Davis v Devon

[2016] NZHC 209

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2015-463-000124 [2016] NZHC 209

IN THE MATTER OF	THE DOMESTIC VIOLENCE ACT 1995
BETWEEN	MS DAVIS Appellant
AND	MR DEVON Respondent

Hearing:	12 February 2016
Appearances:	Minka Boddé-Phillips and Laura Fischer for the Appellant Respondent in Person
Judgment:	18 February 2016

JUDGMENT OF MOORE J

This judgment was delivered by me on 18 February 2016 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

DAVIS v DEVON [2016] NZHC 209 [18 February 2016]

Introduction

[1]      Ms Davis and Mr Devon are the parents of two children aged 5 and 6.  Since separating in February 2012 they have been embroiled in extensive, and, at times, vitriolic litigation over the care of their children.1

[2]      In  May  2014  Ms  Davis  applied  to  the  Family  Court  for  a  permanent protection order against Mr Devon.  This was brought on the grounds that Mr Devon had in the past and was continuing to subject Ms Davis to psychological abuse and that a protection order under s 14 of the Domestic Violence Act 1995 (“the DVA”) was necessary to protect her from this abuse.   Mr Devon opposed the application. He said that Ms Davis was the one who had been abusive and he denied any form of verbal or physical abuse towards Ms Davis or the children.

[3]      The application came before the Family Court in August 2015.  In a judgment dated 2 September 2015 the Judge declined to make a protection order.  Although she found the elements for the making of a protection order to be satisfied she determined  that  a  protection  order  would  be  an  inadequate  and  inappropriate response and that the preferable course was to make tailored and specific parenting orders requiring Mr Devon to undertake therapy as a condition of the otherwise orthodox parenting orders she made.

[4]      It is against that decision Ms Davis now appeals.

Background

[5]      Shortly after the parties separated Ms Davis obtained a temporary protection order against Mr Devon.  A little over a year later she agreed to discharge the order apparently because Mr Devon had completed a domestic violence programme and Ms  Davis  did  not  want  the  order  to  interfere  in  the  parties’  co-parenting

arrangements.

1      These are fictitious names to protect the identity of the parties.

[6]      Parenting orders were then made granting Ms Davis the day-to-day care of the children.   These orders gave Mr Devon contact every second weekend, at specified times during the school holidays and other ancillary orders.

[7]      However,  according  to  Ms  Davis,  the  parties’  relationship  has  again

deteriorated and she now seeks a permanent protection order.

[8]      In her supporting affidavit Ms Davis claims that during their relationship Mr Devon had been extremely aggressive and while not physically violent he was psychologically  abusive  and  controlling.     She  says  that  since  the  separation Mr Devon has sent her hundreds of abusive texts.  She refers to occasions at contact change overs when Mr Devon threatened physical violence.  She describes a plethora of telephone calls and text messages in which Mr Devon threatened her, accused her of keeping his children from him and was abusive towards her both in the presence of and away from the children. As a consequence of this ongoing conduct she claims her health has been seriously affected, requiring professional counselling and resulting, on one occasion, in her admission to hospital following a seizure.  Aspects of Ms Davis’ concerns are corroborated in an affidavit made by her mother.   In particular, her mother deposes to her daughter’s extreme stress due to Mr Devon’s conduct.    She  attributes  Mr  Devon’s  behaviour  to  her  daughter’s  health  issues leading to her admission to hospital.

[9]      In an updated affidavit in July 2015 Ms Davis says that when things with Mr Devon are good she experiences no difficulties.  However, “… when things … are bad …” Mr Devon’s behaviour and attitude causes her great upset and anxiety. She  says  she  does  not  know  what  he  is  capable  of  and  finds  him  totally unpredictable.   When in this mood, she says Mr Devon makes abusive telephone calls and sends her abusive texts.  She says she fears change overs because of the uncertainty and volatility of his behaviour.  She is afraid to answer her telephone or read her text messages.  Ms Davis says Mr Devon appears, “to go out of his way to make things difficult for [her] for no other reason than to be difficult and to upset [her].”   She says that when this happens she fears for her safety and that of her children.   She says she needs the protection order to prevent the abusive texts, telephone calls and other forms of harassment.

