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SN v MN [2017] NZCA 289; [2017] 3 NZLR 448; [2017] NZFLR 436 (7 July 2017)

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA191/2016 [2017] NZCA 289

_{JUDGMENT OF THE COURT}

A The appeal is allowed.

2. A protection order is made in favour of the appellant against the respondent with effect from the date of this judgment.

_{C There is no order for costs.}

REASONS OF THE COURT

_{(Given by Harrison J)}

SN V MN [2017] NZCA 289 [7 July 2017]

Introduction

[1] In May 2014 the Family Court at Auckland granted the appellant Mrs SN an interim protection order against the respondent Mr MN on a without-notice basis under s 91 of the Domestic Violence Act 1995 (the Act).¹ In March 2015, following a defended hearing, Judge Burns discharged the order.² In September 2015 the

_{Judge declined an application to recall his judgment.}³ _{In April 2016 Peters J}

dismissed Mrs N’s appeal to the High Court.⁴

[2] This Court has granted Mrs N leave to appeal under s 93(1) of the Act on three questions of law of whether the High Court Judge erred in finding that:⁵

(a) the appeal was against the exercise of a discretion, in reliance upon the decision of this Court in Surrey v Surrey;⁶

(b) the Family Court Judge applied the correct test as to what constitutes domestic violence for the purposes of the Act; and

(c) the Family Court Judge’s consideration of whether a protection order was necessary for the protection of the applicant was in accordance with the requirements of s 14 of the Act and in particular that he took into account the mandatory considerations in ss 14(3), 14(5)(a) and

14(5)(b),⁷ and did not take into account irrelevant considerations.

[3] Ms McCartney QC appeared before us in support of Mrs N’s appeal. Mr N was not represented and did not take any steps to oppose. In writing our judgment we have taken particular account of the risks associated with determining an appeal

_{where only one side of the argument was presented.}

¹ _{All further statutory references are to the Domestic Violence Act 1995 unless stated otherwise.}

² _{[SN] v [MN] [2015] NZFC 1746 [FC judgment].}

³ _{[SN] v [MN] [2015] NZFC 7412 [Recall judgment].}

⁴ _{SN v MN [2016] NZHC 566, [2016] NZFLR 447 [HC judgment].}

⁵ _{SN v MN [2016] NZCA 384 [Leave judgment].}

⁶ _{Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 [Surrey].}

⁷ In granting leave this Court erroneously referred to s 14(6), which does not exist.

Background

[4] The parties began a domestic relationship in 1988 and married in 1994. They have two children. The elder child S is now 28 years of age. The younger child R is now aged 25 years. She suffers from a degenerative condition.

[5] The parties separated sometime in 2012 or early 2013. A pattern of domestic conflict followed. Mrs N claimed that Mr N was physically and psychologically abusive towards her. She claimed that his conduct amounted to domestic violence and she needed the protection of an order.

[6] The two prerequisites for a protection order are provided by the Act as follows:

14 Power to make protection order

(1) The court may make a protection order if it is satisfied that—

(a) the respondent is using, or has used, domestic violence against the applicant, or a child of the applicant’s family, or both; and

(b) the making of an order is necessary for the protection of the

applicant, or a child of the applicant’s family, or both.

...

[7] The Act includes this detailed definition of “domestic violence”:

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).

...

(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.

[8] In summary, Mrs N’s allegations of Mr N’s physical and psychological abuse,

and the Family Court Judge’s findings on them, are as follows:

(a) Mr N had an erratic and explosive temper during the marriage

The Judge found that Mrs N’s general and non-specific allegations did not meet the definition of psychological violence under the Act.⁸

(b) Altercation about daughter’s payment of board

The Judge found that burning hedge trimmings in the yard following a

domestic argument in 2012 about S’s payment of board fell well short

_{of domestic violence within the statutory meaning.}⁹

⁸ FC judgment, above n 2, at [21].

