Dunn v Elliott
[2020] NZHC 2872
•2 November 2020
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-2020-485-328
[2020] NZHC 2872
BETWEEN DONALD DUNN
Appellant
AND
CHRISTINE ELLIOTT
Respondent
Hearing: 15 October 2020 Appearances:
M Greenhough for the Appellant R Newberry for the Respondent
A G Gray as Lawyer for the Children
Judgment:
2 November 2020
JUDGMENT OF GRICE J
Contents
Overview[1]
Background[3]
Family Court decision[4]
Legal position in relation to discharge of order[10]
Approach on appeal[13]
Points on appeal[15]
The detail[21]
Consideration of the views and perceptions of the children[34]
Effect on the children[43]
Appeal ground one[46]
Appeal ground two[50]
Appeal ground three[54]
Appeal ground four[57]
Appeal ground five[64]
Appeal grounds six and seven[67]
Appeal grounds eight and nine[71]
Appeal ground ten[76]
DUNN v ELLIOTT [2020] NZHC 2872 [2 November 2020]
Appeal ground eleven[78]
Conclusion[84]
Costs[86]
Overview
[1] This is an appeal from a decision of the Family Court dismissing an application to discharge a domestic protection order.1 The protection order was made in 2017 without opposition. At the same time occupation and ancillary furniture orders were made in favour of the respondent.2
[2] The appellant appeals on eleven grounds. Simply put, they fall into two main categories: first, whether there was the evidential foundation for the Judge to conclude that the protection order should be continued, and second, whether appropriate weight was given to the views of the children.
Background
[3]The Family Court decision records the background as follows:3
[6] The parties began a relationship in the 1990s. At the time Ms Elliott was a [client] of Mr Dunn who was working as a general medical practitioner. They began a de facto relationship in 1997 and were married on 12 October 2008 before separating on 18 November 2016. There are five children of the relationship. The eldest child is not the biological daughter of Mr Dunn, but she was brought up as a child of the family. The parties have [four biological children]. At the date of separation, the [three younger children] were living at home and were aged approximately 17, 15 and 11 years old.
[7] Ms Elliott applied without notice for protection, occupation and ancillary furniture orders on 29 March 2017. Those applications were placed on notice. Mr Dunn was eventually served by email after an order for substituted service was made. He filed a notice of defence dated 15 June together with a notice of solicitor acting.
[8] When the proceedings came before the Court on 30 June it appeared likely that matters would settled by way of the provision of an undertaking. However, by memorandum dated 5 September 2017 counsel for Ms Elliott advised that the proceedings could not be settled on that basis as Mr Dunn
1 Elliott v Dunn [2020] NZFC 3728 [Family Court decision]. The protection order was made under the Domestic Violence Act 1975. The proceedings continue under that Act. It has since been replaced by the Family Violence Act 2018.
2 At [2]; it is accepted Ms Elliott will remain in occupation of the former family home and have use of the furniture therein pending the final division of relationship property.
3 At [6]–[12] and [14]–[15] and [27]–[29] (footnotes omitted).
refused to sign the undertaking as drafted and it was alleged there had been further abusive behaviour. Ms Elliott sought final orders.
[9] On 8 September Judge Walsh directed Mr Dunn to file an affidavit in reply by 29 September with Ms Elliott having the right of reply by 13 October. He further directed “subject to filing of the affidavit evidence a final protection order and occupation order can be made by consent on the papers”. I infer from this direction that Mr Dunn did not intend to oppose the making of the orders but intended to respond to the allegations contained in Ms Elliott’s evidence and possibly set out the basis on which he had elected not to oppose the making of the orders.
[10] Mr Dunn’s counsel advised the Court by memorandum of 3 October 2017 that an affirmation had been prepared but Mr Dunn was unable to affirm it as he was overseas. Counsel’s instructions were to provide the unsigned and unsworn affirmation on the basis that Mr Dunn would attend to affirming it on his return to New Zealand.
[11] By memorandum dated 3 October counsel for Ms Elliott sought for final protection and occupation orders to be made by consent on the papers as Mr Dunn was in breach of the timetabling directions. On 9 October counsel for Ms Elliott advised Ms Elliott had seen the unsigned affirmation of Mr Dunn and, while she did not agree with the assertions made, as he was consenting to the making of a final protection and occupation orders, she did not wish to file evidence in reply. Counsel sought for the file to be referred to a duty Judge for the making of order by consent as previously directed by Judge Walsh on 8 September.
[12] Final protection and occupation orders were subsequently issued on 11 October 2017 with Judge Grace making the following directions on the papers:
“Having considered the minute of 8 September and the subsequent memorandum of both counsel dated 3 October, and noting that the respondent appears to consent to a final protection order the following are made:
1.A final protection order in favour of the applicant is to issue.
2.The standard conditions apply.
3.A final occupation order to issue in favour of the applicant.”
…
[14] I have carefully considered the background to the current application before the Court as it is relevant to the assessment of Mr Dunn’s case. In particular, his assertion that there has never been domestic violence either established by the Court of acknowledged by him, and that the final protection order was only made because of his consent and not because the evidence established the existence of domestic violence or the necessity for a protection order to be made.
[15] Although referred to in the memoranda filed by counsel following the directions made by Judge Walsh made on 8 September, no affidavit from
Mr Dunn has been received, signed or unsigned. At least it is not on the Court file. If he intended to dispute the allegations made by Ms Elliott in support of her application for a protection order the Court has no evidence from him about this.
