Challenges in Applying Laws Related to Family Violence and Abuse in the Court System
From the moment a case is filed in the family court, there is pressure for parties to “settle”; thus avoiding a “full hearing” , which is frequently perceived as a waste of court resources. Where a “full hearing” is deemed necessary, shortcuts for determining “truth”, are also the norm. For victims of family and violence/abuse, these pressures and processes often involve re-victimisation. But is it the law, as enacted by Parliament, that is the issue? Or is it how judges and lawyers apply the law?
Settlement Processes
Most family court cases are settled before they get to a full hearing. Facilitating this, is a process of gamesmanship between lawyers.
In New Zealand (where I practiced until 2016), there are principles in the Care of Children Act (s7B), which provide obligations in relation to lawyers conduct.
Articulated explicitly is, ‘the need for the child’s welfare and best interests to be the first and paramount consideration when settling arrangements’.
My experience in practice was that lawyers were often more interested in “winning”, than ensuring that their obligations under the Act were met. In part, this is a consequence of the adversarial environment in which lawyers are trained and required to act — “winning” is a core mentality.
There is also limited specialist training around family violence and abuse and how children’s ‘welfare and best interests’ can best be afforded within the complexity that such cases present.
Most lawyers and judges assume they have the requisite knowledge to navigate such complexities and (in my view) fail to adequately reflect on where this knowledge is meant to come from.
The frequent fallback often seems to be that these are matters of “common sense” or “experience”.
Yet when grilled on the relevant psychological and sociological theories that are applicable in such cases, the ignorance of most lawyers and judges quickly becomes clear.
This also means that reflection on the underlying reasons for lawyers obligations in the Care of Children Act, are also not generally a part of individual legal practice — lawyers are not trained to reflect in this way, as sociologists and psychologists tend to do.
There are also next to no accountability mechanisms for holding lawyers to account when they don’t meet their obligations — whether deliberately or otherwise (I have previously described the general propensity to ‘protect ones own’, that is an inherent part of being a member of the legal profession).
With the family court incredibly over-burdened (there are only 65 Family Court warranted judges in New Zealand, including those brought out of retirement on “acting warrants”, and wait times of 12 months or more for full-hearings), pressure is almost always put on the parties to resolve matters between themselves, short of a full hearing.
When you have less than ideally trained lawyers in control of such processes though, the consequent effect is that children’s “best interests” often do not have the priority they are meant to be accorded under the law. In cases involving family violence or abuse, the outcomes can be particularly egregious.
Is there such a thing as two equal parties?
The resolution process for family disputes also assumes that two equal parties are seeking assistance from the court.
Yet there will almost always be one party who is in a better economic position (i.e. to pay for a lawyer / particularly good lawyer) than the other.
As any family violence/abuse specialist can tell you, there is also inevitability a more serious set of power imbalances between a family violence victim and abuser too.
Where one party may be traumatised by past or current experiences, little, if any consideration is given by lawyers or the court to the impact of this in relation to how a victim engages with court processes.
Such factors are also too often considered irrelevant to what the court needs to determine.
When A Custody Case Makes It To A Full Hearing
At a full hearing, the applicant and respondent are each required to produce their “witnesses” — most often including themselves as their primary “witness”.
Witnesses provide direct evidence, generally by affidavit prior to the hearing itself, but with an opportunity for further expansion (within limits) at the hearing itself.
Each party then also has an opportunity to cross-examine the other party and any other witnesses.
For victims of family or sexual violence/abuse, this means the opportunity for an abuser to rehash past events — in effect re-traumatising the victim.
This is an approach that is contrary to generally accepted practice in the criminal jurisdiction, where rules generally prevent such a scenario.
At close of witness questioning, the parties may then be provided the opportunity to give closing addresses, before the Judge makes their final decision.
In a world where many litigants are ill positioned to afford a lawyer (legal aid being wholly insufficient or unavailable for many), this can mean a victim is not only subject to inappropriate cross examination, but at the end of their case, must also come up with and present a coherent summary in defence of their case, having already also navigated unfamiliar and intimidating surroundings and often having just been re-traumatised in the witness box.
Yet in my experience, the power imbalances and effect of such processes on the “truths” presented before them, is frequently lost on many judges.
Flexible evidential rules are problematic
In relation to what evidence a judge will or will not hear or take into account when making their decision, family court evidential rules are extremely flexible — as compared to other kinds of courts.
In practice, this means that a judge will hear and can (and often does) take into account hearsay and other less than reliable evidence.
While there are some good reasons for this flexibility (related to the complexity of matters that come before the court and the limited time available to determine these), such flexibility can also lead to perverse outcomes.
For example, in practice I frequently saw witnesses surprised with new evidence (i.e. evidence not disclosed prior to the hearing) and out of court statements from third parties, with little or no opportunity provided to appropriately rebut such evidence.
In the criminal jurisdiction, this kind of evidence would be considered unreliable, yet in the family court, it is often used to determine “truth”.
The lack of oversight within family courts also means some judges use this ‘flexibility’ carte blanche to further an agenda that is not at all in keeping with what the law intends. (Issues with accountability within the family court is something I have written on previously too).
Determining “welfare & best interests of the child”
The family court’s primary role in determining appropriate custodial arrangements, is to determine the “welfare and best interests” of the child (s4 of the Care of Children Act, in New Zealand).
The “rights” of parents, are not meant to be a relevant factor in this determination; the focus is on the needs of the child(ren) alone.
