SUBMISSION ON MINISTRY OF JUSTICE’S DISCUSSION DOCUMENT STRENGTHENING NEW ZEALAND’S LEGISLATIVE RESPONSE TO FAMILY VIOLENCE
14 SEPTEMBER 2015
I commend the Ministry of Justice for producing the discussion document Strengthening New Zealand’s legislative response to family violence. I also welcome Justice Minister Amy Adams’ statement that combating family violence is her top priority in the Justice portfolio. I am pleased with the Minister’s other announcements in relation to Law Commission references about a standalone offence of non-fatal strangulation, and the treatment of domestic violence victims who commit homicide.
However, these responses are all obviously “ambulance at the bottom of the cliff” reactions. Clearly, the real goal is to eradicate domestic violence entirely. For that to happen, we need to stop treating male violence against women as a “women’s issue.” It is, in fact, a male issue. Until men begin taking steps to eliminate domestic violence, it will not be eradicated.
For that reason, I would like to the see the Prime Minister and other male MPs present at, and supporting, future government announcements about measures to counter domestic violence. I would also like to see a cross-party group of male MPs formed to work on and prioritise eliminating domestic violence.
In addition, I wish to emphasise strongly my view that the Domestic Violence Act is excellent legislation. The key problem is that is has never been enforced properly. No government has provided sufficient resources for proper enforcement and there has never been adequate training of judges, police, lawyers and others who work in cases involving domestic violence in the criminal justice system. New Zealand lags woefully far behind internationally in providing virtually training and resources to those in the criminal justice system who deal with domestic violence. For example, I refer you to the American publication, Navigating Custody & Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide, produced by the State Justice Institute and National Council of Juvenile and Family Court Judges.
RESPONSES TO QUESTIONS IN THE DISCUSSION DOCUMENT
The following are my responses to the questions set out in the discussion document.
1 Legislative framework: overview
What changes to legal tools and powers would ensure the law keeps pace with advances in understanding of family violence and how to address it ?
Advances in the way in which domestic violence is dealt with in other jurisdictions should be kept under permanent and ongoing review. Effective tools and powers developed overseas should be introduced in New Zealand as speedily as possible.
Ongoing monitoring and review should also take place in New Zealand of the way in which current legal tools and powers operate, so that gaps and shortcomings can be picked up rapidly and remedied. This will only be possible if adequate resources are provided for monitoring and review work and for researching and introducing changes.
I do not at present see evidence of a willingness to provide sufficient resources for this work.
2 The nature and dynamics of family violence across population groups
What changes could be made to address the barriers faced by each population group ?
Does the current legal framework for family violence address the needs of vulnerable population groups, in particular disabled and elderly people ? How could it be improved to better meet the needs of these groups ?
What changes could be made to better support victims who are migrants, particularly when immigration status is a factor ?
What other ideas do you suggest ?
Specific and urgent attention needs to be given to addressing the barriers faced by different population groups. These groups include disabled women, Maori, Pasifika women, older women and migrant women. Resources need to be provided to ensure that services are available to these different groups.
Migrant women are particularly vulnerable to, and unable to escape from, domestic violence. Many migrant women who live with abusive men have never had the opportunity to become residents. This enables violent men to control the women by threatening to dob them in to Immigration New Zealand or to the Ministry of Social Development. Research needs to be done into the situation of these women and policies and resources need to be developed to assist them. Domestic violence should be a factor which Immigration New Zealand staff screen for. Where it is present, women should be given permanent residence in New Zealand and immediate access to benefits, housing and other support so they and their children can escape permanently from violence. It is also essential that migrant women have access to interpreters and that interpreters are screened before working on domestic violence cases to ensure they are not upholding the perpetrator’s viewpoint to the women, and are not intimidating them into remaining in the violent situation.
3 Definition of “family violence”
What changes to the current definition of “domestic violence” would ensure it supports understanding of family violence and improves responses ? For example:
What other ideas do you suggest ?
I support the specific inclusion of the concept of “coercive control” in the Domestic Violence Act. In my experience, judges and others working in the field of domestic violence are unclear about what is meant by “psychological abuse” in the context of domestic violence. United Kingdom Home Secretary Theresa May in November 2014 announced a new domestic abuse offence of “coercive and controlling behaviour” within relationships. The provision aims to protect victims from extreme psychological and emotional abuse. The definition is as follows -
Definition of Domestic Violence
(1) For the purposes of this Act, “Domestic Violence” means-
(a) Controlling, coercive or threatening behaviour,
(b) Physical violence, or
(c) Abuse, including but not limited to, psychological, physical, sexual, financial or emotional abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.
(2) For the purposes of the definition in subsection (1)-
“coercive controlling behaviour” shall mean a course of conduct, knowingly undertaken, making a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
“coercive or threatening behaviour” means a course of conduct that knowingly causes the victim or their child or children to-
(a) fear that physical violence will be used against them,
(b) experience serious alarm or distress which has a substantial adverse effect on the victim’s day-to-day activities.
(3) For the purposes of subsection (2) a person shall be deemed to have undertaken a course of conduct knowingly if a reasonable person in possession of the same information would conclude that the individual ought to have known that their course of conduct would have the effect in subsection 2 (a) or (b).
