Sample submission

Submission on the Ministry of Justice public discussion document:

‘Strengthening New Zealand’s legislative response to family violence’

Submitted by:

On the date of:

I am a supporter of Shine – Safer Homes in New Zealand Every day, the specialist domestic abuse charity that provides a range of domestic abuse services to help women, children and men get out of the cycle of domestic abuse. 

Family violence is a critical issue facing our society which underpins much of our country’s crime and other social problems.  The New Zealand Government must make this issue a priority.  In this light, Government has taken a step in the right direction by forming a cross-Ministerial group to tackle this issue on a number of fronts.

I want to commend the Ministry of Justice for compiling this discussion document with a focus on making changes that will improve safety for victims.  It is also positive that the document includes recommendations from the Family Violence Death Review Committee, the Police Safety Order Evaluation (commissioned by NZ Police), the NGO sector, and also a number of innovations from overseas.

The justice system needs to be changed and do much more to protect victims of domestic abuse and their children, and to make offenders accountable. I am in favour of proposals that would have this effect. 

Definition of ‘family violence’

“What changes to the current definition of ‘domestic violence’ would ensure it supports understanding of family violence and improves responses? For example:

-more clearly explain the concept of ‘coercive control’”

I support including a clear explanation of the concept of ‘coercive control’ within the legal definition of ‘domestic violence’ under the Domestic Violence Act. The current definition explains that domestic abuse may be a pattern of behaviour, but that particular incidents of abuse, if looked at in isolation, may appear trivial. I agree that this explanation is not sufficient in explaining that the effect of this pattern may be to establish control over the victim, and cause ongoing fear of the perpetrator.

This would go a long way towards helping people to understand that the effects on the victim are an important consideration in determining whether the pattern of behaviour should be considered ‘domestic abuse’.  It would also help people to understand who, in a relationship where both parties are committing violence, is predominantly the victim and who is the perpetrator, by looking at which party is controlling the other, causing fear, etc. 

Guiding principles

“How would guiding principles affect how the Domestic Violence Act and other legislation is implemented? What principles would you suggest?

How could the nature and dynamics of family violence in different population groups be better acknowledged in the law?”

I strongly agree that the Domestic Violence Act should include a set of guiding principles to help guide decision-making in a range of circumstances about cases involving domestic violence. I believe that the following points would be very helpful to include as principles in the Act:

1. Domestic violence is a fundamental violation of human rights and is unacceptable in any form.

2. Domestic violence is a major social problem that underpins an enormous proportion of crime and other social problems. As such, solving it needs to have an ongoing commitment from all related major government departments, i.e. not just social development, justice, police, corrections, but also housing, labour, immigration, etc.

3. Safety for victims, and in particular for children, must be paramount in any decision-making on cases involving domestic violence. This is more important than privacy, and more important than natural justice for perpetrators. In terms of safety for children, this means protection from seeing, hearing or otherwise being exposed to domestic abuse, as research clearly shows that the long-term effects on children of exposure to domestic abuse is equivalent to that of being physically abused.

4. The onus must be on society and our justice system to keep victims safe and make perpetrators accountable. Victims are rarely in a position to keep themselves and their children safe without outside support. It is unfair and often unsafe to make decisions with an assumption that they are able to do so.

5. Because victims are rarely able to keep themselves safe, various forms of negotiation, e.g. mediation, family dispute resolution, and restorative justice, should never be used in cases of domestic abuse, as legal processes which expect victims to negotiate with their abusers are unfair and unsafe for the victims.

6. When an adult victim is doing her/his best to keep her/his children safe, it should be recognised that the best way to keep the children safe is to keep the adult victim safe.

7. Where there is domestic violence between intimate partners or ex-partners, and both parties have used violence, it is important to identify who is the predominant aggressor, i.e. which party is using a pattern of coercive control over the other.

8. All agencies need to recognise and effectively respond to domestic abuse, with a priority on victim safety and perpetrator accountability. The safety of children must always be the paramount consideration.

9. Agencies need to coordinate their responses to domestic abuse and ensure their workforce is capable of responding safely and appropriately.

10. Services for victims and perpetrators need to be culturally responsive – whether those services are cultural/ethno-specific or mainstream. Victims and perpetrators should always be offered referrals to cultural/ethno-specific services, but be given the option to access mainstream services if that is their preference. 

