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Children and Domestic Violence: The Legal Context

In the previous chapter, we analysed the ways in which the children in our case studies became involved in the abuser’s violence. As well, we discussed our women’s experiences of counselling, mediation and defended parenting hearings. We also reviewed the literature on the co-occurrence of child abuse and spousal violence. We pointed out that international research has demonstrated that woman battering is the primary context within which child abuse occurs,281 and that, moreover, there is voluminous research which questions whether there are benefits for a child of having frequent contact with an abusive parent.282 We also concluded that consent orders made within the context of domestic violence are problematic. As a minimum, judges need to satisfy themselves that the proposed consent order carries out the best interests and welfare of the subject child(ren).

In this chapter, we explore the legal context within which parenting orders are made, specifically the difficulties that arise in terms of battered women’s and children’s safety when there are parenting proceedings before the Family Court. We will review recent case law on parenting orders made within the context of domestic violence.283 We reluctantly conclude that some judges are not carrying out statutorily mandated approaches and are instead making decisions based on what they would prefer the law to be. In the final part of this chapter, we will look at the recently implemented Parenting Hearing Programmes. Reflecting on our discussions in Chapters 9 and 10, we will raise concerns about natural justice for applicants during the newly implemented parenting hearings pilot and query whether the quasi-mediation processes being utilised during them are safe and fair for battered women and children.

Legislative Framework

Sections 58 to 62 of the Care of Children Act 2004 are the specific provisions that deal with parenting orders made within the context of domestic violence. Succinctly put, these provisions prioritise the “safety of the child” in its widest sense over any other factor to be considered when making custody/access orders.284 Crucially, where the court is satisfied that a party has used violence against the child or a child of the family, or against the other party, it must not make an order giving the violent party the day-to-day care for the child or allowing the violent party unsupervised contact – unless it is satisfied that the child will be safe while in the care of, or having unsupervised contact with, the violent party.285 Moreover, the Act sets out a number of matters which the court must consider in determining whether the child will be safe if a violent party provides day-to-day care for, or has unsupervised contact with, the child.286 In short, the provisions amount to a rebuttable assumption that a violent parent will not have unsupervised contact with (or the care of) with his or her child(ren).

281 Jaffe, P., Poisson, S., & Cunningham, A. (2001). Domestic violence and high conflict divorce: Developing a new generation of research for children. In S. Graham-Bermann & J. Edleson (Eds.), Domestic violence in the lives of children:

The future of research, intervention and social policy. Washington, DC: American Psychological Association.

282 See, for example, Sturge, C. & Glaser, D. (2000). Contact and domestic violence: The experts’ court report.

Family Law, 615-629, and Johnston, J. (1998). Proposed guidelines for custody and visitation for cases with domestic violence: High-conflict and violent parents in Family Court. Retrieved from http://www.courtinfo.ca.gov/onlinereference/familycourtservices/grants/hcvpfcs.htm, at p. 6.

283 An extensive case law analysis is beyond the scope of this report but will be forthcoming. We have chosen a few recent seminal cases which we have found directly relevant to our study.

284 Busch, R. (1995). Prioritising the safety of children: The rebuttable presumption in practice. Mental Health Bulletin.

285 Care of Children Act 2004, s. 60(3) and (4).

286 Ibid, s. 61.

These provisions initially appeared as sections 16A to 16C of the Guardianship Act 1968. They were incorporated into that Act in a 1995 amendment which codified the recommendations made by former Chief Justice Sir Ronald Davison in the Bristol Inquiry.287 Having reviewed the Bristol family’s Family Court file and after reviewing the latest research findings on domestic violence and children, Sir Ronald Davison stated:288

My conclusion is that under the law as it presently is and with the current practices of the family court, the deaths [of the three children] in the circumstances of this case were not foreseeable and were not preventable. They were not preventable simply because the law and practices did not deal with a situation where a parent, although he had allegedly been violent to his spouse, was otherwise regarded by all who dealt with him, including counsel for the children as being a proper person to have custody of his children.

