
To provide additional information, my husband and I have been in regular contact with each other over the phone since our marriage and we have been looking forward to be re-united as a family. The children take [Balkar] as their father and [Balkar] has assumed his responsibility as the father in the family and we all love and miss him very much. Our relationship as a family has been solid, trustworthy and on-going so much so that we have regularly discussed about the future and welfare of our children.
[99] In his letter, T said that since his mother and Mr Guram had received the information that the relationship may not be genuine, “… my Mum has been very sad, unwell and depressed …”.
[100] Initially in her oral evidence, Mrs Guram adopted a position that was consistent with her letter. She said she was happily married to Mr Guram. It was put to her that there were a lot of problems in the marriage from the beginning and she denied that. She then changed her evidence and said in the beginning “it was okay” but after that,
even on the phone, they had arguments. Her main concern was with her elder son. She later said there were arguments over in India as well. She then said, from the beginning Mr Guram started abusing her and her children also.
[101] The oral evidence that there were issues in the marriage from the beginning is clearly contrary to the information that Mrs Guram provided to INZ.
[102] The next point relates to Mr Guram’s evidence that he was working while he was on a visitor’s visa. His affidavit evidence was that Mrs Guram required him to work and that his wages were handed over to her. Mrs Guram said that was not the case. She knew that Mr Guram was on a visitor’s visa and was therefore not able to work.
[103] Mr Guram’s statement that he was working while on a visitor’s visa was not made for the first time in the proceeding. The FVR of 19 January 2020 following the Police attendance at the family’s home contains the following:
Police used an interpreter service to speak with [Balkar]. He stated he had come home from work, he was tired and had been working all day. He states [Kulpreet] and the children started hassling him as soon as he arrived home for money. This has caused a verbal argument and he has lacked [sic] his bag trying to leave.
[104] Mr Guram’s statement that he was working was a statement against interest. There seems to be no reason for him to have told the Police he had been at work if that was not the case. That then casts doubt on Mrs Guram’s credibility when she said Mr Guram was not working.
[105] Next, the occasions when Mrs Guram made complaints to the Police, were as a consequence of Mr Guram going to the police to make allegations about her. Mrs Guram did not initiate any complaints herself. This is despite the contents of her letter of 16 October 2019 to INZ requesting “a withdrawal of the visa application of my husband/partner [Balkar Guram]”. The reason Mrs Guram gave in that letter included that:
Few days, after his arrival to New Zealand [Balkar] became violent towards my two sons and me. He abused three of us almost every day – emotionally, mentally and physically.
[106] In the letter Mrs Guram also alleges many verbal threats to her and family members.
[107] Then there is the allegation of an incident said to have occurred on 31 March 2019. However, Mrs Guram did not make the complaint until 15 February 2020. The complaint, as mentioned above, was that Mr Guram had regularly forcibly pulled the bath towel off her youngest son, B, after he had showered and made him dance around naked in front of him, mocking the boy, continually telling him that he was not a boy nor a girl. Further, it was alleged that B had discovered that videos had been made of him by Mr Guram while this was happening and the recordings had been uploaded to his public YouTube channel. On discovery of that, B deleted the videos and deleted his channel, in approximately March 2019.
[108]The Police FVR of 15 February 2020 includes the following:
On talking with the informants [Mrs Guram] and [T] they both disclosed multiple beatings that the victim [B] has taken from the suspect over the last year. The victim himself states he has been pushed down on the floor and kicked to the legs and back lots of times. The suspect has also sat on his stomach. That the suspect punches and slaps him regularly. He has also pushed the victim off the bed. The last assault was approx 2 weeks prior to the recent PSO.
[109] It is surprising that if these events did in fact occur, starting in March 2019, that Mrs Guram did not complain until February 2020. The Police commenced an investigation but the case was closed as there was insufficient evidence to warn or prosecute Mr Guram.
[110] Next, in relation to the alleged incident on 6 February 2020, there are again conflicting versions of what occurred. The Police FVR records that at 00:06 hours, Mrs Guram called the Police stating that her husband had cut himself on the forearms and that he had pushed her and left the address by foot. The report continues that the Police had also received a phone call from Mr Guram stating he had been attacked by his wife and received cut marks on his upper arm. The Police attended.
[111] In her affidavit evidence, Mrs Guram said the wounds were self-inflicted and the weapon involved was a knife, which she had presented to the Police. However,
under cross-examination she admitted that she did not see Mr Guram cut himself. There was also no record in the FVR file of a knife being presented to the Police.
[112] All of the above, in combination with my finding that Mrs Guram sent the text messages from her phone, leads me to conclude that no weight should be placed on Mrs Guram’s evidence.
“T”– credibility
[113] The Judge made favourable comments about T, describing him as a reasonably impressive witness, well able to find his way around the many pages of documentation and clear in his evidence.39 The Judge said the fact that T was caught out by reference to a knife rather than a fork in his affidavit (relating to the occasion when it was alleged that Mr Guram self-harmed) was an error that the Judge said he could readily accommodate. He noted T was 17 years old when he swore his affidavit.
[114] On the other hand, and what the Judge did not mention in relation to the alleged self-harm, was that T’s affidavit evidence was identical to that of his mother, stating that the wounds were self-inflicted and the weapon involved was a knife which he says his mother presented to the Police. Under cross-examination, T accepted that he did not in fact see Mr Guram harming himself.
[115] As to his age at the time he swore his affidavit, T’s evidence was that he left school at the age of 16 to start businesses of his own. It might be thought he had a degree of maturity not necessarily present in a school boy. It was put to T that he had to leave school because of anger issues, but he denied that was the case.