I support the inclusion of similar provisions in New Zealand’s Domestic Violence Act. Specifically, I advocate that the definition of “coercive control” should incorporate explanations of surveillance and monitoring. This can include constantly checking up on victims’ every movements and activities; forbidding them from leaving home; banning them from having contact with friends and family members; preventing them from accessing money and bank accounts (and commonly taking all their money); monitoring emails and text messages; and constant phone calls and emails when the victim is in a different physical location from her partner.
I believe the lack of understanding of domestic violence as a pattern of coercive and violent behaviour is one of the most significant gaps in New Zealand’s response to domestic violence. Almost invariably, judges, the police, lawyers and others treat each event of physical or psychological abuse as a separate and isolated matter. This results in the trivialisation of the perpetrator’s behaviour, confirming to the perpetrator that he will face no legal sanctions for his conduct, and to the victim that the law will not protect her.
When tragedies such as the killings by Edward Livingstone of his two children and other homicides by partners or ex-partners are analysed in detail, the pattern of behaviour becomes clear. However, by that time it is too late to save women’s and children’s lives. This is why the work of the Family Violence Death Review Committee is so important in providing this analysis and making recommendations. I am disappointed that governments have failed to act on these recommendations.
I do not believe that the term “family violence” should be used instead of “domestic violence.”
The term “domestic violence” has been a long-standing term used predominantly to refer to men’s violence against woman partners or ex-partners. The Domestic Violence Act has extended this definition to intimate partners of either gender.
By contrast, the term “family violence” has a long history originating from theoretical ideas about conflict in families. The “family violence” understanding of violence within families emerging out of increasing and escalating conflict between the adults, with both equal contributors to the violence, is not supported by evidence and, in practice, is extremely harmful. It is this analysis which leads judges, lawyers and others to apply the discredited and non-existent concept of “situational violence” to cases involving domestic violence, thereby jeopardising the safety of women and children. The concepts of “family violence” and “situational violence” mirror the old approach of “It takes two to tango,” which also regarded domestic violence as mutual violence by two partners. That is not the reality of domestic violence: the violence is overwhelmingly perpetrated by men against women and children.
The most accurate way of describing this violence is by use of the term “male intimate partner violence against women.”
I support including the abuse of family pets within the definition of “domestic violence.” There is extensive research from overseas – particularly the United States – about the link between animal abuse and domestic violence. There is now also New Zealand research about this. The 2012 report Pets as Pawns: The Co-existence of Animal Cruelty and Family Violence was commissioned by the Royal New Zealand Society for the Prevention of Cruelty to Animals and the National Collective of Independent Women’s Refuges. The report can be found at this link - https://womensrefuge.org.nz/users/Image/Downloads/PDFs/Pets%20as%20Pawns.pdf.
The research found that one in three of the women surveyed reported delaying leaving violent relationships because they feared their pets and other animals would be killed or tortured. Of these, one quarter said their children had witnessed violence against animals. The research underlines the strong link between animal cruelty and domestic violence in New Zealand. It also showed that 50 per cent of the women interviewed had witnessed animal cruelty as part of their experience of domestic violence.
The study involved direct interviews with 30 refuge clients who had witnessed or were forced to take part in animal cruelty as part of family violence, interviews with SPCA stakeholders; and surveying 203 Women’s Refuge clients. Of these 203 women, 111 (55 per cent) stated that animal cruelty was part of their experience of domestic violence as, at some point, either a family member or their partner had threatened to kill one of their pets, animals and/or farm animals. One third of the respondents also reported actual injury of death of the animal.
As a result, deciding when and how to leave a relationship that included cruelty to animals became more complex. Twenty-eight percent of women reported they would have left their abusive relationship earlier if they had not had a pet or animal. The length of time they stayed ranged from one week to 22 years with an average of two years.
The research also uncovered information about how children witnessed animal cruelty. Of the 159 research participants with children, a quarter reported that their children had witnessed someone in their family injure or kill a pet or animal. Disturbingly, many of the women reported that partners who had warnings or convictions around physical violence, would deliberately threaten or hurt pets as a way of controlling their family and make it easier to avoid reconviction. In this way, pets and other animals become part of an arsenal of tricks abusers use to instill fear and control over their family. Some men will threaten to kill family pets if the women leaves, and in some cases women and children have witnessed extreme torture of pets or animals as part of domestic violence.
I support including killing, abuse and threats to pets within the definition of “domestic violence.” I also submit that the names of family pets should be included on protection orders alongside the names of women and children. The SPCA runs a programme for intermediate school children called “One of the Family,” which aims to teach empathy. I support the Government providing funding so that this programme can be taught in all schools in New Zealand and extended to children of different ages.
4 Guiding principles
How would guiding principles affect how the Domestic Violence Act and other legislation is implemented ? What principles would you suggest ?
How could including principles in the law reflect the nature and dynamics of family violence ? For example:
What other ideas do you suggest ?
I support the idea of including guiding principles in the Domestic Violence Act. New Zealand’s response to domestic violence is severely hampered by –
I believe that incorporating guiding principles into the Act would assist with educating judges and others about domestic violence, and would also help them to guide them when they make decisions in cases involving domestic violence. I agree with the preamble to the Family Violence Protection Act 2008 in Victoria, Australia, which states that “family violence is a fundamental violation of human rights and is unacceptable in any form.”