Accessibility of protection orders

“What changes would you suggest to improve access to protection orders? For example, increase funding for applications for protection orders”

It is absolutely unjust for victims to have to pay to keep themselves safe. For victims who are just below the threshold for accessing legal aid, it can add up to an enormous amount of money and be a huge barrier to accessing an order.  Paying to be safe from violence is a basic violation of human rights.  It should be free to apply for a protection order. Government establishing a dedicated fund or funding community legal services to provide this service are both options that may work.  The processes need to be thought through though so that, whichever option is taken up, the process to apply is not onerous for victims and no other barriers to safety replace the current financial barrier.

Effectiveness of protection orders

“What changes could enhance the effectiveness, use and enforcement of protection orders? For example, require Police to arrest for all breaches of protection orders, where there is sufficient evidence”

Protection orders are currently not working. Offenders are rarely arrested for breaching orders, unless the breach is an assault or another offence that would have warranted an arrest on its own anyway.  If protection orders are to be a useful and effective tool for victim safety, there must be consistent negative consequences for breaching protection orders.

Victims that go through the time, expense and hassle of applying for a protection order want it to be meaningful and enforceable. They want to know that if they report a breach, that the Police will take it seriously and that there will be consequences for the perpetrator that act as an impediment to further abuse.

If Government is serious about decreasing domestic abuse in New Zealand and keeping victims safe, requiring offenders to be arrested and charged for each and every breach of all protection orders (provided there is sufficient evidence) would be a key step towards reaching that goal.  It would not only greatly assist in achieving safety for victims and accountability for offenders, it would also send a very strong message that New Zealand’s justice system takes this issue seriously and will not let offenders manipulate the system to continue to get away with their abusive behaviour.

Property orders

“What changes would enhance the effectiveness, use and enforcement of property orders? For example, require judges to consider accommodation needs when making protection orders and to make property orders more proactively”

Yes, I agree it would greatly aid in helping victims to be safe for judges to be required to consider accommodation needs when making protection orders and to thus make property orders more proactively. 

Guidelines for the Family Court should specify that the judge prioritise accommodation needs of applicants and children over that of respondents.

Police safety orders

“What changes might enhance the effectiveness, use and enforcement of Police safety orders?”

PSOs made for at least several weeks

At present, Police Safety Orders are made for a maximum timeframe of 5 days, and for a minimum of 72 hours. Police Safety Orders could be a vastly more useful safety tool if they were made for a significantly longer timeframe, e.g. several weeks, in order to give sufficient time for the police to refer to a specialist advocacy service and for that service to contact and work with the victim long enough to put in place safety measures before the PSO has ended.  Current PSOs are simply not creating enough ‘safe’ time to help make victims safe.

Police should be required, when making a PSO, to refer immediately to a family violence specialist victim service like Shine to ensure that the victim has the specialist support she needs to plan for her safety. 

Making PSO breaches an arrestable offence

It is a major weakness of Police Safety Orders that breaches are not an arrestable offence. Perpetrators need to get the message that the justice system takes a strong stance on domestic abuse and that it is unacceptable to contradict an order made by the Police.

Family violence and parenting arrangements

“How should risks to children and to adult victims be reflected in parenting arrangements under the Care of Children Act 2004? How could parenting orders and protection orders be better aligned?

For example:

-clarify that a child’s safety from all forms of violence is to be given greater weight and be a primary consideration”

I absolutely agree that a child’s safety from all forms of violence should be given greater weight and be a primary consideration in all decisions made by the courts.

-“require parenting orders to be consistent with any existing protection order”

I absolutely agree with this requirement. Court orders should never be made that contradict other court orders, especially when the contradicting order is detrimental to victim safety.

-“courts could be given broader discretion to consider risk to the safety of the child and to an adult victim when deciding parenting arrangements”

If New Zealand is to get serious about stopping the intergenerational cycle of domestic abuse, our Family Courts must get serious about keeping our children and their protective caregivers safe from further violence and abuse.