[10]     By  contrast,  Mr  Devon  vehemently  rejects  Ms  Davis’  claims.    In  his affidavits he not only denies Ms Davis’ assertions, but says that the reason he had been contacting her was that she refused to follow the parenting order and would not allow  him  to  have  telephone  contact  with  the  children.    He  says  he  believes Ms Davis’ health issues are more likely to have been caused by her failing to take her medication rather than anything which could be attributed to him.

[11]     He flatly denies he is intimidatory and points to the fact Ms Davis has given him the burglar alarm code of her home, conduct he says which is inconsistent with her claim of harbouring fears of him.

[12]     He says that the application for a protection order is misconceived; it  is Ms Davis who has manipulated the facts and lied.  Indeed, he goes further claiming that  Ms  Davis  has  been  the  one  who  had  been  psychologically  and  possibly physically abusive towards the children.

Family Court decision

[13]     Three applications came before the Family Court.  Ms Davis’ application for a protection order was accompanied by an application seeking supervised contact when the children were in their father’s care.  Mr Devon brought a parenting order application seeking the day-to-day care of the children.

[14]     In relation to the protection order her Honour found the first element, namely there was an ongoing pattern of domestic violence in the form of psychological abuse, had been made out on the evidence.   However, in relation to the second element, that is proof there was an ongoing necessity for the protection order her Honour was of the view that a more effective strategy to address what she described as the “underlying issues in the case” was for Mr Devon to obtain therapy to address his own issues.  She determined this could be better met by the making of a very specific and tailored parenting order.

[15]     She thus declined to exercise her discretion.  The application for a protection order was dismissed.

Grounds of appeal

[16]     As discussed later this is an appeal against the exercise of a discretion.  Thus the basis for Ms Davis’ appeal must be that the Judge erred in law.  In particular she claims the Judge erred in the following respects:

(a)       in refusing to make a protection order;

(b)      in finding that the grounds of necessity were not met;

(c)      although  correctly stating the  presumption  established in  Surrey  v Surrey,  distinguishing  the  application  of  that  presumption  in  the present case; 2

(d)exercising her discretion in refusing to make the order following a finding that there was a pattern of psychological abuse in reference to the psychologist’s evidence that was Ms Davis needed to be protected from that abuse; and

(e)      failing to make a protection order in these circumstances does not accord with the principles and objectives of s 5 of the DVA.

Principles on appeal

[17]     The appeal is brought pursuant to s 91 of the DVA which provides that a decision to refuse to make an order in proceedings under the DVA may be appealed to this Court. Any such appeal is final.3

[18]     In relation to an appeal against the making of a protection order different appellate principles apply depending on which element under s 14(1) is the subject

of appellate scrutiny.

2      Surrey v Surrey [2010] 2 NZLR 581 (CA).

3      Domestic Violence Act 1995, s 91(1AA), (1) and (4).

[19]     The factual finding that domestic violence has been used by the respondent is subject  to  the  ordinary  appellate  principles  which  also  recognise  the  natural advantage a first instance Judge has in seeing and hearing the witnesses giving evidence.4   The second element, namely whether the making of an order is necessary for the protection of the applicant, is discretionary in nature.   As such different appellate principles are engaged.

[20]     This aspect was discussed in Surrey v Surrey where the Court of Appeal stated:

“[69]    This means that to succeed in an appeal, an appellant must show that the Judge acted on a wrong principle, that he or she failed to take into account  some  relevant  matter,  that  he  or  she  took  into  account  some irrelevant matter or that he or she was plainly wrong – i.e. that the Judge could not legitimately have to come to the conclusion that he or she did.”

[21]     It is in relation to the second element of necessity that Ms Davis appeals.