If guiding principles are to be included, the paramount principle must be the safety of women and children. Any other approach would pose a risk to women and children. The Government was specifically warned by anti-domestic violence advocates about the importance of section 16B of the Guardianship Act 1968 when it was making its changes to the Family Court, but went ahead and changed the law in spite of those warnings. The ongoing tragic toll of domestic violence in New Zealand clearly illustrates that neither the law nor agencies is paying sufficient heed to the safety of women and children.
I believe it is also important that the fact that domestic violence is a fundamental violation of human rights and unacceptable in any form should be spelled out. New Zealand adopts an extremely narrow approach to human rights, focusing primarily on the civil and political rights of men – and particularly male defendants – and almost completely fails to recognise the human rights implications of our high rates of domestic violence. For example, the killing of women by their partners breaches the women’s New Zealand Bill of Rights Act 1990’s right to life. Coercive control breaches the woman’s right to freedom of expression. However, we continue largely to regard domestic violence as involving individual situations of men treating women badly, rather than looking at the overall picture.
The guiding principles should spell out that the safety of women and children trumps the perpetrator’s right to privacy and concerns about “fairness” to perpetrators. I am aware of one judge who, when making decisions about protection order applications, made a practice of taking into account fairness to the respondent, although that is not a criterion included within the Domestic Violence Act.
The guiding principles should clearly state that Parental Alienation Syndrome and Situational Violence do not exist and are not to be applied by judges, lawyers or others. I also believe that the principles should spell out a recognition of who the primary aggressor is in domestic violence cases, so that women seeking to defend themselves and their children are not mistakenly labelled as aggressors. In such cases, it is common for judges to mistakenly treat violence as “mutual” violence and disregard it altogether for decision-making purposes.
The discussion document refers at page 17 to “the value of taking a holistic approach to ensure the impacts on the whole family and whanau are addressed.” The paper does not spell out what this means. I wish to make it plain that I am strongly opposed to a “therapeutic” approach to domestic violence, as is used in the Family Violence Courts within the District Court jurisdiction.
Other issues to be included within the guiding principles are the following –
5 Accessibility of protection orders
What changes would you suggest to improve access to protection orders ? For example:
What other ideas do you suggest ?
Protection orders are inaccessible for many New Zealand women. Reasons for this include the small number of lawyers who now do protection order work, and the high cost of applying for a protection order. Media reports in recent years have outlined that, in some parts of the country, there are no longer any lawyers doing protection order work. This trend can be expected to accelerate in future. Until recently, lawyers who specialised in family law could choose to make that their career focus and could earn a living from doing that. However, the Government’s changes to the Family Court in 2014 mean that most family cases are now supposed to be dealt with without the involvement of a lawyer. This means that large numbers of family lawyers are currently retraining as specialists in other areas of law or as mediators or leaving law altogether. Accordingly, there are now even fewer lawyers who have the expertise necessary and who are willing to carry out protection order work.
Applying for a protection order is also expensive. Domestic violence is a violation of the women’s and children’s human rights, and it should be the responsibility of the state to provide funding to keep women and children safe. However, restrictions on legal aid have become so tight in recent years that it is available only in extremely limited cases of the harshest financial suffering. This means that women must find money to pay lawyers themselves. Women in the workforce earn an average of 14 per cent less than men and represent the highest number of workers earning the minimum wage. They simply do not have the resources to pay for protection orders.
This combination of factors means that women are not receiving the legal protection intended by the law. All women in New Zealand should be able to apply for protection orders, with funding and lawyers readily made accessible by the state. There should be no requirement to repay lawyers’ fees. If lawyers and funds are not provided, there is no point in passing laws designed to protect women as they will, in practice, be unable to access this protection.
I believe that the discussion document’s statement on page 21 that “Most people who apply for legal aid will receive support” does not accurately reflect reality. While it might be correct that most applications are successful – although no statistics are cited – there is major self-filtering prior to an application being made. Family legal aid applications are completed by lawyers – they are well aware of the tight restrictions on legal aid and will advise clients not to waste their time in making applications when it is clear they will be unsuccessful. Many members of the public are also aware that it is extremely difficult to qualify for legal aid, and so they decide themselves not to apply.
I agree in principle that it could be constructive for others to be able to apply for protection orders on victims’ behalf, but we are very sceptical about how this would operate effectively in
practice. The paper suggests, for example, that Community Law Centres could assist women in applying for protection orders. This demonstrates a lack of understanding of the practical operation of Community Law Centres.
Community Law Centres have extremely tenuous funding. The lawyers who work in the centres are poorly paid and are therefore likely to be very inexperienced. They have far more cases and clients than they can adequately deal with. Community Law Centres tend to specialise in certain areas of the law and many would have little or no experience with domestic violence work. Unless the Government is prepared to make extra funding available to the centres on a permanent basis and provide extensive training about domestic violence to lawyers working in the centres, I cannot see how this would assist women. Governments, and particularly Ministers of Justice, frequently suggest publicly that Community Law Centres could take on many different areas of work (particularly when governments are cutting funding) but they appear to have little practical knowledge that Community Law Centres are simply not in a position to do this because of lack of resources and legal expertise.
I support in principle the idea of following the Victorian model of permitting police to apply for protection orders on victims’ behalf. However, as discussed above in relation to Community Law Centres, unless resources and training are provided to police, this will not operate effectively in practice.