…
[27] In October 2016 Mr Dunn began a series of disclosures to Ms Elliott about his conduct as a doctor and a husband where he advised her he had inappropriate sexual relationships with a number of his clients (Mr Dunn says four including Ms Elliott, Ms Elliott says 12 or more). He says that although that caused significant distress for Ms Elliott his disclosures do not meet the legal definition of psychological abuse. Even if it can be so classified, he says there is no suggestion this can be repeated or that Ms Elliott is at any risk from further abuse of this kind given that the disclosures have been made and the damage to their relationship has already been done.
[28] Mr Dunn accepts unequivocally that his affairs with clients were wrong and damaging to the family, resulting in the fracturing of family relationships and destruction of any trust between himself and Ms Elliott. However, he says his disclosures to Ms Elliott and his letter to the children apologising for his behaviour are evidence of him taking responsibility for his behaviour and showing genuine contrition for the damage he had caused to his wife and children.
[29] Ms Elliott's concerns about Mr Dunn driving around the neighbourhood and showing up unannounced at her home, as she says he did following their separation in 2016, are denied by Mr Dunn and he strongly refutes her allegations that he did so after the protection order was made.
Family Court decision
[4] The Judge structured her decision by first outlining Mr Dunn’s case4 and then Ms Elliott’s case.5 The Judge then set out the views of the two children remaining in the family home, the parties’ daughters, then aged 14 and 18 years. Their views had been reported by Ms Gray, as lawyer for the children, as well as being set out in a minute of the Family Court Judge who had interviewed the girls at the Court’s directions.6
[5]The Judge summarised the appellant’s case as follows:
4 Family Court decision, above n 1 at [26]–[36].
5 At [37]–[44].
6 Elliott v Dunn FC Wellington FAM-2017-085-000123, dated 21 April 2020.
(a)That no grounds for the making of the domestic protection order existed in April 2017 when it was made nor do grounds exist now;
(b)That the alleged conduct did not amount to domestic violence; and
(c)That there was no financial abuse, or physical or psychological abuse towards the respondent or the children.
[6]The Judge summarised the case for the respondent as follows:
(a)There had been grounds available for the making of the protection order, and she remained concerned about the power and control exerted by the appellant.
(b)The respondent felt intimidated throughout the relationship.
(c)The children’s recollections of their father were consistent with hers. The respondent said she did not know “the extent of the children’s experiences” until it was reported by their lawyer in these proceedings.
(d)The respondent was suspicious that the appellant was behind anonymous deliveries to the house post-separation.
(e)She had an ongoing concern that the appellant would turn up to the house.
(f)The respondent was particularly vulnerable. She was coming to terms with her history of abuse, including during the marriage.
(g)The respondent was concerned about the impact of the discharge of the order on the mental health of their then 14-year-old daughter.
(h)The respondent and the girls would not feel safe without a protection order.
[7] The Judge noted that the children were of the view that their father did not respect boundaries and did not listen to their views. They commented on his “overbearing ways and his emotional manipulation to meet his own needs”. They said they were fearful of him. The two girls took the view that the protection order provided them with peace, and that continuing the order would continue to protect them.
[8] The Judge concluded that the evidence established Ms Elliott and the children had a “strongly held” subjective fear of Mr Dunn and that fear was reasonably held. She was satisfied of the “necessity” of the protection order 7. Relevant to that finding was Mr Dunn’s behaviour during the marriage and after separation; his inability to maintain professional boundaries, as well as the perception by Ms Elliott of the power imbalance in the relationship.8 The Judge found that Mr Dunn had limited understanding or insight as to the nature and seriousness of his behaviour, and the impact of his behaviour on Ms Elliott and the children.9 In reaching that conclusion she accepted and relied on the evidence of Ms Elliott and the children’s comments and views.10
[9]The decision concluded:11
[75] He has not attended a living without violence programme, which may have provided him with an opportunity to review and reflect on his behaviour. He was not directed to do so at the time the final order was made, not because a determination was made that a programme was not required, but because it appears this was overlooked. He is clear he would object to attending a programme if it were directed now. He simply does not see how such a programme would benefit him as he does not accept his behaviour was or could be defined as abusive.
[76] In light of Mr Dunn's inability to understand his behaviour and his belief that he has acted appropriately, there does continue to be a risk that he would not be able to respect the boundaries imposed by Ms Elliott if an order was not in place.
[77] Although Mr Dunn has entered a new relationship and there is little risk he would seek to reconcile with Ms Elliott, the ownership of the family home remains to be finalised, there continue to be unresolved relationship property matters and Mr Dunn continues to spend time in [the same city as Ms
7 Family Court decision, above n 1 at [72]–[73].
8 At [73].
9 At [74].
10 At [66].
11 At [75]–[79].
Elliott and the children] on a regular basis. The unresolved property division means there will need to be some ongoing interactions between himself and Ms Elliott (albeit through lawyers) and his presence in [the same city] means there is the potential for accidental contact with the children.
[78] Ms Elliott and the children, particularly [the youngest child], continue to be vulnerable individuals whose recovery from the effects of Mr Dunn's behaviour continues to require them to feel safe. The potential impact on [the youngest child] of not having the protection order to ensure Mr Dunn stays away, is significant. The purpose of the protection order is not only to ensure Ms Elliott and the children are safe from unwanted contact but that they also feel safe. It is only the continued existence of the order which gives them that reassurance.
