In September 2003 UNICEF released figures ranking New Zealand third to worst in the world for child abuse deaths. The murder of Wendy Mercer and her six month old baby by her estranged partner in Dunedin occurred around the same time as Judge Russell Johnson called the criminal court process for dealing with domestic violence a “masquerade” and called for a new approach.

The Domestic Violence Act 1995 and section 16B of the Guardianship Act 1968 are the cornerstones of civil legal protection for adult and (outside care and protection cases) child victims of domestic violence. The legislation aims not only to ensure the safety of children but also to break the cycle of violence between generations.

Judge Jan Doogue was highly critical of this legislation in a strongly worded paper presented to a Child and Youth Law Conference in April this year (The Domestic Violence Act 1995 and section 16B of the Guardianship Act 1968 – The Effect on Children’s Relationships with their Non-Custodial Parent). Judge Doogue referred to the legislation as “social experimentation” which had resulted in some children being deprived of beneficial contact with non-custodial parents. The judge was quoted in The New Zealand Herald as claiming that the legislation was “destroying child-parent relationships”.

Judge Doogue’s views have not been universally accepted. Former Commissioner for Children Dr Ian Hassall commented that although the recommendations in the paper were reasonable “some of the arguments and implications in the paper are not and do not justify the overall impression of substantial injustice resulting from the law itself as opposed to its administration.”

The Family Law Section Executive invited comment on the paper from the Section’s Domestic Violence Standing Committee. In summary the Committee’s views are:

• The data available does not support Judge Doogue’s view that the legislation is social experimentation which has resulted in significant numbers of children being deprived of adequate contact with their fathers.
  
• The legislation is, on the whole, working well and is contributing towards safer outcomes for children.
  
• Perceived problems (such as delay), as noted by Dr Hassall, are with the implementation of the legislation by the Family Courts rather than with the legislation itself.
  
• The emphasis in the paper on “balancing rights” and “disenfranchisement” of fathers is at odds with the “best interests of the child” principle.
  
• The paper’s focus on the perspectives of respondents and not applicants leaves it open to criticism of gender bias.
  
• The paper’s highly political content raises issues about the constitutional appropriateness of public judicial criticism of legislation and the impact on Family Court judges of pressure from fathers’ rights groups and the media.

Comments on aspects of Judge Doogue’s paper are summarised in this article. The Committee’s full comments are available in the members’ only area on the Family Law Section website (www.familylaw.org.nz, under ‘Publications’).

Contact/access between children and respondents in DV proceedings
The main claim in Judge Doogue’s paper that, because of the legislation, children are being wrongly deprived of contact with their fathers, is largely unsupported. The Ministry of Justice report Domestic Violence Act 1995: Process Evaluation and the companion Ministry report The Domestic Violence Legislation and Child Access in New Zealand (not mentioned in the Doogue paper) indicates wide support for the legislation. The Process Evaluation notes:

Overwhelmingly the people who were interviewed as key informants for this research, and those who responded to the surveys, consider the Domestic Violence Act 1995 to be a good piece of legislation that achieves its objectives. …Furthermore, almost without exception, judges, lawyers, and court staff believe the 1995 Act is an improvement on the previous legislation.

… The Act’s focus on addressing problem behaviours rather than simply applying sanctions is seen as being an extremely positive element, and something quite different from what was in place before. The programmes attempt both to address respondents’ behaviour and send a message to wider society that domestic violence is taken seriously and will not be tolerated by the courts. The recognition implicit in the Act that children need to be protected from domestic violence is valued; and the resourcing of programmes to help children out of the cycle of domestic violence is seen as an enlightened innovation.

Judge Doogue refers to 15 respondents interviewed in the Process Evaluation who were either no longer in contact with their children or saw them only rarely. In fact the Process Evaluation notes that three of these 15 respondents continued to see their children regularly and in the other cases there is no evidence that the lack of contact resulted from the legislation: “this may have had nothing to do with the protection order”.

The Child Access report notes the complexities of post-separation child care arrangements in situations when there has been family violence. Some of the conclusions are:

There is a poor understanding of the reasons for the legislation, both among custodial and non-custodial parents and some of the professionals working with it.

