Southall v Northey - [2023] NZHC 1313

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/about/restriction-on-publishing- judgments/

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-000166

[2023] NZHC 1313

UNDER the District Court Act 2016 and the High Court Rules 2016

IN THE MATTER

of an appeal against a decision of the Family Court at Tauranga

BETWEEN

MR SOUTHALL

Appellant

AND

MS NORTHEY

Respondent

Hearing: 8 May 2023

Appearances:

L Speed and S Stretton for the Appellant P Bromiley for the Respondent

Judgment:

30 May 2023

JUDGMENT OF WALKER J

This judgment was delivered by me on 30 May 2023 at 11 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

[SOUTHALL] v [NORTHEY] [2023] NZHC 1313 [30 May 2023]

[1] Mr Southall appeals a decision of the Family Court declining his application to discharge a final protection order.1

[2] The parties were in a relationship for approximately 10 years and separated in 2018. There are three children of the relationship, all of whom are under the age of 13.

[3] The respondent, Ms Northey, made a without notice application to the Tauranga Family Court for both a parenting order and protection order against Mr Southall on 15 May 2019. Mr Southall did not take steps to defend those proceedings. He has since said that he felt overwhelmed by the process, was depressed and under a lot of financial pressure at that time. He has not however put the matters alleged by Ms Northey in support of the original protection order in dispute before the Family Court or on appeal.

[4] A final protection order was made on 16 August 2019 by operation of law because Mr Southall had taken no steps.

[5] The overarching question under s 110 of the Family Violence Act 2018 (FVA) is whether continuation of the protection order is no longer necessary in the current context. It is for Mr Southall to satisfy the Court of this. I distil the key issues before the Court as:

(a)whether Mr Southall breached the protection order in 2022 as found by the Family Court by:2

(i)repeatedly driving past Ms Northey’s place of work in March 2022 after learning it was her place of work, and

(ii)parking outside Ms Northey’s home on 13 May 2022;

(b)whether there is a risk of future family violence;

1 [Southall] v [Northey] [2022] NZFC 12324 [Family Court Judgment].
2 Family Violence Act 2018, s 110(2)(f).

(c)whether and to what extent there is a necessity for contact and the likelihood (if the order is discharged) of future contact; and

(d)whether Ms Northey’s fear is objectively reasonable.

[6]Each raises a number of sub-issues.

[7] The application to discharge the protection order was accompanied by an application for supervised contact with the children as a first step towards rebuilding a…

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 Southall v Northey

Details

AGLC: Southall v Northey [2023] NZHC 1313
Case: [2023] NZHC 1313
Decision Date: 30 May 2023

CaseChat Overview and Summary

Mr Southall appeals a decision of the Family Court declining his application to discharge a final protection order made against him by the respondent, Ms Northey. The order was made in 2019 when the parties separated after a decade-long relationship. The appeal raises a number of issues including whether Mr Southall breached the protection order by driving past Ms Northey's place of work on a number of occasions in March 2022 and parking outside her home on 13 May 2022. The appeal also questions the weight given by the Family Court to Ms Northey's subjective fear and whether the Family Court erred in considering that the protection order was still necessary to protect her and their children. The appeal was heard on 8 May 2023. The appeal was dismissed. The court found that the Family Court Judge was correct to conclude that Mr Southall breached the protection order by driving past Ms Northey's place of work and parking outside her home. The court also found that the Family Court Judge did not err in concluding that Ms Northey's fear was objectively reasonable. The court concluded that the protection order was still necessary to protect Ms Northey and their children from the risk of future family violence. The appeal was dismissed with costs to be determined in accordance with the usual rules.

Orders