N v K

Case [2021] NZHC 2213 27 August 2021

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NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018 AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000853

[2021] NZHC 2213

UNDER the Care of Children Act 2004 and Family Violence Act 2018

IN THE MATTER OF

an appeal against a decision of the Family Court at Auckland dated 13 April 2021

BETWEEN

N
Appellant

AND

K

Respondent

Hearing: 3 August 2021

Counsel:

NJ Fairley for Appellant JM Gandy for Respondent SNN Singh for Children

Judgment:

27 August 2021

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 27 August 2021 at 11 am
pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: Thomas & Co, Auckland. NJ Fairley, Auckland.
SNN Singh, Auckland.

N v K [2021] NZHC 2213 [27 August 2021]

The appeal

[1] Judge D A Burns made a protection order and parenting orders in favour of K.1 Her husband, N, appeals. N contends the Judge erred in finding he had inflicted family violence on K; and erred to conclude a protection order was necessary. N also contends the Judge erred to permit only supervised access to the parties’ three children: A, B and C.

[2]The Judge’s factual findings are central.

Background

[3] N and K are Fijian. Early events occurred in Fiji. N and K met there 2010, while K was still at secondary school. She was 16; he 26. The parties married two years later, 20 March 2012.2

[4] A was born 22 March 2013; B, 13 January 2015; and C, 18 February 2017. So, K was a mother of three by the age of 23.

[5] In November 2013, K obtained a domestic violence restraining order from a Fijian Court. N did not file a defence to the application for the order. However, the order was later discharged by agreement with a mutual non-molestation condition.

[6] In September 2017, N moved to New Zealand. K and the children remained in Fiji. In November 2018, K and the children joined N here.

[7] On 11 January 2020, K finally left N. I say “finally”, for, K repeatedly left N, then returned.

[8] On 28 May 2020, K obtained a temporary protection order against N and interim parenting orders, all without notice.

1 [K] v [N] [2021] NZFC 3287.
2 K says the marriage was arranged. N says otherwise.

[9] N contested the orders being made permanent, hence the hearing before Judge Burns on 24 and 25 March 2021. The Judge found for K 13 April 2021.

The competing scenarios

[10] K alleged she had been the victim of extensive family violence by N. She said this began before they married, and the children witnessed some instances. K also said N was controlling.…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading N v K

Details

AGLC: N v K [2021] NZHC 2213
Case: [2021] NZHC 2213
Decision Date: 27 August 2021

CaseChat Overview and Summary

In the appeal, N contended the Family Court Judge erred in finding he had inflicted family violence on K, and that a protection order was necessary. N also argued the Judge erred to permit only supervised access to the parties’ three children: A, B and C. The appeal was dismissed. The Judge’s factual findings were central. The Judge accepted K’s evidence and rejected N’s in most respects. The Judge concluded N “has lied to the Court and... lacks insight into his own behaviour”. The Judge was satisfied a protection order was necessary given N’s “lack of insight” and risk he would “continue to harass” K. The Judge granted K custody of the children, and permitted N supervised access. The Judge was satisfied K was parenting well; the children were being cared for; and supervised access was appropriate to prevent the parties from coming into contact, in turn risking further family violence. The Judge said he would review the position once N had completed courses in relation to both family violence and parenting. On appeal, the Court held the evidence supported the Judge’s conclusions. In particular, the Police family harm reports provided circumstantial evidence of family violence. Moreover, the evidence was probative of a pattern of family violence, a pattern established and maintained by a suite of controlling behaviours on N’s part. The appeal against the parenting order was also dismissed. The Judge’s conclusions about family violence meant the principles cited by N had limited purchase in relation to the parenting order. Supervised access was a necessary incident of the conclusion: (a) N inflicted extensive family violence on the children’s mother; and (b) a protection order was necessary to protect her.

Orders