(c) First body slam incident in early 2013

Mrs N alleged that Mr N slammed his body into her during an argument in the kitchen, causing her body to fall backwards into the bench. He raised his arm and punched a bottle of milk. The Judge found that Mrs N’s evidence was unclear and even on her own

evidence he did not regard the incident as being of physical abuse.¹⁰

He preferred Mr N’s evidence in the light of Mrs N’s

cross-examination.

(d) Second body slam incident in April 2013

Mrs N alleged that, following an argument about possession of the family boat, Mr N pushed her into a wall — her upper back and the back of her head struck the wall. It was undisputed that Mrs N required six appointments with a physiotherapist for a whiplash injury to the cervical spine suffered as a result.¹¹ She complained to the police. In partial reliance on a report prepared by a police officer, the Judge found that the incident did not amount to physical abuse.¹²

The Judge accepted Mr N’s account that Mrs N was harassing him through text messages and, while he pushed past her because she would not let him out of the bathroom resulting in “her hurting herself and the need to receive treatment”, Mr N did not intend to assault her.¹³ His reaction was spontaneous as a result of being placed in a position of vulnerability by Mrs N’s threatening manner. It was also significant that the police did not consider there was a prima facie case to lay a criminal charge;¹⁴ and that the incident did not trigger an

_{application by Mrs N for a protection order.}

¹⁰ _{At [29].}

¹¹ _{At [33].}

¹² _{At [37].}

¹³ At [36].

(e) Swearing and yelling in August 2013

In April 2013 the parties reached an agreement that Mr N would stay away from the matrimonial home other than on 48 hours’ notice for access to the garage only. In breach of this agreement he arrived unannounced at the home on 3 August 2013 and verbally abused Mrs N, using derogatory language and taunting her that he would move back into the house with his new girlfriend. The Judge accepted Mrs N’s account, corroborated by a friend Mr J who was visiting at

the time.¹⁵ While accepting that Mrs N was concerned and scared by

Mr N’s conduct, the Judge observed that Mr N lost his temper out of frustration at a perception that resolution of relationship property issues was being delayed to his disadvantage. He concluded that this conduct met the threshold as an incident of intimidation within the definition of psychological abuse; he described this incident as “isolated” in the context of unresolved property issues, and noted that Mrs N did not complain to the police or immediately seek a protection

order.¹⁶ Instead she strengthened her rights of exclusive occupation.

(f) Unannounced or unauthorised visits in contravention of order and agreement

In early March 2014 the Family Court granted Mrs N an exclusive occupation order. A trespass order followed about a week later. The Judge accepted that Mr N had contravened the order on various occasions and that Mrs N’s installation of cameras for security

reflected her concern.¹⁷ Given the ongoing dispute regarding rights

over and access to the relationship property, such as Mr N’s desire to

use the garage, the Judge considered it would be unsafe to make a finding that attendances at the home in breach of the occupation order

¹⁵ _{At [39].}

¹⁶ At [39]–[41].

amounted to psychological abuse.¹⁸ The Judge categorised this

behaviour as “annoying” but nothing more.¹⁹

[9] Therefore, at the first stage of his inquiry, the Judge was satisfied that Mr N had psychologically abused Mrs N but only when he swore and yelled at her during the August 2013 incident (the incident described at [8(e)] above).²⁰ He found that there had not been any physical abuse.

[10] He then proceeded to inquire at the second stage whether making a protection order was necessary for Mrs N’s protection. In that respect he was directed by the Act as follows:

14 Power to make protection order

...

(3) Without limiting section 3(4)(b) or the matters that the court may consider in determining, for the purposes of subsection (1)(b) of this section, 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.

(4) For the avoidance of doubt, an order may be made under subsection (1) where the need for protection arises from the risk of domestic violence of a different type from the behaviour found to have occurred for the purposes of paragraph (a) of that subsection.

(5) Without limiting the matters that the court may consider when determining whether to make a protection order, the court must have regard to—

(a) the perception of the applicant, or a child of the applicant’s family, or both, of the nature and seriousness of the behaviour in respect of which the application is made; and

(b) the effect of that behaviour on the applicant, or a child of the

_{applicant’s family, or both.}

¹⁸ At [51].

