Roberts v Carroll - [2023] NZHC 1121

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2022-454-92

[2023] NZHC 1121

IN THE MATTER of the Family Violence Act 2018 and the Property (Relationships) Act 1976

UNDER

Part 20 of the High Court Rules 2016

BETWEEN

ROBERTS

Appellant

AND

CARROLL

Respondent

Hearing: 8 May 2023

Appearances:

Mr Roberts self-represented Appellant T G A Manktelow for the Respondent

Judgment:

11 May 2023

JUDGMENT OF COOKE J

(Interlocutory matters)

[1] This judgment deals with four interlocutory matters arising in relation to these appeals, or proposed appeals.1 In particular:

(a)The appellant seeks leave to appeal out of time a decision of the Family Court dated 14 October 2020 declining his application for a temporary protection order under the Family Violence Act 2018. This is opposed by the respondent.

1 This judgment is released with substituted names for the parties given ss 11B to 11D of the Family Court Act 1980.

ROBERTS v CARROLL [2023] NZHC 1121 [11 May 2023]

(b)The appellant also applies for leave to appeal out of time the decision of the Family Court making a final protection order against him on 15 November 2022. This is also opposed.

(c)The appellant also applies for a stay of the judgment of the Family Court dated 30 September 2022 making orders under the Property (Relationships) Act 1976 pending the hearing of his appeal against that decision. The respondent opposes.

(d)The question of security for costs of the appeal(s) needs to be determined.

[2] I note that the procedural complexity of these applications was addressed by Thomas J in her minute of 21 February 2023 and that this hearing was directed as a consequence. Written submissions were filed in advance. Against that background I will deal with the four matters in turn.

Appellant’s unsuccessful application for protection orders

[3] The appellant seeks leave to appeal out of time the decision of Judge Mahon dated 14 October 2020 declining his application for a temporary protection order, and an occupation order. Judge Mahon said (emphasis in original):

The application does not raise grounds for an order to be made against the respondent under the Family Violence Act and so it is not necessary to serve the application [on] the respondent because there is no jurisdiction for either applications to proceed and the without notice applications and underlying substantive applications are dismissed for want of jurisdiction.

[4] Under s 177 of the Family Violence Act the appellant has the right to appeal to the High Court from a decision of the Family Court to refuse or make an order. The High Court Rules 2016 and ss 126–130 of the District Court Act 2016 apply. Rule
20.4 of the High Court Rules provides that the appeal must be brought within 20 working days of the decision appealed from, but allows the Court to give special…

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 Roberts v Carroll

Details

AGLC: Roberts v Carroll [2023] NZHC 1121
Case: [2023] NZHC 1121
Decision Date: 11 May 2023

CaseChat Overview and Summary

In Roberts v Carroll, the appellant, Mr Roberts, sought leave to appeal out of time various decisions of the Family Court made in proceedings involving the respondent, Ms Carroll. These included a decision declining to grant a temporary protection order, a decision making a final protection order, and orders made under the Property (Relationships) Act 1976. The appellant also sought a stay of the Property (Relationships) Act orders and argued against the need to provide security for costs for the proposed appeals. The court considered the statutory right of appeal under the Family Violence Act 2018 and relevant High Court Rules, including the circumstances in which leave to appeal out of time may be granted. The court concluded that the appellant was not entitled to appeal out of time the decision declining to grant a temporary protection order, but was entitled to appeal the final protection order decision. The court also declined to stay the Property (Relationships) Act orders because they had already been executed. Finally, the court ordered that the appellant pay $4,780 into court as security for costs for the two appeals he was permitted to proceed with. The court gave directions for the preparation and hearing of the appeals, including that the case on appeal be prepared by the respondent and that the appeals be heard after the security for costs had been paid.

Orders