SN v MN - [2016] NZHC 566

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-754 [2016] NZHC 566

BETWEEN
SN

Appellant

AND

MN Respondent

Hearing: 13 October 2015

Appearances:

M J McCartney QC for Appellant
V A Crawshaw and H G Holmes for Respondent

Judgment:

5 April 2016

JUDGMENT OF M PETERS J

This judgment was delivered by Justice M Peters on 5 April 2016 at 11.30 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Rob Webber & Associates, Auckland
Sean Kelly Lawyers, Auckland

Counsel: M J McCartney QC, Auckland
V A Crawshaw, Auckland

SN v MN [2016] NZHC 566 [5 April 2016]

Introduction

[1] Following a defended hearing in the Family Court, Judge D A Burns declined an application by the Appellant, SN, to make a final protection order against the Respondent, MN.1 A temporary protection order, which had been in effect until that time, was discharged accordingly. SN appeals against that decision.2

Background

[2] MN and SN began a de facto relationship in the late 1980s and married in

1994. There is some dispute as to when precisely the marriage ended but it is clear in any event that it had ended by January 2013. Despite that, the parties continued to live in the family home for some months until MN moved out in about late April
2013. The parties subsequently agreed that MN would not visit the family home but could have access to the garage on 48 hours notice.

[3] In March 2014, and by consent, an exclusive occupation order was made in SN’s favour under the Property (Relationships) Act 1976 (“PRA”).3 After the occupation order came into effect a dispute arose as to whether MN retained his right to have access to the garage. Following a series of unannounced visits, in May 2014
SN obtained a temporary protection order.4 The question of whether to make that

order final came before the Judge in February 2015.

Family Court decision

[4] Section 14(1) Domestic Violence Act 1995 (“Act”) provides that the Family

Court may make a protection order if satisfied that:

(a) the respondent is using, or has used, domestic 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, or a child of the applicant’s family, or both.

[5] Domestic violence is defined in s 3 of the Act, which provides:

1      N v N [2015] NZFC 1746.
2      Pursuant to s 91 Domestic Violence Act 1995.
3      Sealed Order for Occupation dated 3 March 2014.
4      Without Notice Application for Temporary Protection Order dated 15 May 2015.

3 Meaning of domestic violence

(1) In this Act, domestic violence, in relation to any person, means violence against that person by any…

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 SN v MN

Details

AGLC: SN v MN [2016] NZHC 566
Case: [2016] NZHC 566
Decision Date: 5 April 2016

CaseChat Overview and Summary

In the case of SN v MN, SN appealed a decision by Judge D A Burns to decline an application for a final protection order against MN. SN alleged that MN had used domestic violence against her on several occasions, and sought a final protection order under the Domestic Violence Act 1995. The Judge found that MN had used domestic violence against SN on one occasion, but was not satisfied that an order was necessary for the purposes of s 14(1)(b) of the Act. SN appealed this decision, challenging both findings of the Judge.

The appeal centred on whether the Judge erred in finding that MN had used domestic violence and whether the making of a final protection order was necessary. SN argued that the Judge had erred in finding that other allegations of domestic violence were not established on the evidence, and that the Judge had adopted an unduly narrow construction of the definition of domestic violence. The Court found that the Judge's assessment was correct, and that the decision was open to him.

The appeal also centred on whether the Judge erred in finding that a protection order was not necessary. The Court found that the Judge's approach to the determination required under s 14(1)(b) was in accordance with Surrey v Surrey. The Judge took into account several countervailing factors, including that MN had modified his views, received realistic legal advice, and fully understood that it was imperative he not go to the home and/or breach the occupation order. The Judge also found that MN had not been a violent person, and that SN was a robust, successful and resilient professional.

For the reasons given, the Court dismissed the appeal. The Court did not hear submissions from the parties regarding the matter of costs, and invited the parties to submit brief memoranda and arrange a one hour hearing before the Court if they were unable to agree.

Orders