[11] In determining whether a protection order was necessary the Judge referred to a number of factors.²¹ He took into account in apparently affirmative terms Mrs N’s subjective fear of Mr N’s continuing unannounced visits to the home and breaches of her privacy before proceeding to an apparent balancing exercise and taking into negative account that:²²

(a) since the temporary order was made there had been no breaches;

(b) the prospect of a review of the occupation order gave confidence that

Mr N would not breach its terms;

(c) only one of the four major allegations had been proven and the one situation where Mr N’s behaviour became abusive and psychologically threatening did not establish a pattern of behaviour;

(d) the tensions caused by the property proceedings and the discipline which was imposed on the parties to behave properly, with the prospect that resolution of the dispute would cause Mr N’s negative feelings to settle;

(e) when the allegations were put in the context of a total long-term relationship Mr N was not a violent person — he had no criminal convictions for violence and he was well regarded by his employer;

(f) Mr N was fully aware that Mrs N had installed security cameras at the house, providing a further deterrent against unilateral action; and

(g) Mr N was aware that Mrs N could bring a further application for a protection order on a without-notice basis if there was any further breach of the terms of the occupation order.

[12] The Judge then identified further factors described as countervailing the necessity of a protection order. In particular:²³

(a) Mrs N’s decision to apply for the occupation order under the Property Relationships Act 1976 and not a protection order under the Act, which he regarded as “very telling”;

(b) the one incident of violence the Judge found proven had occurred “a considerable period of time ago” — it was a one-off event with no lasting threat of future abuse and was symptomatic of a breakdown of the relationship, triggered by property-related issues;

(c) Mrs N was a “successful school teacher” who was “assertive and strong” in her occupation, and “a robust and resilient person” who did not have an ongoing need for protection;

(d) Mrs N was troubled by her feelings of fear of Mr N coming to the property — this was primarily responsible for triggering her feelings of vulnerability in terms of her having to sell the property and rehouse herself; and

(e) protective measures other than a domestic violence order could be taken as a result.

[13] The Judge concluded that an order was no longer necessary for Mrs N’s

protection and therefore discharged the temporary protection order.²⁴

[14] In September 2015 the Judge declined Mrs N’s application to recall his judgment.²⁵ The application was based on two new pieces of evidence. One was an exchange of texts designed to show that the Judge had erred when he found that the

_{elder child, S, had taken a neutral position between the parties. The Judge accepted}

²³ At [59].

that other text messages had been influential in his decision and that the additional message was relevant. He did not find, however, that it justified recall.²⁶

[15] The other new evidence was Mrs N’s own statement to the police when complaining of Mr N’s assault on 6 and 7 April 2013 — the second body slam incident.²⁷ In her police statement Mrs N had said that when she was standing inside the bathroom Mr N became very threatening:

...

He was shouting at me that he could do whatever he likes with the boat.

He was walking into me thrusting with his chest — making me stumble backwards every time he hit me.

I can’t remember what he was shouting. I was fearful that I would fall over.

After he shunted at me four times he pushed me again more vehemently and

I crashed into the wall. He was gritting his teeth and menacing at me.

I cowered as if he was going to hit me. He was very angry and I thought he would hit me. I told him I would call the police and he said that he didn’t push me and that we should talk about it.

I locked myself in the bathroom for my safety as I spoke to the police. He pulled open the window and started talking to me.

He left a short time later

[16] In declining the application to recall the Judge found that Mrs N’s statement did not of itself disclose an assault, despite its recital of at least four separate applications of intentional force, and did not disturb his earlier findings.²⁸

Statutory framework

[17] We are conscious of the structure of the questions on which this Court granted leave.²⁹ However, we are satisfied that Mrs N’s appeal is best approached by first determining afresh for ourselves whether the Family Court Judge erred. Our conclusion on that issue will answer the nature of the High Court’s appellate

_{jurisdiction.}

²⁶ _{At [15].}

²⁷ _{See [8(d)] of this judgment.}

²⁸ Recall judgment, above n 3, at [19].