Since the Domestic Violence Act first came into force, there has been a practice of lawyers and judges agreeing to “undertakings” as a substitute for protection orders. This practice should be banned by law. Undertakings have no legal effect and cannot be enforced. They simply serve to make judges and lawyers think they have done something to protect a victim – in reality, they have not.
The other reason that protection orders are not accessible is because judges fail to apply the Domestic Violence Act in making decisions about protection order applications. I am aware of specific cases involving the following –
These examples explain how the judiciary is failing to apply the Domestic Violence Act correctly. The rationales used above are not grounds included in the Act and on which judges should be making decisions.
As long ago as 1999, a group of family lawyers at Manukau Court asked to meet with Family Court judges to express their concerns about how difficult it was to obtain protection orders without notice. I believe that judges have continued since that time to misapply the law. Judges need to be given detailed and ongoing training about domestic violence and the Domestic Violence Act.
It is my experience that, if a protection order is not granted without notice, it is extremely rare for the woman to be granted an order at all. The delay in proceeding on notice means that the woman will come under pressure from the respondent to withdraw the application; she may be too fearful to proceed and too scared to come to court; she and the children may have fled; or the respondent may hide to avoid service of the application. The failure of judges to apply the law correctly when initially considering protection order applications accordingly has massive implications in practice.
6 Effectiveness of protection orders
What changes could enhance the effectiveness, use and enforcement of protection orders ? For example:
What other ideas do you suggest ?
Enforcement of protection orders has been grossly inadequate throughout the entire time the Domestic Violence Act has been in force. The key reasons for this are that the police are completely under-resourced to deal effectively with breaches of protection orders, and lack training and detailed knowledge about domestic violence. Many police officers are very young and inexperienced and have little understanding or experience of domestic violence. This leads them to treat violence events as isolated incidents, instead of placing them in the ongoing context of power, control and violence.
I support the discussion document’s suggestion that the police should be required to arrest for all breaches of protection orders, but we would remove the qualification “where there is sufficient evidence.” If that qualification is retained, it would make a requirement to arrest ineffective, as I know from experience that the qualification would be applied in large numbers of cases.
It is startling that the police do not ALREADY arrest in all cases of breaches of protection orders: not to arrest makes the order ineffective and leads to the perpetrator believing he can flout the law with impunity and the victim thinking the law will not protect her. Sadly, she is often correct in this assessment.
Police should be trained and required to arrest for all protection order breaches – including cases where the breach involves harassment by phone or internet, stalking and other breaches apart from physical violence. The police are reluctant to respond properly unless victims have been physically assaulted. This is an incorrect application of the law.
Respondents should also be charged for all breaches of protection orders. The ongoing police failure to do this makes protection orders useless to protect women and children and has led to the widely-used description of them as “just a piece of paper.”
Judges should be prohibited from granting diversion or discharges without convictions for breaches of protection orders. Convictions should be entered for all breaches. The Livingstone Inquest revealed that Mr Livingstone was twice found guilty of breaching a protection order. On the first occasion, he was granted diversion. On the second, he was given a discharge without conviction as the judge was concerned about the potential impact of a conviction on Mr Livingstone’s future employment prospects. The judge accordingly prioritised Mr Livingstone’s employment at the expense of the safety of his wife and children.
In our criminal justice system, diversion is granted in minor cases. Domestic violence is never minor. Granting diversion for breaching a protection order illustrates a complete lack of understanding of the dynamics of domestic violence and a failure to give priority to the safety of women and children.
I refer to page 22 of the discussion document, which considers how police can improve the prosecution of protection order breaches and, in particular, the collection of evidence. I support a trial of recording video statements at the scene, modelled on the United Kingdom’s 2013 police pilot. I am concerned about the extent to which police, lawyers and judges believe that testimony from the victim is essential to obtaining a conviction. There are many reasons why victims are not able to appear in court to give evidence – primarily intimidation by the perpetrator and a very real fear of being seriously assaulted or killed if they give evidence against their violent partner. Police should accordingly place far greater emphasis on obtaining and putting before the court other forms of evidence. It continues to be extremely common for prosecutors simply to withdraw charges when the victim does not appear in court to give evidence.
I have read the Law and Order Committee’s report on Petition 2011/124 of Ann Hodgetts and 744 others. I share the petitioner’s concerns about the effectiveness and enforcement of protection orders. The police and judges have never applied the Domestic Violence Act properly in almost two decades, thereby undermining the intent and effectiveness of the act and jeopardising the safety of women and children.
I agree with the Committee’s recommendation that the Ministry of Justice should examine protection orders as a crucial aspect of the current review of the effectiveness of domestic violence legislation. I also agree with the Committee’s recommendation that the Ministry should develop strategies to reduce the number of protection order breaches by addressing underlying issues. However, I do not agree that alcohol and drugs are the key underlying issues. The key underlying issue is male attitudes towards women. I believe that focusing on violence and drugs are red herrings which do not address the real issue.
I also disagree with the Committee’s recommendation that renewable expiry dates should be set for protection orders. This might appear a superficially attractive idea, but I do not believe that the Committee understands the practical implications it would have. The Domestic Violence Act 1995 was passed following a report prepared by Sir Ronald Davison in the wake of the killing of Claudia, Tiffany and Holly Bristol by their father. Prior to the 1995 act, protection orders expired if the parties reconciled. It is a feature of the 1995 act that protection orders now remain in force even if the parties reconcile. This is to protect the women and children.