As we have previously commented,289 Alan Bristol’s potential for dangerousness to his children was never considered. Societal myths about what a killer “looks like” masked his risk as a child murderer. At the worst, he was seen as a “lousy partner but a great dad”.290

As we have shown in Chapter 7, these provisions, now incorporated into the Care of Children Act 2004, closely accord with what is known about the risks batterers pose to children – and to children’s recovery from trauma. When they were first enacted in 1995, they represented a best practice approach to the issue of the welfare of the child when domestic violence was a factor either in the parent–child or the spousal relationship.291 Ten years after their implementation, sections 58 to 62 continue to reflect the approach of the National Council of Juvenile and Family Court Judges on which they were based.292 The State of California, which had previously been in the forefront of favouring shared custody for separating parents, has now adopted a rebuttable presumption against sole custody or shared care/joint custody orders being made to violent parents.293 Moreover, many forms of psychological abuse (as well as sexual and physical abuse) trigger California’s rebuttable presumption.294 And ten years after the Davison report in New

287 On 5 February 1994, Alan Bristol killed his three daughters and himself, while the children were in his custody pursuant to an order of the Family Court. For a full account of this case, see Busch, R., & Robertson, N. R. (1994). I didn’t know just how far you could fight: Contextualising the Bristol Inquiry. Waikato Law Review, 2, 41-68.

288 Davison, R. (1994). Report of inquiry into Family Court proceedings involving Christine Madeline Bristol and Alan Robert Bristol. Wellington: Office of the Minister of Justice.

289 Busch, R., & Robertson, N. R. (1994). I didn’t know just how far you could fight: Contextualising the Bristol Inquiry. Waikato Law Review, 2, 41-68.

290 Ibid. For a recent critique of the “dangerous oxymoron” that a man could be a lousy partner but a great dad, see also Wall, N. (2006). A report to the President of the Family Division on the publication by the Women’s Aid Federation of England entitled Twenty-nine child homicides: Lessons still to be learnt on domestic violence and child protection with particular reference to the five cases in which there was judicial involvement. London: Royal Courts of Justice.

291 The provisions mirrored the National Council of Juvenile and Family Court Judges. (1994). The Model Code on Domestic and Family Violence. Reno, NV: National Council of Juvenile and Family Court Judges, sections 401-403.

292 Dalton, C., Matthews, G., Matthews, K., Drozd, L., & Wong, F. (2006). Navigating custody and visitation evaluations in cases with domestic violence: A judge’s guide. Reno, NV: National Council of Juvenile and Family Court Judges.

293 California Family Code, s. 3044 (custody of children, matters to be considered in granting sole or joint custody).

294 California Family Code, s. 3044(c), reads: “For purposes of this section, a person has ‘perpetrated domestic violence’ when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child’s siblings.”

Zealand, Lord Justice Nicholas Wall reached similar conclusions in his investigation of five cases of child homicide in which the English courts were involved.295

We can find no research over the past 12 years which casts serious doubts on the approach embodied in sections 58 to 62 of the Care of Children Act 2004. To the contrary, more recent research has served only to deepen our understanding of the risks batterers pose to their children and the conditions needed to assist children to recover from the trauma of violence.296

We agree with Dr Clare Dalton and Judge Susan Carbon, who have recently written in the Juvenile and Family Court Journal:297

The challenge in these cases is to remain steadfastly focused on the best interest of the children who need both an opportunity to heal from past exposure to abuse and an opportunity to live free from either the fear or the reality of abuse (for themselves, their non-abusive parent, or their abusive parent’s new partner or family).

