J v K

[2025] NZHC 1472

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/family-court/after-the-family- court/restrictions-on-publishing-information/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-002712

[2025] NZHC 1472

BETWEEN

J

Appellant

AND

K

Respondent

Hearing:	1 May 2025
Appearances:	D Purusram for Applicant M Saini for Respondent
Judgment:	6 June 2025

(ANONYMISED) JUDGMENT OF ANDREW J

This judgment was delivered by me on 6 June 2025 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

J v K [2025] NZHC 1472 [6 June 2025]

Introduction

[1]    This is an appeal against the decision of Judge P Ginnen in the Family Court1 imposing a final protection order against the appellant, J, under s 79 of the Family Violence Act 2018 (the Act). The protection order was made for the benefit of the respondent, K, and the parties’ son, H.

Factual background

[2]    In 2011, the parties met in Auckland and commenced a relationship. They started to live together.

[3]In September 2012, their son, H, was born.

[4]    In 2013, the parties separated and commenced living separately. J continued to visit H.

[5]    In 2016, J met and married O, a Fijian national. She still lives in Fiji and has not been able to obtain residency in New Zealand.

[6]    On 27 May 2023, J visited H at K’s home. What happened during that visit and whether J assaulted K, as she alleges, is in dispute.

[7]On 31 May 2023, K filed an application for a protection order.

[8]    On 1 June 2023, a temporary protection order was issued against J in favour of K and H.

[9]On 24 April 2024, J completed a non-violence course.

The law

[10]   The purpose of the Act is to stop and prevent family violence by recognising that family violence in all its forms is unacceptable, stopping and preventing

1      [K] v [J] [2024] NZFC 12911.

perpetrators from inflicting family violence, and keeping victims, including children, safe from family violence.2

[11]   The principles intended to guide the achievement of the purposes of the Act are set out at s 4. They include the principle that decision-makers should recognise that family violence is often behaviour that appears to be minor or trivial when viewed in isolation, but forms part of a pattern of behaviour that causes cumulative harm.3 A further principle specified is that decision-makers should recognise that children are particularly vulnerable to family violence, including seeing or hearing violence against others.4

[12]   Section 9 of the Act defines family violence as occurring within an existing or prior family relationship, and including physical, sexual or psychological abuse. In particular, it provides that:

(3)Violence against a person includes a pattern of behaviour (done, for example, to isolate from family members or friends) that is made up of a number of acts that are all or any of physical abuse, sexual abuse, and psychological abuse, and that may have 1 or both of the following features:

(a)it is coercive or controlling (because it is done against the person to coerce or control, or with the effect of coercing or controlling, the person):

(b)it causes the person, or may cause the person, cumulative harm.

[13]   The definition of “abuse” in s 10 of the Act reinforces s 9(3). It provides that abuse may occur as a single act, or as a number of acts that form part of a pattern of behaviour (even if all or any of those acts, when viewed in isolation, may appear to be minor or trivial).

[14]   Section 11 of the Act defines psychological abuse as including threats of physical abuse, intimidation or harassment, and behaviour that does not involve actual or threatened physical or sexual abuse.

2      Family Violence Act 2018, s 3.

3      Section 4(b).

4      Section 4(d).

[15]   Section 79 of the Act requires a two-stage inquiry before making a protection order.5 First, the Court must be satisfied that family violence has occurred or is occurring. Second, the Court must be satisfied that a protection order is necessary for the applicant’s protection. The two steps need not relate to the same type of violence.6 The Court must consider whether apparently minor or trivial behaviour forms part of a pattern of violence which warrants an order,7 and have regard to the applicant’s perception of that behaviour.8

[16]   The Court of Appeal in Surrey v Surrey9 held that once the applicant proves the existence of past violence and a reasonable, subjective fear of future violence, the onus shifts to the respondent to raise countervailing factors that weigh against the need to grant a protection order. The applicant is not required to prove that violence was likely to occur in the future.10

Decision of the Family Court Judge

[17]Her Honour Judge Ginnen held there were three issues for her to decide:

(a)Are or have the parties been in a family relationship?

(b)Has J inflicted family violence on K or on H, or both?

(c)Is a protection order necessary for K’s protection or H’s protection, or both?

[18]   Her Honour held that the parties (although their accounts of the nature of their relationship were very different) were in a family relationship.

5      Haroun v Reda [2022] NZHC 2199, [2022] NZFLR 994 at [30]; see also Holland v Webster [2019] NZHC 616, [2018] NZFLR 1015.

6      Family Violence Act, s 80.

7      Section 82.

8      Section 83.

9      Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 at [43].

10 At [36].

[19]   On the issue of family violence, her Honour referred to the definition of family violence as being extensive. She also noted that psychological abuse is extensively defined.11

[20]   Her Honour found that she could not say with certainty that every allegation K made of family violence was proved. However, she found the evidence sufficient to make a finding that there was family violence during the relationship. At [27], she held:

I find their relationship continued up until the incident in May 2023. I find it more likely than not that during that incident [J] briefly put his hands around [K]’s neck during a heated argument and stepped back when [H] screamed out. That’s what [H] told the desk staff at the police station. I don’t give what

[H] is recorded as saying much weight, since it is untested hearsay evidence. I also consider the context of the argument. [K] had demanded the return of large sums of money she had transferred to [J]; and she was angry about [O] coming to live with him in New Zealand. I find that [J] minimises the nature of their relationship and his abusive behaviour towards [K], because now his wife lives in New Zealand, and he wishes to protect that relationship. His denial of his relationship with [K] is emotionally abusive. Putting his hands around [K]’s neck in [H]’s presence is psychologically abusive of [H].12 [J] might not have known [H] was at the door, but he knew he was in the house.

