Darby v Feist

[2024] NZHC 2186

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 WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-775

[2024] NZHC 2186

BETWEEN

DARBY

Appellant

AND

FEIST

Respondent

Hearing:	20 May 2024
Appearances:	C J Nicholls for Appellant A G Gray for Respondent
Judgment:	6 August 2024

JUDGMENT OF McQUEEN J

[1]    This is an appeal by Mr Darby against the decision of Judge Binns in the Family Court dismissing his application for a protection order against Ms Feist.1

[2]    Mr Darby contends that the Family Court Judge erred in finding that a protection order was not necessary. Ms Feist submits that there was no error in the Judge’s decision to decline to grant the protection order.

[3]For the reasons set out below, I dismiss the appeal.

1      [Darby] v [Feist] [2023] NZFC 10750. To protect their privacy, the names of the parties and others mentioned in this judgment have been anonymised.

DARBY v FEIST [2024] NZHC 2186 [6 August 2024]

Procedural background

[4]    Mr Darby was previously in a de-facto relationship with Ms Feist’s daughter, Ms Rollen. Mr Darby and Ms Rollen have a young daughter together.

[5]    On 9 May 2023, Mr Darby applied without notice for a temporary protection order against Ms Feist and also sought that the order apply for the benefit of his sister, Ms Darby. The Family Court Judge who considered the without notice application was also case-managing the proceedings under the Care of Children Act 2004 in relation to parenting orders for Mr Darby and Ms Rollen. That Judge, Judge Black, placed Mr Darby’s application on notice and directed service on Ms Feist.

[6]    Mr Darby’s on  notice  application  for  a  protection  order  was  heard  on  18 September 2023 by Judge Binns.

Family Court judgment (the Judgment)

[7]Judge Binns identified the three issues that required determination as follows:

(a)That a family relationship as defined in s 12 of the Family Violence Act 2018 exists, or did exist, between Mr Darby and Ms Feist;

(b)That Ms Feist is committing, or has committed, an act, or acts, towards Mr Darby and/or a child of Mr Darby’s family which amount to family violence as defined in ss 9 to 11 of the Family Violence Act; and

(c)Having regard to the mandatory factors in ss 79 and 83  of  the  Family Violence Act, the making of a protection order is necessary for the protection of Mr Darby and/or a child of Mr Darby’s family, or both.

[8]    The Judge discussed the legal principles and some case law relevant to determining these issues.

[9]    The Judge recorded that as Ms Feist is the mother of Mr Darby’s former partner and is the grandmother of Mr Darby’s daughter, it was agreed that the parties are in a family relationship as defined in s 12(b) of the Family Violence Act.

[10]   The Judge then set out Mr Darby’s evidence as to the circumstances that led to the allegations of Ms Feist  psychologically  abusing  Mr Darby.  Ms Rollen  and  Mr Darby were involved in Care of Children Act proceedings about their daughter. A decision in those proceedings, that appeared to have been made without notice to   Ms Rollen, placed conditions on Ms Feist’s contact with her granddaughter (although not on a permanent basis). The Judge noted that although not a party to those proceedings, Ms Feist felt very disaffected due to decisions made in the proceedings which impacted on her relationship with her granddaughter. The Judge categorised Ms Feist’s reaction of posting various tweets, making social media posts and blogging as extreme. The Judge set out some of the material in the Judgment and was satisfied that Ms Feist’s posts amounted to psychological abuse of Mr Darby.

[11]   The third issue concerned whether a protection order was necessary for the protection of Mr Darby, his sister and his daughter. The Judge listed factors identified by Mr Darby’s lawyer as relevant to assessing the future likelihood of psychological abuse by Ms Feist and concluded that they supported Mr Darby holding a reasonable subjective fear of future psychological abuse by Ms Feist. Despite these factors and the seriousness of Ms Feist’s posts/comments, the Judge concluded that a protection order was not necessary for the protection of Mr Darby or any child of his family, setting out ten reasons for that decision.2

[12]The application for a protection order was therefore dismissed.

Approach to appeal

[13]   This appeal is brought pursuant to s 177 of the Family Violence Act, and is a general appeal by way of rehearing.3 The appellant bears the onus of satisfying the

2      [Darby] v [Feist], above, n 1, at [61]. These reasons are described and discussed below.