Conclusion
[79] Mr Dunn has failed to establish on the balance of probabilities that there is no longer any necessity for Ms Elliott and the children to be protected by the order made in 2017. I am satisfied the order was made on the appropriate basis in 2017 and it continues to be necessary because of the risk posed by Mr Dunn's potential inability to maintain and respect the boundaries needed by Ms Elliott and the children, and due to their extreme vulnerability and need to be and feel safe from having any further contact with Mr Dunn.
Legal position in relation to discharge of order
[10] The parties agree on the legal principles relevant to an application for discharge of the domestic violence orders. These were set out by the Judge as follows:12
The law
[54]Section 47(1) of the Act provides:
47 Power to discharge protection order
(1)The Court may, if it thinks fit, on the application of the applicant or the respondent, discharge a protection order.
[55] The discretion conferred by s 47 is not unfettered. In exercising its discretion, the Court must be guided by the objects of the Act which are set out in s 5 of the Act:
5 Object
(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
12 Family Court decision, above n 1 at [54]–[58] (footnotes omitted).
(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).
[56] In considering whether to discharge an order, Judge Smith in SPPRS v PLS reviewed the criteria to be applied in the exercise of the Court's discretion. Her Honour set out a non-exhaustive list of matters which are commonly considered as relevant as follows:
(a)Identifying the behaviour that led to the making of the order in the first place;
(b)An assessment of the risk of future violence;
(c)The order may have obtained by false or misleading evidence;
(d)The period of time that has elapsed since the making of the order and any other domestic violence;
(e)Whether there has been any domestic violence in the intervening period;
(f)Whether there have been any breaches of the protection order in the intervening period;
(g)Whether the parties have formed new relationships if their single status contributed to risk when the order was made;
(h)Asking if child care arrangements have settled to ameliorate the prospect of future risk;
(i)The need for ongoing contact between the parties, whether on an interpersonal basis or as parents and whether or not under the umbrella of a formal Court order;
(j)The attendance at Stopping Violence courses or other interventions to reduce the prospect of violence;
(k)Undertakings provided (relevant but not determinative);
(1) The ongoing perception of the protected persons and the views of any children as to need for the order or fear of the applicant; and
(m) Change in circumstances or disposition that may have contributed to violent behaviour such as mental disorder, use of drugs and alcohol.
[57] Intention is not a necessary ingredient of "domestic violence". The behaviour of Mr Dunn does not need to be intentionally abusive for it to be found to be abusive. What must be considered is the effect of that behaviour on Ms Elliott and the children and what could reasonably be expected to be the effect on them. Mr Dunn might be well intentioned in his actions and still be found to be psychologically abusive. As Judge Inglis QC stated in Police v Philips (1998) FLN 137(2d) N196 at 197:
"A respondent's activities maybe [sic] prompted by entirely good motives: for instance, to promote a reconciliation, because of a belief that the interest of the children demands closer contact between the respondent and the applicant. But entirely good motives cannot help if the respondent's activities can be seen as unjustified and unreasonable in all the circumstances. An obsessed or paranoid spouse acting with the best of motives can be just as annoying as a spouse acting purely out of spite or anger or frustration".
[58] The test for establishing necessity at the time an order is made was comprehensively addressed by the Court of Appeal in Surrey v Surrey. The same test must be applied when considering whether a protection order continues to be necessary for the protection of persons protected under an order. I refer specifically to paras [35] to [53] and [96] to [122] where the Court held as follows:
(a)The assessment of necessity under s 14(l)(b) requires a broad- based assessment by the Court of the need for protection in the future having regard to the objects of the Domestic Violence Act as set out in s 5 and the statutory factors set out in s 14, as well as any other relevant factors.
(b)The level of risk of future violence will obviously be a relevant fact when assessing necessity. The risk assessment will be able to be taken on the basis of past conduct informed by the subjective views of the applicant and any other relevant factors. The nature and seriousness of past domestic violence and the pattern of past violence are relevant to assessing necessity. The single most robust predictor of future violence is a history of prior multiple offences.
(c)The necessity for a protection order must be assessed against the seriousness of past domestic violence.
(d)Once the applicant has proved the existence of past violence and she has proved her reasonable subjective fear of future violence, the evidential burden then passes to the respondent to raise countervailing factors that weigh against the need for a protection order. Unless he meets that evidential burden, the applicant does not need to show that no countervailing factors exist.
(e)It is mandatory for the Court to have regard to the perception of the applicant as to the nature and seriousness of the behaviour in respect of which the application is made. This includes not only her perception of the nature and seriousness of past violence, but her subjective fears for the future.
(f)The purpose of a protection order is not only to ensure that those who have been subjected to domestic violence in the past are safe in the future from the risk of violence, but also, that they feel safe.
[11] For completeness I also set out the definition of domestic violence from the Act:13
3 Meaning of domestic violence
(1)In this Act, domestic violence, in relation to any person, means violence against that person by any other person with whom that person is, or has been, in a domestic relationship.
(2)In this section, violence means—
(a)physical abuse:
(b)sexual abuse:
(c)psychological abuse, including, but not limited to,—
(i)intimidation:
(ii)harassment:
(iii)damage to property:
(iv)threats of physical abuse, sexual abuse, or psychological abuse:
(iva) financial or economic abuse (for example, denying or limiting access to financial resources, or preventing or restricting employment opportunities or access to education):
(v)in relation to a child, abuse of the kind set out in subsection (3).
13 Domestic Violence Act 1995, s 3.
(3)Without limiting subsection (2)(c), a person psychologically abuses a child if that person—
(a)causes or allows the child to see or hear the physical, sexual, or psychological abuse of a person with whom the child has a domestic relationship; or
(b)puts the child, or allows the child to be put, at real risk of seeing or hearing that abuse occurring;—
but the person who suffers that abuse is not regarded, for the purposes of this subsection, as having caused or allowed the child to see or hear the abuse, or, as the case may be, as having put the child, or allowed the child to be put, at risk of seeing or hearing the abuse.
