DAVIS v DEVON [2016] NZHC 209

DAVIS v DEVON [2016] NZHC 209

The High Court held the Family Court erred by refusing to make a protection order after finding an ongoing pattern of psychological abuse and a reasonable subjective fear of future abuse; the evidential burden shifted to the respondent who failed to rebut necessity, parenting orders with conditions were insufficient to protect the applicant, therefore the Family Court orders were quashed and a protection order under s14(1) DVA was made in favour of the applicant.

Citation
[2016] NZHC 209
Parties
Appellant: Ms Davis; Respondent: Mr Devon
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 February 2016
Procedural Posture
Domestic Violence Act Appeal / High Court Appeal From Family Court Decision
Outcome
Appeal allowed; Family Court orders quashed; protection order made under s14(1) Domestic Violence Act 1995 in favour of Ms Davis.
Legal Topics
Protection Orders Under S14 DVA, Necessity Test and Burden Shifting, Psychological Abuse, Parenting Orders Vs Protection Orders, Objects of the Domestic Violence Act S5
Family Law Domestic Violence Child Care and Protection Protection Orders Under S14 DVA Necessity Test and Burden Shifting Psychological Abuse Parenting Orders Vs Protection Orders Objects of the Domestic Violence Act S5

Case Brief

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Parties

Ms Davis

Appellant

Mr Devon

Respondent

Procedural Posture

Domestic Violence Act Appeal / High Court Appeal From Family Court Decision

Legal Issues

  1. 1 Whether the Family Court erred in refusing to make a protection order under s14 DVA despite finding past psychological abuse
  2. 2 Application of Surrey v Surrey presumption and burden shifting on necessity
  3. 3 Whether tailored parenting orders with conditions could adequately protect the applicant

Ratio Decidendi

The High Court held the Family Court erred by refusing to make a protection order after finding an ongoing pattern of psychological abuse and a reasonable subjective fear of future abuse; the evidential burden shifted to the respondent who failed to rebut necessity, parenting orders with conditions were insufficient to protect the applicant, therefore the Family Court orders were quashed and a protection order under s14(1) DVA was made in favour of the applicant.

Court Disposition

Appeal allowed; Family Court orders quashed; protection order made under s14(1) Domestic Violence Act 1995 in favour of Ms Davis.

Orders

  • The orders made in the Family Court are quashed.
  • A protection order in favour of Ms Davis is made in terms of s14(1) of the Domestic Violence Act 1995.