Background

The parties were separated parents who had been involved in care of children and family violence proceedings in both Australia and New Zealand

The father brought an appeal in respect of a special condition imposed in a final protection order granted by the Family Court. The special condition prohibited the father from being within Whangarei City where the mother and children lived except to travel directly to and stay at his sister’s home or to travel through Whangarei without stopping. The special condition did not allow him to leave his sister’s home while in Whangarei.

Section 103 of the Family Violence Act ("FVA")

Section 103 of the FVA allows the Court to impose special conditions in making a protection order. Section 103 provides:

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High Court appeal

The father argued the Family Court Judge had erred in their decision in respect of the special condition by failing to take into account factors including that it had been four years since an incident of violence (which had taken place in Australia not New Zealand), that there had been no contact since then, no convictions upheld and no breaches of the protection order.

The High Court judge was not satisfied there had been an error and noted that s103(1)(a) was not prescriptive as to factors which should be taken into account. It is a discretionary power.

It was noted the Family Court Judge had acknowledged that the parties had not seen each other for 4 years but the mother and the children’s continuing fear was reasonable.

The father also argued that the decision should be overturned because there were no findings around the mother being particularly vulnerable as set out in s103(1)(b).

While the Family Court Judge did not make any reference as to whether the mother was particularly vulnerable, this was not necessary as a special condition can be imposed for one or both of the purposes set out in s 103(1). These purposes are:

(a)       to protect the protected person from further family violence by the respondent, or the associated respondent, or both:

(b)       toaddress the inflicting of family violence against protected people who areparticularly vulnerable (for example, due to age, disability, or healthcondition).

The special condition here was for the first purpose and therefore it was unnecessary for the judge to consider the second purpose.

Lastly the father argued there had been a failure to carry out the appropriate balancing act between the restrictions imposed on the father and the necessity for a special condition.

The High Court Judge noted that the father had not persuaded the Court that the Family Court Judge had erred in law, taken irrelevant considerations into account, failed to take relevant considerations into account or was plainly wrong in imposing the special condition, but the Judge did agree that the special condition was too restrictive.

An amendment to the special condition was made to enable the father to leave his sister’s home while in Whangarei and to travel freely within her suburb including to the local shopping center but excluding one street where friends of the mother and children lived.

This amendment still protected the mother and children but allowed the father reasonable freedom of movement while visiting his sister.

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