[21]   Her Honour further held that she could not decide if J sexually abused K in the way she alleged. Her Honour’s overall assessment was that the parties had a consensual sexual relationship but “there were aspects to it that were unsatisfactory and exploitative of K.”13

[22]   In addressing the issue of whether a protection order was necessary for K’s protection and H’s protection, her Honour held:

[36]      [J] has not satisfactorily demonstrated why an order should not be granted I find that in [[K]’s] current circumstances, a protection order is necessary for [K]’s safety. Although the parties have separated there continues to be tension and hostility about [J]’s wife’s move to New Zealand, and the money that [K] gave or lent to [J]. The amount given or lent runs to hundreds of thousands of dollars. [K] has made it clear she wants that money back. There are no parenting orders in place for [H]. At one stage in the evidence

[J] expressed a wish to apply for [H] to go into his day-to-day care. There are no agreed arrangements for his contact with [H].

11     [K] v [J], above n 1, at [5] and [6].

12     Family Violence Act, 11(2).

13     [K] v [J], above n 1, at [32].

[37]      Given those uncertainties it is likely that [K] and [J] will have some form of contact with one another. In these circumstances a protection order is necessary for [K]’s safety. The temporary protection order has been effective. A final protection order is needed while tensions are still high.

The grounds of appeal

[23]   The notice of appeal dated 23 October 2024 contains numerous grounds of appeal (21 in total). They constitute a wide-ranging challenge to the factual findings of the Judge and, in particular, the findings that there was sufficient evidence to make a final protection order and that such an order was necessary for the protection of K and/or H. There is a clear challenge to the credibility findings of the Judge, including an alleged failure to acknowledge and take into account K’s motivation to seek revenge against J and to prejudice the immigration application of his wife.

Analysis and decision

[24]   I do not intend to address each of the grounds of appeal individually. They are numerous and clearly overlap. They are virtually all directed to the reliability of the evidence. I generally find them all to be lacking in merit.

[25]   It is clear that the Family Court Judge had to make difficult and subtle credibility findings. She was, of course, best placed to make those assessments and I do not find any error in her approach. She fairly and properly acknowledged the considerable contradictions and tensions in the evidence, including in K’s account. There was probative evidence to support the Judge’s finding that it was necessary to make a final protection order. I would also note that trial judges are accustomed to dealing with witnesses with faulty recollection.

[26]   It may be that the incident on 27 May 2023 (where her Honour found that J briefly put his hands around K’s neck during a heated argument) was prompted in part by revenge. However, the Judge was clearly alive to all these factors and subtleties and was very careful, deliberately so, in the various factual findings that she made. This is apparent from her conclusion at [33] where she held:

I have been unable to say with certainty that every allegation [K] made is proved. However, the above is sufficient for me to make a finding that there was family violence during the relationship.

[27]   The Family Court Judge properly directed herself on the legal issues and, in my view, no complaint can be made of her identification of the three critical issues.

[28]   There is no basis for concluding that her Honour’s assessment that J’s denial of his relationship with K was emotionally abusive, was somehow an error. The Judge concluded, and in my view was entitled to do so, that J gave a “completely implausible” account of the beginning of their relationship.14 The Judge acknowledged at [4] that the parties’ accounts of their relationship were very different and she expressly took that into account in coming to her findings. I likewise see no basis for finding fault with her conclusion that H suffered psychological abuse in witnessing violence to his mother from his father.

[29]   All of the particular arguments that Mr Purusram, for the appellant, advanced before me, were in substance considered by the Family Court Judge. This includes the allegation that K is violent and that J is vulnerable to her because he owes her money. The Judge’s finding that she could not decide if J sexually abused K in the way that K alleged, and the reasoning for that, is indicative of the care that she took; her finding that there were aspects to the consensual sexual relationship “that were unsatisfactory and exploitative of K” appears to me to be a measured and responsible one, and fully supported by the evidence.

[30]   In addressing the issue of whether a protection order was necessary, the Judge correctly acknowledged that was very much a matter of judgement, requiring a broad-based assessment. She also correctly acknowledged that where K had a reasonably held fear of future violence, that was enough to shift the burden on to J to demonstrate why an order should not be granted.

[31]   There was a proper evidential basis for the Judge to conclude that J had not “satisfactorily demonstrated” why an order should not be granted.

[32]   I find there is no merit to any of the grounds of appeal and on that basis the appeal cannot succeed.

14 At [25].

Result

[33]The appeal is dismissed in its entirety.

[34]   As to costs, I find that the appellant, J, should pay costs to the respondent, K, on a 2B basis plus disbursements.

Andrew J