Human Rights Foundation
of Aotearoa New Zealand
P O Box 106 343
Auckland
humanrightsfoundation@vodafone.co.nz
www.humanrightsfoundation.wordpress.com
Submission to the Family Violence Law Review
1.
Introduction
1.1
This submission is on behalf of the Human Rights Foundation of Aotearoa New
Zealand.
1.2
The Human Rights Foundation is a non-governmental organization, established in
December 2001, to promote and defend human rights through research-based
education and advocacy. We make submissions on new laws with human rights
implications and particularly promote a human rights based approach to policy
and legislative development. We also monitor compliance and implementation of
our international obligations in accordance with the requirements of the
international conventions New Zealand has signed, have prepared parallel reports
for relevant United Nations organizations to be considered alongside official
reports and have coordinated stakeholder (NGO) reports as part of New Zealand’s
Universal Periodic Review by the United Nations Human Rights Council.
Though the primary focus of the Foundation is on human rights in New Zealand,
we recognise the universality of human rights and have an interest in the Pacific
and beyond.
1.3
We request the opportunity to make an oral submission to the Review should oral
submissions be sought.
2.
Introduction and Key Principles
2.1
The principal author of this submission is a member of the Foundation’s
Management Committee and a family lawyer with extensive experience in
proceedings under the Domestic Violence Act 1995 and the Care of Children Act
2004. She also worked for fourteen months in a Community Law Centre. Other
committee members have long experience in the international human rights
system.
2
However, in preparing this submission, we acknowledge the dedication, hard
work and expertise of many New Zealanders who are working tirelessly in this
area. In particular, we acknowledge the outstanding work of the Family Violence
Death Review Committee and Ruth Herbert and Deborah McKenzie, among
many others.
2.2
1
The Foundation supports the strengthening of legislation to prevent and respond
effectively to family violence. In preparing this submission, we are guided by the
following key principles:
(i)
New Zealand has ratified several key international human rights treaties
and agreements which set out the rights of citizens to be accorded equality
and dignity, freedom from violence and cruel, inhuman or degrading
treatment. Children in particular are entitled to be protected from all
forms of physical or mental violence, injury or abuse, neglect or negligent
treatment, maltreatment or exploitation, including sexual abuse, while in
the care of parents, legal guardians or other carers.
(ii)
Several reports from United Nations Treaty bodies have commented on
the extent of violence against women in New Zealand and the need for
increased efforts to prevent it. For example, the most recent report from a
UN Treaty body, the Committee against Torture (CAT) noted with
concern “reports on the persistence of violence against women and,
particularly, its disproportionate occurrence against Maori women”.
Among its recommendations CAT called on New Zealand to redouble its
efforts to prevent and combat all forms of violence against women
throughout its territory.”1
(iii)
Domestic or family violence is a gendered problem which impacts
disproportionately on women and children. The control and coercion at
the heart of nearly all IPV is based on gendered notions of male
dominance, male entitlement and lack of respect for women and children.
For example, considering the 63 Intimate Partner Violence (IPV) deaths
that occurred in the years 2009 to 2012, 73% of the deceased were women
while 76% of offenders were male.2 Family lawyers’ experience of
working under the Domestic Violence Act 1995 (DVA) is that well over
95% of applications for protection orders are sought by women against
men.
(iv)
Numerous United Nations reports and resolutions acknowledge that
violence against women is a form of discrimination, a manifestation of
historically unequal power relations between men and women, and a
Committee Against Torture 2 June 2015 Concluding observations on the sixth periodic report of New
Zealand. CAT/C/CO/6.
2
Family Violence Death Review Committee, 2014. Fourth Annual Report: January 2013 to December
2013. Wellington, Family Violence Death Review Committee (FVDRC).
3
violation of women’s human rights.3 Domestic violence remains a major
impediment to women’s equality in New Zealand. Policies to address the
issue have been ineffectual and sometimes counter-productive. New
Zealand is yet to formally recognize violence against women as a gross
breach of women’s and children’s rights and that women and children
have a right to be free from gender-based violence, coercive control and
exposure to domestic and sexual violence.
(v)
Family violence affects a disproportionate number of Maori. For example,
in the period 2009 to 2012, Maori were 2.8 times more often deceased and
2.5 times more often offenders of IPV deaths than non-Maori, non-Pacific
peoples.4 Maori children were 5.5 times more likely to die from child
abuse and neglect (CAN) than children of other ethnicities. Hence, New
Zealand’s current inadequate response to preventing and responding to
family violence is a breach of Article 3 of Te Tiriti o Waitangi.
(vi)
All frontline workers in this area need to conceptualise family violence as
more than physical assaults. Family violence, particularly IVP, is nearly
always more than a series of incidents of abuse. Instead it is usually a
cumulative pattern of coercion and control.5 Some partners or ex-partners
may have no history of reported physical violence but exhibit intense
controlling behaviours such as acute jealousy, stalking and severe control
of their ex-partners. These factors are strong indicators of serious risk
which may be obscured by an emphasis on physical assaults.
