A woman's protection order was cancelled because a Family Court judge did not believe she needed it. The Court of Appeal has since reinstated the order. NZME stock image
A woman's protection order was cancelled because a Family Court judge did not believe she needed it. The Court of Appeal has since reinstated the order. NZME stock image
The Court of Appeal has granted a victim of family violence a protection order - after judges in the Family Court and High Court refused her.
It has been found those judges made errors in their decisions to refuse the woman the order, with one of them setting "an unacceptably high threshold for behaviour which might qualify as physical or psychological abuse".
The woman has been battling to get a protection order against her ex-husband since March 2015.
An order was granted in May 2014.
But after a defended hearing in the Family Court for the ex-husband relating to his violent, abusive and threatening behaviour in March 2015, Judge David Burns discharged that order.
The woman applied to the court for Judge Burns to recall his decision, but he declined that.
She then appealed to the High Court, but in April 2016 her case was dismissed by Justice Mary Peters on the basis she could find no error in Judge Burns' decision.
In May this year the Court of Appeal heard the woman's case and last week released its judgement, in which a protection order was granted.
The woman's ex-husband did not take any steps to oppose her appeal.
Neither the woman or her partner can be named for legal reasons, and the judgement is complex - but the crux is that Judge Burns made crucial errors in his decision.
The woman and her ex-husband started a relationship in the late 1980s and were married in 1994.
They had two children and separated in 2012.
"A patter of domestic conflict followed," Justice Rhys Harrison said in the Court of Appeal judgement.
"(She) claimed that (he) was physically and psychologically abusive towards her.
"She claimed that his conduct amounted to domestic violence and she needed the protection of an order."
The court may make a protection order under the Domestic Violence Act 1995 if it is satisfied that the applicant has been subjected to "domestic violence" and the making of an order is necessary for their protection.
Under the act "violence" can include physical or sexual abuse, psychological abuse including but not limited to intimidation, harassment, damage to property, threats of any kind of abuse and financial or economic abuse.
The Act also states that "a single act may amount to abuse" or that "a number of acts that form a pattern of behaviour may amount to abuse... even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial".
In the family court the woman claimed her ex-husband had an "erratic and explosive temper" during their marriage and that he had physically abused her including "body slamming" during arguments on two occasions - the second resulting in her needing six physiotherapy sessions to treat a whiplash injury.
The woman also told the court her ex-husband would swear and yell at her and "taunt" her and causing her to feel concerned and scared.
Judge Burns dealt with each of the woman's claims individually, working through the evidence for and against, and found that her "general and non-specific allegations" did not meet the definition of psychological violence under the Act.
Regarding the body slamming incident where she was injured, Judge Burns said her ex "did not intend to assault her" and that his reaction was "spontaneous as a result of being placed in a position of vulnerability" by her "threatening manner".
He found that only one of the four major allegations the woman made had been proven and the one situation where her ex-husband's behaviour became abusive and psychologically threatening "did not establish a pattern of behaviour".
He said when the allegations were "put in the context of a total long-term relationship" the man was not a violent person and there was no need for the woman to have a protection order.
Justice Rhys Harrison has found a Family Court judge made errors when he discharged a woman's protection order. New Zealand Herald photograph
Furthermore, the woman was a "successful school teacher" who was "assertive and strong" in her occupation, and "a robust and resilient person" and did not need protection.
He ruled that "protective measures other than a domestic violence order could be taken as a result" and discharged the temporary order that had been granted earlier.
Justice Harrison said Judge Burns "erred" in his decision on two levels - firstly by confining his evaluation on one affirmative finding of domestic violence, and then by failing to evaluate whether the ex-husband's behaviour over a prolonged period amounted to domestic violence.
"We acknowledge that the Judge approached his task with great care," Justice Harrison said.
"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 (the ex-husband's) behaviour followed a discernible pattern."
Justice Harrison said Judge Burns should have investigated whether the ex-husband's conduct amounted to physical abuse - not into whether she had provoked him.
"The Judge was wrong to give weight to his finding that (she) must take a degree of responsibility for the incident because of the confrontational nature of her behaviour," he said.
"The cause of or motivation for abusive behaviour is irrelevant.
"The victims of domestic violence are not responsible for it."
Justice Harrison said the conclusion that there was "no abusive pattern" to the ex-husband's behaviour "cannot possibly stand".
He blasted part of Judge Burns' decision in his judgement.
"(His) psychological abuse of (her) was not a one-off event but was, as we have explained, part of a pattern of abuse... 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 his) 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."
Justice Harrison said the woman's feelings of fear were "real and genuine" and "showed the need for protection".
"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," he said.
"The Act was intended to proscribe and condemn conduct of this nature, not to excuse or minimise it.
"We are satisfied that (the man's) conduct towards his wife over at least a year from April 2013 constituted prolonged domestic violence."
Justice Harrison said Justice Peters was also wrong in her High Court handling of the case.
She was "wrong" to find Judge Burns did not err.
"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," Justice Harrison said.
"A single act may amount to domestic violence. Or a number of acts considered together may meet the same criterion.
"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."
If you're in danger now:
• Phone the police on 111 or ask neighbours of friends to ring for you. • Run outside and head for where there are other people. • Scream for help so that your neighbours can hear you. • Take the children with you. • Don't stop to get anything else. • If you are being abused, remember it's not your fault. Violence is never okay
Where to go for help or more information:
• Women's Refuge: Free national crisis line operates 24/7 - 0800 refuge or 0800 733 843 www.womensrefuge.org.nz • Shine, free national helpline 9am- 11pm every day - 0508 744 633 www.2shine.org.nz • It's Not Ok: Information line 0800 456 450 www.areyouok.org.nz • Shakti: Providing specialist cultural services for African, Asian and middle eastern women and their children. Crisis line 24/7 0800 742 584 • Ministry of Justice: www.justice.govt.nz/family-justice/domestic-violence • National Network of Stopping Violence: www.nnsvs.org.nz • White Ribbon: Aiming to eliminate men's violence towards women, focusing this year on sexual violence and the issue of consent. www.whiteribbon.org.nz
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