Download Living at the Cutting Edge PDF

TitleLiving at the Cutting Edge
File Size2.5 MB
Total Pages306
Document Text Contents
Page 1


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)
Commissioned by the Ministry of Women’s Affairs
August 2007

Page 153

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.”

Page 154

142 Living at the Cutting Edge

Parenting Hearing Programmes Pilot
That it is now harder to obtain a protection order without notice, the use of a typology which
minimises violence, a reported trend in Care of Children Act 2004 determinations in which
contact is privileged over safety, and a growing reluctance to allow women to relocate suggests
significant undermining of the objects of the Domestic Violence Act 1995 to “recognis[e] that
domestic violence in all its forms, is unacceptable behaviour … and ensur[e] that … there is
effective protection for its victims.”487 Unfortunately, a recent innovation in the Family Court is
likely to further undermine those objects.

In November 2006, the Family Court began to pilot “a new court process for determining
difficult childcare cases.” 488 According to a Family Court briefing paper, The Parenting Hearing
Programme (less adversarial children’s hearings), this initiative is intended to deal with the 5% of
parenting order proceedings which now result in defended hearings.489 It is based on an
Australian approach, the Children’s Cases Pilot Project, which has been briefly trialled in that
country, but with one very important difference. Whereas participation in the Australian model
was entirely voluntary – the consent of both parties was required490 – in the New Zealand pilot,
cases are assigned. There is no ability for battered women – who we have already seen are at risk
of being intimidated or coerced into parenting agreements and/or consent orders with their
abusers – to opt out. We think this difference is crucial because there are certain features of the
programme which make it a potentially very dangerous process for battered women and their
children, yet cases involving domestic violence are envisaged as being prime candidates for the

The rationale for implementing the Parenting Hearing Programme pilot is clearly expressed in the
briefing paper.492

By avoiding delays and providing faster resolution of cases, the new process is
intended to significantly reduce the damage that protracted and bitter litigation does to
the co-parenting and parent-child relationships.

This is a flawed view. It sees “protracted and bitter litigation” as the cause of the problem. On
the other hand, as Amanda, Claire, Amy and Hilda’s case studies show, “protracted and bitter
litigation” is often a power and control tactic of an abuser.

According to the briefing paper, under the Parenting Hearing Programme:
A single judge will deal with the proceedings from beginning to end. The Judge will be
proactive and maintain a tight control over proceedings … The judge handles the case
throughout, decides the issues to be determined, decides the evidence that is called,

487 Domestic Violence Act 1995, s. 5(1).
488 Boshier, P., & Udy, D. (2006). Parenting Hearings Programme (less adversarial children’s hearings) (Briefing paper).
Wellington: Ministry of Justice, at p. 1.
489 Ibid, at p. 1.
490 McIntosh, J. E. (2006). The Children’s Cases Pilot Project: An exploratory study of impacts on parenting capacity and child well-
being. Final report to the Family Court of Australia.
491 Boshier, P., & Udy, D. (2006). Parenting Hearings Programme (less adversarial children’s hearings) (Briefing paper).
Wellington: Ministry of Justice. At p. 2, the authors note that two types of “high-risk” cases will be admitted to the
programme. The first are those involving “Urgent applications – cases where urgent relief is sought, particularly
where there is domestic violence, sexual abuse, mental illness or other issues that pose a high risk to the children and
family.” (The second are “intractable cases” in which counselling or mediation has failed to reach a resolution.)
492 Ibid, at p. 1.

Page 305

Appendix 4: Interview Protocol 293

(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?

Page 306

294 Living at the Cutting Edge

(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/

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

Similer Documents