[18] The Act is, as Hammond J observed in Takiari v Colmer, of a remedial nature: it is to be given a wide and liberal construction in achieving its purpose of eliminating abusive power and control in domestic relations through the mechanism of protection orders.³⁰ The long title recites its purpose as being “to provide greater protection from domestic violence”, which is reflected in the object of the Act:

5 Object

(1) ... to reduce and prevent violence in domestic relationships by—

(a) recognising that domestic violence, in all its forms, is unacceptable behaviour; and

(b) ensuring that, where domestic violence occurs, there is effective legal protection for its victims.

...

[19] Section 5(2)(b) requires access to the Court to be “as speedy, inexpensive and simple as is consistent with justice”. In keeping with this requirement of simplicity, the statutory text is clear and unambiguous. Its controlling words and phrases mean what they say. It is unnecessary to resort to synonyms for phrases like violence, which has a specific statutory definition, or physical or psychological abuse. Judicial overlays or refinements on a self-contained, plainly written statutory code do not assist. Similarly, references to what the Family Court has said in other cases are unlikely to be helpful unless they are guiding statements of principle or statutory

construction.³¹ That is because the inquiry is essentially of a fact-specific nature,

calling for an evaluative exercise conducted within the logical framework provided by the Act.³²

[20] The first of the two sequential and related inquiries which the Court must undertake is into whether domestic violence has occurred within a domestic relationship. Violence relevant to this case includes physical or psychological abuse

— neither term requires embellishment. The Court is only required to be satisfied

_{that the respondent is using or has used domestic violence against the applicant. The}

³⁰ _{Takiari v Colmer [1997] NZFLR 538 (HC) at 540 approved in Surrey, above n 6, at [110]–[111].}

³¹ _{Contrast FC judgment, above n 2, at [8]–[19].}

³² See for example LH v PH [Relocation] [2007] NZFLR 737 (HC).

threshold of satisfaction does not require proof to a particular standard.³³ What is called for is the exercise of judgment by the Family Court based on all the evidence.³⁴

[21] It follows that the inquiry is not to be determined by finding whether one or more acts passes a proven threshold. A single act may amount to domestic violence. Or a number of acts considered together may meet the same criterion. It is the combined effect that matters. Ultimately in exercising its judgment the Court must stand back and review the evidence in totality to decide whether it is satisfied that all incidents viewed together amount to domestic violence.

[22] The second stage, if the first is satisfied, is for the Court to inquire whether making an order is necessary for the applicant’s protection. The same threshold of satisfaction applies based on exercising judgment or making a judicial evaluation. Again the inquiry need not be overly refined. The greater and more persistent the degree of violence, the more likely it will be necessary to make an order.

[23] It is unlikely a Court could rationally refuse to grant a protection order where the behaviour is such as to lead to reasonable fears for safety based on being subjected to a pattern of recent serious domestic violence, unless there are very strong indications to the contrary.³⁵ This reflects the Court’s existing assessment of the applicant’s fears as being reasonably held; necessity therefore follows. The Act is designed not only to protect a person against future violence but the reasonably held fear of violence.³⁶ Cultivating a fear of physical abuse constitutes psychological abuse, and thus satisfies the broad meaning of violence under the Act.

[24] It is also important to record that:

(a) The inquiry is of course of a predictive nature but reliance on past behaviour is the most reliable guide to future conduct.³⁷

³³ See Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [26]

_{and [96].}

³⁴ _{Compare the approach to preventative detention in R v Leitch [1998] 1 NZLR 420 (CA) at 428.}

³⁵ _{Surrey, above n 6, at [37].}

³⁶ _{Section 14(5). See also Surrey, above n 6, at [37] and [43]–[44].}

³⁷ Surrey, above n 6, at [40].

