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Birch v Birch [2021] NZFC 9249

Published 30 June 2022

Application for protection order — final protection order — temporary protection order — concurrent criminal proceedings — adjournment — Evidence Act 2006, ss 60 & 62 — Family Violence Act 2018, ss 3, 4, 84, 147, 153 & 154 — Family Court Rules 2002, rr 135 & 192 — Rudman v Way [2008] 3 NZFLR 404 — Shi v Wilson [2013] NZHC 3115 — Invensys plc v Land Logic Ltd HC Christchurch, CP73/01, 26 March 2002 — Simon v Averill [2014] NZFC 6683 — F v F [2015] NZFC 10600 — G v E [2015] NZFC 7333 — O v M [2019] NZFC 7068. The applicant sought a final protection order against the respondent. She submitted that during their relationship the respondent had drunk excessively and was physically and emotionally abusive. The respondent opposed the application for a final protection order, submitting that the application should be stayed or adjourned pending the outcome of associated criminal assault charges that he faced. He argued that the application was based on unsubstantiated allegations, that it posed a threat to his employment, and that it could prejudice his defence in the criminal proceedings. The Court found that it had no power to order a stay. The relevant Rule in the Family Court Rules only gave the Court the power to stay proceedings that were confined to the Family Court jurisdiction, not ones that also crossed over to the criminal jurisdiction. The case of Rudman v Way held that applications for a protection order should only be adjourned if there is a real likelihood of prejudicing associated criminal proceedings. This circumstance did not apply in the present case. Further, it was in the interests of justice to dispose of family violence proceedings as quickly as possible; this should not be delayed merely by the existence of other proceedings relating to the parties, especially where the criminal proceedings were likely to be subject to lengthy delay (for instance, caused by the Covid-19 pandemic). The Court dismissed the application for adjournment. Judgment Date: 23 September 2021. * * * Note: names have been changed to comply with legal requirements. * * *