Psychological Abuse

With the minor qualifications mentioned in Chapter 7, section 61 of the Care of Children Act 2004 seems to broadly accord with current research and accepted good practice for domestic violence risk assessment.298 The section 61 risk assessment and associated provisions are triggered by an allegation of violence. However, it is important to underscore that here, “violence” is limited to “physical” and “sexual violence”.299

This is at odds with one of the “Principles relevant to child’s welfare and best interests”, namely:300

the child’s safety must be protected and, in particular, he or she must be protected from all forms of violence (whether by members of his or her family, family group, whanau, hapu, or iwi, or by other persons). [Emphasis added]

It is also contrary to Article 19.1 of the United Nations Convention on the Rights of the Child, which calls on states to “protect the child from all forms of physical or mental violence.”301 The anomalous and narrow definition of violence which applies in sections 58 to 62 means that evidence that a child is being psychologically abused by witnessing physical, sexual and/or

295 Wall, N. (2006). A report to the President of the Family Division on the publication by the Women’s Aid Federation of England entitled Twenty-nine child homicides: Lessons still to be learnt on domestic violence and child protection with particular reference to the five cases in which there was judicial involvement. London: Royal Courts of Justice, paragraph 8.28.

296 Bancroft, L., & Silverman, J. G. (2002). The batterer as parent: Addressing the impact of domestic violence on family dynamics.

London: Sage; Buzawa, E., & Buzawa, C. (2002). Domestic violence: The criminal justice response (3rd ed.). Lowell, Ma:

University of Massachusetts; James, B. (1994). Handbook for treatment of attachment-trauma problems in children. New York:

Free Press; Herman, J. (1992). Trauma and recovery. New York: Basic Books; Scott, K. L., & Wolfe, D. A. (2000).

Change among batterers: Examining men’s success stories. Journal of Interpersonal Violence, 15(8), 827-842; Sturge, C.,

& Glaser, D. (2000). Contact and domestic violence: the experts’ court report. Family Law, 615-629.

297 Dalton, C., Carbon, S., & Olesen, N. (2003). High conflict divorce, violence, and abuse: Implications for custody and visitation decisions. Juvenile and Family Court Journal, 54(4), 11-34.

298 However, as we will show, s. 61 is not always adequately canvassed when parenting orders are made within a context of domestic violence See discussion earlier in this chapter of B v M and B v M “the sequel”.

299 Care of Children Act 2004, s. 58.

300 Ibid, s. 5(e).

301 Under Article 19(1): “States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child 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 parent(s), legal guardian(s) or any other person who has the care of the child.” United Nations. (1989). Convention on the Rights of the Child.

Retrieved 15 April 2005 from http://www.unhchr.ch/html/menu3/b/k2crc.htm.

psychological violence against anyone with whom she or he has a domestic relationship302 may be ignored. This is an obvious inconsistency.

This inconsistency has been a somewhat contentious issue in applications for parenting orders.

On the one hand, in some decisions, such as Cocker v Middleton303 (which we discuss below), the court has taken the view that it is able to consider psychological abuse when conducting the section 61 risk assessment. On the other hand, in Bonnar v Fischbach,304 having determined that the respondent had not used physical or sexual violence against the children,305 the court held that it could not include an assessment of the effects of past emotional abuse of the children in conducting the section 16B(5) (now section 61) risk assessment.306 These and other decisions of the Family Court were reviewed by Justice Heath in A v X307 who held:308

I am satisfied that, in assessing the question of “safety” of the child for the purposes of s 16B(4) of the Act, the Court is entitled to have regard to all relevant factors touching on that issue, whether directly or indirectly related to the actual violence proved to have taken place or not.

Useful though this decision is, we feel that the inconsistency between the narrow definition of violence in section 61 (as limited to physical and sexual violence) and the broader wording of the

“Principles relevant to child’s welfare and best interests” (namely “all forms of violence”)309 needs to be removed. A child’s need for “safety”, in its widest meaning, needs to be prioritised over a violent parent’s supposed “right” to day-to-day care or unsupervised contact to that child. We recommend:

THAT section 58 of the Care of Children Act 2004 be amended by adding “psychological violence” to the types of violence which trigger the rebuttal assumption that a violent party should not have a role in providing the day-to-day care of a child or have unsupervised contact with a child unless the court is satisfied that the child will be safe. (#5)

302 As set out in s. 3 of the Domestic Violence Act 1995, s. 5(e) of the Care of Children Act, and Article 19.1 of the United Nations Convention on the Rights of the Child.