Section 5 sets out the principles relevant to the court’s determination of “welfare and best interests”.
Section 5(a) in particular, provides that the “child’s safety must be protected”.
Use of “must” in this section, emphasises the importance of child safety under the law.
By contrast, the remaining other section 5 principles are “should” provisions — all are of course important when determining ‘welfare and best interests’, but none are considered ‘mandatory’ considerations, unlike the safety provision.
Emphasising this distinction, is the Court of Appeal decision, Nikau v Nikau [2018] NZCA 566, which makes it clear that the safety principle, in determining care and contact / or a child’s best interests, is of paramount importance.
My experience in practice, is that the family court is not very good at elevating this principle over the others though.
In the case that led to the Nikau appeal for example, Judge Coyle (who I worked under for many years and have previously criticised here), had largely ignored this section / given it similar status to the other sections.
Other protective provisions frequently undermined
Section 51 of the Care of Children Act also provides that the court must consider protective conditions when making orders about care and contact, in cases where there is ‘proven violence’ against a child or other parent.
In practice, this may mean that ‘supervised’, rather than direct contact will be considered where violence has been perpetrated.
In practice, I witnessed cases where it was questionable whether any contact should have been ordered, even on an unsupervised basis.
Ignorance around family violence/abuse theories, including sociological understandings around how power is used and abused, undermines judges and lawyers ability to appropriately navigate and apply the law as it is intended.
Failure to read academic studies that demonstrate the real risks of allowing contact is a problematic aspect of this.
The family court also distinguishes between violence against a child, as against a parent / mother and erroneously assumes that a parent who inflicts ‘direct’ harm only against the other parent, presents little or no threat to the child.
There is ample academic work that demonstrates otherwise, yet in my experience, judges and lawyers are generally ignorant of the harm presented to a child who witnesses their parent / mother (often their primary caregiver and protecter) being harmed.
That’s quite aside from the general awfulness of any woman / abuse victim being expected to continue to engage / see her abuser regularly, simply because she made the mistake of having a child with them.
The family court’s primary emphasis is generally on securing the involvement of both parents in a child’s life though, regardless of exposure to direct or indirect violence or abuse; this is particularly true in cases where there has been violence against the mother only and not against the child(ren).
Family violence/abuse is not a gender-neutral issue
Archaic assumptions and prejudices around family violence being a gender-neutral issue (a call I have frequently heard made by family court judges and lawyers), also flys in the face of ample empirical evidence that demonstrates family violence/abuse is predominantly a problem of men abusing women and children.
It’s not that women / mothers can’t be violent — family violence specialists are the first to acknowledge that there are a particular set of issues that go with this territory.
What academic studies have demonstrated clearly time and again though, is that men are significantly more likely to be the primary abuser; the outcomes of male against female violence is generally significantly more severe than the reverse; and reactionary abuse does not make a woman an abuser.
Determining violence cases in NZ — the law pre-2014
Pre New Zealand’s 2014 family court reforms, judges were required to determine the credibility of any family violence/abuse allegations, prior to the determination of any other matter before the court.
This was a law enacted following the murder of the Bristol children in the 1990s, where Parliament understood the need for better provisions to protect women and children from their abusers.
Following submissions from the legal profession and judiciary about the cumbersome nature of this law (as they perceived it, without the appropriate training and resources needed to implement it effectively), the law was subsequently revoked in 2014.
Today’s violence allegations are now determined at the same time as all other “best interests” determinations are made.
In determining violence allegations, psychological theories related to parental alienation / parental alienation syndrome (whether referred to directly or utilised more surreptitiously) are often used to undermine allegations of family violence/abuse.
The effect of this in practice, has meant that mothers who raise allegations of abuse (either with respect to themselves or with respect to their children), are often not believed.
Prejudicial insinuations are made that the only reason allegations of abuse are made, is because the mother does not want the father to have a continued relationship with the child(ren).
As an experienced practitioner, with many subsequent years researching in this field after leaving practice, it is my experience that mothers family violence/abuse experiences are often minimised or written off with language, such as “high conflict” and “mutual violence”, which is inappropriately used to discredit their narratives.
It is my experience that the family court also does not generally understand psychological violence — although the law makes it clear that this is something parties in the family court also have a right to be protected from.
Certainly, it was only in the 2017, Court of Appeal case SN v MN [2017] NZCA 289, that the family court was directed to the long held academic understanding that psychological violence can be a pattern of behaviour — an understanding that I certainly did not see from judges and lawyers as a rule, while I was in practice.
The consequent effect of these issues, is that mothers and children who allege violence or abuse, are at high risk of being re-victimised in the family court, because there is a systemic misunderstanding around the nature of family violence/abuse.
Issues with the law? Or issues with its application?
My personal view is that while the Bristol provision should be reimplemented (giving priority to the determination of whether violence has occurred before any other matter is determined), the law is generally sound.
On the face of it, welfare of children comes first and recognition for the need to ensure safety in cases of family violence/abuse is afforded a significant place in determining this.
It is my view however, that the application of the law by judges, and the often misguided involvement of untrained lawyers, is an issue.
I have personally seen cases where judges have distorted a straight forward reading of the law (or ignored it completely) to fit preconceived or prejudiced notions around how they believe a family should operate — often egged on by less than ideally trained lawyers and/or a system that makes it difficult for lawyers to face-down judges inclined to bully.
Bullying and potentially inappropriate judicial influence over lawyers in the family courts, is an issue I have previously noted here too.
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