There may be a number of separations and reconciliations. If the woman has to apply for protection orders repeatedly, she will not do this. It is extremely expensive, time-consuming and stressful obtaining an order. The current system of orders remaining in force once they are made final should be retained. I recognise that the Committee in recommending renewable expiry dates on protection orders intended to assist with more effective case management of protection orders.
However, my experience of the lack of resources in the Family Court convinces me that reviews would not take place as intended by the Committee. This can be seen by the way in which the six week requirement in the act for determining violence allegations is seldom adhered to. I am also concerned that renewable expiry dates would lead to confusion among police officers as to whether or not a protection order still existed and should be enforced by the police. In the period after the Domestic Violence Act came into force, the police would in some cases refuse to enforce protection orders if they were a couple of years old. They would say they would only act if the woman obtained a new order. This was not what the law said, but this was what actually happened in practice. That is why I support the current system of orders remaining in force once they have been made final.
7 Property orders
What changes would enhance the effectiveness, use and enforcement of property orders ? For example:
What other ideas do you suggest ?
Lack of affordable and safe alternative accommodation remains a major barrier to women and children leaving violent relationships. All too often they have nowhere to go. Last night, for example, a domestic violence victim was seeking refuge accommodation in Auckland but there was not a single spare bed anywhere. This is often the case.
In the past, there has been an emphasis on women and children leaving the home and seeking sanctuary in a refuge. This is in credibly disruptive to the women’s and children’s lives and all too often means the children cannot attend their normal schools and the woman might not be able to get to work. This has long-term consequences.
I strongly support an assumption that the women and children should remain in the home, and the perpetrator should be required to leave. Judges should accordingly make property orders whenever they grant protection orders. Increased funding needs to be provided so that the homes of all domestic violence victims can be fitted with alarms and other protections as in the scheme piloted by Shine. It is abhorrent that victims of violence are expected to leave their homes and safe and secure accommodation is not made available to them.
I do not have statistics, but suspect that property orders are rather rarely used. It would be good for statistics to be collected and analysed so that it can be ensured that judges greatly increase their use of property orders.
8 Police safety orders
What changes might enhance the effectiveness, use and enforcement of Police safety orders ? For example:
What other ideas do you suggest ?
I believe that the current duration of Police safety orders – between three and five days – is too short. They should last for a longer period.
I also consider that breaching the orders should be an arrestable offence. I agree with the areas for improvement outlined on page 24 of the discussion document following the evaluation of Police safety orders.
While it would be helpful for perpetrators to be referred to services such as short-term housing, I believe the emphasis should be on providing safe accommodation for the women and child victims. The position in that regard is currently inadequate, so it is my view that this should be improved before attention turns to providing housing for perpetrators.
9 Family violence and parenting arrangements
How should risks to children and to adult victims be reflected in parenting arrangements under the Care of Children Act 2004 ? How could parenting orders and protection orders be better aligned ? For example:
What other ideas do you suggest ?
I strongly urge that all three of the points canvassed in the bullet points above be implemented immediately. Following the killing of the Tiffany, Holly and Claudia Bristol by their father, Sir Ronald Davison prepared a report which led to the passing of the Domestic Violence Act 1995. The aim was to provide better legal protection to women and children from domestic violence. In particular, section 16B was inserted into the Guardianship Act to protect children in cases of domestic violence. However, this protection was removed when the Family Court changes were made by the Government, despite strong submissions against doing this by those working to combat domestic violence.
The safety of children must be the paramount consideration when parenting arrangements are being made. Judges must be required in every case to give priority to the implications of the existence of a protection order when making decisions about parenting arrangements. That is not what happens in practice. Instead, a majority of Family Court judges give priority to ruling that fathers should have ongoing contact with children at virtually all cost and regardless of the threat to the safety of the women and children. This means that parenting orders and protection orders essentially contradict one another.
This issue was also raised at the meeting with Family Court judges held at the Manukau Court in 1999 and referred to earlier in this submission. Judges were not able to provide any explanation for the contradiction.
Women may seek to move to a different part of New Zealand to get themselves and their children away from a violent husband and father who presents an ongoing risk. However, all too often the Family Court will give priority to the father’s “right” to contact with the children and will ban the woman from moving to a safer location.
There are two particularly dangerous aspects of the current operation of the Family Court which run counter to the Domestic Violence Act and to efforts to protect women and children from domestic violence. The first of these is the continuing application of Parental Alienation Syndrome. The second is the application of so-called “situational violence.” We discuss each of these in turn below.
It is a deep concern and a major threat to the safety of women and children that the New Zealand Family Court continues to apply the doctrine of Parental Alienation Syndrome, which has long been discredited in the United States, from where it originated.
It is now accepted in the United States that there is no such thing as Parental Alienation Syndrome. No research conducted in the United States has ever been able to produce evidence of Parental Alienation Syndrome.
Parental Alienation Syndrome is a term coined by Richard Gardner in the United States in the early 1980s. The term achieved influence and the so-called syndrome began to be applied in courts making decisions about the care of children after Gardner widely circulated his book about the so-called syndrome among judges and lawyers. Gardner subsequently “trained” thousands of judges and lawyers, both in the United States and in New Zealand. He claimed that the vast majority of children who reported sexual abuse were fabricating what they said and had been alienated and coached by their mothers.
