Ministry of Justice, New Zealand

2.1 INTERFACE WITH THE CARE OF CHILDREN ACT 2004

2.1.1 Should there be similar definitions of ‘violence’ in the Domestic Violence Act 1995 and the Care of Children Act 2004?

Section 58 of the Care of Children Act defines ‘violence’ as physical or sexual abuse. The definition of violence is carried over from section 16A of the Guardianship Act 1968. It is a more limited definition of violence than in the Domestic Violence Act, which defines violence as including physical, sexual and psychological abuse. Psychological abuse includes, but is not limited to, intimidation, harassment, controlling behaviour, threats of physical abuse and also includes causing or allowing a child to see or hear the physical, sexual or psychological abuse of a person with whom the child has a domestic relationship or putting the child at real risk of seeing or hearing the abuse occur.[56]

Psychological abuse can be damaging and is an important factor to consider whether a child is at risk. This is recognised in other legislation, such as the Children, Young Persons and Their Families Act 1989, which includes "emotional harm" in its definition of child abuse.

Decisions under the Guardianship Act have indicated that as the purpose of the Domestic Violence Act is to strongly discourage domestic violence and to provide effective protection to victims, emotional or psychological abuse should also be recognised as violence.[57] Judges have also examined whether a child’s safety should be considered solely in terms of safety from physical and sexual abuse. They have determined that the Guardianship Act, now the Care of Children Act must have intended to protect children from psychological and emotional abuse and that they could not be "safe" if they were being psychologically abused.

Section 61(d) of the Care of Children Act includes emotional harm to the child as one of the factors the Court must take into consideration in determining whether a child will be safe having contact with a violent party. Section 60(6) provides that where the Court is unable to determine whether allegations of physical or sexual abuse are proved, but is satisfied that there is a real risk to the child’s safety it may make any order to protect the safety of the child as it thinks fit. Where there is evidence of psychological abuse, the Court may be able to use this clause to protect the child’s safety. Section 5(e), the only prescriptive principle in the list of factors relevant to determining a child’s welfare and best interests, states that the child’s safety must be protected and in particular the child must be protected from all forms of violence. This is a new provision in the Care of Children Act that was not in the Guardianship Act.

However, determining what constitutes psychological abuse raises complications not present in cases of physical or sexual abuse. For example, the nature of parental control and responsibility for children may make it difficult in some situations to determine whether a parent is abusive or simply exercising necessary parental control. However, the Courts have been able to deal with this complication in the Domestic Violence and Children, Young Persons and their Families Acts. In addition, there may be some clear-cut cases of psychological abuse that do not raise such complications.

Expanding the definition to include psychological abuse may lead to an increase in allegations and may also be likely to result in more counter-allegations of violence. This would have implications for the Family Courts. Expanding the definition might also lead to an increase in orders for supervised contact or orders of no contact between the violent party and the child. The impact of such orders can be significant, severely limiting or preventing contact between a parent and child.

2.1.2 Should the Care of Children Act 2004 be amended so that, where allegations of domestic violence have been made in proceedings for a parenting order, no orders are made by consent unless the Court has obtained a report from a specialist in domestic violence to evaluate the impact and effects of violence on the child?

Every request for a parenting order by consent made in the Family Court is currently referred to a Judge for consideration. In cases where violence is alleged[58], regardless of what agreement parents may have reached, the Court has a statutory duty to determine, on the basis of the evidence before it, whether the allegations were proven or not (s60(1)(b) refers).

Where violence is established, i.e. proven, the Court cannot grant day to day care or contact to a violent party unless it is satisfied that the child will be safe: s60(4). In determining whether a child will be safe the Court must consider the factors set out in s60(a)–(i). In making a determination on issues of violence under section 60(1)(b), the Court takes into account the evidence before it.

Where the Court is unable to make a determination that violence has occurred but is satisfied that there is a real risk to the child’s safety the Court may make any order that it thinks fit is necessary to protect the safety of the child.

Under section 4 of the Care of Children Act the welfare and best interests of a child must be the first and paramount consideration in any proceedings under the Act. This includes any decisions made by the Judge on application for a consent order. In determining the welfare and best interests of the child a Court must take into account any of the principles in s5 that are relevant. Section 5(e) provides that a child "must" be protected from all forms of violence.