Yes, I agree that judges should always consider risk to safety of the child and to adult victims when deciding parenting arrangements. Family court decisions regarding child care and access all too often are completely ignoring risk to adult victims. This is not only dangerous for the adult victim, it is also not in the best interests of the child.  If a child’s primary caregiver is at risk of abuse, the child is at risk of exposure to abuse, and also may suffer from being cared for by a parent who is anxious and fearful, and thus less able to parent effectively.

Judges must be able to consider protective conditions not just when a parent of child has been physically or sexually abused by the other parent, but also in cases of psychological violence.  The court must be able to consider protective conditions when, for example, a parent has threatened to hurt or kill the other parent or child, or threatened to kidnap the child. 

A huge number of Shine’s clients in recent years have been subjected to parenting orders that continued to put them and their children at risk of further violence and/or being exposed to further violence.  This includes clients with protection orders and clients where the other party had a long criminal history of family violence offences.  Many judges still seem to believe that, as a rule, both parents should share care, or at least have access to their children, regardless of one parent’s history of violence towards the other parent.

There is overwhelming research now that has clearly established that children who are exposed to domestic abuse are at very high risk of long-term psychological damage and poor health and behavioural outcomes.

The Family Court should also never prohibit a parent, who is the primary caregiver and a victim of abuse from the other parent, from relocating to another city with the child where they will have better family and community support and where they will be at less risk of violence from the perpetrator.  If the move would mean greater safety and wellbeing for that child, then the court should allow it. 

“What other ideas do you suggest?”

Implement a robust family violence screening process for cases entering the Family Court so that cases involving family violence can bypass the FDR process.

The Family Court currently refers all incoming cases off to a contracted Family Dispute Resolution (FDR) provider unless the court is already aware that the case involves domestic abuse, as the court does recognise that this mediation process is not suitable in cases of domestic violence. However, there is no process for the Family Court to screen for family violence before referring cases off to a FDR provider.  It is a conflict of interest to expect that contracted providers will screen for family violence and refer cases back to the Family Court.  Thus, the Family Court is currently forcing many victims of domestic abuse into this process, which is likely to have unsafe outcomes for victims and their children.

Family violence in criminal law

“What changes, if any, could be made to the criminal law to better respond to family violence, including the cumulative harm caused by patterns of family violence? For example:

-create a standalone family violence offence or class of family violence offences”

It could be very useful to create a class of family violence offences for all the reasons mentioned in the discussion document:

* to make the existence of a family relationship central to the offending

* contribute to building a record of the offending behaviour

* identify family violence cases for other information gathering purposes

* send a clear message that family violence is a criminal offence, AND

* to collect accurate statistical data on prevalence.

Prosecutors should be required to use the family violence offence when applicable, removing the discretion to apply the most relevant offence, so that the record of offending behaviour clearly identifies all offending that is related to family violence.

However, the range of charges that may apply in family violence situations must all still be available, just with the added clarity that it is a family violence-related charge.  There may be a different way to achieve the same outcome that is less onerous, e.g. a system of ‘tagging’ offences as family violence related.

-“create a new offence of psychological violence, coercive control or repeat family violence offending”

I also agree with the creation of a new offense of ‘coercive control’ to criminalise ‘sustained patterns of behaviour that stop short of serious physical violence, but amount to extreme psychological and emotional abuse’, similar to what has been enacted in the UK.  This potentially gives victims, the Police, and others the ability to prosecute family violence offenders that are using this type of pattern of behaviour before the abuse has escalated, as it often does, to serious physical violence, with sometimes irreparable physical and psychological damage resulting.  I would strongly prefer an offense termed ‘coercive control’ to ‘psychological violence’ as it is much clearer from the wording what the effect is on the victim.  It is still a widely believed myth that psychological violence – that is not accompanied by physical violence - does not have a serious impact on victims, when the opposite is frequently true.

The difficulty in proving such a charge should not be a factor in deciding whether to create such a charge.  The only determinant should be whether our society wants to condemn the behaviour and that there should be legal consequences for people who use such behaviour. This is the case, for example, for the charge of rape which is often difficult to prove, but very few law-abiding citizens would argue it should not be a charge.

-“make repeated and serious family violence offending an aggravating factor at sentencing.”

I agree strongly that sentencing judges should be required to assess the seriousness and repetitiveness of the harm by taking into account the pattern of behaviour, so that repeated and serious family violence offending is an aggravating factor at sentencing.

