S v S - [2017] NZHC 1574

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004
AND 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

THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-2711 [2017] NZHC 1574

UNDER The Domestic Violence Act 1995

IN THE MATTER

of an appeal against a decision of the
Family Court

BETWEEN

S

Appellant

AND

S

Respondent

Hearing: 21 March 2017

Counsel:

P Main and A Morahan for appellant
S Cummings for respondent

Judgment:

7 July 2017

JUDGMENT OF KATZ J
This judgment was delivered by me on 7 July 2017 at 3.30 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors:           Holbrook Law, Auckland
Snedden & Associates, Auckland
Counsel:           P Main, Barrister, Auckland
A Morahan, Barrister, Auckland
S D Cummings, Barrister, Auckland
S v S [2017] NZHC 1574 [7 July 2017]
Introduction
[1]     The appellant (“Mr S”) and the respondent (“Ms S”)1 were married for approximately 11 years. They separated in 2012 and their marriage was dissolved in
2014. There are three children of the marriage. Since their separation, the parties have had extensive involvement in proceedings in the Family Court relating to both relationship property issues and the care of their children.
[2]      On 30 August 2016 Mr S applied for and obtained, on a without notice basis, a temporary protection order under the Domestic Violence Act 1995 (“Act”). In a judgment dated 27 October 2016 Judge B H S Neal discharged that order.2    Mr S appeals that decision.   He says that the Judge erred in declining to make the protection order final.
Background
[3]      The object of the Act is to reduce and prevent violence in domestic relationships by recognising that domestic violence, in all its forms, is unacceptable behaviour, and ensuring that there is effective legal protection for victims of domestic violence.3 A protection order may be granted when the following criteria are satisfied:
(a)       the applicant is or has been in a domestic relationship with the respondent;4
(b)the respondent is using, or has used, domestic violence against the applicant, or a child of the applicant’s family, or both;5 and
(c)       the making of an order is necessary for the protection of the applicant,
or a child of the applicant’s family, or both.6
1      For ease of later citation, this case may be reported and cited as Sutherland v Sutherland (which
are not, of course, the parties’ real names).
2      S v S [2016] NZFC 8740 at [60]. Woodhouse J granted a stay of that judgment pending the outcome of this appeal, on 31 October 2016: S v S [2016] NZHC 2591 at [4].
3      Section 5(1).
4      Section 7(1).
5      Section 14(1)(a).
6      Section 14(1)(b).
[4]      Judge Neal found that Ms S had engaged in domestic violence in the form of psychological abuse against Mr S, primarily through the sending of bulk emails to third parties that contained offensive…

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 S v S

Details

AGLC: S v S [2017] NZHC 1574
Case: [2017] NZHC 1574
Decision Date: 7 July 2017

CaseChat Overview and Summary

In the matter of an appeal against a decision of the Family Court, S (the appellant) appeals a decision of Judge Neal to discharge a temporary protection order made under the Domestic Violence Act 1995. The appellant contends that the Judge erred in discharging the temporary protection order, finding that the psychological abuse of the respondent was not sufficiently serious or widespread to warrant a final order. The appeal raises two main issues: whether the Judge underestimated the scope of the psychological abuse that had occurred, and whether the Judge erred in finding that a protection order was not necessary in all the circumstances. The court found that the Judge was correct to conclude that the tweets and emails of the respondent amounted to psychological abuse, and that a final protection order was not necessary. The court noted that the psychological abuse was triggered by the Family Court proceedings, and that those proceedings have now been resolved. The court was satisfied that the respondent was unlikely to engage in further harassment, given the consequences of breaching her undertakings and the risk of a further protection order being made.

The appeal is dismissed. The court's view is that costs should lie where they fall, given the finely balanced nature of the decision. If the parties cannot agree on costs, then any memorandum on behalf of the respondent is to be filed and served by 21 July 2017, and any memorandum on behalf of the appellant is to be filed and served by 4 August 2017.

Orders