As early as 1993, research in the United States questioned the existence of Parental Alienation Syndrome. More than 500 studies have now been conducted into Parental Alienation Syndrome and not one of them has been able to reproduce the eight characteristics claimed by Gardner. Gardner’s books were all self-published and none was peer reviewed. His books were not based on research.
American lawyer John Myers in 1993 argued that there was no empirical evidence to show that the eight claimed characteristics of Parental Alienation Syndrome were a syndrome. Some research about Parental Alienation Syndrome is as follows:
The American Psychological Association’s Presidential Task Force on Violence and the Family in 1996 reported that many mothers were losing custody cases in which there were concerns about domestic violence because abusive fathers were able to convince the court that the mothers were engaged in alienating behaviours. This tragic and frightening outcome continues to happen til this day in the Family Court in New Zealand: judges are dismissing and ignoring reports of violence by women and children on the grounds that these are fabrications designed to alienate the children from their father.
Gardner’s recommendations were that the mother reporting violence and abuse should be encouraged to stay with the abusive father; she should be helped over her “anger”; and the child should be placed in the father’s care in cases of separation.
In cases where women and children report abuse and violence, the application of Parental Abuse Syndrome means that children are threatened with being removed from their mother’s care if they persist with their reports of abuse; mothers are threatened with having children removed from their care if they continue to report; and judges in some cases have placed the children in the care of the abusive parent and even gone so far as to cut off contact with the protective parent.
Bancroft & Silverman’s research reported that families with “the greatest degree of psychological health among mothers and children appear to be among those most vulnerable to being labelled as having “parental alienation.” This is because the children have a secure attachment to the protective parent and – completely rationally and understandably – reject outright the abusive behaviour of the batterer on separation. However, instead of the courts and professionals listening to the women and children, their reports of violence and abuse are dismissed as false complaints arising from alienation.
One American study found that batterers were able to convince authorities that domestic violence victims were unfit or undeserving of sole custody of children in 70 per cent of cases in which custody was challenged. On appeal, when some of these situations were more deeply investigated, the allegations made by the women and children were found to be substantiated and the decisions to place the children in the care of the batterer were reversed. Joan Meier studied 2001 case law in the United States and identified 38 appellate state court decisions concerning custody and domestic violence. She found that 36 of the 38 trial courts had awarded joint or sole custody to the alleged and adjudicated batterers. Two-thirds of those decisions were reversed on appeal. However, there are incredibly few appeals in family cases. Women lack the financial resources to pursue appeals, which are an incredibly traumatic and time-consuming exercise.
The judgment of Justice Moore in the High Court at Auckland in the case of F v P  NZHC 1362 was released on 16 June 2015. Justice Moore, who was Crown Prosecutor for Auckland and had no background in family law prior to his appointment to the Bench, discussed alienation in great detail in a 149-paragraph judgment. Justice Moore determined that the clearly-expressed wishes of the son should be ignored, stating that –
“Plainly, in the present case where T exhibits such high levels of antipathy towards his father, falsely alleges assault and holds his father singularly responsible for the difficulties he faces in life, the vehemence of his opposition must be placed in context. In the circumstances I attribute relatively little weight to his opposition.”
These comments run completely contrary to the evidence provided by research, which clearly shows in many studies over many years that false complaints of abuse and violence are incredibly rare. Dr Daniel Saunders’ 2010 research relating to the beliefs of judges and custody evaluators found that they believed that –
All of these beliefs run contrary to what evidence has established. Bala & Schuman’s 1999 Canadian research found that when accusations made in child custody and access disputes were reviewed, 21 % of allegations by fathers were judged to be false, while 1.3 % by mothers were judged to be false. Trocme and Bala’s 2005 Canadian research was based on a sample of 7632 cases. It found that 4 % of allegations of child abuse by children against parents in cases of child maltreatment were maliciously fabricated. In disputed child custody cases, fathers were found to bring 43% of all intentionally-fabricated allegations, while custodial parents (usually mothers) brought 14%.
Judges, lawyers and others in the New Zealand Family Court urgently need to cease applying this non-existent syndrome. Their ongoing use of it is undermining the law and jeopardising the safety of women and children.
Secondly, the New Zealand Family Court also continues to apply the non-existent concept of “situational violence” in domestic violence and contact and care cases. “Situational violence” is said to be violence which occurs only at the time of separation, and which can therefore be disregarded as it relates only to a finite period in time.
There is no such thing as situational violence. Violence is violence. The application of the term “situational violence” by judges, family lawyers, lawyers for children and others working in the Family Court means that women and children are not getting the legal protection the law is designed to provide.
All cases of violence should be treated seriously. In one recent Family Court case in New Zealand in which the woman had repeatedly been subjected to severe physical violence for which she had been hospitalised, she was asked whether she had ever been violent. When she truthfully replied that she had in frustration thrown some of the father’s possessions outside, the judge ruled that the case was one of mutual “situational violence” and appropriate for shared care of the children. This was despite evidence of the mother’s injuries being provided in medical reports.
Judges in New Zealand continue to operate according to the following mistaken beliefs –
Evidence does not support any of these beliefs.
Women are repeatedly told by family lawyers and lawyers for the children not to report violence or abuse as their reports will not be believed, they will be described as “alienating” parents, and the reports are more likely to lead to the violent man obtaining sole care of the children. This is absolutely shocking and exactly the opposite of what should be happening. It is no wonder that there is an epidemic of domestic violence in New Zealand and that it is continuing to rise, rather than to fall.