(viii) Many participants in the current system place too much responsibility on
victims of violence to ensure their own safety by, for example,
implementing safety plans, obtaining protection orders and leaving the
violent partner. This approach disregards the vulnerability and lack of
genuine choice of many victims. Further their lack of choice may be
aggravated by fragile health, limited social supports and poverty. Instead,
the system needs to provide to the victim wrap around support that keeps
her and her children safe while containing, challenging and changing the
abuser’s use of violence.6
(ix)
3
While legislative changes are important, they must form part of a fullyfunded and comprehensive integrated strategy to deal with family
violence. All government agencies need to be involved in developing
such a strategy in collaboration with domestic and sexual violence
providers and users. Such a strategy needs to recognize the gendered
nature of violence, the increased vulnerability of Maori, people with
disabilities and migrant women. The strategy should also ensure that all
Handbook for Legislation on Violence Against Women, 2010. Division for the Advancement of Women,
Department of Economic and Social Affairs, United Nations, New York 2010 ST/ESA/329.
4
Supra 2, p32.
5
Ibid, p73.
6
Ibid, p84.
4
those who work with abused women and children are required to complete
a certified national training programme. The development of such a
strategy is set out in detail in The Way Forward- an Integrated System for
Intimate Partner Violence and Child Abuse and Neglect in New Zealand.7
The Human Rights Foundation strongly endorses the strategy in this report
and proposed such an approach in the New Zealand’s 2013 Universal
Periodic Review by the United Nations Human Rights Council. We
submit that the development and implementation of such an integrated
system involves the redoubling of efforts called for by the timely report of
the CAT committee.
3.
Legislative proposals for amending the Domestic Violence Act 1995 (DVA)
3.1
We consider that the DVA remains an effective piece of legislation overall and
does not need significant amendment. We do not express a view on whether the
term “family violence” should be used instead of “domestic violence” although
we note that neither term addresses the gendered nature of the issue.
3.2
However, in order to make the DVA more comprehensive and reflect the
principles set out above we propose the following changes:
(i)
The objects of the DVA in s.5(1) be extended to include the following
three:
“Recognising that violence against women is an insidious form of gender
discrimination and a gross violation of women’s human rights;
Holding perpetrators accountable for their violence by implementing
effective steps to challenge and change their behaviours; and
Recognising the importance of agencies working collaboratively and
consistently in responding to domestic violence.
3.2
We also consider that the definition of domestic violence, while comprehensive,
should be clarified to refer specifically to coercive and controlling behaviours as
they are such an integral part of IPV and need to be named as such. For example,
the definition in s.2 should be expanded to include:
(d)
coercive or controlling behaviour including limiting access to family and
friends, monitoring cellphone and other communications, being obsessed
about new relationships whether imagined or real, stalking, killing or
abusing family pets and animals.
Herbert R and McKenzie, D, 2014, The Way Forward – an Integrated System for Intimate Partner
Violence and Child Abuse and Neglect in New Zealand, Wellington, The Impact Collective.
7
5
3.3
Recognising the vulnerable position of people with disabilities and elderly people,
we support the definition of “domestic relationship” in s.4 being extended to
include: “is in a caregiving relationship with the person.”
3.4
The FVDRC discussed at some length the importance of distinguishing between
primary victims and predominant aggressors.8 Their analysis highlights the fact
that many victims of violence attempt to resist or respond defensively. For
example, a woman facing the life-threatening behavior of strangulation
(commonly referred to as choking) may respond by scratching the abuser’s face.
In one real case, the respondent produced to the Family Court photographs of his
scratched face and torn shirt in an attempt to persuade the court that the victim
was as violent as he had been. Such tactics, which are common in Family Court
proceedings, are deeply distressing to victims and defy the reality that their
violence is nearly always defensive and less threatening in nature than the
predominant aggressor’s. Hence we propose that in considering whether a
protection order is necessary, the following factor be added to s.14(5) of the
DVA:
(c)
3.5
3.6
8
A pattern of violence establishing that the respondent is the primary
aggressor and that violence from the applicant is reactive or defensive.
Despite the wide definition of violence in the DVA, it is the experience of family
lawyers that it is virtually impossible to obtain a protection order without notice
where only psychological abuse is alleged. For example, in one case, the author’s
client provided evidence of receiving nasty and abusive text messages from her
former partner over a considerable period of time. Finding these messages
humiliating and degrading, she applied for a temporary protection order but this
was declined. We submit that the courts are taking an overly restrictive approach
to psychological violence contrary to what the DVA states. One solution is that
s.14(1) be amended to read:
(a)
The respondent is using, or has used, domestic violence (whether physical,
sexual or psychological) against the applicant or a child of the applicant’s
family, or both; and
(b)
The making of an order is necessary for the protection (whether physical
or psychological) of the applicant, or a child of the applicant’s family, or
both.