(4)Without limiting subsection (2),—
(a)a single act may amount to abuse for the purposes of that subsection:
(b)a number of acts that form part of a pattern of behaviour may amount to abuse for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.
(5)Behaviour may be psychological abuse for the purposes of subsection (2)(c) which does not involve actual or threatened physical or sexual abuse.
[12] A pattern of behaviour, even where made up of apparently minor or trivial incidents, or seems unlikely to recur, may give rise to a need for protection. Section 14(3) provides:14
… whether the making of an order is necessary for the protection of the applicant, or a child of the applicant’s family, or both, where some or all of the behaviour in respect of which the application is made appears to be minor or trivial when viewed in isolation, or appears unlikely to recur, the court must nevertheless consider whether the behaviour forms part of a pattern of behaviour in respect of which the applicant, or a child of the applicant’s family, or both, need protection.
Approach on appeal
[13] The appeal proceeds under s 177 of the Family Violence Act 2018.15 The parties agree the appeal is a general appeal that proceeds by way of rehearing.16 The principles that apply are well known and set out in Austin, Nichols & Co Inc v
14 Domestic Violence Act 1995, s 14(3).
15 Previously, s 91 of the Domestic Violence Act 1995.
16 Care of Children Act 2004, s 143(4) and District Court Act 2016, s 127.
Stichting Lodestar.17 That requires the appellant to satisfy this Court that it should differ from the Family Court decision.
[14] However, this Court is required to make its own assessment on the merits of the case. While it is entitled to adopt the reasons of the first instance decision-maker to assist it in reaching a conclusion, the conclusion is one for the appellate court.
Points on appeal
[15] Ms Greenhough, on behalf of the appellant, in her oral submissions gave an overview of the substance of the appeal.
[16] The first general point she said was whether the order was “necessary” for the protection of Ms Elliott and the children. Ms Greenhough said putting aside the view of the girls, the evidence available established that the only risk Mr Dunn posed was that he might come to the family home where the girls and Ms Elliott still live. In addition, Ms Greenhough submitted that Mr Dunn had not done that in three years (since the protection order was made) and his circumstances had changed since 2017 as he had re-partnered and moved out of the same city in which Ms Elliott and the children reside. Therefore, she said that risk was relatively low from an objective point of view.
[17] Ms Greenhough submitted that Ms Elliott’s fears were unreasonable. Mr Dunn had accepted that he had caused harm during the marriage but that could not be a ground of psychological abuse and was now in the past. The background was that Mr Dunn had had extramarital relationships with a number of his clients during his relationship with Ms Elliott. He had denied that he was having these relationships when she had asked him. Their own relationship had started in the same way when she had come to him as a young, vulnerable client seeking assistance.
[18] The second general point outlined by Ms Greenhough related to the views of the children. These were set out in the report of the lawyer for the children and reported in a minute of another Family Court Judge following his interview with the
17 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
girls. That interview was carried out shortly before the hearing. Mr Dunn accepted that the views of the children had to be taken into account, however, he said their views and comments should have been treated with great caution because they were untested and the girls were subject to the influence of their mother.
[19] Finally, Ms Greenhough said the Judge failed to clearly identify the evidence pinpointing the events upon which she relied to reach a conclusion concerning both the existence of domestic violence and that the order had been, and remained, “necessary”. She said the Judge had made sweeping statements and accepted the evidence of Ms Elliott and the views of the children without specifying exactly what parts of the evidence she accepted.
[20] Before dealing with the specific grounds of appeal it is necessary to consider the evidence and the reasons for the Judge’s conclusions in more detail.
The detail
[21] The Judge found there was a pattern of behaviour which was “coercive or controlling”, causing the respondent and the children “cumulative harm”. She concluded that the appellant was unable to understand the effect of his behaviour and believed that he had acted appropriately. This continued to pose a risk that he would not be able to respect the boundaries imposed by the respondent if an order was not in place.18 The Judge also noted the particular vulnerability of the respondent, who was coming to terms with her history of abuse, and the effects of the relationship breakdown.
[22] The legislation recognises a pattern of behaviour may be made up of incidents which appear minor or trivial in isolation.19 Psychological abuse is often subtle. In this case, the incidents pointed to as illustrating the pattern of psychological abuse must also be assessed against the background history of the marriage. Ms Elliott pointed to the way the relationship between the appellant and the respondent started. She says he took advantage of her when she was a young and vulnerable client. At the
18 Family Court decision, above n 1, at [76].
19 Domestic Violence Act 1995, s 3(4).
time she was seeking treatment for her depression and self-harming behaviours. Ms Elliott put her trust in Mr Dunn as an older, more powerful professional who appeared to want to help her.20 In hindsight, given his subsequent behaviour, she says she realises he was grooming her for the sexual relationship which followed. This was a case in which a persistent pattern of behaviour was evident during the marriage involving, at the least, a lack of appreciation of boundaries.
[23] Ms Elliott now realised Mr Dunn had continued the pattern with other women clients over the course of their 20-year relationship. He denied this to her, but he was forced to acknowledge the relationships when other women complained. There is a dispute as to how many women clients were involved. However, it is clear that the behaviour was persistent and sufficient to attract severe disciplinary action leading to him retiring from professional practice. Mr Dunn’s behaviour through the marriage involved manipulation, not only of the clients in question, but of Ms Elliott, in particular, by his continued denials.21 His covert behaviour and denials to Ms Elliott during the marriage have some relevance when considering the future risk of domestic violence, particularly of the psychological abuse which the Judge found had occurred and his assertions to the Court that there was no risk of its reoccurrence.
