Dunn v Elliott

[2020] NZHC 2872

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…