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Court of Appeal rules Family Court decision on protection order was 'wrong'

July 27, 2017 at 2:36 PM

*From the New Zealand Family Violence Clearinghouse*

The Court of Appeal has granted a victim of intimate partner violence a protection order after the order was declined by Judges in the Family Court and High Court.

The Court of Appeal ruled that the Family Court Judge made errors in how he interpreted the Domestic Violence Act 1995, saying "His decision can be characterised as plainly wrong or as one that took into account irrelevant factors and failed to take account of relevant factors."

The Court of Appeal also concluded that the High Court Judge was wrong in deciding there were no errors in the initial Family Court Decision. The decision is available on the Court of Appeal website.


A protection order was granted to Mrs N against her husband Mr N in May 2014. (The couple had separated.) In March 2015, Family Court Judge David Burns discharged that order. Judge Burns reviewed each incident of violence individually and concluded most did not meet the threshold of domestic violence. Judge Burns did conclude there was evidence of psychological abuse, but that this "did not establish a pattern of behaviour."

Judge Burns concluded there was no need for the victim to have a protection order, describing her as "a robust and resilient person" who did not have an ongoing need for protection.

The victim appealed the decision to the High Court, however her case was dismissed by Justice Mary Peters. Judge Peters concluded there were no errors in Judge Burns' decision.

Court of Appeal's decision

The appeal was heard by Justices Harrison, Courtney and Simon France and the decision was delivered by Justice Harrison. The Court of Appeal ruled that Family Court Judge had erred on two points:

"First, he confined his inquiry to an evaluation of one affirmative finding of domestic violence. Second, he failed to evaluate whether Mr N’s behaviour over a prolonged period amounted to domestic violence."

The Domestic Violence Act 1995, section 3 states that domestic violence can be a single act or "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."

The Court of Appeal described Mr N's behaviour as "plainly abusive." The decision went on to state:

"In adopting an incident-by-incident assessment and limiting his evaluation to one affirmative finding, while dismissing the other instances as not reaching an undefined threshold of abuse, he failed to ask whether Mr N's behaviour followed a discernible pattern."

The Court of Appeal also stated:

"The Judge was wrong to give weight to his finding that Mrs N must take a degree of responsibility for the incident because of the confrontational nature of her behaviour. The cause of or motivation for abusive behaviour is irrelevant. The victims of domestic violence are not responsible for it."

Justice Harrison listed the irrelevant considerations taken into account by the Family Court Judge, including that:

  • Incidents may have been triggered by property-related issues after the couple's separation
  • One incident had occurred "a considerable period of time ago"
  • Mrs N was a "successful school teacher" who was "assertive and strong" in her occupation
  • Mr N was not otherwise a violent man, had no criminal convictions for violence and was well regarded by his employer.

The Court of Appeal also said the Family Court must "focus on the effect of offending behaviour rather than speculate on its cause."

The Court of Appeal also ruled that Judge Peters was wrong in concluding in there were no errors in the Family Court decision, in that she failed to consider the combined effects of violence as a pattern.

The Court of Appeal concluded:

"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. We are satisfied that Mr N’s conduct towards his wife over at least a year from April 2013 constituted prolonged domestic violence."

Responses to the decision

Catriona MacLennan, barrister and victim advocate highlighted the importance of the Court of Appeal's decision. She said it set a standard for Family Court Judges to apply the Domestic Violence Act 1995 as it was originally intended.

Ms MacLennan said "My experience of misapplication of the law has been shared by many other family lawyers over the past two decades – and women and children’s safety has been compromised as a result."

She said "I and other anti-domestic violence campaigners have waited years for this judgment. What is needed now is for every Family Court judge to read it thoroughly and start applying the clear words of the Domestic Violence Act in the way they were intended to protect women and children."

Radio NZ has reported responses from Women's Refuge Chief Executive Ang Jury, Otago University Law Professor Mark Henaghan and Law Society Family Law Chair Michelle Duggan.

More information on Family Court and protection orders

Issues facing victim/survivors of violence against women have recently been highlighted by The Backbone Collective. For more information see the following NZFVC stories:


Lizzie Marvelly: Time to rebalance the scales of justice, NZ Herald, 15.07.2017

Court of Appeal blasts Family Court over cancelled domestic violence protection order, NZ Herald, 09.07.2017

Category: Courts