[24] According to Ms Elliott, the power imbalance established at the beginning of the relationship continued during the marriage and remains.
[25] Ms Elliott says she was intimidated and felt powerless to prevent Mr Dunn threatening and physically overpowering the children.22 Mr Dunn denies he generally behaved that way. He does admit he manhandled his son but says this was an incident where the boy refused to clean his room and needed to be seen in context.
[26] Ms Elliott’s decision, she says, to leave the marriage was precipitated by the older girls’ (then in year 11 and 12 respectively at school) ultimatum that either she left their father, or they would leave. At that time the youngest child, aged 11, was threatening self-harm.23
20 Family Court decision, above n 1 at [38].
21 At [27].
22 At [39].
23 At [40].
[27] Mr Dunn’s actions after separation, to which Ms Elliott pointed as incidents illustrating the continued psychological abuse, included:24
(a)driving around the neighbourhood of the family home;
(b)showing up at the home unannounced;
(c)turning up at the house when she made it clear she did not want him there;
(d)anonymously leaving flowers in the letterbox and at the bottom of the stairs to their home on two occasions; and
(e)anonymously turning up at the home on three occasions (including the two where flowers were left and one occasion when their son’s scooter was left at the home).
[28] Mr Dunn denies he was at the house on those occasions. He says he did arrange a scooter to be returned to the property, but a third party returned it for him. The Judge found that it was more likely than not that he was the person who delivered the flowers to the property.25
[29] The Judge commented that she found Ms Elliott a “reliable, credible and truthful witness”. The Judge accepted her evidence about Mr Dunn attending the home even after he had received a lawyer’s letter asking him not to do so without Ms Elliott’s prior knowledge. Mr Dunn countered, saying he went to the home for legitimate reasons “with no intention to cause anxiety and fear to Ms Elliott or the children”.26 The Judge found his behaviour, in visiting the house when he knew of Ms Elliott’s opposition, constituted psychological abuse by way of harassment.27 The Judge noted the fact that even if Mr Dunn had benign motivations his behaviour was persistent.
24 Family Court decision, above n 1, at [29] and [69]–[70].
25 At [69].
26 At [68].
27 At [68]; pursuant to s 3(2)(c)(ii) of the Domestic Violence Act 1995.
[30] The Judge referred to a neighbour reporting they saw Mr Dunn heading up the stairs to the property on 28 March 2018. Mr Dunn submits that that evidence was hearsay as the neighbour did not give evidence. However, the sighting was only referred to as supporting the Judge’s view. Even if the evidence had been excluded, it is clear that the Judge had sufficient evidence to satisfy her that it was the appellant who had delivered flowers anonymously on two occasions. She considered the anonymous visits were consistent with his actions prior to the protection order being made, he had the motive of wanting to reconcile with Ms Elliott, and it was highly unlikely anyone else would deliver flowers to the property in this way.28
[31] Also relevant, as the Judge noted, was that the appellant was adamant that he would not attend a Living Without Violence programme as he did not think he needed it. The Judge found he had little insight into his behaviour or understanding of boundaries with the children.
[32] Mr Dunn has said he accepts that the effect of his behaviour during the marriage on the respondent and the children was devastating. However, he is of the view, having articulated his acceptance of blame, he can draw a line under it and it should not affect the perception of the respondent or the children of his subsequent behaviour and likely future behaviour.
[33] The Judge also placed considerable emphasis on the views and perceptions of the children. The appellant criticised the weight placed on these by the Judge.
Consideration of the views and perceptions of the children
[34] The views and perceptions about Mr Dunn reported by the older of the girls interviewed were:
(a)He would come to the house even though the children did not want to see him. She felt manipulated by him to force them to spend time with him.
28 Family Court decision, above n 1, at [69].
(b)He would come to the house when their mother was not present. They felt unable to assert themselves to resist going with him.
(c)He would text them and even though he was told they did not want to see him he would come anyway.
(d)He was physically abusive to the children, in particular to their brother, which was witnessed by them.
(e)She was concerned that the appellant was stalking them by driving around where they lived.
(f)The appellant was emotionally abusive by getting angry, shouting and manipulating.
[35]The younger girl said of Mr Dunn:
(a)He started picking her up from school without agreement from her or her mother.
(b)She felt trapped by him and forced to get into the car with him.
(c)He was physically abusive to them by pulling their hair, kicking and slapping the children. It was witnessed by the other children.
(d)He was emotionally manipulative in order to make them go with him.
(e)She was a witness to his physical abuse, particularly of her brother.
(f)She felt harassed by him when he came to their home when he was not welcome.
[36] Before the hearing Ms Gray had sought directions concerning how the views of the children should be put before the Court. They wanted to meet with the
hearing Judge to convey their views directly.29 The Judge who considered this request noted that there was an issue about “natural justice which needed to be weighed carefully”.30 His view was that the views of the girls were important. The Judge also considered the possibility of the 18-year old completing an affidavit and being a witness in the proceedings instead of being interviewed by a Judge, as the younger child had been. The hearing Judge then held a teleconference with counsel and following that directed she would meet with both children prior to the hearing and report their views sufficiently in advance of the hearing to permit the parties to file brief affidavits in response. She noted there was no objection to that proposed course of action.31
[37] That is what happened, although as a result of a last-minute change in the roster it was not the hearing Judge but another Judge who interviewed the children and provided the minute setting out their views.