Until the New Zealand Family Court stops applying the non-existent concepts of Parental Alienation Syndrome and situational violence, there is no point in passing further laws designed to protect domestic violence victims and reduce domestic violence. They will be utterly ineffective if judges and lawyers continue to misapply the false lens of these non-existent concepts to the new laws.
I am perturbed and disappointed by the second-to-last paragraph on page 27 of the discussion document, which states that “There may also be concerns raised about the risk that protection orders will be used for tactical advantage, and re-litigation of protection orders through Care of Children Act 2004 proceedings.” This sentence is abhorrent. It continues the misogyny in our law which has been present for hundreds of years and is based on men asserting that women frequently lie. All the evidence is utterly to the contrary. New Zealand does not have a problem with women using protection orders for “tactical advantage.” As clearly stated in the report, New Zealand has a problem with an epidemic of domestic violence, which the legal system has been utterly ineffective in addressing or reducing over decades. We refer to pages 4 and 5 of the report, which record that New Zealand has the highest reported rate of intimate partner violence in the developed world (despite it being estimated that only 20 per cent of domestic violence cases are reported to police) and that police responded to more than 100,000 domestic violence events in 2014. I also urge government agencies and the Government to stop referring to domestic violence events as “incidents.” “Incidents” are minor occurrences and it is therefore inaccurate to use this word in relation to domestic violence.
10 Family violence in criminal law
What changes, if any, could be made to the criminal law to better respond to family violence, including the cumulative harm caused by patterns of family violence ?
What other ideas do you suggest ?
I agree that new offences as outlined in the two bullet points above should be created. These are essential to reflect the ongoing pattern of abusive and violent behaviour typified in domestic violence.
I also strongly agree that domestic violence should be an aggravating factor in sentencing. It should as a matter of course be treated as an aggravating factor – I do not believe that the qualifications of “repeated” and “serious” are required. At present, when defendants convicted of offences in a domestic violence context are sentenced and the judge sees they have previous convictions for such offending, the judge asks whether the earlier convictions relate to the same victim. If the earlier convictions relate to a different woman, the judge regards the matter as being less serious. This approach must be stopped immediately. It is unacceptable for a defendant to be repeatedly committing offences against the same partner. However, it is equally unacceptable for defendants to commit offences against a series of women – which is an all-too-common scenario.
I also record my deep concern about the eight Family Violence Courts operating within the District Court jurisdiction. These were set up to try and ensure that the criminal court dealt better with domestic violence. However, this is unfortunately not what has eventuated in practice.
The Family Violence Courts in the District Court often apply a so-called “therapeutic approach” when dealing with cases. This is completely wrong. Their key focus should be on the safety of women and children. A therapeutic approach not only fails to focus on safety: it actually jeopardises safety as the focus is on the couple reconciling. The focus should instead be on providing adequate resources so women and children can permanently escape from violent relationships.
I submit that no further Family Violence Courts should be established and that there should be a detailed review of the ones which are already operating with a view to making major changes to them if they are to continue.
11 Victim safety in bail and sentencing
What changes would ensure victim safety is considered in bail decisions and sentencing decisions ? For example:
What other ideas do you suggest ?
I agree that victim safety should be the paramount consideration in bail decisions in all cases involving domestic violence, as well as for specific charges such as male assaults female. It is staggering that this is not already the case. There should be no qualifications to this requirement: judges should always consider victim safety as the top priority.
I believe that the safety of women and children would be enhanced if police did more monitoring of bail conditions but they lack the resources to do this.
Domestic violence victims are asked in open court, in front of both the defendant and his lawyer, whether they want the defendant to be bailed and whether they want to resume the relationship. This places the woman in an invidious and dangerous position. It should be the judge’s responsibility to make these decisions and this should be plain to the defendant. Placing the responsibility on the woman makes her extremely vulnerable once the defendant is released from custody.
Judges and the police require detailed and ongoing training in relation to domestic violence. The failures by the police and the courts to protect domestic violence victims in the past 20 years demonstrate all too clearly the lack of understanding by the police and judges about domestic violence. In particular, it is vital that the police and the courts look at the history of the situation, rather than looking at each event in isolation. When they do the latter, they are all too inclined to dismiss particular events as trivial. However, when such events are seen in context, the pattern of harassment and intimidation and flouting of the law becomes apparent.
The role of Court Victim Advisers is extremely unsatisfactory and widely misunderstood. In fact, they are not actually advocates for victims. It would be best if the role of Court Victim Adviser was abolished and replaced with Court Victim Advocates whose role it was to advocate on behalf of victims.
I support judges having access to all information about a perpetrator’s previous violence and abuse offences, including violence and abuse against previous partners and others (for example, siblings, parents, children). I support the introduction to New Zealand of a law based on the United Kingdom’s “Clare’s Law,” which would allow women to obtain information about the violence histories of their partners.
I strongly support the announcement by Justice Minister Amy Adams on 26 August 2015, when she stated that there was a to be a pilot programme run in Porirua and Christchurch involving providing new reports on defendants’ family violence histories to judges when they make bail decisions. I hope that this pilot will prove positive in practice and will then speedily be extended to the rest of New Zealand and be made permanent. It is essential for judges to have full information when making bail decisions.