(b) While some or all of the subject behaviour may appear to be minor or trivial when viewed in isolation or unlikely to recur, the Court is required to “consider whether the behaviour forms part of a pattern of behaviour in respect of which the applicant ... need[s] protection”.³⁸

(c) As noted, the purpose of a protection order is to ensure not only safety from the risk of future violence but also that the applicant actually feels safe — that is a reference to the effect of past domestic violence on the applicant.³⁹

(d) The question is not which party promoted a given situation but whether the protection order is needed.⁴⁰

(e) While the Court may take into account several factors when deciding whether the evidence displaces the apparent need to grant a protection order,⁴¹ once an applicant satisfies the Court of the existence of past violence and a reasonable subjective fear of future violence — described as shifting the evidential burden⁴² — such factors may do no more than guide the Court in any given situation. And factors identified as relevant in determining past cases do not reach the status of a statutory code or require formulaic application in other cases.

(f) When conducting the inquiry into necessity it is not a question of weighing factors pointing to an order being necessary against those which operate to the contrary.⁴³ Again, we repeat, it is an evaluative

_{exercise to determine whether the protection order is necessary.}

³⁸ _{Section 14(3).}

³⁹ _{Section 14(5)(b).}

⁴⁰ _{Surrey, above n 6, at [112]–[113] approving Takiari v Colmer, above n 30, at 540.}

⁴¹ See for example Surrey, above n 6, at [121]–[122] discussing the series of factors considered in

_{Colledge v Hackett [2000] NZFLR 729 (FC) at 737–738.}

⁴² _{Surrey, above n 6 at [43], [77] and [122].}

⁴³ Contrast FC judgment, above n 2, at [59].

Decision

Domestic violence inquiry

[25] We are satisfied when addressing the merits of Mrs N’s appeal within the statutory framework that the Judge erred in carrying out the first stage of the inquiry in two related respects. 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. In particular,

he failed to apply s 3(4)(a) and (b).⁴⁴

[26] We acknowledge that the Judge approached his task with great care. But in doing so he may have been guilty of refining his approach to the point of over-analysis. 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.

[27] Even on the Judge’s own findings, Mr N’s behaviour was plainly abusive. It was open to the Judge to reject Mrs N’s evidence on the first body slam incident and we do not propose to revisit it. However, the Judge’s recital of evidence regarding the second body slam incident clearly indicates serious physical abuse: he found that as a result of Mr N’s direct application of force Mrs N required medical attention and

prolonged physiotherapy to treat a whiplash injury of the cervical spine.⁴⁵ The injury

is hardly consistent with Mr N’s version of events that “he pushed passed [Mrs N]”.⁴⁶ The result was not, as the Judge described it, “her hurting herself” but him hurting her, and seriously.⁴⁷ Nor was it an excuse that:⁴⁸

... his reaction was a spontaneous one when being placed in the position of vulnerability in a threatening manner by the actions of [Mrs N] who was clearly angry and annoyed at the removal of the boat.

⁴⁴ _{See [7] of this judgment.}

⁴⁵ FC judgment, above n 2, at [33].

[28] The inquiry must be into whether Mr N’s conduct amounted to physical abuse, not into whether Mrs N had provoked him. 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”.⁴⁹ The cause of or motivation for abusive behaviour is irrelevant. The victims of domestic violence are not responsible for it.

[29] Likewise it is irrelevant that the police did not consider there was a prima facie case to lay criminal charges. Mr N’s 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.

[30] The Judge was bound to consider Mr N’s conduct in April 2013 along with the incident of psychological abuse which occurred a few months later. He accepted the evidence of the corroborating witness Mr J who narrated Mr N’s prolonged and threatening verbal tirade. Among other things Mr J heard Mr N call her an “f...ing bitch” and “old, ugly and f...ing slut”; Mr J described the incident as leaving Mrs N

“visibly upset, shaking and in tears”.⁵⁰

[31] Mr N’s conduct was not mitigated by the Judge’s finding that he:⁵¹

... lost his temper out of frustration with his perception that resolution of property matters [was] being delayed and that he was having to fund accommodation on his own whereas [Mrs N] was able to occupy the former family home.

