LAWFUEL – The Legal Newswire –
Monday, 27 August 2007 – University of Waikato researchers into domestic violence have called for sweeping changes in the treatment of battered women by the courts and government agencies coupled with amendments to the laws designed to protect them and their children.
Their report, “Living at the Cutting Edge Women’s Experiences of Protection Orders”, highlights serious failings in the way in which battered women are treated by the courts, the police, Child Youth and Family, immigration and other agencies. It makes a total of 46 recommendations.
Commissioned by the Ministry of Women’s Affairs and released today (August 27), the report says the Domestic Violence Act 1995 has failed to realise its promise because of serious inadequacies in its implementation by the judiciary
“This is particularly evident in the decisions of certain Family Court judges who have, for example, failed to carry out the risk assessment mandated by section 61 of the Care of Children Act, 2004, or who have added an extra ‘gloss’ to the criteria for granting without notice protection orders to impose a higher threshold than Parliament intended.
“Such decision makers need to implement the law as it is written, not as they wish it were written. In many ways, our most important message is enforce the law.”
The two-year research project was headed by Associate Professor Ruth Busch, School of Law, and Dr Neville Robertson, Senior Lecturer in psychology, whose work 15 years ago resulted in the enactment of the Domestic Violence Act and sections 58 through to 61 of the Care of Children Act.
Their findings are based on 43 case studies of Pakeha, Maori and Pasifika women, and women from other ethnic minority backgrounds, and information from a wide range of other sources, including decisions of the Family Court, criminal courts, Residence Review Board, social agencies and social science and legal research into domestic violence.
Most of the 43 case studies are recent, some still ongoing. A few cases are more than two years old and where there have been legislative or practice changes in the meantime, these are discussed in the report.
Associate Professor Busch says as a law professor she believed the enactment of the Domestic Violence Act in 1995 would have led to better protection for battered women. “The law is basically sound but we are still seeing judgments which tacitly collude with batterers’ interests and expose women and their children to the risk of further abuse.”
Of particular concern, she says, is the handling of without notice applications for protection orders which are put before a duty judge who, typically “considers them during a tea break or after other court business has been completed for the day”.
Associate Professor Busch says some judges give no reasons for declining an application for a temporary protection order or putting the application on notice (where the respondent is notified and a defended hearing scheduled some time in the future, usually at least 3 months in the future).
“These applications are considered ‘on the papers’ with neither the woman nor her lawyer present. While this may be administratively efficient, applicants are denied natural justice through current practice,” she said.
“Like anyone else who seeks a court decision, an applicant has the right to know why her application has not been granted. It needs to be remembered that these applications for temporary protection orders are the most dangerous ones that the Family Court will decide; getting the decision wrong through the use of a summary tick box approach places women and their children at risk of further, perhaps even more serious violence.
For non-resident women whose abusers were also the sponsors of their application for residence, applying for a protection order was generally not an option because the threat of their removal from New Zealand and the possibility of permanent separation from their children posed serious barriers to made calling the police or obtaining a protection order.
“This is one of the biggest problems for this group of battered women. Migrant women are often dependent on the sponsorship of an abusive partner when applying for residence. He is able to unilaterally withdraw that sponsorship and at the same time obtain a court order to stop their children being removed from the country.
“Without his sponsorship, the battered immigrant woman becomes an over-stayer and can be deported but her children cannot leave with her. That is exactly what happened in one of our case studies. It’s a double whammy,” says Associate Professor Busch.
Dr Robertson says the research is a serious indictment of the way in which New Zealand treats victims of domestic violence.
“It takes two children to be mauled by dogs and the law is changed. How many women and children will have to die before we address adequately the issue of domestic violence in our country? Our child abuse and homicide record is the third worst in the OECD.”
Dr Robertson says the court’s preference for mediation and conciliation processes in resolving parental conflicts – despite a strong social science consensus that these processes are inappropriate in cases of domestic violence – meant that some women were bullied into accepting unsafe or unnecessarily burdensome parenting and or contact arrangements.
“It’s madness to suggest that someone who beats up the mother of his child can also be a ‘good dad’. As the English Court of Appeal has made clear, it’s a total failure of parenting and it may be in the best interests of the child to have only supervised contact with that parent.
“The courts should not allow unsupervised access to a child without a specialist report that the child will be physically, sexually and psychologically safe during those contact arrangements and no-one should be required to attend counselling if the abusive partner is present.”
The report highlighted a number of barriers to women making an application for a protection order including lack of information; fear of the abuser’s payback, poverty, shame and, in some cases, community condemnation. Cost was a significant barrier to women ineligible for legal aid.
The researchers said they could find no compelling legal reasons for the barrier for obtaining temporary protection orders being raised and current judicial practice seemed to run counter to the object of the Domestic Violence Act.
While getting a protection order was a psychological boost for most women, any relief was in the majority of cases short-lived. The report said most women experienced multiple and repetitive breaches of their orders and, in some cases, respondents embarked on sustained campaigns of stalking and harassment designed to threaten and intimidate them.
“Seldom were men subject to any meaningful consequences for such breaches. Women in our case studies often experienced a quite inadequate response from the police when they reported breaches of their protection order. Overall, police enforcement of protection orders was inconsistent. In many respects, whether a woman received an effective response or not depended on the luck of the draw.”
Inadequate enforcement of protection orders extended to the criminal courts. Few men who breached their orders were ever convicted of such offences and even fewer received a meaningful sentence.
In one case, a man who beat up his partner in front of the children – at one stage he held a knife at his daughter’s throat – was able to plea bargain to get some of the charges dropped. He was sentenced to 180 hours community service and now has regular contact with the children who were witnesses to the assault..
“Overall, the experience of the women in our case studies tended to confirm what many key informants told us: despite the provisions of the Domestic Violence Act and sections (58-61) of the Care of Children Act, ongoing contact with an abusive father trumps safety for women and children,” concluded the report.
The full report, “Living at the Cutting Edge Women’s Experiences of Protection Orders”, can be accessed on the University of Waikato’s website from 2.30pm, Monday, August 27 at: http://research.waikato.ac.nz/CuttingEdge/