[38] Mr Dunn had raised no objection to the process used to obtain the girls’ views and was given the opportunity to respond to the children’s reported views. Neither party apparently filed affidavits in response although Ms Elliott provided brief oral evidence as to the impact on the younger child of her meeting with the Judge. She was cross-examined on behalf of Mr Dunn on that.32
[39] Both girls were living at home at the time of the making of the protection order. They are now aged 15 and 19 years respectively. The younger remains at home and in school. The older retains the family home as her home base.33
[40] Counsel for Mr Dunn indicated it was usual for domestic protection proceedings to be accompanied by an application under the Care of Children Act 2004. In those cases, there are methods of testing the children’s views, for instance, by the children being interviewed by a psychologist. The report of a psychologist following
29 Family Court decision, above n 1 at [20]–[21].
30 At [22].
31 At [23].
32 At [25].
33 The children are protected persons under s 2 of the Domestic Violence Act 1995.
that interview with the children may assist in assessing the reliability of children’s views.
[41] In this case that course was not available. It is also questionable whether that would have been appropriate here. The girls were of an age where they could express their views clearly and articulately. While there is always the possibility of a parent influencing their views, the girls insisted that they had not been influenced by their mother. I do not consider a testing of their views by a psychologist would have taken the matter much further. Given the youngest child’s reaction to the interview by the Judge, it is possible that more harm would have been caused to her by a further non-therapeutic interview. Ms Gray indicated that she may well have opposed any psychological interview of the girls in any event.
[42] It is apparent the Judge was alive to the fact the views of the girls were not tested in the usual way. The Court had expressly recognised that issues of natural justice arose. The Judge took appropriate steps in the circumstances to ensure the girls’ views and perceptions were accurately reported and tested those views and perceptions for consistency. She noted that each of the girls’ recollections were consistent with those of the other and their mother.34 The Judge commented on the clarity of their view that they had experienced physically and emotionally abusive behaviour at the hands of their father. She noted the strategies the children had developed to protect themselves from his anger and shouting such as huddling together in a room. Ms Elliott had directly witnessed this.35 The physical manhandling of their son was witnessed by both the children and their mother. This was confirmed by Mr Dunn’s confirmation that he had manhandled their brother but gave his explanation for that behaviour.
Effect on the children
[43] The Judge found that the respondent and the children were particularly vulnerable.
34 Family Court decision, above n 1 at [45] and [49].
35 At [45].
[44] Both children were fearful about the protection order being removed. They feared their father would stalk them. The youngest child had self-harmed following the interview with the Family Court Judge. She told her mother that the interview reminded her of Mr Dunn, so, acted as a trigger. Treatment is being sought for those behaviours.36 This behaviour occurred shortly before the hearing. Mr Dunn complained he had no time to properly respond to this evidence contained in Ms Elliott’s oral evidence. However, Ms Elliott was cross-examined on behalf of Mr Dunn on the matter. The cross-examination and submissions explored the possibility of the self-harming behaviour having other causes rather than whether it occurred at all. Ms Elliott candidly agreed that the COVID-19 lockdown had exacerbated matters for the youngest child.
[45]I now turn to the specific grounds of appeal.
Appeal ground one
[46] The first ground of appeal is that the Judge failed to state precisely what acts on the part of the appellant constituted psychological abuse, its extent and frequency.
[47] The Judge did set out specific incidents, as is apparent from the above. These included the anonymous visits to the home and leaving flowers. Each incident may seem trivial, but it paints a picture of subtle psychological abuse; coercion; stalking; and harassment. In addition, the girls reported witnessing physical abuse of their brother.37
[48] Mr Dunn himself accepted that a number of incidents had occurred, for instance, his going to the house uninvited, forcing the girls to go Christmas shopping despite their protestations, and manhandling their brother. It is the interpretation of these events by the Judge with which he disagrees. In relation to other incidents the Judge was satisfied occurred and which he denies completely, such as leaving the flowers anonymously, she accepted the evidence of the respondent and did not believe Mr Dunn. Those findings were open to her on the evidence.
36 Family Court decision, above n 1 at [43].
37 This is psychological abuse within the meaning of the Domestic Violence Act 1995, s 3(a).
[49] The Judge adequately identified the evidence upon which she was satisfied that amounted to domestic violence and, in particular, those which gave rise to a pattern of behaviour supporting the finding of psychological abuse. The Judge made no error under this ground.
Appeal ground two
[50] The second ground is that there was insufficient evidence to establish the appellant had breached the protection order after it was made on 11 October 2017. The Judge was satisfied that Mr Dunn came to the house at least three times after the protection order was made.38 This included on two occasions to anonymously leave the flowers. The Judge was satisfied this was psychologically abusive behaviour by way of harassment.39
[51] The appellant says the Judge relied on speculation and hearsay evidence when referring to a neighbour seeing the appellant “heading up the stairs to the property” on one occasion.40 However, little turns on this point. Even putting aside the hearsay evidence, there was sufficient evidence to reach the conclusion that the Judge reached: that it was more likely than not that it was Mr Dunn who had come to the house.
[52] The Judge accepted the evidence of the respondent noting she had been cross-examined. The Judge said she found her a “reliable, credible and truthful witness”41 and took into account the girls’ views. It was open to the Judge to do so.
[53] The Judge made no error in accepting that evidence and taking into account, to the extent she did, the girls’ views and comments.