[32] That might well be true. But it was much more than Mr N losing his temper. And the Family Court must focus on the effect of offending behaviour rather than speculate on its cause. Similarly, the seriousness of the incident is not diminished because Mrs N “shore[d] up [her] rights of exclusive occupation and did not immediately seek a protection order and ... [that n]o complaint was made to the

police”.⁵²

[33] Mrs N’s other principal allegation was of Mr N’s continual breaches of exclusive occupation agreements and an order of the Family Court by arriving unannounced at the family home. These visits must be seen in conjunction with what had led to the agreements and order. By early 2014 Mrs N was sufficiently concerned about her safety to install security cameras on the property. The Judge accepted that Mr N did go to the house occasionally without giving notice. In his

view Mr N was “a bit cavalier” about respecting Mrs N’s privacy.⁵³

[34] Again, the Judge excused Mr N’s behaviour on the ground of Mrs N’s very “provocative action” in removing Mr N’s hot rod car parts from the garage.⁵⁴ Mr N was given credit for his co-ownership of the property and his wrongly held view that the trespass notice was invalid. And for reasons which are not clear to us the Judge counted against a finding of physical or psychological abuse the fact that Mrs N did not then regard the previous incidents as “being of sufficient justification to warrant an application for a protection order”.⁵⁵ Ultimately the Judge excused Mr N’s behaviour on the ground that while it was “annoying” it was “at the lower end of the scale” and had to be viewed in the context of property proceedings and the anxiety associated with them.⁵⁶ The Judge concluded that there was no abusive pattern to

Mr N’s behaviour.⁵⁷

[35] However, that conclusion cannot possibly stand when Mr N’s various breaches of the occupation agreements and orders are viewed together with his conduct on other occasions over the preceding year. On the Judge’s own findings there can be no doubt that from early 2013 Mr N had followed a practice of exercising abusive power and domination of his wife both physically and psychologically. The Judge may be correct that Mrs N’s conduct was on occasions provocative and inflamed Mr N’s reactions. But that type of rationale is certainly not available for his gratuitous verbal abuse in August 2013, when he also taunted her

_{about the prospect of moving back into the family home with his new girlfriend.}

⁵³ At [44].

Moreover, we repeat that the law is concerned with eliminating offending behaviour, not weighing the effect of the applicant’s behaviour so as to justify his conduct.

[36] We are concerned also that Mr N sought to enlist S’s assistance following Mrs N’s without-notice application for a protection order. He wanted her confirmation that he had not been violent in the relationship. She responded that “there certainly have been times when you have been so angry I have been worried

... when you blamed me for your divorce I was afraid that you would hurt me as an example”. He later texted S with the message “I’m not happy that lies are being told and you are siding with your mother”. This was a further example of abusive behaviour, directed at S not Mrs N.

[37] 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.

[38] It follows that we disagree with Peters J when dismissing Mrs N’s appeal against this part of the Family Court decision. Peters J accepted that she was required to come to her own view on the evidence;⁵⁸ but she gave particular weight to what she saw as the Family Court Judge’s significant advantage in assessing the credibility contest between the two primary participants.⁵⁹ She could not find an error. She adopted a similar approach following a brief review of Mrs N’s allegations of psychological abuse.⁶⁰

[39] The real issue was whether all the evidence viewed objectively showed a pattern of behaviour amounting to physical and psychological abuse. There was no basis for deferring to the Family Court Judge’s first-instance advantage. Credibility conflicts were not decisive. Peters J was bound to undertake her own independent

_{analysis of the evidence in accordance with the legal requirements, which could only}

⁵⁸ HC judgment, above n 4, at [10].

lead to a finding that the Judge had erred and that Mr N’s conduct satisfied the

statutory threshold.