Victim safety in bail and sentencing

“What changes would ensure victim safety is considered in bail decisions and sentencing decisions? For example, require judges to make victim safety the paramount consideration in bail decisions in all family violence offences or for specific charges such as male assaults female”

I agree that judges should ALWAYS be required to make victim safety the paramount consideration in bail decisions in ALL family violence offences.

I agree that there should be a new principle introduced that the court MUST consider victim safety at sentencing, which would also better align the principles in the Sentencing Act 2002 with the focus on victim safety.

Judicial powers in criminal proceedings

“What powers should criminal court judges have to vary or suspend orders usually made by the Family Court, or to make orders at different stages in proceedings? For example:

-give judges in criminal proceedings greater powers to vary protection orders on the basis of information they hear during trials

-empower judges in criminal proceedings to refer the question of varying a protection or parenting order directly to the Family Court.”

Yes, I agree that judges in criminal proceedings should be given greater powers to vary protection orders on the basis of information they hear during trials, but only if the variation is made in order to enhance victim safety and not for any other reason. 

As judges in criminal proceedings currently have powers to make protection orders during sentencing, it is simply common sense they should also have the power to vary protection orders in order to better address safety needs of victims.

However, judges in criminal proceedings should NOT have the power to vary protection orders in ways that are detrimental to victim safety because of information they hear during trials, as they do not have access to all of the information that the Family Court judge had available at the time of issuing the protection order.  In these cases, they should only be able to refer the question of the variation of the order to the Family Court.

Best practice

“What changes would you suggest to court processes and structure to enable criminal courts to respond better to family violence?

What are your views on additional pathways for families who seek help to stop violence escalating? Is such a pathway necessary or appropriate?   What are your views on the range and type of services that might be appropriate in the circumstances?

Pathways for families to seek and receive help to stop family violence, in addition to the criminal justice system pathways, are absolutely necessary and appropriate.  Only a very small percentage of family violence cases ever come into the criminal courts. Yet, out of the $1.4 billion per annum spent by Government on responding to family violence, only a small percentage of that is used to fund support and advocacy for victims, or programmes for offenders, that are accessible before that family becomes involved in the criminal justice system. 

Stopping violence programme self-referrals

It is absurd that government funding is not yet available to ensure perpetrators who would like to access a stopping violence programme voluntarily are able to do so.  Funding self-referred men to attend stopping violence programmes will only save Government money in time as this will lead to less Government expenditure in policing, courts, health, etc.

Victim support & advocacy services, especially in response to Police referrals

Victims of domestic abuse should have easy access to professional specialist support when they seek it, but there also needs to be substantially more funding for specialist services that reach out to victims referred by police, hospitals and health practices, and other agencies. 

The service most needed by victims is the kind of practical and flexible service that Shine has delivered to support victims referred by Auckland City police since 1996. An investment by Government in a level of funding that would allow specialist advocates to reach out to all domestic abuse victims referred by Police would again save Government money down the road, as there would be savings in costs to the justice/court system, health, etc. 

Unsafe pathways: mediation, family dispute resolution, restorative justice

Mediation of any form is inherently an unfair and unsafe process when there is or has been domestic violence between parties.  Negotiation-type approaches generally assume that both parties are able to assert their own interests in the presence of the other party. This is rarely the case for a victim of domestic abuse sitting in the same room as her abuser. Women who have experienced abuse are often very fearful of their partners. This fear will constrain their ability to participate freely. When a victim is brave enough to speak her mind, there is huge potential for retaliatory violence. 

In processes relating to custody or care of children, if victims are reluctant to participate, they risk being seen as the obstructive or ‘alienating’ parent (Hoult, 2006), and punished as a result. In these situations, a victim is likely to negotiate for what she can get, rather than what she actually believes is in her best interest or that of her children. Abusive partners also often use these processes to pressure victims to reconcile with them. 

“What are your views on clarifying in law that Police take at least one of the following steps when responding to family violence reports:

-file a criminal charge (or issue a warning)

-issue a Police safety order

-make a referral to a funded service or services or an assessment?”

Yes, I agree with requiring police to take at least one of these steps so that, at the very least, police are giving victims referral information for their local specialist service. 