Submissions

[22]     Ms Boddé-Phillips, for the appellant, focuses her submissions on the Judge’s finding that the making of a protection order was not necessary for the protection of Ms Davis.  She submits that while the Judge was plainly correct on the evidence to find that there was a domestic relationship between the parties and Mr Devon was using or had used domestic violence against Ms Davis, her Honour was wrong not to find that a protection order was necessary for the protection of the applicant.   In particular she submitted, on the authority of Surrey v Surrey, that Ms Davis had proved all she was required to prove having demonstrated the existence of the past violence and a reasonable subjective fear of future violence,.  An evidential burden then passed to Mr Devon to satisfy the Court of those factors weighing against the necessity of an order.  She submits that he did not meet that burden.

[23]     Mr  Devon,  who  appears  in  person,  submits  that  such  an  order  is  not necessary.  He expresses an anxiety that should a protection order be made he will be subjected to spurious, malicious and unfounded claims by Ms Davis that he has

breached the order.

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

Discussion

The focus of the appeal

[24]     Although Ms Boddé-Phillips advances five separate grounds of appeal, the essence of her complaint is that the Judge incorrectly applied the principles in Surrey v  Surrey  when  she  determined  that  a  parenting  order  with  specific  conditions rendered the making of a protection order unnecessary for the protection of Ms Davis.

The objects of the DVA

[25]     In considering that submission it is necessary to examine the objects of the

DVA, s 5 of which provides as follows:

“(1)      The object of this Act is to reduce and prevent violence in domestic relationships by—

(a)      recognising that domestic violence, in all its forms, is unacceptable behaviour; and

(b)       ensuring  that,  where  domestic  violence  occurs,  there  is effective legal protection for its victims.

(2)      This Act aims to achieve its object by—

(a)       empowering  the  court  to  make  certain  orders  to  protect victims of domestic violence;

(b)       ensuring that access to the court is as speedy, inexpensive, and simple as is consistent with justice;

(c)       providing, for persons who are victims of domestic violence, appropriate safety programmes;

(d)       requiring respondents and associated respondents to attend non-violence programmes that have the primary objective of stopping or preventing domestic violence;

(e)       providing more effective sanctions and enforcement in the event that a protection order is breached.

(3)       Any court which, or any person who, exercises any power conferred by or under this Act must be guided in the exercise of that power by the object specified in subsection (1).”

[26]     It is plain from the wording of s 5(3) that the Court is required to have regard to the object of the DVA when exercising any powers under the DVA.  This principle necessarily informs the Court’s power to make protection orders.

[27]     Domestic violence includes psychological abuse which includes intimidation, harassment, threats of physical abuse, sexual abuse or psychological abuse.5

[28]     This was usefully commented upon by Priestley J in K v G where his Honour observed:6

“The s 3 definition of ‘domestic violence’ covers a wide range of abuse.  It is also important to ensure in any proceedings under the Act that the s 5 objects are not diluted.  Of particular importance is the s 5(1)(a) object, to the effect that all forms of domestic violence are unacceptable.  The Act has a further object, as s 5(1)(b) makes clear, of ensuring effective legal protection to the victims of domestic violence where it occurs.”

Approach under s 14

[29]     Section 14 of the DVA contains the Court’s power to make a protection order.

The section relevantly provides:

“(1)      The court may make a protection order if it is satisfied that—

(a)       the  respondent  is  using,  or  has  used,  domestic  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, or a child of the applicant’s family, or both.”

[30]     The application of this section was discussed in Surrey v Surrey:

“[67]    There is a two-pronged test in s 14(1) of the Act … Both limbs must be satisfied before Court can issue a protection order.  There must first be a factual finding that the respondent is using or has used domestic violence against the applicant, or a child of the applicant’s family, or both.  ‘Domestic violence’ is defined widely under s 3 of the Act ... Any factual finding of this nature would be reviewable on ordinary appellate principles, as outlined in Austin, Nichols & Co Ltd v Stichting Lodestar.7   When reviewing the factual findings of this nature, however, an appellate Court will need to cognisant of any advantage the Judge appealed from has had from seeing and hearing the witnesses: see discussion in Munro at [72] to [84].