3      Section 177(4) of the Family Violence Act 2018  provides that the High Court Rules 2016 and  ss 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal of this nature, as if it were an appeal under s 124 of the District Court Act. Section 127 of the District Court Act states that appeals must be by way of rehearing.

appellate Court that it should differ from the decision under appeal.4 In discharging that onus, the appellant must identify the respects in which the judgment under appeal is said to be in error.5 The appellate Court may arrive at its own assessment of the merits of the case.6 Any influence the Family Court’s reasoning may have is for the appellate Court to assess.7 The appeal takes place on the notes of evidence adduced at the Family Court hearing.8

Preliminary matters

[14]The notice of appeal for Mr Darby set out the following grounds of appeal:

1.that the said decision was wrong in fact and law and in particular it    was wrong for the court to determine that a protection order was not necessary for the appellant’s protection notwithstanding there was a finding that the appellant had been psychologically abused by the respondent, the appellant’s perception that a protection order was necessary for his protection (to ensure that the behaviour of Ms [Feist] stopped) and the absence of sufficient [countervailing] factors that a protection order should not be made.

[15]   Counsel for Mr Darby, Mr Nicholls, submitted that the reasons given in the Judgment do not support the Judge’s decision that a protection order was not necessary. This is a conventional approach to argument on appeal, and I consider in detail his arguments on these matters below.

[16]   However,  Mr Nicholls  also  submitted  that  the   underlying   reason   for the Judge’s refusal to grant a protection order is unconscious gender bias on her part. He says that the fact that it is psychological not physical harm in the present case is important as there is no difference between the genders as to who can perpetrate psychological harm.

[17]   Mr Nicholls sought to offer wide-ranging commentary on the matter of unconscious gender bias as a significant social issue.9 He sought to draw on his many

4      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].

5 At [4].

6 At [5]. See also High Court Rules 2016, r 20.19.

7      Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].

8      Unless the record of evidence is not available or has been shown to be inaccurate: Swayne v Lush

[1999] NZFLR 49 (HC). This is not the case in the present appeal.

9      For example, referring to the report of Te Aka Matua o te Ture | Law Commission Dispute Resolution in the Family Court (NZLC R82, 2003) at [952]–[1025].

years of experience as a practitioner dealing with family matters, including those relating to family violence, to advance the view that family violence perpetrated by women against men is taken less seriously than family violence perpetrated by men against women. Mr Nicholls said that the nub of his case on appeal is that he is absolutely convinced that if Ms Feist was a man and Mr Darby was a woman then a protection order would have been made by the Family Court Judge. He argues that unconscious gender bias is a matter of common sense. He says that the fact that Family Court Judges consider allegations of violence by men against women in far greater quantity than allegations of violence by women against men means this is likely to impact on their analysis.

[18]   Ms Gray objected to these submissions on the basis that they amounted to broad statements that have no foundation in fact or evidence and are not relevant to the present case. I also pointed out to Mr Nicholls that he appeared as counsel in this matter and his role was not to provide evidence as to broad social issues.

[19]   I agree with the concerns expressed by Ms Gray. No evidence has been given in this appeal on which I could reach a conclusion that in New Zealand either violence perpetrated by women is taken less seriously than violence perpetrated by men nor that the Family Court Judge was influenced by unconscious gender bias. Mr Nicholls acknowledged in his written submissions and at the hearing that he cannot prove the latter contention. I cannot accept either proposition in the circumstances. I consider then that submissions on these points were irrelevant to the appeal.

[20]   Ms Gray also objected to the supplementary submissions filed by Mr Nicholls in which he discussed the factual circumstances of a Family Court case that he had recently appeared in as counsel. Ms Gray submitted that this appeared to be an attempt to file further evidence on appeal without having sought leave from the Court to do so. She was also concerned that other information Mr Nicholls was providing about the case was both private to the parties concerned and only available to him because of his role as counsel in the case. Ms Gray also submitted that all applications for protection orders turn on their own facts, citing Clark v Coles as an example where a

protection order was made against a female partner in the context of online psychological abuse.10

[21]   Following discussion of this objection with Mr Nicholls, it was agreed that I should disregard the discussion of the case in the supplementary submissions and that Mr Nicholls would make submissions as he saw fit on the basis of the judgment given in the case in question and not on the basis of any other information he was privy to as counsel. In any event, I understood the purpose of Mr Nicholls commenting on the case was simply to offer another example of a case where he submits that a different outcome would have been reached had the gender of the parties been reversed. As I have already indicated, a submission of this nature is of no assistance to me in resolving the current appeal.

[22]   As I explained to Mr Nicholls, my views on the relevance or appropriateness of his broad assertions do not mean I do not accept in principle that unconscious bias, relating to gender or other matters, does exist. How the law, and the Courts, comprehend the complexities of family violence, including unconscious bias, is undoubtedly important. But broad assertions about these matters do not provide grounds on which I can assess the appeal. The grounds of appeal, as set out in the notice of appeal, raise a proper basis on which the Judgment can be challenged, and I deal with the appeal on that basis. The hearing then advanced on the basis that      Mr Nicholls would focus on the reasons given by the Judge for her decision and why he said they were in error.