“B”
[116] There is evidence that might support Mr Guram’s allegations that the younger son was violent towards him. There was a letter from the principal of B’s school dated
12 April 2019 confirming the principal’s conversation of that same day with Mrs Guram that she had made a decision to suspend B. The reason is stated to be because:
39 [G v G], above n 1, at [13].
He has threatened to go to another student’s house with a hammer and a gun to smash all of the windows, shoot her mother and hack her internet.
Conclusion on Family Violence – s 79(a)
[117] When the evidence is viewed in totality it supports Mr Guram’s case that Mrs Guram inflicted physical and psychological abuse on him. There may well have been occasions when Mr Guram responded with physical violence towards Mrs Guram. But overall the evidence supports Mr Guram’s case that Mrs Guram was the aggressor. In particular, I accept that there was a video taken of Mr Guram in distressing and demeaning circumstances as he describes. That video constitutes psychological abuse. The demands in the texts for money constitute financial abuse.
[118] When the evidence is viewed in totality, I accept Mr Guram has established, on the balance of probabilities, that Mrs Guram inflicted family violence against him. The evidence also establishes Mrs Guram encouraged her son, T, to engage in behaviour that constituted family violence. In that regard I refer, in particular, to the behaviour by T towards Mr Guram that T recorded on his phone referred to in [17] above.
Is a protection order necessary - s 79(b)?
[119] The Judge’s decision that a protection order was not necessary followed his finding that the video did not exist. It is therefore necessary to consider the matter afresh. The second limb of s 79, requires the Court to be satisfied that a protection order is necessary for the protection of Mr Guram. The Court is required to consider whether Mr Guram has a subjective fear of future violence, that fear needing to have a reasonable basis. This assessment is a judgment, and is not required to be met on the balance of probabilities (see [78] above).
[120] Although I have found that there was family violence on a wider basis than simply the threat to release the video, it is really that latter aspect which is relevant when considering whether it is necessary to make a protection order. That is because Mr Guram is subject to a Deportation Liability Notice and will be removed from New Zealand.
[121] Not only were the threats real, I accept that Mr Guram has a reasonable fear that the video will be released on social media. That is what Mrs Guram threatened. It is not an answer to say that it is now 18 months since the parties separated and the video has not been uploaded onto the internet. For most of that time, this proceeding has been on foot. One would not expect that the threat would be carried out while the proceeding was before the Court. Nor is it relevant, in my view, that the video might not receive much interest on the internet as the Judge suggested.40 Mr Guram’s concern, which I accept is a reasonable one, is that its release would be insulting for him and his family and he could not face his family and society if the video were to be uploaded on the internet.
[122] The Court of Appeal in Surrey v Surrey said that when the applicant has a reasonably held fear of future violence, this is enough to shift the burden onto the respondent to demonstrate why an order should not be granted.41
[123] Mrs Guram and T have not provided any evidence that persuades me that a protection order is not necessary.
[124] I therefore find that a protection order is necessary for Mr Guram’s protection under s 79 of the Act. I will also direct that the order applies to T on the basis of my finding that Mrs Guram encouraged him to engage in behaviour against Mr Guram that amounted to family violence.42
[125] On making a protection order, the Court must direct the respondent to undertake an assessment for a non-violence programme and attend a non-violence programme, provided by a service provider, that an assessor determines is an appropriate non-violence programme for the respondent to attend.43 Section 188(2) provides that the Court need not make such a direction if the Court considers there is good reason for not making a direction. I do not consider there is good reason not to make a direction. Although I have approached the necessity limb on the basis of
40 [G v G], above n 1, at [20].
41 Surrey v Surrey, above n 22, at [43].
42 Family Violence Act, s 89.
43 Section 188.
Mr Guram’s reasonably held fear that the video will be uploaded onto the internet, my findings in relation to family violence are on a wider basis.
[126] Ms Rajapakse sought the imposition of a special condition in the following terms:
The Respondent and Associate [sic] Respondent must not publish any material relating to the Applicant on any social media, internet or any other electronic platforms in New Zealand or in any other country.
[127] Mr Castelino submits the suggested condition would be virtually impossible to implement as he submits anyone can post anything on social media under the guise of a false identity or account.
[128] In my view the condition proposed is far too wide. It should be limited to a prohibition on publication of the particular video which concerns Mr Guram. Limited in that way, Mr Castelino’s expressed concern loses much of its force.
Result
[129]I allow the appeal.
[130] I make a protection order in favour of Mr Guram against Mrs Guram and T , on the standard conditions.
[131]I impose a special condition as follows:
(a)The respondent, Mrs Guram, and associated respondent, T, must not publish or cause anyone to publish the video recorded in September or October 2019 showing Mr Guram in a state of undress with a piece of meat in his mouth on the internet, including on social media and online platforms in New Zealand, India or in any other country.
[132]I direct Mrs Guram and T to:
(a)Undertake an assessment for a non-violence programme; and
(b)Attend a non-violence programme, provided by a service provider, that an assessor determines is an appropriate non-violence programme for each of them to attend.
Costs
[133] Neither party addressed costs in their written submissions. Costs are therefore reserved. If the parties are able to agree costs, a joint memorandum is to be filed within 20 working days of the date of this judgment.
[134] In the event that costs cannot be agreed, memoranda are to be filed and served as follows:
(a)Mr Guram is to file and serve a memorandum within five working days of the date for the joint memorandum; and
(b)Mrs Guram and T are to file and serve their memorandum within a further five working days.
[135] Costs memoranda should not exceed five pages, excluding any attachments. I will determine costs on the papers.
Gordon J
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