Dealing with Family Violence in New Zealand
Waikato Domestic Violence Hui
Speech of Principal NZ Family Court Judge Peter Boshier
NZ Family Court - Speeches and Papers - Judge Peter Boshier - 1 March 2007
NZ ‘top’ Family Judge Peter Boshier – A demagogue and gender racist at work quoting selectively from his secret courts files
1 March 2007
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In the first 40 days of 2007, 6 women were killed, allegedly by their husbands or partners. On the 18th of February three children were reportedly stabbed by their father, whom the police had to taser to subdue. The children survived but with horrific injuries. These are but two incidents that have made headlines in early 2007.[1] I want to address more of the horrific events of family violence over the past year and look at what these tell us.
The Domestic Violence Act was passed in 1995. The Act gave a new and robust approach to the Court's response to family violence. However ten years later, family violence remains a scourge on New Zealand society. There have been a number of criticisms of the Court's approach to implementing the Act. Some of the concerns are valid, and I will outline what is being done to rectify them, including progress since a Domestic Violence Hui which occurred in Auckland a year ago. Other concerns are a product of the complex situation caused by trying to balance the interests of all involved, and these will be briefly explained.
The Government is contributing significant resources to curtail the appalling rate of family violence. In 2005 a group of Ministers formed the Family Violence Taskforce. The Taskforce involves many sectors of the community including government and non-government sectors, the judiciary, the Children's Commissioner and the Families Commission. I am a member of this Taskforce. The Taskforce's first report of was published in July 2006 and outlined four areas of focus:
§ Improving action on leadership;
§ Changing attitudes and behaviours;
§ Ensuring safety and accountability; and
§ Effective support services.[2]
I will discuss some of the action that is being taken as a result of this report, along with other initiatives aimed at stemming the flow of domestic violence.
Deaths from family violence
I have analysed reports of domestic violence related deaths which have occurred in the last year. When a death occurs on a Family Court file, courts look at the procedure followed in those cases to identify if any lapses have occurred and consider if improvements or changes to systems and processes can be made to improve the management of cases and reduce any risks to the parties. An example is one case where it became evident that a final protection order was served late. The courts now have a nationwide computer system which provides a reminder to court staff whenever a final protection order is due to be issued.
Of the twenty-three cases discussed below, eighteen had previous involvement with the Family Court. The adult victim in another case had been declared in need of care and protection as a child. Ten cases involved a man killing his female partner or former partner. In four of these situations, the murderer committed suicide, and an acquaintance of one of the women was killed as well. Six children were killed in five cases. There were six suicides. The final two deaths were a man killed by his partner's son, and a man killed by another man where both had children with the same woman.
Situation
Protection Orders
CYPF Act
Guardianship
1
In early October 2005 man murdered his female partner before committing suicide
Temporary order made - objection to programme attendance never heard due to murder
2
In October 2005 a woman died of a head injury inflicted by her partner
Final order in place. Application by victim for discharge pending
Cross applications for day-to-day care pending
3
On 23 November 2005 a woman was beaten to death by male partner. The woman had six children
Final order granted in 2000. Charged with breach in 2004, set to be heard one month after death occurred
4
On 26 November 2005 a man murdered his female partner of 27 years before committing suicide. There were four children
Temporary order in 2001, became final in 2002, Orders under Domestic Protection Act had also been made in 1994 and discharged at request of wife
Guardianship proceedings relating to couple's children initiated by mother in 2001, father took no steps
5
On the 11th or 12th of December 2005, a female and her male acquaintance were killed by her ex partner
Temporary order made but not served
6
On Christmas Day 2005 a man was shot by another man. Both had children with the same woman
Both men had protection orders against them in favour of different women
Application for day-to-day care of the victim's children initiated by mother, granted, father took no steps
7
On 3 January 2006 a woman was killed by her male ex partner
Temporary order made in 1998, final order in 1999. Discharged at applicant's request in 1999
Custody order in favour of mother in 2000, father having taken no steps
8
On 8 January 2006, a child was killed. Her foster mother charged
Care and protection declaration made, children in care at time of death
9
On 30 January 2006 a child was killed. The mother and her new partner were charged
Proceedings between mother and her cousin for day-to-day care of children. Order made in mother's favour
10
On 4 March 2006 a man was stabbed to death by his partner's son
Victim had protection orders against him from two previous relationships but no proceedings in current relationship
11
On 8 March 2006 a man committed suicide
The man and his partner were attending counselling through the Family Court at the time of his death
12
On 18 June 2006, two children died of head injuries. Their parent both faced charges
Declaration made when children admitted to hospital after incident
13
On 9 or 10 July 2006, a man committed suicide
Temporary order made against victim on same day as death
14
On 18 August 2006 a woman committed suicide
Protection order granted in 2004 against male partner
Care and protection declaration made relating to woman's children in 2004
15
On 19 September 2006 a man committed suicide
Final order in favour of wife in 1999
Counselling for victim and daughter regarding contact for victim with grandson
16
Woman killed by her male partner
No proceedings between victim and accused
Victim declared in need of care and protection as a child
17
In October 2006 a man committed suicide
Proceedings over five years involving 2 women. A final order was made in August 2006 in favour of his current wife
Childcare proceedings involving previous wife
18
In March 2006 a child died. In November 2006 a man was charged with her murder
Proceedings issued when child arrived at hospital
19
In October 2006 a man and women were found dead. It is suspected this was a murder suicide committed by the man
Protection order application made by the woman in September but was withdrawn the same day
20
In February 2006 a child died, possibly from being shaken
Proceedings initiated on admission to hospital
21
In December 2006 a man committed suicide
Childcare proceedings initiated by the man the day before his death
22
On Boxing Day 2006 a mother of five was killed. Her husband of 17 years has been charged
A Temporary Protection Order was made in May 2006
23
On 10 December 2006 a man and woman were killed in an apparent murder suicide committed by the man
A without notice protection order was made in mid-2005. Order became final three months later. The respondent failed to attend a programme
I will address the Family Court's role in responding to family violence before returning to reflect on these cases.