“What other ideas do you suggest?”

The law should also clarify that:

Police should never ask victims if they want charges to be laid, as is already stated in police family violence policy. Having this written into the law would give it more prominence. 

Victims should never be forced to testify against their abuser. If victim safety is paramount, then the court should not force victims to testify, potentially putting them at greater risk and/or lessening their trust in the justice system. This might in turn mean that the victim is less likely to ring the police the next time she is in danger.

Police should gather as much evidence as possible at the scene of a family violence crime in order to rely as little as possible on victims’ testimony to secure a conviction – with the understanding that testifying against the offender nearly always increases a victim’s risk. E.g. evidence should include wherever possible: statements from any other witnesses, photos of injuries or property damage, doctor/hospital reports, etc.

Information sharing between agencies

“What changes could enhance information sharing between agencies in family violence cases? For example:

-creating a presumption of disclosing information where family violence concerns arise

-stating that safety concerns ‘trump’ privacy concerns.”

I totally agree that there should be a presumption of disclosing information where family violence concerns arise and that there should be greater clarity that safety concerns ‘trump’ privacy concerns.  Current wording of the Privacy Act that allows anyone to disclose personal information if they believe it is necessary to prevent or lessen a serious threat to someone’s life or health must be significantly strengthened to ensure that the law is not a barrier to information sharing that protects victims.  It would be far more effective to state a presumption of disclosing information where family violence concerns arise

However, alongside this presumption must be principles or guidelines to help people understand how to share information in a way that will not have the opposite effect of further endangering victims.  Most importantly, care must be taken that information about or from a victim that would endanger the victim cannot be accessed by the offender or by anyone who would be likely to share that information with the offender, i.e. his lawyer, his other family members, friends and associates.

Information sharing with and between courts

“What changes could enhance information sharing between courts and other agencies, in family violence cases? For example:

-require that judges are provided with information held by Police and other justice sector agencies”

I absolutely agree that judges must be provided with information held by police and other justice sector agencies to inform their decision making. Judges often make critical decisions with blinders on that affect the safety of victims, because they do not have access to information from other government and non-government organisations. This is a logical and necessary step to ensure that courts are keeping victims safe rather than putting them at greater risk.

-“place a positive duty on parties to inform the criminal court of any related Family Court proceedings or orders”

I agree that there should be a positive duty on parties to inform the criminal court of any related Family Court proceedings or orders to ensure that the information provided is not reliant on administrative decisions and that the police can work proactively to keep victims safe – particularly those most at risk of injury and death.

Safe and competent workforce

“In your view, what impact would setting minimum workforce and service delivery standards have on the quality of services? What challenges do you see in implementing minimum statutory standards? For example:

-establish minimum standards for workforce competence”

Yes, I agree that this needs to happen, however, there cannot be an expectation of more qualifications and training done by staff without a commensurate increase in funding.  Most domestic abuse specialist community organisations in New Zealand are doing the best they can with very limited resources, but simply lack sufficient resource to upskill their workforce. 

-“require agencies and service providers to put in place policies and systems that support the workforce to practice in a responsive, safe and competent way”

This does need to happen, but it will only be an improvement on the existing situation in NZ if NGOs are adequately resourced to implement the required policies and systems to support their workforce to practice in a responsive, safe and competent way.

“What other ideas do you suggest?”

Required ongoing training for judges, lawyers, police and other professionals working in the court

Judges, lawyers, police and other professionals that work within the courts should be required to have in-depth training on domestic abuse, specific to their roles, and there should also be requirements to maintain their training at an appropriate level on an annual basis.

Domestic violence is a complex issue, and the training required to become any of the above mentioned professions contains very little specific to domestic abuse.  Yet this is a huge part of the police and courts’ workload.  The Minister of Justice, Amy Adams, stated recently that 41% of frontline police time is spent on family violence.

Note: Shine’s submission will contain additional points and additional background information to the sample provided above. Once our submission is finalised, we will post it on our website so others may read, reference or copy parts or all of it for their own submission. We are aiming to post our full and final submission by Wednesday 16th September.

You can email your submission to familyviolencelaw@justice.govt.nz or post it to: 

Family Violence Law Review 
Ministry of Justice 
DX SX10088 
Wellington 
NZ