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Domestic Violence Case Law Update:

Thursday, September 07, 2017

 SN v MN [2017] NZCA 289 

The Court of Appeal has handed down a significant decision that will encourage confidence for victims of domestic violence, who apply to the Family Court for a protection order.

The Family Court can make a protection order under the Domestic Violence Act 1995 ("the Act").  Before doing so however, the Court must first be satisfied that domestic violence has been used against the person who is applying for the order, or their child or both.  The Court must also consider that a protection order is necessary for the applicant's or their child's protection.

The Act is very clear in stating that even if behaviour seems trivial or minor in isolation, a protection order must not be denied on that basis alone.  Rather, the Court has an obligation to determine whether this apparently trivial behaviour actually forms a pattern.  If such a pattern is found, the Court must then determine whether it is of a nature that warrants protection.  If the answer to these questions is yes, a protection order must be granted.

Despite this, there have been mounting concerns that the Court's decisions not to grant such orders have been based on irrelevant criteria.

The Case
The Family Court in SN v MN originally granted the applicant, "Mrs N" a temporary protection order against her husband "Mr N" on an urgent basis.   As is available to defendants in urgent, or "without notice" protection order applications, Mr N defended the application and was successful. The Family Court ultimately discharged the order.  Mrs N was unsuccessful in her appeal to the High Court but eventually was granted a protection order by the Court of Appeal.

Mrs S claimed that Mr N was physically and psychologically abusive towards her, including incidences of his "erratic and explosive temper" and burning of hedge trimmings in the yard following an argument.  Mrs S also said that she was body slammed in the kitchen by Mr N and that he had raised his arms and punched a bottle of milk.  On a separate occasion, Mr N allegedly pushed Mrs S into a wall which led to a spinal injury and a complaint by Mrs S, to the police.  Verbal abuse, derogatory language and taunting by Mr N was also included in Mrs S's application.  Mr N had also breached a trespass order that was granted to Mrs S in 2014.

The Family Court's Approach
The Family Court found that the above allegations of abuse fell short of the definition of domestic violence under the Act.  In relation to the first incident of body slamming, the Family Court Judge did not consider this as abuse.  The Judge's reasons for finding that the second body slamming incident did not constitute physical violence included the police not considering that it warranted a criminal charge being laid, and that Mrs S had not applied for a protection order afterwards.

The Family Court found that Mr N's verbal abuse was intimidation under the Act's definition of "psychological abuse".  It was however, regarded as an isolated event and viewed in context of Mr N's frustration of a perceived delay in the parties' relationship property issues.  Mr N was having to pay for accommodation whilst Mrs S continued living in the former family home.

The multiple breaches of a trespass order, by Mr N were held by the Family Court Judge as nothing more than annoying.

The Court of Appeal's Approach
The approach taken by the Family Court, of assessing each event in isolation and separately, was criticised by Justice Harrison who delivered the Court of Appeal's judgment.  The Court of Appeal found that the lower Court had considered irrelevant factors, and with regards to Mr N's verbal abuse Justice Harrison stated that his reaction "…cannot be explained away as occurring in the context of a property dispute.  Such factors are immaterial to the assessment of whether or not domestic violence has in fact occurred".1   

Interpreting Mr N's behaviour as on the lower end of the scale and not amounting to domestic violence, as the Family Court had done, was disregarded by the Court of Appeal.  Justice Harrison upheld a fundamentally different approach which saw the behaviour as an exercise by Mr N of "…abusive power and domination of his wife".2    His Honour rejected the emphasis that the Family Court placed on Mrs S not having sought a protection order following alleged incidences of violence.

Looking Ahead
Ultimately the Court of Appeal stated that the "…net result of the Family Court decision was to set an unacceptably high threshold for behaviour which might qualify as physical or psychological abuse. The Act was intended to proscribe and condemn conduct of this nature, not to excuse or minimise it".
 
The Court of Appeal reaffirmed that a single act can be held to constitute domestic violence and that the overall pattern of offending behaviour is to be considered.  This is in line with the Act and recognises that domestic violence is often characterised by ongoing abuse, rather than one-off, isolated events.  

The Court of Appeal's decision sets out a straightforward and clear approach for the Family Court.  It is to focus on the effect of the offending behaviour, instead of speculating on the cause of it.

The Court of Appeal has accorded judicial recognition to the security and protection that the Act was intended to deliver.  Further, parties involved in a protection order application now have greater certainty on what information the Family Court can consider relevant.  Hopefully, this will ensure such applications can progress efficiently and predictably.  

If you have any questions or concerns about this topic please contact Peter Fuscic on (09) 306 6746 (pfuscic@mcveaghfleming.co.nz) or Erica Burke on (09) 306 6725 (eburke@mcveaghfleming.co.nz) from our Auckland City Office.

© McVeagh Fleming 2017

This article is published for general information purposes only.  Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice.  If you require specific legal advice in respect of any legal issue, you should always engage a lawyer to provide that advice.

____________________________

1    At [28-29].
2    At [37].

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