Appeal ground three
[54] The third ground was that the Judge contradicted herself in relation to the appellant’s evidence. Mr Dunn says the Judge noted that Mr Dunn had accepted the
38 Family Court decision, above n 1 at [69].
39 At [68].
40 At [69].
41 At [68].
harm he had caused in her judgment in her summary of the “Case for Mr Dunn” and then failed to acknowledge that by findings made against him.
[55] The Judge set out Mr Dunn’s case. However, she did not accept his explanations and took the view that he had little insight into the effect of his behaviour. The Judge did not accept that Mr Dunn’s articulated acknowledgements were sufficient to show he understood the harm he caused. She was of the view that he did not have the insight to understand its real and continuing effects on the girls and the respondent.42
[56]The Judge did not contradict herself. She made no error under this head.
Appeal ground four
[57] The fourth ground is that the Judge erred in her determination that it was immaterial the respondent’s first affirmation/affidavit (in support of her without-notice application) did not include details concerning the appellant’s alleged abusive behaviour towards the children. The first affirmation, the appellant says, focussed almost exclusively on her “sense of betrayal, and the children’s understandable distress”. The appellant submitted that the respondent could not give an explanation why the alleged abuse towards the children had not been referred to initially.
[58] The necessity for the original order was dealt with by the Judge on the basis that it had been obtained by consent and prima facie the necessity for that order had been established.
[59] The Judge noted that if there had been a dispute as to whether the order was necessary at the time, Mr Dunn should have either defended it or placed a clear qualification on his consent to the making of the final protection order that he was unequivocally maintaining his denial of the allegations.43 The Judge at the time was satisfied the order was appropriate. I note counsel for the children had not been appointed at the time the order was made and may well have been if Mr Dunn had not agreed to the making of the order. It is not now open to Mr Dunn to relitigate the
42 Family Court decision, above n 1 at [74].
43 At [64]–[65].
grounds for the making of the original order some three years later. The time for appealing the original decision has long expired.44
[60] As the original application did not go to a defended hearing due to Mr Dunn’s agreement to the making of the order, the children’s views at that stage were not before the Court.
[61] The Judge had said in her judgment Ms Elliott “did not know the extent of the children’[s] experiences until it was reported by their lawyer”.45 The Judge, as was open to her, accepted this explanation.
[62] The appellant had the opportunity to comment on the reported views and perceptions of the girls in the present application.
[63]The Judge made no error on this ground.
Appeal ground five
[64] The fifth ground is that the Judge placed undue weight on the desire of the respondent and the children to have no further contact with the appellant. He said that desire was not sufficient to justify continuing a protection order. The appellant referred to Heath J’s observations in Q v Q:46
It is not always sufficient to ground a protection on the fact that such an order will give an applicant peace of mind. As Hansen J said in A v B at para [23] it is not Parliament’s intention that protection orders should be used to protect people from unrealistic and unreasonable fears.
[65] This is not a case where fears of the respondent and the children were unrealistic or unreasonable. The Judge found, as was open to her, that the evidence as to the appellant’s past behaviour and his continued view that his behaviour was reasonable, together with the vulnerability of the protected persons, supported the continuation of the order to ensure they were safe from unwanted contact and also to
44 The Notice of Appeal was dated 24 June 2020.
45 Family Court decision, above n 1, at [40].
46 Q v Q [2012] NZHC 1448, [2012] NZFLR 582 at [21]; citing K v G [2009] NZFLR 253 (HC) at
[38], which was approved, at least in general terms, by the Court of Appeal in Surrey v Surrey, [118]–[119], Family Court decision, above n 1 at [58], see [10] above.
ensure they felt safe. The order was to ensure that Mr Dunn stayed away from the house and did not contact either the respondent or the girls. The evidence showed that even when he knew his attentions were unwelcome, he persisted. He felt his benign intentions justified his unwanted presence. The Judge was also entitled to view this against Mr Dunn’s behaviour during the marriage. This included his failure to recognise boundaries in his dealings with clients, which involved exploitation of power imbalances, and his denials of the relationships when asked by the respondent. The Judge had sufficient evidence before her to support her finding that the continuation of the order was necessary for the protection of the respondent and the girls.
[66]The Judge made no error on this ground.
Appeal grounds six and seven
[67] Grounds six and seven concern the risks to the actual safety of the respondent and her children if an order were not in place. The appellant says that the Judge placed undue weight on the respondent’s perception of risk of future violence and erred in law when she determined the respondent’s fear of future violence was reasonable. The appellant says that the conduct occurred in the family home which cannot be repeated given the separation and he was unlikely to appear uninvited at the family home, noting there has been no contact between the appellant and the respondent or the children for over three years. The appellant also refers to a passage from the respondent’s cross-examination when she was asked to articulate what fears she may have concerning the appellant. Her response was that she feared he would come to the house and take “ownership” and one concern was that he might put small cameras in the house to secretly film them. The appellant had said he would “put a spy camera down the stairs” and he had been to a shop which sold the items.
[68] In view of the anonymous visits to the property by Mr Dunn and his persistence in going to the house when he knew his presence was unwanted, Ms Elliott’s fears of similar behaviour in the future have a basis.
[69] The Judge reached a conclusion, that was open to her on the evidence, that the protection order was necessary not only to ensure Ms Elliott and the children are safe
from unwanted contact but also that they felt safe. The Judge found that Mr Dunn’s ongoing presence in in the same city as Ms Elliott and the children meant there was potential for accidental contact with the children.47 In any event she felt that the effects of Mr Dunn’s behaviour continued to provide a basis for the strongly-held subjective fears of both Ms Elliott and the children, which she considered were objectively reasonable given the evidence. That was a finding open to her.