Issue on appeal

[23]   There is no dispute between the parties about the Judge’s findings of fact. Nor does the appeal extend to the Judge’s findings on the first two issues, namely that the parties are in a family relationship and that Ms Feist’s conduct of making comments and posts on social media amounted to psychological abuse of Mr Darby.

10     Clark v Coles [2013] NZFC 7488.

[24]   Rather, the focus of the appeal is whether a protection order is necessary for the protection of Mr Darby.11 Mr Nicholls submits that as the Family Court Judge found that Mr Darby had a reasonable subjective fear of future psychological abuse by Ms Feist, the Judge erred in finding that a protection order was not necessary, as there are no “very strong indicators to the contrary” as contemplated by SN v MN.12 Ms Gray says the Judge did not err, as a protection order against Ms Feist is not necessary.

The law relating to when a protection order is necessary

[25]   A decision to grant or refuse a protection order is guided by the principles set out in s 4 of the Family Violence Act. This includes the principle that “family violence, in all its forms, is unacceptable”.

[26]   Section 79 of the Family Violence Act provides that the Family Court may make a protection order if it is satisfied that:

(a)the respondent has inflicted, or is inflicting, family 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, a child of the applicant’s family, or both.

[27]Section 83 of the Family Violence Act provides that:

(1)When determining whether to make a protection order, the court must have regard to—

(a)the perception of the applicant, a child of the applicant's family, or both, of the nature and seriousness of the behaviour in respect of which the application is made; and

(b)the effect of that behaviour on the applicant, a child of the applicant's family, or both.

…

11  Family Violence Act 2018, s 79(b). Mr Nicholls confirmed that although an order was sought in  the Family Court in relation to Mr Darby’s sister (under s 87(1)(b) and subs (3)) and Mr Darby’s daughter (pursuant to s 86(1)), the appeal relates solely to whether an order should have been made in relation to Mr Darby.

12 SN v MN [2017] NZCA 289, [2017] NZFLR 436 at [23] citing Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 at [37].

[28]   The Family Court Judge identified  the  Court  of  Appeal  decision  in  Surrey v Surrey as the leading authority on the issue of necessity and set out principles drawn from that decision.13 The Judge also referred to the later decision of SN v MN, observing that in this case, the Court of Appeal “provides additional guidance as to the application of principles to the specific circumstances of a particular case”.14 Counsel agree that these cases are the leading authorities.

[29]In PK v MN, Mallon J helpfully summarised what the Court said in

Surrey v Surrey about the issue of necessity as follows:15

(a)The applicant only needs to establish past family violence and a reasonable subjective fear of future violence. Then the respondent has the evidential burden of showing there are factors weighing against the necessity of making a protection order. The applicant is not required to prove that violence was likely to occur in the future.

(b)The assessment of necessity requires a broad-based assessment by the Court of the need for protection in the future, having regard to the objects of the Family Violence Act, the factors in s 79, and any other relevant factors. The subjective views of the applicant are a mandatory relevant consideration, but not the only factor. Other factors include: the time that has elapsed since the last violence, whether it is a pattern of violence or single incident, whether separation has occurred since the last violence, vulnerability of the applicant, and other protective measures that may render a protection order unnecessary.

(c)The risk of future violence will obviously be a relevant factor in assessing necessity. But assessing the level of risk does not require a full inquiry with reference to detailed expert evidence. The legislation contemplates that the risk will be assessed on the basis of past family violence.

(d)The seriousness of the past family violence is another relevant factor. The more serious the past violence, the less probable the risk of future violence needs to be to justify the necessity of making a protection order.

13     [Darby] v [Feist], above n 1, at [27] citing Surrey v Surrey, above n 12.

14     [Darby] v [Feist], above n 1, at [29] citing SN v MN, above n 12.

15     PK v MN [2022] NZHC 3488 at [32] (footnotes omitted).

[30]   Mallon J then observed that where it is established that there was past violence and that making a protection order is necessary, it is:16

… unlikely that a Court could rationally refuse to grant a protection order where the behaviour is such as to lead to reasonable fears of safety based on being subjected to a pattern of recent serious domestic violence, unless there are very strong indications to the contrary. This reflects the Court’s existing assessment of the applicant’s fears as being reasonably held; necessity therefore follows. The Act is designed not only to protect a person against future violence but the reasonably held fear of violence. Cultivating a fear of physical abuse constitutes psychological abuse, and thus satisfies the broad meaning of violence under the Act.