The Family Court's role in preventing family violence
The Family Court deals with domestic violence on a daily basis through Protection Orders under the Domestic Violence Act (‘the DV Act”), violence in childcare disputes under the Care of Children Act, and State intervention into childcare under the Children, Young Persons and Their Families Act. All of these statutes provide powerful protection from violence, however family violence remains a significant and disturbing element of our society. The legislation is widely recognised as some of the most progressive and emulated in the world, and not in need of any significant amendment.[3] Rather, we need to improve its implementation. It is also clear that legislation alone cannot resolve the problem, so we need to work to achieve non-legislative solutions.
The Ministry of Justice is currently undertaking a comprehensive review of the DV Act. The review is based on the position that the Act is not in need of fundamental change but that the way we approach it and implement it can be improved. There will be a number of initiatives coming out of this review.
Concerns and solutions
There are concerns that have been raised about the implementation of family violence legislation. The number of applications for Protection Orders has declined but there is no evidence that family violence is similarly decreasing. The Women's Refuge released a report in 2004[4] (“the 2004 report”) suggesting that there is a decreasing confidence in Protection Orders. This lack of confidence is said to arise from the Court's approach to first granting orders, and how those orders are later enforced. It was said that too many orders are directed to proceed on notice, the burden of proof is too high, and the cost of applying for an order makes it impossible for some people to gain the protection they require. It is argued that the respondent's right to natural justice is placed above the applicant's right to safety, and in doing this the Court has failed to uphold the intention of the DV Act to allow for stronger and more accessible means of protection than was previously available. These issues have arisen in the past, for example in the Ministry of Justice's “Process Evaluation of the Domestic Violence Act” in 2000 and have been restated in a 2006 report of Dr Alison Towns and Hazel Scott.[5]
Anti-violence legislation is also the subject of vociferous criticism from those with an opposing view. It is alleged that orders are granted too easily, the rights' of the respondent to defend themselves are breached, and that orders of such serious consequence must be proven to a higher standard. If a without notice order is made, a person can be barred from contact with their partner and children, and ordered from their home, without having the chance to put their case before the Court.
The most recent figures for protection orders are as follows:
Year from July to June
98-99
99-00
00-01
01-02
02-03
03-04
04-05
05-06
Total Number of Applications
6970
6126
5983
5724
5262
4901
4560
4534
Applications On Notice
758
597
689
737
742
633
584
576
Applications Without Notice
6212
5529
5294
4987
4520
4268
3976
3958
Temporary Orders Made
5247
4522
4122
3794
3469
3236
3083
3007
Final Orders Made
4322
3842
3629
3299
2998
2829
2601
2392
Percentage of Applications Filed Without Notice
89.1
90.3
88.5
87.1
85.9
87.1
87.2
87.3
Temporary Orders Made as a Percentage of Applications Filed Without Notice
84.5
81.8
77.9
76.1
76.7
75.8
77.5
76.0
Final Orders Made as a Percentage of Total Applications Filed
62.0
62.7
60.7
57.6
57.0
57.7
57.0
52.8
There are two ways to apply for a protection order - either with or without notice. In urgent situations it is possible to make a without notice application, where the applicant can obtain a temporary order. The respondent is notified if an order is made, and given the opportunity to have the order removed at a hearing. As can be seen from the table above, without notice applications represent the vast majority of protection order applications, and it is these applications which cause the greatest debate.
