PK v MN - [2022] NZHC 3488

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,

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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV 2022-441-19

[2022] NZHC 3488

BETWEEN
PK

Appellant

AND

MN

Respondent

Hearing: 6 October 2022

Counsel:

B Castelino for Appellant

M J Casey and S-J G D Fisher for Respondent

Judgment:

16 December 2022

JUDGMENT OF MALLON J

Introduction

[1] PK appeals the decision of Judge J J Blake in the Family Court declining to grant her a protection order against MN under the Family Violence Act 2018.1 The essence of her appeal is that the Judge erred by:

(a)not permitting her to have a support person at the hearing;

1 [PK] v [MN] [2022] NZFC 1288 (per Judge J J Blake).

PK v MN [2022] NZHC 3488 [16 December 2022]

(b)making credibility findings without taking into account that she was a sexual abuse survivor and vulnerable due to the treatment of transgender persons in her and MN’s culture;

(c)finding that there was no reasonable risk of further family violence by failing to take into account PK’s immigration status; and

(d)otherwise erred by relying on MN’s evidence in finding that there was no reasonable risk of further family violence and by finding PK’s subjective fear of future violence was not reasonable.

Factual background

[2] PK is transgender and prefers the use of feminine pronouns. She met MN on Facebook in 2018. She said they were in a relationship where MN referred to her as his “wife”. She said the relationship ended in April 2020. MN said they were friends with sexual benefits and this relationship ended in January 2020. It is accepted that they lived at separate addresses.

[3] MN said that PK became obsessive when the relationship ended. He said she would send thousands of messages saying things like “just be my friend”, “I want to talk to you” and she would also send nude pictures of herself. He told her to stop messaging him. He would block her number and she would then immediately start messaging him from another number. He referred to an incident in the morning of 8 April 2020. He and a girlfriend were sleeping in bed. He heard someone’s footsteps and someone open and close his door. He saw PK walking out of this house and running on his driveway. MN had a trespass order in place against PK at the time.

[4] MN filed a without notice application for a protection order against PK on 17 April 2020 (MN’s application). A temporary protection order was granted that same day and was served on PK on 20 April 2020 at the Napier Police Station. PK was required to attend a non-violence programme and was prohibited from going within 400 metres of MN’s address.

[5] On…

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.

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Details

Case: [2022] NZHC 3488
Decision Date: 16 December 2022

CaseChat Overview and Summary

In this case, PK, the appellant, brought an appeal against a decision of the Family Court to decline to grant her a protection order against MN, the respondent. The appeal hinged on whether the Family Court judge had erred in various respects, including by not permitting PK to have a support person at the hearing, making credibility findings without considering PK's status as a sexual abuse survivor and vulnerable due to the treatment of transgender persons in her and MN's culture, finding that there was no reasonable risk of further family violence by failing to take into account PK's immigration status, and by otherwise erring by relying on MN's evidence in finding that there was no reasonable risk of further family violence and by finding PK's subjective fear of future violence was not reasonable. The appeal was dismissed. The Court held that the Family Court judge's decision was not wrong in excluding a support person, as the judge's decision was informed by the COVID-19 context and guidelines. The Court also held that the judge's credibility findings were not erroneous, as PK's account of the sexual and physical abuse appeared to add some detail over time and the inconsistencies in evidence could be explained by PK's trauma as a sexual abuse survivor. Furthermore, the Court found that the judge did not err by failing to take into account PK's immigration status, as PK's evidence about this was not substantiated by any documentation and it lacked credibility. Finally, the Court held that a protection order was not necessary as there was simply no reasonable basis for PK to fear that MN would kill her. The appeal was dismissed, and leave was reserved to the parties if there is any issue as to costs.

Orders