Necessity

[40] We are also satisfied that the Family Court Judge erred at the second stage of his inquiry. He apparently adopted a balancing exercise,⁶¹ weighing what he found was Mrs N’s subjective fear of Mr N’s continuing unannounced visits to the home and breaches of her privacy against seven other factors including that only one of Mrs N’s four major allegations of violence had been proved. He then added five additional factors, described as “countervailing”, which also had a negating effect.

[41] This was not the correct inquiry. The Judge failed to address the mandatory consideration imposed by s 14(3) of whether Mr N’s behaviour formed a pattern against which Mrs N needed protection. As our analysis has shown, Mr N’s abuse was persistent and of both a physical and psychological nature. Plainly his conduct caused Mrs N to have serious fears for her safety. Those fears were not only subjectively held but rationally justifiable. The fact that she was driven to install security cameras is evidence of the nature and extent of her concern. She did not feel safe without an order. The Judge failed also to address the mandatory considerations imposed by s 14(5) of Mrs N’s perception of the nature and seriousness of Mr N’s behaviour and its effect on her and their daughters who lived with her.

[42] We repeat that there was no room for a balancing exercise. But of the factors which the Judge took into account the following are especially irrelevant:

(a) That there had been no breaches since the temporary order was made

— that fact may well show the success of the temporary order rather than the independent reformation of the violent party.

(b) That there remained the prospect of a review of the occupation order

_{— this could not give any confidence that Mr N would not breach its}

⁶¹ See [10]–[12] of this judgment.

terms as he had already done so on a number of occasions. If resolution of the property proceedings did have a settling effect on Mr N’s behaviour for an extended period of time, he could apply to discharge a protection order.

(c) That Mr N was not otherwise a violent man or that he had no criminal convictions for violence or was well regarded by his employer — at issue was his behaviour towards Mrs N and his treatment of her within a domestic relationship where very different dynamics were at play.

(d) Mr N’s knowledge that Mrs N had installed security cameras — this was a neutral factor, as was his knowledge that Mrs N could bring a further without-notice application if he breached the occupation order again.

[43] The Judge’s treatment of the so-called countervailing factors was also in error:

(a) the fact that Mrs N decided on legal advice to apply initially for an occupation order rather than a protection order is irrelevant;

(b) Mr N’s psychological abuse of Mrs N was not a one-off event but was, as we have explained, part of a pattern of abuse; and it was immaterial that it may have been triggered by property-related issues;

(c) Mrs N’s success as a school teacher and her robust and resilient character does not diminish her need for protection — the fact that somebody with such characteristics sought the formal sanction of a protection order is evidence of the effect of Mr N’s conduct. It is fallacious to assume that because a person appears robust and resilient in the workplace, where he or she is not at risk of violence, that person will not feel vulnerable in another environment such as their home.

(d) Mrs N’s feelings of fear were real and genuine, as we have said, and showed the need for protection. The availability of other protective measures does not justify refusal to make a protection order if it is otherwise necessary.

[44] Peters J dismissed this element of Mrs N’s appeal on the ground that the Family Court Judge’s approach to the necessity inquiry was in accordance with this Court’s decision in Surrey.⁶² She found that Mr N had discharged the evidential burden which had shifted to him to prove that an order was not necessary. In applying this Court’s statement in Surrey that Mrs N’s appeal was against the exercise of a judicial discretion,⁶³ Peters J was not satisfied that any of the factors which the Judge took into account were irrelevant or that he omitted to take into account relevant factors; or that the decision on whether the order was necessary was not open to him.⁶⁴

[45] On the assumption that Peters J was correct to find that the Family Court Judge was exercising a discretion, it must follow from our analysis that she was wrong to find that he did not err. Even on the more light-handed appellate approach mandated by the exercise of a true discretion, we have set out why we are satisfied the Judge erred. 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.⁶⁵

In terms of s 14(3), (4) and (5), the Judge failed to consider:

(a) whether all of Mr N’s behaviour of which Mrs N complained formed part of a pattern;

(b) whether the need for Mrs N’s protection arose from behaviour

additional to that occurring in the April 2013 incident; and

(c) Mrs N’s perception of the nature and seriousness of Mr N’s behaviour

_{and the effect of that behaviour on her.}

⁶² _{HC judgment, above n 4, at [27]–[30] citing Surrey, above n 6, at [77].}

⁶³ _{At [11] and [30] citing Surrey, above n 6, at [68]–[69].}

⁶⁴ _{At [30].}

⁶⁵ At [11].

