Wilson v Carter - [2023] NZHC 2885

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 HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-338

[2023] NZHC 2885

UNDER The Family Violence Act 2018

BETWEEN

MS WILSON

Appellant

AND

MR CARTER

Respondent

Hearing: 10 October 2023

Appearances:

R Sutton for Appellant D Eades for Respondent

Judgment:

16 October 2023

JUDGMENT OF LANG J

[on appeal against refusal to make final protection order]

This judgment was delivered by Justice Lang On 16 October 2023 at 3.30 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
R Sutton, Barrister, Hamilton
Lance Lawson Ltd, Mount Maunganui

WILSON v CARTER [2023] NZHC 2885 [16 October 2023]

[1] This judgment determines an appeal by Ms Wilson against the refusal of Judge N J Grimes to make a final protection order in her favour against her former husband, Mr Carter.1

Background

[2] Ms Wilson and Mr Carter entered into a relationship in 2009 and remained together until June 2017. They are the parents of three children who are currently 11, eight and six years of age respectively.

[3] There has been ongoing conflict between the parents in relation to a variety of issues since they separated. The children have remained in Ms Wilson’s care. However, Ms Wilson and Mr Carter were unable to reach agreement regarding the level of contact Mr Carter should have with the children. This issue was complicated by Mr Carter’s occupation, which requires him to work irregular hours and to be absent from his home for extended periods. The parties also live in different cities. Mr Carter must drive approximately one and a half hours to uplift the children when he has contact with them.

[4] Ms Wilson filed proceedings relating to the care of the children in the Family Court in 2018. Following a two-day hearing in September 2020, Judge Grimes issued a decision on 12 October 2020 in which she made detailed orders prescribing the level of contact Mr Carter was permitted to have with the children and the manner in which this should be exercised.2

[5] In May 2019 Ms Wilson had filed an application seeking a protection order in her favour on the basis of harm she had allegedly suffered due to abusive conduct by Mr Carter towards her. This ran alongside, but was not consolidated with, the earlier proceeding in which Judge Grimes made the contact orders. The protection order proceeding was ultimately resolved in August 2020 when Mr Carter signed undertakings in which he agreed not to engage in specified forms of conduct towards

1 Wilson v Carter [2022] NZFC 9688.
2 Wilson v Carter [2020] NZFC 7996.

Ms Wilson. These included undertakings not to loiter outside her address or to watch her house.

[6] 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.

Continue reading Wilson v Carter

Details

AGLC: Wilson v Carter [2023] NZHC 2885
Case: [2023] NZHC 2885
Decision Date: 16 October 2023

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal by Ms Wilson against the refusal of Judge N J Grimes to make a final protection order in her favour against her former husband, Mr Carter. Ms Wilson argued that Mr Carter had engaged in abusive conduct towards her, which constituted family violence under the Family Violence Act 2018. The court was required to determine whether Mr Carter's actions amounted to family violence and if a protection order was necessary for Ms Wilson's protection. The court reviewed the incident on 8 July 2022, where Mr Carter arrived to collect their daughter despite her recent surgery, leading to a stand-off that involved the police. The Judge concluded that the incident did not constitute family violence, as the interactions were calm and focused on a parenting dispute.

The court agreed with the Judge's assessment that Mr Carter's actions did not amount to family violence, as there was no evidence of shouting, threats, or intimidation. Both parties had reasonable arguments about the interpretation of the contact orders, and their disagreement did not rise to the level of family violence. The court also found that Mr Carter did not breach his obligations under the undertakings he had given, as he was waiting for the police to resolve the dispute. Consequently, the appeal was dismissed, and no costs were awarded against Ms Wilson, who was legally aided. If Mr Carter wished to pursue the issue of costs further, he could file a concise memorandum within 14 days of the judgment.

Orders