Finally, hope for victims of domestic violence… Catriona MacLennan, Newsroom

 

Can domestic violence victims finally hope that the Family Court will start applying the Domestic Violence Act properly and provide them with the protection the law was designed to give them?

The Court of Appeal has handed down the most important decision on the act since it took effect more than 20 years ago.

The Domestic Violence Act was passed in 1995, following an inquiry conducted by retired Chief Justice Sir Ronald Davison after Alan Bristol killed his three daughters in 1994.

Sir Ronald recommended the law be strengthened to better protect domestic violence victims.

Parliament passed a new, tougher law. But, almost immediately, concerns arose about how Family Court judges interpreted and applied the law.

I was one of a group of lawyers in 1999 who organised a meeting with Family Court judges to discuss with them our concerns about how hard it was to obtain urgent protection orders.

Protection orders are the key mechanism under the act designed to keep women and children safe.

I spoke to judges at that meeting about my concerns with the irrelevant considerations being taken into account when judges decided whether or not to grant protection orders.

I have dealt with a case in which a judge refused to grant a final protection order because the parties were young.

That is not a criterion under the act for declining an order.

I have also dealt with cases in which a judge refused to grant a protection order because the women and children were in a Women’s Refuge and he thought they were safe.

That is not a criterion under the act for declining an order.

One judge said he thought about what was fair to the violent partner when he ruled on orders.

That is not a criterion under the act for declining an order.

A judge also said that physical violence within the past few days was required in order for an urgent protection order to be granted.

That is not what the Domestic Violence Act says.

My experience of misapplication of the law has been shared by many other family lawyers over the past two decades – and women and children’s safety has been compromised as a result.

That is why the Court of Appeal’s decision is so important.

It spells out very clearly and directly that the Domestic Violence Act is to be interpreted in plain language and to give effect to its purpose of protecting domestic violence victims.

A Family Court Judge had ruled that an interim protection order granted to SN should be discharged.

That is almost invariably the end of the matter: domestic violence victims are primarily trying to stay alive and keep their children safe.

They don’t have the time, money or energy to fight court cases. In addition, when they go to the Family Court seeking protection, it is a massive knock-back when they are disbelieved and their fears and experiences of violence are belittled and disregarded.

But SN and her lawyer fought on. They went to the Court of Appeal.

Our country has the highest reported rate of intimate partner violence in the developed world and the law designed to protect women and children has been wrongly interpreted for two decades.

Three judges heard the appeal and their decision was delivered by Justice Harrison.

He reviewed the physical and psychological abuse suffered by SN. This included two events of body slamming; Mr MN’s erratic and explosive temper; swearing and yelling; repeated breaches of the protection order; and the burning of hedge trimmings following an argument.

The Family Court judge looked at each event in isolation, and minimised and excused MN’s actions. He found that there had been only one event of psychological abuse and there had been no physical violence.

The Family Court judge said that some actions were explained by the stress of dividing the couple’s property and that SN was an “assertive and strong” person who did not need protection. He also said that one violent event had occurred “a considerable period ago” and that MN was well-regarded by his employer.

The Court of Appeal ruled that the Family Court judge was utterly wrong in his interpretation of the law.

Justice Harrison said that the words of the Domestic Violence Act were “clear and unambiguous”. The law required access to the court to be “as speedy, inexpensive and simple as is consistent with justice”.

“Its controlling words and phrases mean what they say. It is unnecessary to resort to synonyms for phrases like violence, which has a specific statutory definition, or physical or psychological abuse. Judicial overlays or refinements on a self-contained, plainly written statutory code do not assist.”

The Court of Appeal said that a single act could amount to domestic violence. That is what the act very plainly says, but this clear statement has all-too-often been disregarded by Family Court judges.

Justice Harrison said: “It is unlikely a court could rationally refuse to grant a protection order where the behaviour is such as to lead to reasonable fears for safety based on being subjected to a pattern of recent serious domestic violence, unless there are very strong indications to the contrary.”

What is crucial about the Court of Appeal’s decision is its statement that the pattern of behaviour should be looked at.

This is vital in domestic violence, as there is generally an ongoing sequence of verbal and physical abuse.

(That is why it is important that New Zealand now has a Family Violence Death Review Committee which goes back and reviews in detail every domestic violence homicide in this country. Doing that brings into stark relief how important it is to take early violence events seriously: if action was always taken after the first violence, women’s and children’s lives could be saved.)

The Court of Appeal criticised the Family Court judge’s approach of assessing each event separately and concluded that MN’s behaviour was “plainly abusive”.

Justice Harrison listed the irrelevant considerations taken into account by the Family Court judge and said that the Family Court must “focus on the effect of offending behaviour rather than speculate on its cause”.

The Court of Appeal held that the Family Court had set an unacceptably high threshold for behaviour to qualify as physical or psychological abuse. The Family Court judge had failed to address the mandatory consideration of whether MN’s behaviour formed a pattern against which SN needed protection.

The Court of Appeal granted SN’s appeal and ordered that a protection order be made to take immediate effect.

I and other anti-domestic violence campaigners have waited years for this judgment. What is needed now is for every Family Court judge to read it thoroughly and start applying the clear words of the Domestic Violence Act in the way they were intended to protect women and children.

Our country has the highest reported rate of intimate partner violence in the developed world and the law designed to protect women and children has been wrongly interpreted for two decades.

The Court of Appeal decision spells that out clearly and tells the Family Court how to get it right from now on.