[46] We are satisfied, in any event, that this Court’s statement in Surrey⁶⁶ that the finding on necessity is for appellate purposes a discretionary decision which is not subject to the ordinary principles applicable to a rehearing, as stated in Austin, Nichols & Co Inc v Stichting Lodestar, has not survived the later decision in Kacem v Bashir.⁶⁷ In that case the Supreme Court considered a comparable assessment by the Family Court of the “best interests” of children under s 5 of the Care of Children Act 2004.⁶⁸ Kacem affirms that a decision is not of itself discretionary because it involves factual evaluation and a value judgment.⁶⁹ A determination of what was in the best interests of the child in that relocation case was a matter of assessment and

judgment, not one of discretion. In the present case the Family Court Judge’s decision on necessity was of a similarly evaluative nature. As with the first stage of the inquiry, s 14(1)(b) requires that the Family Court be satisfied an order is necessary. An appellate court must scrutinise the first-instance decision accordingly.

[47] We would add that the use of the word “may” in s 14(1) is of an empowering or permissive nature. It authorises a court to make a protection order if it is satisfied (a) that the respondent is using or has used domestic violence against the applicant, which is a factual inquiry; and (b) that making an order is necessary for the applicant’s protection, which is of an evaluative nature. Once those two prerequisites have been established, a protection order should follow as a matter of course unless there is a compelling reason to the contrary. No such reason is apparent in the present case.

Result

[48] Our answers to the three questions of law on which leave was given are that the High Court Judge erred in finding that:

(a) the appeal before her was against the exercise of a discretion, in reliance upon the decision of this Court in Surrey v Surrey;⁷⁰

⁶⁶ _{Surrey, above n 6, at [68]–[69].}

⁶⁷ _{Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.}

⁶⁸ _{Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [33]–[35].}

⁶⁹ _{At [32].}

⁷⁰ Surrey, above n 6.

(b) the Family Court Judge applied the correct test as to what constitutes domestic violence for the purposes of the Act; and

(c) the Family Court Judge’s consideration of whether a protection order was necessary for the protection of the applicant was in accordance with the requirements of s 14 of the Act and in particular that he took into account the mandatory considerations in ss 14(3), 14(5)(a) and

14(5)(b), and did not take into account irrelevant considerations. [49] It follows that Mrs N’s appeal must be allowed.

[50] We raised with Ms McCartney the issue of relief given that an interim protection order was in place from 15 May 2014 but was discharged on 5 March

2015, more than two years ago. Since then the proceeding has encountered unfortunate delays including those resulting from the application for a rehearing in the Family Court, a period of delay in the High Court, and delays in processing the appeal through this court. The question is whether it is now appropriate to reinstate the original order given the passage of time and the absence of any information about whether an order is now necessary.

[51] We agree with Ms McCartney that in the normal course of events we would exercise our jurisdiction to “make any order which ought to have been given or made”.⁷¹ The protection order should have been made on 5 March 2015 and not discharged. However, it is questionable whether we have jurisdiction to make a protection order which gives rise retrospectively to rights of enforcement for the past two years when it was not actually in force. The appropriate course is simply to make a protection order to take immediate effect from the date of this judgment. That is the order which ought to have been made in the Family Court. Mr N is

entitled if he wishes to apply for an order for discharge in the Family Court.

[52] There is no order for costs.

Solicitors:

Rob Webber & Associates, Auckland for Appellant

⁷¹ Court of Appeal (Civil) Rules 2005, r 48(4).