Analysis

[31]   The Family Court Judge set out the factors raised by Mr Darby in support of his reasonable subjective fear of future psychological abuse by Ms Feist. However, the Judge then stated that despite these factors and the seriousness of the posts/comments by Ms Feist on Twitter and on her blog, the Judge did not consider that a protection order was necessary.

[32]   The Judge undertook a broad-based evaluative assessment of the necessity of a protection order for Mr Darby, giving ten reasons in support of her conclusion that a protection order was not necessary. As contemplated by the Court of Appeal in Surrey and SN v MN, these are the factors the Judge considered weighed against necessity being established. I will shortly address each of the reasons given by the Judge, but I first consider a broader point advanced by Mr Nicholls.

[33]   Mr Nicholls’ submission is that it was inconsistent for the Judge to find that a protection order was not necessary, given her earlier finding that Mr Darby had a reasonable subjective fear of future violence. Mr Nicholls contends that the Judgment can be understood as saying the violence that occurred was not that serious, Ms Feist now says she will not do it again, so although Mr Darby’s fears of violence are reasonable and valid, they simply do not count. Mr Nicholls contends that SN v MN stands for the proposition that unless there are very strong indicators to the contrary, it is unlikely a protection order could be refused. He says, therefore, a protection order should have been made in this case.

16     At [33] citing SN v MN, above n 12, at [23] (footnotes omitted).

[34]   I consider that Mr Nicholls has conflated aspects of the discussion in SN v MN. While the passage from the Court of Appeal’s judgment quoted in [30] above does speak of there needing to be “very strong indicators to the contrary” before a protection order can be refused, it seems to me that Mr Nicholls has overlooked the prior requirement that the protection order must be necessary. I understand the Court of Appeal to say that where there has been past family violence and the necessity for a protection order is established, there would have to be very good reason for a protection order not to be made. This approach is made particularly clear at the conclusion of the judgment in SN v MN when the Court separates out the stages of the inquiry. The Court of Appeal states:17

[47] We would add that the use of the word “may” in s 14(1) is of an empowering or permissive nature. It authorises a court to make a protection order if it is satisfied (a) that the respondent is using or has used domestic violence against the applicant, which is a factual inquiry; and (b) that making an order is necessary for the applicant’s protection, which is of an evaluative nature. Once those two prerequisites have been established, a protection order should follow as a matter of course unless there is a compelling reason to the contrary…

[35]   This confirms that the focus of the appeal before me is properly on whether a protection order is necessary. Only if such necessity is established would I be required to consider whether there are “very strong indicators” or “a compelling reason” not to make a protection order.

[36]I now consider each reason given by the Family Court Judge in turn.

Reason set out in [61(a)] of the Judgment

[37]   The Judge’s first reason was that the purpose of a protection order is not to operate as a sanction for breaches of the Family Court Act 1980, contempt of court or defamation.

[38]   Mr Nicholls highlights the purpose of the Family Violence Act, as set out in   s 3(1) of the Act, which is to stop and prevent family violence by—

17 SN v MN, above n 12, was considered under the Domestic Violence Act 1995 which was repealed and replaced by the Family Violence Act 2018, but the approach advanced by the Court of Appeal remains relevant.

(a)recognising that family violence, in all its forms, it unacceptable; and

(b)stopping and preventing perpetrators from inflicting family violence; and

(c)keeping victims, including children, safe from family violence.

[39]   Mr Nicholls submits that by no protection order being made, Ms Feist has got away with her family violence. Mr Nicholls drew my attention to the Minute issued by the Family Court in relation to Mr Darby’s without notice application.18

[40]   This Minute highlights concerns that material posted by Ms Feist to public forums amounted to a publication of a report of proceedings in breach of s 11B of the Family Court Act 1980 and that some of the statements may amount to an offence under s 22 of the Contempt of Court Act 2019. The Minute recommends that Ms Feist take legal advice in relation to these issues. It also records that the Judge directed that copies of the proceedings and the Minute were to be provided to the Office of the Principal Family Court Judge for her consideration of the issues raised. Mr Nicholls says that he wrote to the Principal Family Court Judge seeking an update on the situation and never received a reply. He also says that he and Mr Darby were defamed by Ms Feist.

[41]   Mr Nicholls says that a protection order does operate as a sanction (given that its breach is a criminal offence) in that it acts as an incentive to discourage a person from repeating abusive behaviour. He says that in this way, such a sanction helps to provide protection as contemplated by the Family Violence Act. He submits this is important when nothing has occurred in response to the matters identified above. He says that granting a protection order would require Ms Feist to complete an anger management programme which would help her address her frustration and reduce the risk of her behaving in a similar way in future. Mr Nicholls further submits that a protection order could be granted on a temporary basis until the Care of Children Act proceedings have concluded.

