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Living at the Cutting Edge
Women’s Experiences of Protection
Volume 2: What's To Be Done? A
Critical Analysis of Statutory and
Practice Approaches to Domestic

A report prepared by
Neville Robertson, Ruth Busch, Radha D’Souza, Fiona Lam Sheung,
Reynu Anand, Roma Balzer, Ariana Simpson and Dulcie Paina
of the University of Waikato (School of Law and the Māori and Psychology
Research Unit)
for the Ministry of Women’s Affairs
August 2007

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Dedicated to the 212 women and children who have died in domestic violence homicides since the
enactment of the Domestic Violence Act 19951.


Cherie Hoyle (29 years)
Chay Grant

Robert Grant (4 years)
Stephanie Skidmore (20 years)

Leonie Newman (26 years)
Victoria Watson (8 months)
Charmaine Julian (42 years)

Veronica Takerei-Mahu (11months)
Sara Nixon (7 years)


Andrea Brander (52 years)
Child, name not known
Child, name not known

Shae Hammond (17 months)
Anaru Te Wheke Donny Te Moananui Rogers (17 months)

Rosemary Roberts (27 years)
Pet Kum Kee (49 years)

Brittany Crothall (3 years)
Jamoure Chaney (10 months)

Casey Albury (17 years)
Karen Jacobs (26 years)
Moana King (34 years)

Stephanie Baker (26 years)
Andrea Torrey (28 years)
Wynell Lelievre (15 years)
Catriona Fettes (33 years)

Tishena Valentine Crosland (2 years)
Peti Taihuka Cherie Kokiri (12 years)

Marcus Te Hira Grey (2 months)
Kim Ihaka (22 years)

Deidre Williams (22 years)

Alofa Fasavalu (38 years)
Liam Sullivan (3 months)

Baby boy, name not known
Angelina Edwards (25 years)

1 This list was supplied by the Family Violence Technical Advisory Unit (PO Box 1219, Hamilton). Because it was
compiled from a search of newspapers, some domestic violence deaths may have overlooked.

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11: Children and Domestic Violence: The Legal Context 140

What does concern me more than anything else about the present arrangements is
the fact that the children do not see as much of their mother as I would think is
appropriate and as much of her as they clearly desire to see. What I would wish for
them is a situation where both parents lived close to each other and the children were
able to move freely and comfortably between their homes and to spend reasonable
periods of time in the home of each of them …

I urge [the] mother to return to Auckland as soon as she is able. Once she has sorted
herself out as I understand her to explain her essential reason for going back to
Gisborne, I think she should consider returning to the South Auckland area and once
again seeking to be more involved in the care of the children than the distance
between herself and them will permit at least in the immediate short-term future. At
that stage, I would want to put in place an arrangement which as far as possible
provided these children with the benefits of a shared parenting regime.

Just like in B v M, one can only wonder what “the benefits of a shared parenting regime” for
these children will be. Can we really believe (again) in this Disney movie scenario of “free and
comfortable movement between the two homes” in the face of the fear and abuse both the
mother and the children have suffered at the hands of the father? What are the psychological
assumptions underpinning the Family Court judge’s optimism that his hopes could possibly be
achieved (ignoring, for a moment, his statutory obligations under the Guardianship Act 1968)?

High Court Decision

The High Court in M v M reversed the Family Court judge’s decision. Justice Priestley, moreover,
specifically dealt with the desirability of allowing the children to relocate to Gisborne with their
mother. In this regard, Justice Priestley stated:483

I consider that the learned Family Court Judge has erred in his stated preference for
the mother residing in South Auckland. Such an approach does not recognise to an
adequate extent the post-traumatic stress disorder symptoms still operating on the
mother and her ability to function adequately as the caring and competent parent she
is. The mother needs to be in a supportive environment with her own family and
outside the orbit of the father’s control and influence.

While the Family Court judge had felt that the move to Gisborne would be destabilising for the
children, Justice Priestley disagreed. He found:484

In my judgment such a move would be in the best interests of the children. It would
place the children in the daily care of a committed and caring parent who is well on
the road to recovering from the effects of an abusive relationship. Such a change
guarantees a preservation of the relationship between the mother and the three
children. I do not consider that the mother would attempt to limit the contact between
the children and their father. Nor do I consider that, given regular and predictable
contact with their father, the children will become alienated from either him or his
Tongan culture.

Some Implications of M v M
In M v M, the Family Court denied the applicant the chance to relocate, even though, as the High
Court was to later find, such a move was in both her interests and those of her children. Louise
and Amanda both had similar outcomes to their parenting hearings, but neither appealed the
decision to the High Court. We think the approach adopted by the Justice Fisher accords with
what is known, not only about the effects of post-traumatic stress but also about what is needed
for children to heal from the effects of violence. Healing is likely to be promoted if children are

483 Ibid, at paragraph 71.
484 Ibid, at paragraph 71.

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11: Children and Domestic Violence: The Legal Context 141

“outside the orbit of the [abuser’s] control and influence”485 and if the custodial parent is well
supported. Accordingly, we recommend:

THAT section 4 of the Care of Children Act 2004 be amended to the effect that, where a
party has used violence against the other party or a child of the other party (as
defined by section 3(2) of the Domestic Violence Act 1995), the court must, in
determining what best serves the child’s welfare and best interests, take into
account any wish of the other party to relocate so that she or he is able to recover
from the trauma of violence and to better provide an environment which will
support the recovery of the child. (#7)

