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PCF07

The Role of the Lawyer in Protection Cases in the Family Court

NZ $50.00
incl GST
Alex Ashmore Hon Judge Smith
Alex Ashmore
Barrister
Auckland
Her Honour Judge Smith
Dunedin

Published: 30 April, 2007
Pages: 143

Introduction

The Domestic Violence Act 1995 (“the Act”), was specifically designed to prevent and reduce violence in relationships and was introduced in part because of a voiced dissatisfaction with the Domestic Protection Act 1982 and in part because of continued community protestation and denouncement of domestic violence. However, despite the presumptions behind the Act and the objects of the Act, domestic violence continues in our communities, at times seemingly unabated.

Ongoing domestic violence and recognition of the concerns voiced by the community have led decision-makers from Government and non-Government sectors (including the Judiciary and various Crown agencies) to come together to address the problems of family violence. The Taskforce for Action on Violence Within Families (“the Taskforce”) has been specifically set up to advise the Family Violence Ministerial Team.

The Taskforce’s powerful vision is for all families and whanau to have healthy, respectful and stable relationships free from violence.

Identifying the critical role that the Act plays in achieving the Taskforce’s vision, His Honour Principal Family Court Judge Boshier, a participating member of the Taskforce, gave an undertaking to support the New Zealand Law Society to maximise best practice in the prosecution and defence of domestic violence cases. This seminar is a direct product of that commitment.

On a daily basis lawyers, judges and advocates are central figures, alongside the parties themselves, in litigation as a result of domestic violence applications before the courts. This seminar recognises the vital and often difficult role lawyers play in the Act’s implementation. It is not only an emotionally demanding area of legal practice but also one that can be technically challenging. That challenge is at times compounded by the level of work that is required of advocates in this area to comprehensively and competently undertake the work required, often in a legal environment that may not always recognise the requisite degree of complexity involved and may not remunerate counsel in a way that other areas of legal practice traditionally do.

The theme of the seminar is a simple one: that is, advocacy, skill and effort by counsel can make a real difference to optimum outcomes under the Act. It is important, therefore, to identify at the outset exactly what is meant by “optimum outcomes”. The optimum outcomes of the Act are three-fold. First, to provide protection for those applicants and children demonstrated to be the victims of domestic violence and in need of protection. Second, to ensure Protection Orders (or associated Orders) are not made when there has been no demonstratable violence or need. The second object is as important as the first as an Order wrongly made not only reduces the community’s confidence in the Act but also can engender bitterness and distrust, potentially destroying or fracturing family relationships, including parent-child relationships. The third optimum outcome is to provide educative programmes for applicants, respondents and children when Orders are made to prevent and reduce violence.

Central to good advocacy, and without limiting the range of skills necessary, is a need by all practitioners operating in the area to:

  • Appreciate and understand the applicable theories of domestic violence;
  • Have a detailed appreciation of the different models of domestic violence (in particular those that go beyond the “power and control” model);
  • Be conscious of the difficulties applicants and respondents face in giving comprehensive and compelling instructions to counsel both to obtain Protection Orders, defend them or when seeking to have them discharged;
  • Have highly-developed skills at preparing pleadings, affidavits and assembling evidence;
  • Possess a detailed legal knowledge of both the Act and the applicable Rules; and
  • Appreciate where there may be duties to promote safety beyond the making of any Order.

It has at times been difficult to know the true effect and implications of domestic violence legislation. Over time the analysis of the Act’s effect, implications and of its implementation has sat at opposite ends of the commentary spectrum. This seminar recognises that the Act has been the subject of significant evaluation and copious comment, much diametrically opposed, including:

  • gender bias both towards and against women;
  • without notice applications being too readily granted or not sufficiently granted;
  • that the without notice procedure offends a respondent’s right to natural justice versus a claim that when without notice applications are declined an applicant’s right to safety is impugned and confidence in the Act by applicants and advocates is eroded;
  • that if applicants are faced with having to proceed on notice, many may not – leading to a perpetuation of violence;
  • if without-notice applications are granted it can result in the respondent feeling embittered and a deep-seated sense of injustice can arise;
  • a propensity by judges and courts to fail to accord protection for psychological violence to the same degree as physical or sexual violence (either on a with or without-notice basis) suggesting a need for a more sophisticated approach to viewing qualifying violence; and
  • a need for advocates and judges to consider the types of the violence alleged and in particular whether it is “situational” when considering whether an Order is necessary or not.

This seminar recognises that the judiciary has made concerted efforts over time to acknowledge the reasonable concerns and criticisms relating to legal interventions under the Act and to improve upon the implementation of the Act. These efforts recognise the vital social importance of the Act and the effect of its implementation on family life.

The degree and rigor of critical analysis of the Act is perhaps a testament to the Act’s importance in New Zealand society as a primary method of ensuring, preserving and promoting the safety of victims of domestic violence – adult and child alike. There is no doubt the implementation of the Act can deeply affect the emotional and physical wellbeing of all family members and consequentially wider New Zealand communities. The maximisation of best practice in the prosecution and defence of domestic violence cases is, therefore, essential.

The aim of the seminar is to highlight best practice wherever possible and to ensure underused provisions of the Act are better utilised where relevant, with a view to ensuring that in any given case the court has before it when considering this applicant, this respondent or this child of the family the best evidence available which has been compiled in advance in a persuasive and comprehensive fashion.

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