[42]   Ms Gray submits that the purpose of a protection order is not a punishment, rather its purpose is to act as a protection if necessity is made out. She says there is

18     [Darby] v [Feist] FC Wellington FAM-2023-085-147, 9 May 2023 (Minute of Judge Black).

not a risk, by not making a protection order, that Ms Feist would believe she had got away with bad behaviour without any sanction so that it would make it more likely she would behave in that way again. Ms Gray emphasises that the evidence points in the other direction, as Ms Feist voluntarily removed all posts and reduced her social media presence. Ms Gray also highlights what she described as Ms Feist’s “lightbulb moment” during the hearing when Ms Feist appreciated the impact on Mr Darby of her actions.

[43]   I agree with the Judge that the purpose of a protection order is not to operate as a sanction for breaches of the Family Court Act, contempt of court or defamation. Such breaches all incur their own legal consequences, should they be established. The fact those matters have not been pursued in the present case does not justify characterising a protection order as having the purpose of punishment. I do accept that if a protection order is made, that it likely will discourage a person from repeating abusive behaviour. That is certainly its goal. Then any breach of an order may incur punishment. I consider that the purpose of a protection order is to provide protection, where the requirements set out in the Family Violence Act are established, including the requirement that the order is necessary.

Reason set out in [61(b)] of the Judgment

[44]   The second reason that the Judge gave is that Ms Feist had taken legal advice and she said in evidence that she would not take any action which would be in contempt of court or constitute a breach of the Family Court Act.

[45]   Mr Nicholls submits that Ms Feist had taken legal advice three times regarding her concerns about the Family Court process in relation to her daughter and granddaughter before making the abusive social media posts about Mr Darby. He says that the legal advice did not stop her then so the fact that she has had further legal advice should not have persuaded the Judge that legal advice would stop her from behaving abusively again. Mr Nicholls emphasises that there is still potential for frustration and flare-ups in the context of the Care of Children Act proceedings so there is no guarantee that Ms Feist will not repeat the behaviour in the future.

[46]   Ms Gray  says  that  the  three  occasions  of  legal  advice  referred  to  by  Mr Nicholls were in the context of Ms Feist’s participation in the Care of Children Act proceedings. Ms Gray says that the evidence is clear that as soon as Ms Feist saw Judge Black’s Minute in relation to the without notice application, she took further legal advice. Ms Gray refers to the affidavit dated 7 June 2023, in which Ms Feist deposed that she had taken legal advice about breaching Family Court rules and contempt of court, that she now understands what is required, and that she will not take any action which could be in contempt of court.

[47]   Counsel took me to the discussion of the receipt of legal advice by Ms Feist in the notes of evidence from the hearing in the Family Court. I agree that the earlier legal advice she received related to her ability to participate in the Care of Children Act proceedings. Ms Feist explained that she took to social media as a last resort, not a first resort, due to her perceived inability to participate in those proceedings. I am satisfied that the Judge was entitled to find that although Ms Feist initially took completely inappropriate steps through her posts and comments  on social media,  Ms Feist now understands her legal obligations and has made a commitment to abide by them.

Reasons set out in [61(c) and (d)] of the Judgment

[48]   It is convenient to address together the third and fourth reasons given in     the Judgment.

[49]   In the third reason, the Judge acknowledged that Ms Feist had “trouble with impulse control” at the time of her social media posts and comments. The Judge recorded that Ms Feist’s evidence is  that the post  from May 2023, which named   Mr Darby and his previous business, was up for four hours and then deleted. The Judge found that within four hours of being served with the application for a protection order, Ms Feist took down all her social media accounts, deleted her work accounts, cancelled her blog and removed it from the platform. The Judge noted that there was no evidence before her that these accounts have been reactivated. In the fourth reason, the Judge said that while Ms Feist maintains another website which relates to her

granddaughter, there is no evidence of posts on that website which amount to psychological abuse of Mr Darby or the child.

[50]   Mr Nicholls points to evidence from Ms Feist where she explains that she has locked her Twitter account but has not been able to close it. Ms Feist’s evidence is that she cannot close the account down due to password issues, but that the name and the title has been taken down and all the contents  from it and all followers removed.   Mr Nicholls accepts that this has the effect of closing the account but remains concerned about how readily Ms Feist could reactivate the account. He makes a similar point about the possible use of Ms Feist’s website in relation to her granddaughter.

[51]   Mr Nicholls says that past behaviour is the best predicter of future behaviour, and Ms Feist could lose control once again, especially as there is no evidence that she has undertaken counselling to address the impulse control issue. Mr Nicholls submits that these matters support Mr Darby’s ongoing concerns and the need for a protection order.