I also strongly support the announcement by Minister Adams on 1 September 2015 of new information sharing rules between Family and Criminal Courts as part of work to reduce domestic violence. It is essential for judges to have access to all information relating to violence and the history between the parties so that judges are aware of the pattern of violence in a relationship and can make informed decisions.
It is also vital for judges to have access to defendants’ criminal histories from overseas, particularly Australia. I understand that this was a work stream that was begun several years ago. I hope it will result in judges being able to obtain information from overseas. The Livingstone Inquest report earlier this year revealed that, when judges granted Mr Livingstone diversion on a first charge of breaching a protection order and a discharge without conviction on a second charge of breaching a protection order, there was no judicial knowledge of Mr Livingstone’s prior history of arson against a previous partner in Australia.
12 Judicial powers in criminal proceedings
What powers should criminal court judges have to vary or suspend orders usually made by the Family Court, or to make orders at different stages in proceedings ? For example:
What other ideas do you suggest ?
I have difficulty in envisaging how this would operate in practice and am concerned about whether it could actually jeopardise the safety of women and children. I would like more information about exactly what issues this proposal is designed to address. I believe that, if consideration were to be given to giving criminal court judges such powers, a pilot would need to be run to ascertain how this would operate in practice. I do not believe that enough details are provided on page 36 of the discussion document, where this is discussed, to enable me to provide a considered response.
13 Best practice
What changes would you suggest to court processes and structure to enable criminal courts to respond better to family violence ?
The Family Violence Courts operating in the District Court should be thoroughly reviewed. They should immediately cease applying a “therapeutic” approach in domestic violence cases.
Instead of Family Violence Courts, consideration should be given to establishing domestic violence courts which would operate with specially-trained judges and lawyers. I support remarks made by Justice Minister Amy Adams on 28 August 2015, when she suggested such courts should be established and judges and defence and prosecution lawyers could be specially warranted to work in them.
I record my concern about cost-cutting at District Courts which is leading to the merging of family and criminal reception counters. These were in the past separate. Similarly, the move to District Courts having only one entrance has meant the closing of separate entrances previously used for Family and Youth Courts. This is yet another example of cost-saving being given greater priority than the safety of victims.
14 Additional pathways
What ae your views on an additional pathway for families who seek help to stop violence escalating ? Is such a pathway necessary or appropriate ?
What are your views on the range and type of services that might be appropriate in the circumstances ?
What are your views on clarifying in law that Police take at least one of the following steps when responding to family violence reports:
What other ideas do you suggest ?
I support the provision of counselling and Stopping Violence programmes to perpetrators at all times. I support the provision of counselling and appropriate services for victims and children. In order for any changes made in this regard to be effective, considerable extra resources would be required.
Perpetrators can access free Stopping Violence programmes if a protection order has been made against them but otherwise are required to pay for programmes. There are too few programmes and many perpetrators cannot afford to attend them. In addition, there are often delays of many weeks in people accessing programmes. This is extremely counter-productive as it means any motivation to change that the perpetrator might have had disappears in the interim period.
There has never been enough funding for programmes for women and children.
Research evaluating the outcomes of Stopping Violence programmes for perpetrators indicates that they produce mixed results. It would be interesting to conduct research evaluating whether it would be more effective to spend the money currently spend on Stopping Violence programmes for perpetrators on programmes for victims.
I support police being required to take prescribed steps in all cases.
I do not support the use of restorative justice or mediation in cases involving domestic violence. There is a power imbalance which makes restorative justice and mediation completely inappropriate in such cases. I am very concerned by developments this year which appear to indicate an intention to use restorative justice in domestic violence cases. I was disappointed and alarmed to hear Justice Minister Amy Adams says that she supported this. I attended Professor Leigh Goodmark’s Auckland lecture earlier this year and was very concerned about what she said. I do not support her suggestions for alternative ways of dealing with domestic violence cases.
15 Information sharing between agencies
What changes could enhance information sharing between agencies in family violence cases ? For example:
I believe that safety concerns should be given priority over the privacy of the perpetrator. I support the introduction of a new law in New Zealand modelled on “Clare’s Law” in the United Kingdom.
Strenuous safeguards need to be in place to ensure that information about victims does not fall into the hands of perpetrators or perpetrators’ family members or friends. I am aware that perpetrators sometimes ask acquaintances to search for new and confidential addresses for victims in the computer systems of government agencies.
16 Information sharing with and between courts
What changes could enhance information sharing between courts and other agencies, in family violence cases ?
What other ideas do you suggest ?
I support the above suggestions. I have discussed earlier the shortcomings in the Livingstone case, when judges were not aware that Mr Livingstone had committed arson in respect of a former partner’s property in Australia.
The positive duty should apply to counsel as well as to the parties.
17 Safe and competent workforce
In your view, what impact would setting minimum workforce and service delivery standards have on the quality of services ?
What challenges do you see in implementing minimum statutory standards ? For example,
What other ideas do you suggest ?
New Zealand is completely out-of-step with other jurisdictions in failing to require and provided ongoing, specialist training for those dealing with domestic violence. There is little or no training provided and most of those dealing with domestic violence within the criminal justice system have very limited knowledge about it.
There are ample overseas models which New Zealand could draw on to set standards and design training to remedy this huge shortcoming which massively undermines this country’s response to domestic violence. Judges, lawyers, lawyers for children, mediators, counsellors, specialist report writers and others should be required to undergo domestic violence training and to have yearly updates.