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…

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.

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Details

Case: [2024] NZHC 2186
Decision Date: 6 August 2024

CaseChat Overview and Summary

In Darby v Feist [2024] NZHC 2186, Darby appeals against the Family Court’s dismissal of his application for a protection order against Feist, his former partner’s mother. Darby argues that the Family Court Judge erred in finding that a protection order was not necessary, despite finding that Feist had psychologically abused him. The appeal raises the issue of whether the Family Court Judge erred in finding that a protection order was not necessary for Darby’s protection. Darby submits that the Judge’s reasons for her conclusion do not support it. The Court considers the appeal on the basis of the reasons stated in the notice of appeal and sets aside submissions of Darby’s counsel that have no foundation in fact or evidence. The Court concludes that the Family Court Judge carefully considered the evidence and made findings of fact that are not in dispute. The Judge considered Darby’s reasonable subjective fear of future psychological abuse by Feist and also conducted a broad-based assessment of the necessity for a protection order, considering factors weighing against the necessity for a protection order. The Judge was entitled to conclude that a protection order was not necessary for Darby’s protection. The appeal is dismissed.

Orders