[52]   Ms Gray submits that the Judge was firm and direct in findings she made in relation to Ms Feist’s behaviours and in this way, Ms Feist has been held to account for her lack of impulse control. Ms Gray notes that Ms Feist confirmed in her evidence that she had mental health issues but was also receiving counselling. Ms Gray says no specific question was put to Ms Feist as to whether the counselling covered the question of impulse control.

[53]   Ms Gray also submits that the factual circumstances in the present case can be distinguished from the scenario in SN v MN, where there was an escalating situation.19

[54]   I consider that the Judge was entitled to give weight to the evidence relating to Ms Feist’s steps in taking down identifying information about Mr Darby and then closing her social media accounts. The effective outcome is that Ms Feist had no relevant active social media accounts. The Judge accepted there was no evidence before her that the accounts have been reactivated. No application was made in the context of the appeal to adduce fresh evidence suggesting reactivation. I am satisfied

19     SN v MN, above n 12.

that there is no evidence of posts on Ms Feist’s website relating to her granddaughter that amount to psychological abuse of Mr Darby. Ms Feist confirmed to the Judge that she was doing “maintenance” work in terms of the steps she takes to manage her mental health. I consider that the third and fourth reasons given by the Judge are supported by the evidence. The evidence about how Ms Feist manages her mental health together with her recognition that she was wrong to make the posts and comments she did are relevant to assessing the need for future protection for Mr Darby.

Reason set out in [61(e)] of the Judgment

[55]   The fifth reason given by the Judge relates to the apology given by Ms Feist. The Judge found that the apology given during the Family Court hearing was expressed genuinely and that Ms Feist was remorseful for her actions. The Judge did not accept Mr Nicholl’s submission that the apology in court was “too little, too late”. The Judge noted that Ms Feist accepted that her behaviour had been stupid and that Ms Feist had never been in court before.

[56]   While Mr Nicholls accepts that it was open to the Judge to find that the apology was genuine, he says that I should consider the apology in the broader context as it affects the weight that should be placed on it. He took me to Ms Feist’s affidavit in which she does not accept that she was psychologically abusive to Mr Darby, and says she maintained this position until the hearing. Mr Nicholls argues that it would be a different story if Ms Feist had apologised at the first opportunity as that would show she had taken responsibility for the abuse and reduce the risk of further abuse.       Mr Nicholls suggests she was just saying anything to ensure no protection order would be made.

[57]   Ms Gray submits instead that what happened at the hearing has the ring of reality, showing that Ms Feist has reflected on her behaviour and conceded its impact on Mr Darby and her shame at having behaved in the way she did. Ms Gray also notes that there is evidence showing that after the application for a protection order was served on Ms Feist, Ms Feist, through counsel, offered an undertaking as to her future behaviour and that this would have included an apology. The proposal for such an undertaking was not accepted by Mr Darby and so the matter proceeded to a hearing.

[58]   I consider that it was open to the Judge to conclude that a genuine apology was offered by Ms Feist and that she was remorseful for her actions. The Judge had the advantage of seeing Ms Feist in person but in any event, having considered the relevant parts of the notes of evidence, I am also satisfied that Ms Feist accepted that her behaviour was wrong and was harmful to Mr Darby, and that she was sorry for that.

Reason set out in [61(f)] of the Judgment

[59]   The Judge’s sixth reason relates to there being no evidence of any family violence by Ms Feist since she was served with the proceedings on 9 May 2023 nor any evidence of escalating psychologically abusive behaviours by her. The Judge also recorded that there was not a temporary protection order in place.

[60]   Mr Nicholls says it is inconsistent for the Judge to find both that Mr Darby had a reasonable subjective fear of future psychological abuse by Ms Feist and that the absence of any further family violence meant a protection order is not necessary.   Mr Nicholls argues that the Judge had already accepted that there is a reasonable chance Ms Feist will be psychologically abusive again in the future.

[61]   I do not accept that there is an inconsistency as submitted by Mr Nicholls. As I have noted above, the subjective views of the applicant are a mandatory relevant consideration, but not the only factor. I consider that the Judge was entitled to take into account that no temporary protection order was in effect and that even without that, there was an absence of any evidence of further family violence committed by Ms Feist. As I have already mentioned, nor was there any application before this Court to adduce further evidence demonstrating further family violence by Ms Feist directed to Mr Darby.

Reason set out in [61(g)] of the Judgment

[62]   The seventh reason given by the Judge related to  an alleged threat  to  kill  Mr Darby made by Ms Feist in February 2022. The Judge recorded that there was no evidence from Mr Darby’s sister showing the threat had been made. The Judge also recorded that she did not consider that she was entitled to make a protection order for

the benefit of Mr Darby’s sister because the mandatory factors in s 87(3) of the Family Violence Act had not been addressed.