303 Cocker v Middleton [1997] NZFLR 113, Judge Inglis QC.

304 Bonnar v Fischbach [2001] NZFLR 925.

305 Ibid, at paragraph 46. Among other things, Justice Heath noted that s. 16B(5)(i) allowed the court to consider

“Such other matters as the Court considers relevant.” The inclusion of (i) seems to contradict a reading of s. 16B as restricting the enquiry to only that sort of violence alleged by one of the parties. Citing the Court of Appeal in ER v FR [2004] NZFLR 633, Justice Heath, at paragraph 59, noted: “Parliament could not possibly have intended that the inquiry into a child’s safety should be restricted more in a case where actual violence had been found to have taken place than in a case where the Court was unable to determine, on the basis of the evidence before it, whether or not the allegation of violence was proved.”

306 Ibid, at paragraph 51. Here, the court was specifically referring to s. 16B(5)(e) (now s. 61(e)). That requires the court to consider “the physical or emotional harm caused to the child by the violence” (emphasis added). The point here is that “the” violence was read by the court as referring exclusively to the violence alleged by the other party – and not to violence of any other type.

307 A v X [2005] 1 NZLR 123. Here, Justice Health referred to Payne v Payne [1996] NZFLR 786, Fielder v Hubbard [1996] NZFLR 769, ER v FR [2004] NZFLR 633, and M v M [2002] NZFLR 743.

308 A v X [2005] 1 NZLR 123, at paragraph 60.

309 Care of Children Act 2004, s. 5(e).

Judicial Attitudes Post Guardianship Amendment Act 1995 In our 1992 research, we noted that:310

Family Court judges interviewed in general felt that violence from one spouse to another, even in the presence of the children, was insufficient reason to deny access to the abusive partner.

Since then, much more research has been completed regarding the deleterious effects of domestic violence on children and the risks batterers pose to children, Sir Ronald Davison completed his inquiry into the Bristol killings,311 and Parliament enacted the Guardianship Amendment Act 1995, the provisions of which have been incorporated into the Care of Children Act 2004. The new provisions certainly saw the Family Court adopt a different approach to children affected by domestic violence, one in which violence against a spouse was indeed seen as a reason for denying unsupervised access to the violent partner. On the other hand, some key informants have suggested to us that over the past few years, there has been some swing back in the direction of pre-1995 views. We examine this issue below.

An Exemplary Approach

In a 1997 decision, Cocker v Middleton, Judge Inglis adopted what we recommend as a best practice approach to judgment writing under section 61 of the Care of Children Act 2004. The case involved post-separation physical abuse of the mother by the father in front of the children and ongoing intimidation and threats by him. The father’s violence also included one incident:312

where the mother was driving with the children [and] the father followed her in his own car for some distance in an intimidating manner, stopped her for the purpose of collecting her key to their former home, followed her again, and finally overtook her, brandishing a gun at her.

In his decision, the judge set out his findings and considerations under each of the section 61313 risk assessment factors. Moreover, he did not accept the father’s explanations, justifications and excuses for his violence, namely that the father was upset about the separation, that the mother had had an affair during marriage, and that the father was “disappointed” by what he saw as

“access hassles” created by the mother. Instead of minimising the violence by assigning it to some methodologically dubious category like “separation engendered violence”, Judge Inglis found:314

In the particular circumstances of this case, and given the intensity of the father’s continuing animus against the mother, the fact that the incidents of physical violence were not recent, or persisted in frequently or habitually, is of less importance than the likelihood of physical violence occurring again. There must be a serious doubt whether the father truly understands how unacceptable it is to resort to physical violence. Certainly his continuing bitterness and frustration are powerful factors in lowering his resistance to this means of expressing himself. In all this there is a risk of a degree which must be regarded as unacceptable.