In a sample of 73 families, in approximately 11 percent of families children had a period of time with no access to their non-custodial parent because supervised access was seen as a barrier. It is not clear how many of these non-custodial parents would have persisted with access under other conditions, however.

A cessation of access was common immediately after a Protection Order was made. Almost half of the families had no access arrangements at this stage, but this was usually interim to access decisions being made through the court, through lawyers, or informally. In only three families children had had no access to their non-custodial parent in the entire period of time since the Protection Order.

Children in four families were reported to have suffered direct physical or sexual abuse during access, despite being subject to a Protection Order.

In 25 families (34 per cent), children were reported to have suffered some form of psychological harm during access (verbal abuse, used to pass messages, present when a custodial parent or other person was being physically or verbally abused, or the non-custodial parent damaged property).

Eight non-custodial parents were reported to have refused supervised access.

The well being of the children caught up in domestic violence would be enhanced if parents had a better understanding of the impacts of violence on children.

“Strategic” use of orders
Judge Doogue says that there is “no doubt in [her] mind … that there are a good number of cases where delay means that women are the arbiters of access that men have to their children and that in some cases the Temporary Protection Order is in fact used as a “weapon” against the father”. However the Process Evaluation notes that “the research suggested that strategic use of [protection] orders is not widespread”. Dr Hassall asks:

Why is it not considered appropriate for the Temporary Protection Order to be used as a (defensive) weapon against the father and for the protected person to assume control of access “to a considerable degree”. Is that not the point of the legislation if it is done to make the child safe? What the non-custodial parent regards as unwarranted denial of access may well be regarded by the custodial parent as warranted and the onlooker may have difficulty deciding between the two.

Judge Doogue’s paper does not consider the extent to which respondents may make strategic use of the legislation and court processes.

The power and control model and the Johnston and Campbell analysis of domestic violence
The contention on page 12 of the paper that “not all violence fits within the power and control model” is unsupported. It is also of real concern that Judge Doogue advocates use of the Johnston and Campbell analysis of domestic violence when the court is considering access and care arrangements, because the authors (‘A Clinical Typology of Interparental Violence in Disputed-Custody Divorces’ (American Journal of Orthopsychiatry (63(2), April 1993)) emphasise the need for caution in the use of their findings.

Far from suggesting that their research findings should be used as a “useful framework within which to consider risks for children” as Judge Doogue suggests (page 14), Johnston and Campbell state (page 193) that the “results reported here are based on clinical inference, and not on tests of statistical significance. The profiles of violence should be viewed as preliminary exploratory hypotheses to be evaluated in future research, rather than as established findings.” Johnston and Campbell also caution that their research may not include the more severe cases of domestic violence:

Several important limitations to these data should be noted. First, it is not known to what extent the patterns of violence reported here represent the broad range of physical aggression that occurs before and after highly distressed marriage break up. It is likely that severe cases of domestic violence were not referred to our counselling and mediation service but were directed to custody evaluations or dealt with by the court. It is also possible that, in the more serious cases of abuse, violent parents refused to participate in counselling. If this is so, then the violence reported in this sample may not be as severe as that reported in many studies of battered wives.

Constitutional issues
Judge Doogue’s paper was released to significant publicity. The New Zealand Herald reported the speech under the headline “Judge attacks Family Court laws” (Weekend Herald, 3 – 4 April 2004, A5), with a subheading “10-year-old access rules ‘destroying child-parent relationships’”. In discussing the doctrine of the separation of powers Joseph (Constitutional and Administrative Law in New Zealand) says that:

Judges themselves adhere to an unwritten code of judicial conduct for maintaining the independence and integrity of the Bench. Judges do not publicly engage in political or contentious issues … Judges are constrained by the expectations of their fellow judges and the profession (and indeed the public) to act “judicially”, without fear or favour, affection or ill will. Their circumspection is vital to their stature and independence.

Over the past four to five years the Family Court has come under enormous pressure from men’s rights groups, the media and some politicians. The committee agrees with Judge Doogue that it is vital that “further reforms or amendments are not made purely as a result of political activism.” It is also vital to the integrity of the court that it is not open to criticism that its judgments are being influenced by political debate.

FLS Domestic Violence Standing Committee