[63]   Mr Nicholls accepts that there was insufficient admissible evidence of the threat. He says that this reason is irrelevant given the evidence relating to Ms Feist’s social media behaviour is sufficient to prove that a protection order is necessary for Mr Darby.

[64]   I do not need to discuss this reason further as there is no issue as to the Judge’s finding that Ms Feist’s social media posts and comments amounted to psychological abuse of Mr Darby.

Reason set out in [61(h)] of the Judgment

[65]   The eighth reason given by the Judge refers to the fact that Mr Darby claimed that as Ms Feist had made a complaint against a Ms Howden to the Independent Police Conduct Authority (the IPCA), this demonstrates a likelihood of future violence towards Mr Darby. The Judge explains that while she agrees that the complaint could be construed as being vexatious, she has no direct knowledge of the complaint other than Ms Feist’s explanation for it, which related to concerns about possible misuse of police powers by Ms Howden. There was no evidence from Ms Howden. The Judge concluded that she could not be satisfied that the fact of Ms Feist’s complaint about Ms Howden’s actions increased the likelihood of future family violence or adds to the necessity for an order.

[66]   The background to this reason is that the Judgment records that Ms Howden contacted Mr Darby and provided him with screenshots of posts on social media made by Ms Feist.

[67]   Mr Nicholls submits that Ms Feist was angry that Ms Howden had provided this information to Mr Darby and that led her to make a complaint to the IPCA     (Ms Howden apparently being employed by the Police). Mr Nicholls says this establishes Ms Feist’s motivation to act on her perceived concerns, just as she did by posting on social media, and this supports Mr Darby’s fear that she will not stop her

abusive behaviour. Mr Nicholls also submits that it was wrong for the Judge to rely on this reason as supporting her conclusion that the protection order was not necessary.

[68]   Ms Gray submits that while the matters relating to Ms Howden were part of Mr Darby’s argument, Ms Howden was not called to give evidence. Ms Gray further says that making a complaint to the IPCA indicates that Ms Feist had learned to raise concerns in an appropriate forum rather than on social media.

[69]   There was little evidence about the complaint made to the IPCA. In those circumstances, and where, at face value such a complaint can be understood as an appropriate step to take if there is a concern about the conduct of someone employed by the Police, I consider that the Judge was correct to conclude that the complaint did not increase the likelihood of future family violence or adds to the necessity for an order.

Reasons set out in [61(i) and j)] of the Judgment

[70]   It is convenient to address together the ninth and tenth reasons given in the Judgment.

[71]   In the ninth reason, the Judge sets out her conclusion that there is no evidence of ongoing psychological abuse or lasting harm to Mr Darby or his daughter from Ms Feist’s psychological abuse. The Judge refers to  a  telephone  call  between  a Mr Howden and Mr Darby, concluding that there is no evidence it amounted to psychological abuse.20

[72]   In the tenth reason, the Judge records that Mr Darby’s reasons for seeking a protection order were because he wants his daughter to be safe and he wants Ms Feist’s behaviour to stop. The Judge explains that there is no evidence of risk to his daughter in the context of the protection order proceeding and that decisions about her safety are best made in the Care of Children Act proceeding, after hearing from her parents

20 There is little discussion of the phone call in the Family Court judgment but from the notes of evidence, there is at least a suggestion from Mr Darby that Mr Howden (who is apparently the father of Ms Howden) had an association with Ms Feist and that the call was intended to upset Mr Darby.

and any other relevant witnesses. The Judge said that Ms Feist might also give evidence in that proceeding, if it would assist the court to make decisions in the welfare and best interest of the child. The Judge also records that Mr Darby’s desire for the posts to stop has been achieved by the bringing of his application for a protection order.

[73]   Mr Nicholls submits the conclusion that there is no evidence of ongoing psychological abuse or lasting harm to Mr Darby is inconsistent with the Judge’s finding that Mr Darby has a  reasonable  subjective  fear  of  psychological  harm.  Mr Nicholls emphasises Mr Darby’s evidence was that he relocated to a new address because he felt unsafe and that he was concerned about the lengths Ms Feist would go to, to defame and publicly humiliate him. Mr Nicholls says the Judge’s emphasis on the phone call overstated its significance in assessing how Mr Darby was  feeling. Mr Nicholls suggests that the approach taken by the Judge minimises the abusive behaviour that has occurred and fails to take account of the statutory purpose of the Act, which acknowledges that family violence is unacceptable. Overall, Mr Nicholls says that the evidence does show lasting harm to Mr Darby and the Judge’s conclusions seem to suggest that Mr Darby is not entitled to feel vulnerable and unsafe as a result of Ms Feist’s psychological abuse.

