Time to rebalance the scales of justice

We need to talk about the Family Court. How’s this for a convoluted situation? New Zealand has the worst reported domestic violence statistics in the developed world, a strong Domestic Violence Act that should be largely fit for purpose and a Family Court system that, in many cases, is causing domestic violence victims further trauma.

And that’s not just my estimation, it’s also the substance of a survey of victims.

Last week, the Court of Appeal handed down a ruling in a domestic violence case that had been dragging on for three years. An interim protection order was granted to a woman in May 2014, against her exhusband, whose alleged abusive behaviour included body- slamming, swearing, yelling and taunting. In a Family Court hearing in March 2015, Judge David Burns ruled that the order should be discharged.

In his ruling, Judge Burns found that only one incident had been proven, and that the woman’s “general and non- specific allegations” did not meet the threshold for psychological violence under the Act. He suggested that one of the body- slamming incidents ( which resulted in a whiplash injury) could be explained as “spontaneous as a result of being placed in a position of vulnerability” and remarked on the woman’s allegedly “threatening manner”.

He said that the ex- husband “did not intend to assault her”, and said that when the allegations were “put in the context of a total long- term relationship” he was not a violent person, and a protection order wasn’t necessary. He also suggested that she being a “successful schoolteacher” and a “robust and resilient person” had some bearing on his decision.

So, to summarise, the way I see it, the Judge minimised her allegations, victim-blamed, suggested that his intentions when he body- slammed his ex- wife were somehow relevant to the decision of whether or not she needed protection, and penalised her for being resilient, even though she had taken the step of asking the courts for protection. Justice … what justice?

An appeal to the High Court proved fruitless, when Justice Mary Peters dismissed the case after finding no error in the Family Court’s ruling.

As it turned out, however, the law was not on the Family Court or High Court’s side. The Domestic Violence Act 1995 states that “a single act may amount to abuse” and that “a number of acts that form a pattern of behaviour may amount to abuse . . . even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial”. Three Court of Appeal Judges heard the case and ruled that Judge Burns’ decision had, “set an unacceptably high threshold for behaviour which might qualify as physical or psychological abuse”.

Justice Rhys Harrison delivered the Court of Appeal’s ruling, disagreeing with the Family Court judgment. “The Act was intended to proscribe and condemn conduct of this nature, not to excuse or minimise it,” he said.

The Court of Appeal finally granted the woman a protection order, more than two years after the Family Court left her vulnerable. The idea that it should take a victim of domestic violence two years and numerous court cases to be granted the protection supposedly guaranteed to her by law should be profoundly shocking to anyone who believes in the idea of justice.

What’s more, it’s unlikely that she is alone in her distressing experiences with the Family Court. A survey released by the Backbone Collective in June found that 300 women felt traumatised by their experience within the New Zealand Family Court. Nearly two thirds of the 500 women surveyed reported that they had been intimidated, threatened or assaulted by their abusers during hearings or court- related meetings.

It is important to note that some men also experience domestic violence, but the statistics are asymmetrical. The Ministry of Justice’s 2014 New Zealand Crime and Safety Survey found that 14 per cent of men report experiencing intimate partner violence, while the percentage of women is almost double at 26 per cent. In the four years between 2009 and 2012, 76 per cent of intimate partner violence- related deaths were perpetrated by men, compared to the 24 per cent perpetrated by women.

Regardless of their gender, however, the Family Court is supposed to protect the vulnerable. That the Backbone survey found it traumatised the very people it is supposed to protect is alarming.

Even more concerning is the idea it could be applying theories to judgments that are either non- existent or have been largely debunked.

Barrister and former family lawyer Catriona MacLennan explained to me this week that some judges in the Family Court have taken so- called “Parental Alienation Syndrome” into account in domestic violence cases; a widely criticised theory that suggests children of a father who has abused their mother say they don’t want to see him because their mother has turned them against him. The theory neglects to take into account that those children may have been traumatised by their father’s actions towards their mother and may be fearful of him.

Another fallacy MacLennan singles out as harmful is “situational violence”, a term not included in Domestic Violence Act that insinuates that violence perpetrated during the period of separation is somehow understandable and thus minimised or sometimes discounted.

Sadly, domestic violence victims have long faced an uphill battle in this country. Historian Professor Barbara Brooks points out that in the 1950s version of Police

Practice for Constables, domestic violence complaints were described thusly: “these assaults are usually minor”. When the Dunedin Women’s Refuge was established in 1976, the Otago Daily Times described it as “a house for women who are running away from men”.

And let’s not forget rape within marriage was legal until 1985. Perhaps it’s unsurprising that we’ve found ourselves to be world- leading abusers in 2017.

The question I can’t get out of my head is whether the “solution” is part of the problem.

Is the system helping domestic violence victims? Or adding to their suffering?

Perhaps it’s unsurprising that we’ve found ourselves to be world- leading abusers in 2017.