5      Domestic Violence Act 1995, s 3(1) and (2).

6      K v G [2009] NZFLR 523.

7      Austin, Nichols & Co Ltd v Stichting Lodestar, above n 4.

[68]     Under the second limb of s 14(1), there must be a finding that the making of another is necessary for the protection of the applicant, or a child of the applicant’s family, or both. This is an evaluative decision made by the Judge, taking into account all relevant factors. … We consider that Fogarty J was correct to characterise the issue of necessity as a discretion decision for appellate purposes and thus one that is not subject to the Austin, Nichols analysis: see Blackstone v Blackstone.8

[69]      This means that to succeed in an appeal, an appellant must show that the Judge acted on a wrong principle, that he or she failed to take into account some relevant matter, that he or she took into account of some irrelevant matter, or that he or she was plainly wrong – that is, that the Judge could  not  legitimately  have  come  to  the  conclusion  that  he  or  she  did. Treating the decision as to whether a protection order is necessary as discretionary is consistent with the requirement in s 5(2)(b) of the DVA that matters should be dealt with expeditiously.”

The second limb – necessity

[31]     In the present case there is no challenge to the factual findings of the Judge in relation to the first limb.  It is the second limb, that is necessity, which is engaged in the present appeal. The Family Court Judge put it this way at [9](c):

“Following the authority in Surrey v Surrey, it would generally be the case that if the first two grounds are proved, then there is a presumption that the order will be necessary and it is for the respondent to rebut that presumption. The situation in this case is somewhat different.   The issue is whether a protection order will address the underlying issues in this case as they relate to the ongoing care arrangements of the children.”

[32]     This formulation appears to reflect the comments in Surrey v Surrey where the Court of Appeal observed that in considering the question of necessity,  the threshold under s 14(1)(b) of the DVA should not be set “impossibly high”.   No burden should be placed on the applicant to prove that future violence was likely. The Court said:9

“In our view, all that [the applicant] was required to prove was the existence of the past violence and a reasonable subjective fear of future violence.  An evidential burden then passed to [the respondent] to demonstrate factors weighing against the necessity of an order (which he did not meet in this case).”

8      Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 at [8].

9      Surrey v Surrey, above n 2, at [77].

[33]     Once both limbs of s 14(1) of the DVA are met there is little latitude for the exercise of any residual discretion to decline making a protection order.  In Surrey v Surrey the Court described the correct process as follows:

“[71]    … We do not consider that in the case of protection orders there is any real discretion once a Court is satisfied that both limbs of s 14(1) of the DV Act are met. To decline a protection order in such circumstances would not accord with the protective objects of the DV Act. … despite the permissive wording in s 14(1) of the DV Act, there can be no room for any residual discretion.”

[34]     Ms Boddé-Phillips submits that from these passages it is evident that the Judge erred in distinguishing the presumption established in Surrey v Surrey.  She submits that there were no grounds on which to distinguish the presumption without consideration of the burden on Mr Devon.

Discussion

[35]     The central question for me on this appeal is whether in all the circumstances, having regard to the object of the DVA and the statutory factors set out in s 14 it was necessary for the protection of Ms Davis to make an order under s 14 or whether it was  open  to  the  Judge  to  meet  Ms  Davis’ need  for  protection  through  special conditions attached to a parenting order.

[36]     The  test  for  proof  of  necessity  requires  the  Court  to  undertake  a  broad evaluative assessment of the need for protection in the future having regard to both the objects of the DVA and the statutory factors set out in s 14 as well as any other relevant factors.

[37]     Her Honour had a rich reservoir of evidence to prove past violence.   Her judgment expressly records she was satisfied there had been an ongoing pattern of psychological abuse by Mr Devon towards Ms Davis.

[38]     This evidence was found in Ms Davis’ affidavits, her evidence at the hearing and the evidence of the psychologist appointed to prepare the s 133 report.   The relevant extracts of the psychologist’s evidence are reproduced below:

“QAnd what symptoms would you expect a victim of ongoing psychological abuse to exhibit?