[74]   Ms Gray submits that the evidence shows Mr Darby acknowledged a misunderstanding in that he had thought the family violence proceeding was consolidated with the Care of Children Act proceeding and that therefore the family violence proceeding would have an impact on decisions made in the Care of Children Act context. Ms Gray says that the Judge was correct to conclude that the child was protected in the Care of Children Act proceeding and that therefore no order for a protection order needed to be made for the protection of the child.

[75]   I agree with Mr Nicholls that the emphasis placed on the phone call seems rather overstated, but this should be seen in the context of the Judge’s earlier reference to the drawn out and highly conflicted Care of Children Act proceedings and the nature of the posts/comments made by Ms Feist on social media. These matters seem more significant to me. Having reviewed the notes of evidence, I agree with the Judge that Mr Darby did have two clear goals in making an application for a protection order, as

the Judge outlined, and these are consistent with the Judge’s focus on the more significant matters I have just noted. Nonetheless, I also accept that Mr Darby did explain in evidence how upsetting Ms Feist’s behaviour was for him, including this statement in re-examination:

Yeah, I want the behaviour to stop, I just want to live my life in peace, I want to spend time raising my kids and hanging out in my garden and not dealing with all the constant crap. I don't want phone calls out of the blue from people that are putting these, you know, saying: “Hey this has been posted online”, or whatever, I'm tired of it all. From my view it’s really childish and crap but not only that, a whole lot of it is not true and it creates a really, really dangerous narrative in my view. I live in a relatively small community, I deal with very - you know, I work for and deal with a lot of reputable companies in my region. I don't want the constant shadow hanging over what's being said, what's being posted, what's going on, people driving past my house. I'm sick of looking over my shoulder. That’s literally why I've moved and no one knows where I live and I've done my absolute best to keep it that way. I've literally only given two of my family members my new address. Like it sucks but it’s just reality now.

[76]   The Judge held, correctly in my view, that while Ms Feist’s actions constituted psychological abuse in relation to Mr Darby there was no evidence of any further abuse since the date on which Ms Feist was served with the application for a protection order. However, the statement by the Judge that Mr Darby has not suffered “lasting harm” was not necessary in the sense that there is no requirement in the test for making a protection order that such lasting harm is established. It is likely that this statement was part of the Judge’s assessment of Mr Darby’s perception of the nature and seriousness of Ms Feist’s behaviour and its effect on him, as required under s 83(1)(1) of the Family Violence Act. To the extent Mr Darby understands it as minimising his experience of Ms Feist’s abusive behaviour, this is unfortunate. In my view, Mr Darby was entitled to feel vulnerable and unsafe because of Ms Feist’s actions. I consider that this is also reflected in the Judge’s conclusion that he had a reasonable subjective fear of future psychological abuse by Ms Feist.

[77]   However, these matters are only part of an assessment as to whether a protection order is necessary. The risk of future violence is a factor properly considered and as already noted, the Judge concluded that Mr Darby clearly indicated what he wanted as a result of bringing his application. There was sufficient evidence before the Judge that these outcomes could be achieved without making a protection order and in my view, this was a relevant factor in the Judge’s decision, alongside the other

factors she considered, including the lack of evidence of any further abuse by Ms Feist. This is the case without having to reach a conclusion that Mr Darby has not suffered any lasting harm from Ms Feist’s actions.

Conclusion

[78]   I am satisfied that the Judge carefully considered all the evidence. The Judge was able to consider the affidavit evidence and hear from Mr Darby and Ms Feist in person at the hearing. The notes of evidence make it apparent that the Judge took the opportunity during the hearing to ask questions herself. The Judge made findings of fact which are not in dispute. I am satisfied that the Judge properly took account of Mr Darby’s reasonable subjective fear of future psychological abuse by Ms Feist.

[79]   I consider that the Judge then turned to consider factors weighing against the necessity for a protection order, conducting the required broad-based assessment of the need for protection in the future, and that she was entitled to conclude that a protection order was not necessary for the protection of Mr Darby. While I have commented on the relevance or strength of some aspects of the factors in the discussion above, I am not satisfied there is any error in the Judgment that would lead me to a different conclusion as to the necessity for a protection order. For the avoidance of doubt, nor can I see anything in the Judgment that indicates gender bias in the Judge’s reasoning.

Result

[80]The appeal is dismissed.

[81]As both parties are legally aided there is no order as to costs.

McQueen J

Solicitors:

Chris Nicholls, Lower Hutt for Appellant Buchanan Gray, Wellington for Respondent