If a without notice application is made but the Court is not satisfied that the situation demands it, or if there is not enough evidence to make the order, the Court can direct that the application proceed on notice. The 2004 Refuge report stated that there was a dramatic increase in the number of without notice applications directed to proceed on notice, and that this was discouraging women to apply for orders. If the defendant becomes aware of the application, that in itself can be the cause of further violence. This was based on data up to 2002-03.[6]
Number of without notice applications directed to proceed on notice
Year
1998/99
1999/00
2000/01
2001/02
2002/03
2003/04
2004/05
2005/06
Without notice Applications
6,212
5,529
5,294
4,987
4,520
4,268
3,976
3,958
Number directed to proceed on notice
749
901
1,095
1,203
983
889
633
658
Percentage directed to proceed on notice
12.1%
16.3%
20.7%
24.1%
21.7%
20.8%
15.9%
16.6%
Since the 2004 report, the above table shows that there has been a steady decrease in the number of applications directed to proceed on notice. The drop from 24% of the total number of applications to around 16%, means the Court has directed a third fewer applications to proceed on notice in the last two years compared with 2001/02. This indicates that where it is proven to be necessary, the Court will have no hesitation in making an order without notice and this will hopefully provide some regained confidence in protection orders. It can be seen from the table on p7 that the decline in the number of applications for protection orders was quite steady for a number of years. However there was almost no difference in the number of applications between 04/05 and 05/06. One year of course does not show that the declining trend has changed but this could show that confidence in Protection Orders is returning.
Protection and due process
While safety is the primary concern, it is not the sole concern. In deciding whether an order is necessary, the respondent is entitled to due process. As a Court of law the Family Court must first make findings of fact, and only then decide whether an order is necessary based on those findings. Any question of fact must be proven on the balance of probabilities, and this is specifically set out in the DV Act.[7] There is a difference between proof and assertion, and this is just as it should be. It is particularly important when the defendant has no opportunity to respond to the allegations in a without notice application.
The Family Court must also follow decisions of the High Court, and we have been given cautionary guidance regarding temporary orders.[8]
Cost of applying for an order
It has been recognised that the cost of applying for a Protection Order can be prohibitive. The DV Act was aimed at increasing access to justice for New Zealanders, simplifying the process, and making it possible for unrepresented people to apply for a Protection Order. But there is a risk that comes with not having a lawyer. As discussed, the Court can only make an order based on facts supported by evidence. Lawyers often have a greater understanding of what evidence is required to support an application and make it successful. There are other concerns regarding lawyers' familiarity with the unique requirements of a family violence client which are discussed below.
Action has been taken action to rectify this problem. The threshold for legal aid eligibility has been altered for civil matters, which includes applications under the DV Act. The Legal Services Regulations 2006 and the Legal Services Amendment Act 2006 come into force on 1 March 2007, conveniently coinciding with today's Hui. This will increase the pool of people who are eligible for legal aid from 765,000 to approximately 1.2 million.[9] However what is yet to be achieved, is a situation in which there are legal aid rates which remunerate lawyers fairly and realistically, and which encourage them to continue to undertake domestic violence cases.
I am presently in discussion with the Legal Services Agency in order to arrive at an approach which not only properly remunerates lawyers for undertaking domestic violence work in the Family Court, but which also encourages them to do so, and enables them to discuss wider and important concerns involving the victim's safety.
Family Violence Training for Lawyers
Quite apart from legal aid, what is also important is that lawyers who act for victims of domestic violence have the best possible training when it comes to dealing with traumatised clients, preparing applications, and ensuring that the best evidence is put before the Court. I am working with the New Zealand Law Society to provide lawyers involved in this specialised area the training and support that is required. The Refuge has raised with me a concern that professionals involved in the Court process may not have an adequate grasp of the dynamics of family violence, so I hope that with the further training that is developed, lawyers will be better prepared.
In April and May this year, the New Zealand Law Society will host a series of seminars for Family Court lawyers who undertake family violence work. The seminar is called “The Role of Lawyers in Protection Orders in the Family Court.” I have made a Judge available as a co-presenter. The seminars will focus on understanding the dynamics of family violence, knowing how to assemble documents in evidence so as to enhance the obtaining of a protection order without notice where that is plainly justified. The training also covers understanding the networks that can be accessed and the process that should be employed to achieve the best outcome for victims of family violence beyond simply taking action in the Court. As will be seen below, when we return to discuss the cases which have resulted in deaths, a protection order alone is sometimes not enough to give a person the complete protection they require.
Childcare and family violence
As we have seen the DV Act applied over the past ten years, we have become more aware of the impact of violence on children, and also the possible impact on care arrangements. When the DV Act was initially enacted, after assessment of the evidence, an order was made and we left it to the respondent to make the running in either setting the order aside or applying to establish acceptable care arrangements for the children.