[70]This ground of appeal also fails.
Appeal grounds eight and nine
[71] These grounds alleged that the Judge placed undue weight on the children’s perception of risk of future violence and erred in law when she determined the children’s subjective fears of future violence were reasonable. The appellant submitted that there was a lack of specificity concerning the allegations of domestic abuse (in the information they provided to their lawyer and to Judge Black); that there was no authority cited as to the weight which should be accorded to the evidence and that the test is not a balancing act, but whether the persons’ subjective fears of future violence are reasonable.
[72] The appellant submitted the risk of the appellant showing up uninvited at the family home was not a fear justifying the order.
[73] As I noted above, one of the behaviours pointed to by the respondent and the children was Mr Dunn’s showing up at the family home uninvited and/or anonymously. He had done it in the past. They said they had felt fearful when the doorbell rang. Mr Dunn turning up at the house uninvited would not be trivial in their eyes. It would, they perceived, be a continuation of a pattern of psychological abuse. Related behaviours mentioned by the girls are stalking and manipulating them and trying to get them to go with him. The Judge found that they needed to be safe from unwanted contact.48
47 Mr Dunn stayed on his yacht which was moored in the vicinity of the home from time to time.
48 Family Court decision, above n 1 at [78].
[74] The Judge was required to consider the perception of the children and their views as to the need for the order and their fear of the appellant.49 She acknowledged the concerns of Mr Dunn about accepting the children’s allegations.50 The weight given to the views of children is always dependant on the circumstances. It is relevant that the girls at the time of the hearing were aged 14 and 18 years respectively. In this case the Judge took particular care to ensure that the girls’ views and perceptions were reliably reported. She turned her mind how best to obtain those views in the circumstances. Not only were the children interviewed by an experienced Family Court lawyer, Ms Gray, but also another Family Court Judge. In addition, the judgment indicates the Judge tested their views and perceptions for consistency and corroboration. She indicated she found their views clear and consistent and relied upon the girls’ views and perceptions to support her conclusions. She was entitled to do so.
[75]The Judge made no error under this ground.
Appeal ground ten
[76] The tenth ground is that the learned Judge did not specify what form of psychological abuse the respondent and the children needed to be protected from in the future. The only form would be showing up to the family home uninvited, which the appellant says there is insufficient evidence to conclude this would likely occur.
[77] I have already dealt with this issue above.51 The appeal on this ground also fails.
Appeal ground eleven
[78] The eleventh ground is that the Judge placed insufficient weight on the following factors when determining whether an order was necessary: that three years had lapsed since the appellant had contact with the respondent or the children; that in the appellant’s evidence he had no intention to contact the respondent or the children
49 Family Court decision, above n 1 at [56](l).
50 At [31].
51 See appeal grounds eight and nine at [71] above.
unless they initiated such contact; that the appellant’s conduct in the family home will not be repeated as he no longer lives there; that an uninvited appearance at the home is at the lower end of the scale of seriousness; that the appellant does not intend to take steps to discharge the occupation and furniture orders; and, that the relationship property proceedings are progressing to a judicial settlement conference with both parties being represented by counsel.
[79] The Judge found that the evidence established Mr Dunn’s behaviour after the making of the order was psychologically abusive, as I have outlined above. Both Ms Elliott and the children had a strongly held subjective fear of Mr Dunn. Those fears were objectively reasonable given the evidence.
[80] The Judge found Mr Dunn had not established countervailing factors that would weigh against the need for the continuation of the protection order. This was not a wrong test, as the appellant submitted. But rather it demonstrates that the Judge was considering whether Mr Dunn had discharged the evidential burden that had passed to him and whether he had raised countervailing factors which might weigh against the continuation of the order. The Judge was already satisfied that domestic violence had occurred and found the continuation of the order was necessary.52 The Judge made no error.
[81] The lack of insight shown by the appellant was of concern to the Judge. Mr Dunn also maintained his behaviour post separation had been reasonable despite acknowledging his attempts to contact the children were clearly not welcome.
[82] The Judge found the appellant had limited understanding or insight into the nature and seriousness of his behaviour and did not respect the personal and professional boundaries or understand the impact of his behaviour on the children and Ms Elliott.53 Mr Dunn was aware of the effect of his presence on the children and acknowledged that they were fearful of him.54
52 This approach accords with that of the Court of Appeal in Surrey v Surrey set out in the Family Court decision, above n 1 at [58]. See [10] above.
53 At [74].
54 At [31].
[83]The Judge made no error under this ground of appeal.
Conclusion
[84]As is apparent, no grounds of appeal have been made out.
[85]The appeal is dismissed.
Costs
[86] Counsel agreed that costs in the appeal should be assessed at a category 2B level and follow the event. Therefore, costs on that basis, together with reasonable disbursements on the appeal, are awarded in favour of the respondent. If there are any further matters that arise, the parties should file memoranda within 10 working days of the date of the judgment and any response within a further five working days, together with any reply within a further three working days.
[87] Counsel also sought leave to file memoranda in relation to reimbursement of counsel for the children’s costs. Accordingly, unless a joint memorandum is filed agreeing on how the reimbursement should be treated, the parties should file memoranda according to the timetable indicated for costs.
Grice J
Solicitors:
Lance Pratley Law, Wellington, for Appellant.
Chris Ritchie, Barrister & Solicitor, Wellington, for Respondent. Buchanan Gray Lawyers, Wellington, as Lawyer for the Children.
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