AOh stress, depression, anxiety, just as Ms Davis has reported for herself.

QAnd you’ve heard Ms Davis give evidence yesterday that she has been seeing a counsellor for herself to, to try and work through those issues she’s had.

A        Yes, but I think that’s putting the solution, the requirements for the

solution on Ms Davis.  She is not the author of these problems.”

[39]     Later the psychologist was asked whether it was reasonable for Ms Davis to be subjected to Mr Devon’s conduct. The subsequent exchange is set out below:

“A      I’ll  give  you  the  short  answer,  no.   It’s  not  reasonable,  entirely

unreasonable. She should be protected from it.

Q        And is it reasonable for her to experience that as abusive? A        Yeah, that’s – it is.

QAnd her fear of Mr Devon and his future manipulation, ongoing mind games and harassment is reasonable in your opinion?

AThat, that is reasonable and there is no evidence that Mr Devon has tried to address those issues.

…”

[40]     In the circumstances of this case I am satisfied that the Judge erred in failing to make an explicit finding of necessity and, as a consequence, make a protection order.

[41]     Adopting the  Surrey v  Surrey  formula  Ms  Davis  had  plainly proved  the existence of past violence and a reasonable subjective fear of future violence.

[42]     At that point an evidential burden passed to Mr Devon to demonstrate factors weighing against the necessity of the order.  It is equally plain he failed to satisfy that burden.

[43]     Despite this the Judge exercised her discretion against the making of an order and instead directed Mr Devon to undertake and complete the parenting through separation programme.  In making that order her Honour said:

“[20]    Having heard both the parents give evidence and having regard to the evidence given by [the psychologist] I am satisfied that the root of the issue that has brought this matter back before the Court lies with Mr Devon who does not recognise Ms Davis’ excellent care of the children.  As was noted in the previous hearing he has continued to raise unsubstantiated concerns regarding the children and he has continued to harass her.   Mr Devon would benefit from undertaking some therapy to address his personal issues having regard also to the evidence that he has given as to a previous diagnosis of paranoia.  It will be for him to take appropriate steps to access therapy.”

[44]     The psychologist’s pessimism around Mr Devon’s motivation to successfully engage in remedial steps must make an ancillary order to undertake further courses attached to parenting orders of doubtful utility.

[45]     I agree with the comments of Judge Flatley when he described the utility and effectiveness of protection orders to prevent lower level domestic violence.   He said:10

“It is reasonable to say that to some extent protections work  best to prevent that lower level domestic violence, the psychological and emotional abuse, because the prospect of being breached and potentially spending time in prison for such offending is a sufficient deterrent to prevent that behaviour from occurring.  This is the type of behaviour that is difficult to describe, report, prosecute and generally guard against.   It is opportunistic, without corroborating evidence, and insidious in nature.”

[46]     This is in line with Ms Davis’ evidence that the initial temporary protection order  was  effective  in  reducing  the  psychological  abuse  but  that  the  offending conduct resumed once it was lifted on her application; a decision she says she now regrets.  I am satisfied that this remains the most effective solution.

[47]     Lastly, s 15 requires a Court not to decline to make a protection order merely because of the existence of other proceedings including proceedings involving the day-to-day care of children.  The application for a protection order was a standalone

application  although  heard  in  conjunction  with  other  applications.    While  the

10     Tyler v Tyler [2014] NZFC 5173 at [50].

decision not to grant a protection order was not “merely because” of the existence of the application for parenting orders, s 15 underscores the emphasis which the DVA places on granting protection orders in appropriate cases rather than attempting to achieve a similar outcome through the making of other orders including parenting orders.

[48]     In the circumstances of the present case and for these reasons I am satisfied that the Family Court Judge was wrong to refuse a protection order by making parenting orders with conditions.

Result

[49]     The appeal is allowed.

[50]     The orders made in the Family Court are quashed.

[51]     A protection order in favour of Ms Davis is made in terms of s 14(1) of the

DVA.

Moore J

Solicitors:

Ms Boddé-Phillips, Rotorua

Copy to:

The Respondent