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…

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.

Continue reading Davis v Devon

Details

AGLC: Davis v Devon [2016] NZHC 209
Case: [2016] NZHC 209
Decision Date: 18 February 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Ms. Davis appealed against the Family Court's refusal to grant a protection order against Mr. Devon, her former partner. The Family Court had instead made parenting orders with specific conditions, including a requirement for Mr. Devon to undertake therapy. Ms. Davis claimed that Mr. Devon had subjected her to ongoing psychological abuse and that the Family Court erred in not making a protection order. The appeal hinged on the necessity element under the Domestic Violence Act 1995, which requires a finding that the protection order is necessary for the applicant's protection. The court considered whether the Family Court erred in finding that a protection order was unnecessary and whether the objects of the Domestic Violence Act 1995 were met through the parenting orders. The appeal was allowed, and the Family Court's orders were quashed. A protection order was made in favour of Ms. Davis.

Orders