Judge Inglis, moreover, did not accept that mere attendance at a stopping violence programme demonstrated that the father had dealt with his violence. After commenting that the father had

310 Busch, R., Robertson, N. R., & Lapsley, H. (1992). Protection from family violence: A study of protection orders under the Domestic Protection Act 1982. Wellignton: Victims Task Force, p. 234.

311 Davison, R. (1994). Report of inquiry into Family Court proceedings involving Christine Madeline Bristol and Alan Robert Bristol. Wellington: Office of the Minister of Justice.

312 Cocker v Middleton [1997] NZFLR 113, at p. 116.

313 Although at the time, these provisions were included in s. 16B of the Guardianship Act 1968.

314 Cocker v Middleton [1997] NZFLR 113, at p. 118.

attended an anger management programme for ten weeks but that his abusive behaviours continued despite enrolling for a second programme, Judge Inglis stated:315

… whether such a programme will assist with the father’s real difficulty by addressing the real cause of his anger and the intensity of his feeling that he has been wronged and his wish to retain control of the situation, remains to be seen.

In accordance with good risk assessment practice, Judge Inglis did not assume that attendance at a programme per se demonstrated that the respondent had “changed” and therefore that unsupervised access was now appropriate. Judge Inglis, moreover, found that the respondent not only had to stop physically abusing the applicant; he also had to stop intimidating and harassing her. Finally, he made the clear statement that the significance of acts of psychological violence can only be understood within the context of prior physical and psychological violence.316

In his decision, Judge Inglis read down the approach outlined by section 3 of the Domestic Violence Act into his (now section 61) risk analysis. He stated that while “violence” (now in section 58) was expressly limited to physical or sexual abuse, the word “safe” (now in section 60(4)) allowed him to read the risk of ongoing psychological abuse into his assessment.

He stated:317

I do not consider that the concept of a child’s “safety” in terms of [now section 60(4)]

can properly be limited in that way [to physical and sexual violence]. The Guardianship Act is child-centred. It focuses on the welfare, needs and security of the child. I find it difficult to accept that the legislature, in passing legislation specifically directed to the situation of a child where there has been physical violence in the home, could have intended [now section 60(4)] to operate only to protect the child against physical abuse as such from the violent parent, and not to protect the child against the well-recognised psychological and emotional consequences for the child of the violence between the parents. I do not consider that [now section 61(e)] which expressly directs the Court in assessing the child’s safety to have regard to the

“physical or emotional harm caused to the child by the violence” could reasonably have been intended to be limited to physical or emotional harm caused only by violence directed at the child. And in any event, [now section 61(i)] expressly authorises the Court to have regard to “all other matters the Court thinks relevant.”

Moreover, the issue of “safety” can sensibly be considered only within the whole context in which the physical violence has occurred. In the present case the propensity for physical violence lies in the intensity of the father’s negative view of the mother and his lack of insight into its effects on the children. That raises a clear issue of “safety” in terms of [now section 60(4)]. And it is not to be overlooked that what harms the mother necessarily harms the children.

I would therefore hold that [now section 60] is designed to protect a child not only from physical harm but also from the psychological and emotional harm resulting from their exposure to the physical violence that has occurred within the context of a violent parent’s inherently negative and violent attitude towards the other parent.

A Change in Policy?

In contrast to the approach taken by Judge Inglis in the 1997 case discussed above, according to our legal key informants, the Family Court currently appears to prioritise contact over safety. This is the case, they told us, even when there is ongoing abuse. The Family Court judge’s decisions in B v M,318 which we discuss below, are examples of contact trumping safety. How much those

315 Ibid, at p. 119.

316 Ibid, at p. 121.

317 Ibid, at p. 121.

318B v M (High Court, Auckland, CIV2004-404-2006, 21 May 2004, Heath J), reported as A v X [2005] 1 NZLR 123.