But this simplistic approach gave rise to problems. With the heavy workload of the Family Court, respondents often found it difficult to readily access the Court to be heard after the making of a temporary order. To respond to the need to manage cases better we have devised a Domestic Violence Minute. It requires us to turn our minds to a raft of considerations, including whether it is proper for all, or parts, of the application to proceed on notice. It also requires us to review whether the care arrangements for the children are satisfactory for each parent. Routinely now, after making a protection order without notice we return to the case the following week, to give each parent the right to be heard on arrangements. We need to be careful to preserve the relationship between each parent and their child or children in a safe and appropriate fashion.
Eliminating Delay from the Court Process
Delay is extremely negative in domestic violence cases. The offender needs to be held accountable early, or they will learn that if the process can be slowed down, it is likely they will get away with it, perhaps because they can convince or frighten the victim into withdrawing the complaint. And of course in urgent situations the victim needs to be able to obtain a protection order immediately, without delay.
Delay is not only harmful to those who require a protection order but it can also be harmful to the person on the receiving end of the order. Parents can be disassociated from their children for prolonged periods, which creates huge stress and frustration, and can be damaging to the relationship between the parent and child. And then at the end of it, perhaps it is found they have not used violence at all.
The law requires that we handle domestic violence cases speedily. Currently we do very well at the initial stage, where a protection order needs to be issued quickly. Orders are usually made the same day as the application. A report released by the Ministry of Justice in late 2006 indicates that the Family Court deals with the bulk of protection order applications within a tight timeframe.[10] In 2004 75% of applications were disposed of within four months.[11] This figure represents when a final protection order was made, or the application was dismissed. As the majority of applications result in a temporary order immediately, the applicant in many of these cases would have been protected by a temporary protection order well before four months.
However we need to do a good deal better. I would like the Court, and by that I mean administration as well as Judges, to have the ability to schedule fast domestic violence hearings, certainly faster than we do at present. I have suggested a number of reforms to the Family Court process, which aim to make it more efficient, and to free up judicial time for important matters such as expeditious family violence hearings.[12] As part of this, the Family Court is currently trialing a new process for determining difficult childcare cases called the Parenting Hearings Programme - less adversarial childcare hearings. Many of these cases involve violence, and the new process will resolve these faster, and in a more child-focused manner. By reducing involvement in litigation in this area, we will free up Court time allowing us to deal with applications under the DV Act faster as well.[13]
Another innovative issue we are considering to eliminate delay in obtaining an order is a wholly new way of some protection orders being issued in the first instance. In a number of Australian States, when Police visit a scene of domestic violence, they can hand to the alleged perpetrator, an injunctive notice which has the effect of a very short-term protection order. There is merit in our looking at a similar but more comprehensive process, in New Zealand. One of the difficulties we presently have is that if violence occurs on a Friday night, a victim cannot get access to the Family Court until the following week to obtain protection and sometimes further violence occurs in the meantime. In addition, best evidence is not always provided to the Family Court in the form of documents that the Police hold or notes they have made.
The idea that Police on visiting a scene of violence might themselves initiate a time limited protection order has appeal to me. One possibility is that as a result of a family violence incident, frontline Police may apply to a commissioned officer for an order with a duration of seven days. If the victim wished to obtain further protection an application would need to be made in the Family Court. Such an idea has much to commend it but of course like all new ideas, needs to be thoroughly thought through and debated.
Enforcement of orders and accountability
Another problem identified with Protection Orders is that Police and the Court do not hold offenders accountable for breaches in terms of prosecutions. The study of Scott and Towns identified this as a reason why protection orders are not as effective as they should be. There has been acknowledgement from a number of sectors that we need to be more decisive in this area. Non-attendance at programmes is also an issue that must be addressed.
In response to this, one of the aims of the Ministerial Taskforce is to improve the prosecution process for breaches of protection orders, and to increase the ability of the police to act when a protection order is breached. Work is in progress to improve monitoring attendance at programmes, and ensuring that attendance is effective through active participation.[14] This will be backed-up by improving the prosecution process for non-attendance. This work is due to be completed by June 2007.[15] Police have already developed a compulsory training programme on investigating family violence events including both the initial violence and also breaches of Protection Orders.[16]
There is often vigorous debate over the correct approach to family violence prevention through the criminal law. There are some that say that anything less than arresting and convicting a person carries the wrong message. However some research has suggested that a blanket arrest policy can actually increase violence in certain sectors of the community.
The Ministry of Justice recently released a literature review of the pro-arrest policy that exists in New Zealand and elsewhere world-wide.[17] The review targeted two main concerns about the pro-arrest policy. The first concern is that some studies suggest that the policy can increase violence among some subgroups, such as unemployed. The second concern is the directive nature of the policy and whether taking away a victim's choice about the outcome serves to further disempower that person through the application of a blanket policy.[
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