In our view, property orders under the DVA are generally effective and not
difficult to enforce, particularly once the respondent has been served. They are
vital to ensuring safe accommodation and security for applicants, particularly
those with children. To be eligible for a property order without notice under the
DVA, the applicant has to show she has been subjected to physical or sexual
abuse (s.60). We consider this is too narrow and limits the options for applicants
Supra 2, p74.
6
who have been subjected to serious psychological abuse. We submit that the
grounds for obtaining a property order without noticed be extended to include all
forms of violence.
4.
Implementing the DVA
Obtaining legal advice and legal aid
4.1
The income and asset limits for obtaining legal aid are currently:
$22,366 per year income and capital assets of no more than $3,500.
$35,420 per year and capital assets of no more than $5,000 for an applicant with
one dependent child. The income levels increase with the number of children and
the capital asset limit is set at $5,000.
4.2
These levels are very low and prohibit women on even moderate incomes from
accessing legal aid. It is submitted that for protection order applications in
particular, the limits need to be significantly increased, to reflect the
government’s commitment to protecting victims of violence.
4.3
We do not support any moves to encourage applicants or non-legally trained
persons on their behalf to complete and file applications and fill in pre-printed
forms themselves. In the author’s experience, self-representation is difficult and
confusing for most people, particularly women who are extricating themselves
from the trauma of a violent relationship. Further, should the respondent file a
Notice of Intention to Appear, self-represented applicants become upset and
unsure of the next steps. Self-represented applicants are much more likely to omit
crucial evidence from their affidavits.
4.4
Community Law Centres could play a key role in assisting applicants as they are
staffed by legally trained people. However, unbeknown to the public, many
Community law Centres impose income and assets limits for prospective clients.
Again, they may need to raise such limits or introduce exemptions for people
seeking orders under the DVA.
Responses to breaches of Protection Orders
4.5
At the heart of the DVA’s protection system is the Protection Order. Applicants
for Protection Orders rely on the Police to enforce them. As several highly
publicized events have shown, the Police sometimes fail to respond robustly to
reported breaches of Protection Orders. It is essential that Police respond
consistently to breaches of Protection Orders. Ideally we believe the Police
should arrest for all reported breaches, where there is adequate evidence. If
unsure, the Police can contact the applicant’s lawyer or family violence advocate.
In one recent case, the author encouraged her client to report a breach of a
Protection Order. The client was reluctant to do so, as the abuser was her former
partner and father of her young children. She plucked up the courage to call the
7
Police whose response was to warn him and encourage her to allow him to have
contact with the children. We consider that this response failed to meet the Police
duty to prioritise safety and abuser accountability.
4.6
In the author’s experience, the issuing of Police safety orders is working well.
They are empowering for victims and give victims both the time and courage to
contact lawyers to obtain more long-term protection.
Effectiveness of preventing violence programmes
4.7
Another cornerstone of the DVA is the requirement that respondents to protection
orders attend stopping violence programmes. Given the number of men who have
more than one protection order against them and have abused multiple partners
(as discussed in the FVDRC report) it is essential that such programmes are
effective and subject to ongoing monitoring and evaluation. We propose that, for
every respondent, the programme provider should issue to the applicant a report
on the respondent’s attendance, participation and outcomes.
For those
respondents facing a second protection order, a more comprehensive programme
is required, the detail of which would form part of the national integrated strategy
discussed in 2.2(ix) above.
5.
Care of Children Act 2004 (COCA)
5.1
COCA as amended from 31 March 2015 continues, in theory, to give considerable
priority to children’s safety. For example, in considering the welfare and best
interests of a child, the Court has to apply the principles in s.5 which include at
s.5(a) “a child’s safety must be protected and, in particular, a child must be
protected from all forms of violence.” Because of the general nature of this
principle, we preferred the wording in ss.59 – 61 of COCA before it was amended
in late 2013. These now repealed sections required the court, when there were
allegations of violence, to focus on a list of factors relating to the violence, its
nature, seriousness and any steps taken by the abuser to deal with the violence.
5.2
We submit that the principles in s.5 should be extended to include the following:
(i)
“A child’s parent or caregiver must be protected from all forms of
violence.” This additional principle reflects the close interrelatedness of
IPV and CAN and the fact that violence against mothers grossly
undermines their abilities to parent well.
(ii)
We propose an amendment to s5.(e) so that it reads: “a child should
continue to have a relationship with both of his or her parents provided
that the relationship does not expose the child to violence, conflict or poor
parenting.” The analysis and detail behind this amendment is set out in
the research and writings of Julia Tolmie, Vivienne Elizabeth and Nicola
8
Garvie.9 Their research indicates that a significant number of family law
professionals put emphasis on the quantity of contact between children
and fathers ahead of its quality, contrary to the findings of research on
children’s needs post-separation.