In M v M, the High Court followed up its excellent analysis of the need of battered women to be
able to relocate by giving specific and detailed orders about ongoing access and telephone calls.
This carries out an approach that we support and recommend. Because an abusive partner is
likely to exploit every ambiguity to demonstrate his ongoing capacity to disrupt and control the
life of the former partner, parenting orders where there has been domestic violence need to be
drafted with clarity and precision to minimise the need for ongoing interpretation and negotiation
between the parties.486 Moreover, clarity and specificity mean that it is easier to demonstrate non-
compliance with an order that is clear, giving the court a solid basis for modifying the

This sort of exemplary approach reflects a good understanding of the dynamics of domestic
violence and of the risks batterers pose to their partners and children. Conversely, as we have
commented earlier, a lack of understanding is implicated in some of the problematic decision
making reviewed in this and previous chapters. As Lord Justice Nicholas Wall has observed,
inadequate training can contribute to needless deaths. We agree with him that judges and other
professionals need to be properly trained and that such training needs to be regularly updated.
We recommend:

THAT the Ministry of Justice ensure that all professionals (for example, judges, counsel
for the child, specialist report writers, mediators, counsellors and supervised
access providers) working in the Family Court and specialist domestic violence
criminal courts be required to demonstrate a multidisciplinary understanding of
domestic violence, including the principles of scientifically rigorous risk
assessment, prior to their appointment, and that they be required to participate in
annual “refresher” training on these matters. (#13)

Moreover, we think that practice will be improved by regular evaluations of the outcomes of
judicial decisions. At the moment, judges seldom receive feedback on the outcomes which follow
their decisions. Good evaluation could provide such feedback. We recommend:

THAT the Ministry of Justice commissions periodic evaluations to assess the extent to
which decision making regarding applications for protection orders and parenting
orders contributes to the Domestic Violence Act 1995’s goal of providing effective
protection to victims of domestic violence and their children. (#23)

485 Ibid, at paragraph 71.
486 Bancroft, L., & Silverman, J. G. (2002). The batterer as parent: Addressing the impact of domestic violence on family dynamics.
London: Sage; Dalton, C., Carbon, S., & Olesen, N. (2003). High conflict divorce, violence, and abuse: Implications
for custody and visitation decisions. Juvenile and Family Court Journal, 54(4), 11-34. As the latter authors state:
“Requiring ongoing negotiations between the parents over major decisions involving the children is similarly
unacceptable, because the abused parent and children will remain hostage to the abusive parent’s agenda.”

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Appendix 4: Interview Protocol 290

(a) Source of knowledge and advice.
(b) Expectations of protection orders

• Tell us about the process of applying for an order… If necessary, probe for
(a) Experience of dealing with lawyer(s).
(b) Application made/put on notice.
(c) Outcome of application.
(d) Who was covered by the order (children, current partner, family members, associated

(e) What difference protection order expected to make.
(f) Cost of applying?

• Was the application granted? Without Notice? On notice? If necessary, probe for
(a) Had you applied on a without notice/on notice basis?
(b) Was the application placed on notice?
(c) Implications of having application on notice.
(d) Her experience of a defended hearing
(e) Length of time taken to process.
(f) Her experience of the court process – judiciary, lawyers, court staff, police etc

• If order granted, So what did the order say? If necessary, probe for
(a) Who was covered by the order.

(b) Any associated respondent named.

(c) Any special conditions.

(g) Respondent directed to a stopping violence programme.
(h) Was the order served? When?

• If order not granted, What did you feel about that? If necessary, probe for
(a) Respondent’s reaction.
(b) Implications for other proceedings.
(c) Respondent’s subsequent behaviour.

4. Effectiveness of the protection order
Here the intention is to explore the interviewee’s experience of having a protection orders,
including any breaches and the response to such breaches. Sample questions from this part of the
interview are:

(A) For women who reported no breaches.

Check understanding of breaches

• I see on the profile sheet that you ticked the box saying that the protection order was not breached. Does that
mean that your(ex) partner left you alone?

Where no breaches confirmed

• Why do you think that was?
• Do you think that the protection order was useful in getting your (ex)partner to stop harassing/abusing you?
• Has having the order been a problem in any way? How?

(B) For women whose orders were breached.

• I understand from your profile sheet that your order was breached. Is that right? Tell us about that. If
necessary, probe for
(a) Events, dates, nature of breaches.
(b) How did the breaches impact on her life?

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Appendix 4: Interview Protocol 291

(c) Other events which may not have been recognized as breaches (uninvited visits, phone
calls etc)

(d) Whether interviewee reported breaches (and why/why not).
(e) Whether others reported breaches (Who?).
(f) Police and court responses, including timeliness, warnings, arrest(s), bail decisions,

gathering of evidence, charging for breach, charging for concurrent offences,
prosecution(s), outcome of prosecution(s). Respondent’s subsequent behaviour.

(g) Help provided by lawyers, family, friends, advocates etc.
(h) Extent to which breaches were considered in other proceedings.
(i) Throughout – How satisfied were you with that response?

(A) and (B) (i.e. whether order breached or not)

• In retrospect, do you feel that obtaining a protection order served you well in terms of increasing the safety of
you and your children? Why/why not?

• Has the order been useful in any other ways? (e.g. has it changed the way other people view

• Would you get a protection order again if the need arose?
• What advice would you give any one thinking about getting a protection order.

5. Closing
In this part of the interview we will

• Check if there is anything else the interviewee wants to add.
• Discuss with her who else we would like to interview to round out her case study (e.g.

lawyer, case worker, police officer) and ask her permission to interview the individuals
concerned and to access relevant files relating to her case. Get written authority.

• Negotiate safe and convenient arrangements for reviewing the draft case study.
• Ensure that she has information about where she can go for further support/advice/

counseling if needed .
• Tell her we will give her a follow up phone call (and check safe way of doing this).

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