24 Jul 2017

Court overturns decision to withhold protection order

8:33 am on 24 July 2017

A school teacher threatened by her abusive ex-husband spent two years without a protection order, when she should have had one, a court has ruled.

09082016. Photo Rebekah Parsons-King. Pike River families want mine's CEO to face charges. Court of Appeal Wellington.

Photo: RNZ / Rebekah Parsons-King

In a highly critical decision (PDF, 249KB), the Court of Appeal overruled the original decision denying the protection order.

It said the woman had clearly been the victim of prolonged domestic violence.

The couple were married for almost 20 years before splitting up in 2012 or early 2013, which was followed by a pattern of what the Court of Appeal called "domestic conflict".

This included two arguments in which her husband body-slammed her, requiring six appointments with a physiotherapist to treat her whiplash.

She installed security cameras at the family home after he turned up unannounced on a number of occasions, at one point swearing and yelling at her.

She claimed his conduct amounted to domestic violence and sought a protection order from the Family Court.

The court initially granted an interim protection order, but Judge David Burns ended it in March 2015.

Dr Ang Jury CEO of Women's Refuge

Women's Refuge chief executive Dr Ang Jury Photo: RNZ / Rebekah Parsons-King

Women's Refuge chief executive Ang Jury said the Court of Appeal's decision made it clear Judge Burns thought the teacher had provoked her ex-husband, and her assertive nature meant she did not need the court's protection.

"There were clear points in the original judgment from that viewpoint of 'if she didn't behave like this, this wouldn't happen', which we know to be an absolute fallacy," she said.

"There are still a significant number of people who believe unless you are beaten black and blue, that you don't need protection."

Judge Burns turned down the application to review his decision, which the High Court then upheld.

However, the Court of Appeal overturned that ruling this month.

It found the Family Court judge set an unacceptably high threshold for behaviour that might qualify as physical or psychological abuse, when it was clear the man's conduct constituted prolonged domestic violence towards his ex-wife.

It went on to say the woman's robust and resilient character did not diminish her need for protection.

"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.

"The woman'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," the judgement said.

Otago University law professor Mark Henagan said overturning the ruling was the right thing to do.

"The lower courts tried to minimise the physical and psychological abuse by saying 'well, the person who wanted the protection order could put up with it, would be able to resist it'.

"And in some ways it was explained away in terms of 'well, these are the sort of things that happen sometimes at the end of a long relationship'.

"None of those things are in the legislation. The legislation says if there's been domestic violence and you need protection, then the law should give it to you."

The judgment also raised concerns about the time the case has taken to resolve, referring to the "unfortunate delays" in the two years taken to get through the court process.

Prof Henaghan agreed, particularly for something as important as a protection order.

"There's been a two-year hiatus here, where there's been no protection order in place and clearly the Court of Appeal found there is necessary to be a protection order,

"But they couldn't backdate it because they felt that it wouldn't be fair on the other party, because there was no notice of it in those terms. So it starts again, but there's a two-year gap where there's no protection order," he said.

Law Society family law chair Michelle Duggan said the delay must have caused real upset and distress to the woman and it was something that needed to be addressed.

"Those are the questions that I think the Ministry of Justice probably need to be asked. In my experience delay is a very common feature, in all of the courts."

She said the courts were dealing with much more complicated cases, which took longer to resolve than they used to.

She cautioned against those who would use this judgement to criticise the Family Court system, however, and said it was easy to be wise from the sidelines.

She said Judge Burns was a hard-working and well-regarded judge, and the courts usually got it right.

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