From the Family Law Section of the New Zealand Law Society

Domestic violence report

While the recommendations in the “Living on the Cutting Edge” report are worthy of full consideration, the report is simplistic and the statistical sample on which it is based is too small to provide a proper basis for developing policy, says Paul Maskell, Chair of the New Zealand Law Society’s Family Law Section.

Responding to the Waikato University research into women’s experience with protection orders (against violent partners), he says that the Section concurs with the view that the legislation is sound.

While there may be some room for improvement in its implementation, by and large the system is working satisfactorily within the Family Courts. In particular, family lawyers do not accept the view that the threshold for obtaining such orders on a without notice basis has been raised or that current judicial practice runs counter to the objects of the Domestic Violence Act.

“The report itself is short on evidence for saying this and it is certainly not our experience as lawyers working in the Family Courts.

“Indeed, this research found that 87.5% of the women in its case studies who applied for a protection order without notice to the other party were successful – a rate that is higher than the national average which, in 2006-2007, was 78.4%.

“However, the study is very small – just 43 women, which is fewer than 1% of applicants for protection orders in 2006-2007. We need to be careful about drawing major conclusions from a study based on such a small sample. There is a danger in making changes without across-the-board empirical research.”

Paul Maskell says a concern with the report is that it does not seem to recognise that a respondent to an application for a protection order also has rights and that judges must have regard for those rights as well as those of the applicant.

“The report refers to advice to abandon an application as being poor legal advocacy. Advising someone to abandon an application for a protection order is not, in itself, poor advocacy. A lawyer will advise according to the information provided and it would be irresponsible to simply endorse the making of any application without having due regard for the evidence the court will require and to advise accordingly.

“Making a without notice protection order is an extraordinary infringement on normal rights and it is vital that the prescribed legal criteria for doing so are adhered to strictly.”

However, he says, family lawyers support the general thrust of the recommendations – for instance, they would like to see judges give reasons for not granting such applications – but they believe wider research is needed before policy or legislative changes are made.

“We are pleased that the Government is referring this report to the Taskforce for Action on Violence within Families. Family lawyers represent children as well as both applicants and respondents in these situations so we are well aware of the various ramifications for families, and we would be happy to contribute our experience and knowledge to any investigation the taskforce carries out,” Paul Maskell says.

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