5.3
In proposing this last amendment, the HRF is keenly aware of ongoing delays in
the Auckland Family Court, despite the conscientious efforts of court staff to
address this. These delays are debilitating and stressful for women. For nonlegally aided clients, they are also expensive. Hence, many women in the Family
Court system, facing delays and pressure from fathers for more contact, often
“give in” and allow the father to have unsupervised contact or shared care, even
when this is against their views on what is best for their children. It is simply
easier than trying to battle on in a slow and complex legal system.
5.4
Adding to this difficulty is the fact that supervised contact centres are expensive
(one recent quote to the author was $95 an hour). Some supervised contact
centres in Auckland have waiting lists of up to nine weeks. Yet for those who can
afford them or are eligible for funding under s.60 of COCA, they provide an
essential service. We do not propose a legislative solution; clearly the system
requires more resourcing.
5.5
We accept that the recent Family Court reforms are not the subject of this review.
However, for the record we note that the reforms appear to have done little, if
anything, to reduce delays and complexity for clients. Indeed, the author has a
perception that delays may have increased. In one recent example, a father sought
a two-hour hearing on whether his contact should be supervised. The hearing date
allocated was nearly four months later.
5.6
Finally we support the provision of accredited training to all Judges and lawyers
involved with family violence, including on its gendered nature. In addition, we
propose that family lawyers dealing with violence have access to a specialist
family violence expert for support and guidance when and if required. For clients
who are legally aided, this could be an addition to the current fixed fee for
protection orders and applications under COCA.
6.
Changes to criminal law
6.1
We comment only briefly on this section of the Review document. We support the
proposal that there be created a standalone family violence offence as this term
clearly specifies the gross betrayal of trust and breach of dignity involved in such
offending. The author has seen numerous Police reports containing the relatively
neutral offence “male assaults female”. Such a neutral term does not give context
to the offending. Context is essential when dealing with protection and parenting
matters.
9
Tolmie J, Elizabeth V and Garvey N, Raising Questions About the Importance of Father Contact Within
Current Family Law Practices [2009] New Zealand Law Review, 659.
9
6.2
We strongly support making repeated family violence offending and breaches of
protection orders aggravating factors in sentencing and mandatory factors in bail
decisions. The recent move by the government to facilitate the exchange of family
violence information between the Family Court and District Courts is a positive
step. We further support the Swedish model of an offence covering “repeated
criminal acts against a woman with whom they have had a domestic relationship.”
6.3
Noting the extremely gendered nature and dangerousness of strangulation, we
strongly support the FVDRC’s recommendation that the government amend the
Crimes Act 1961 to include non-fatal strangulation as a separate crime. We
further support the FVDRC’s recommendations on making the defence of selfdefence more available to victims of family violence and commend the FVDRC’s
thoughtful and gender-sensitive analysis of these issues.
Other legislative measure
6.4
We support the proposal that whenever the Police attend a family violence
incident, they must take one of three actions:
(i)
Take criminal action against the primary aggressor (we expect the Police
to be able to interview appropriately to identify the primary aggressor);
(ii)
Issue a Police Safety Order; or
(iii)
Refer one or both parties to a funded service for an assessment. While this
latter step may well exhaust the capacity of current programmes, it is a
desirable action if there is to be a serious response to family violence.
Information sharing between Agencies
6.5
The implementation of a comprehensive and integrated strategy calls for
increased information-sharing among relevant agencies and professionals. The
implementation of accreditation standards should help ensure that necessary
information is shared in an appropriate way. Currently the Privacy Act constrains
the exchange of information. A person may only release private information
where the disclosure is necessary to prevent or lessen a serious threat to “the life
of health of the individual concerned or another individual”. Yet without
adequate information, often from several sources, it is difficult to assess threat.
This is illustrated by the following example. The author, who was acting for a
survivor of violence, contacted a psychiatric social worker involved with the
family. Despite expressing strong concerns about the abuser’s mental state, his
dishonesty, manipulativeness and violence to his children, the social worker felt
unable, due to privacy issues, to contribute an affidavit to Family Court
proceedings. As she had had direct experience of this family, her evidence was
highly relevant to any Judge assessing the abuser’s risk to the children. We
therefore endorse the FVDRC’s recommendation that the Privacy Act be amended
to include a presumption of information sharing between agencies where child
protection and family violence concerns are present.
10
7.
Recommendations
7.1
We recommend that the above legislative changes be implemented.
7.2
We recommend that, along with the above changes, the Government develop, in
collaboration with domestic and sexual violence service providers and users an
evidence based Action Plan and Integrated strategy to end gender-based violence
against women and children.