The Court is able to obtain a specialist report under s132 of the Care of Children Act where it considers a report would be helpful for determination of the proceedings in assessing issues of risk and safety of the child and in determining the best interests of the child. The brief for the specialist report writer is determined by the Judge after consultation with the parties and their lawyers. The report writer will in most cases meet with parties and the child.

2.1.3 Should the Care of Children Act 2004 be amended so that a party who has used violence against the other party or a child of the other party, shall not be granted unsupervised contact unless the Court has first considered a report from a psychologist who has specialist training in domestic violence?

There have been some concerns voiced that the Family Court does not always call for specialist reports in cases involving domestic violence and that specialised knowledge is required in assessing children exposed to domestic violence, and in understanding their expressed wishes. It has been suggested that unsupervised contact should only be granted once a specialist report has been obtained by the Court. It is suggested that such a report should evaluate the risk to the child, the impact of the prior violence on the child, the implication of the violence on each party’s parenting abilities, and the meaning of the child’s expressed wishes.

In cases where violence is alleged, the Court has a statutory duty to determine, on the basis of the evidence before it, whether the allegations were proven or not (s60(1)(b) refers).

As detailed above in 2.1.2, where violence is proven, the Court cannot grant day to day care or contact to a violent party unless it is satisfied that the child will be safe. Where the Court is unable to make a determination that violence has occurred, but is satisfied that there is a risk to the child’s safety, the Court may make any order that it thinks is necessary to protect the safety of the child.

Under section 4 of the Care of Children Act the welfare and best interests of a child is paramount. This includes any decisions made by the Judges on application for consent orders. In determining the welfare and best interests of the child a Court must take into account any of the principles in s5 that are relevant. Section 5(e) provides that a child "must" be protected from all forms of violence.

The Care of Children Act enables a Family Court Judge to ask for a specialist report where it considers a report would be helpful in assessing issues of risk and safety of the child and in determining the best interests of the child.

2.1.4 Should section 4 of the Care of Children Act 2004 be amended to the effect that, where a party has used violence against the other party or a child of the other party, the Court must, in determining what best serves the child’s welfare and best interests, take into account any wish of the other party to relocate?

It has been suggested that s4 of the Care of Children Act 2004 be amended to make it mandatory that the Court, in determining the child’s welfare and best interests, take into account any wish of the other party to relocate so that s/he is able to recover from the trauma of domestic violence (as defined by section 3(2) of the Domestic Violence Act 1995) and to better provide an environment which will support the recovery of the child. The intent is to make this part of the paramountcy principle in s4.

When an application is made to relocate the Court must take into consideration any argument or evidence put before it. If an applicant wishes to raise the above considerations in relation to domestic violence then they will be considered by the Court. The Court will make a decision in accordance with the welfare and best interests of the child having regard to any of the principles in s5 that are relevant. Section 5(e), which states that the child’s safety must be protected is clearly relevant in this context.

It would not be appropriate to make relocation where there has been domestic violence part of the paramountcy principle itself. This would elevate a specific situation over any other that might be relevant in the determination of the child’s welfare and best interests. The strength of the paramountcy provision is its flexibility, and therefore its ability to respond to the particular circumstances of an individual case. The principles in s5 provide guidance of what might be relevant in any particular situation, but even s5 is not an exhaustive list.

2.1.5 Should the age of a child in the Domestic Violence Act be the same as the age of the child in the Care of Children Act 2004?

The interpretation section of the Act states that a "child means a person who is under the age of 17 years; but does not include a person who is or has been married or in a civil union or de facto relationship"[59].

This interpretation of age is consistent with the interpretation of age for a young person[60] in the Children, Young Persons and Their Families Act 1989, however, the age of a minor under that Act is also being reviewed. This is because "under 17" is inconsistent with the interpretation of the age of a child set out in the United Nations Convention on the Rights of the Child (UNCROC), the Children’s Commissioner Act 2003 and the Care of Children Act 2004.

The UNCROC was concluded in 1989 and was the first international instrument to incorporate the full range of human rights – civil, cultural, economic, political and social rights. States parties to the Convention agreed that each child had the rights conferred by the Convention including a special need for protection.

In ratifying the Convention in 1993, New Zealand undertook to take all appropriate legislative, administrative or other measures for the implementation of the rights under the Convention.

The Children’s Commissioner Act 2003 sets out the age of a child as being under the age of 18 years[61] as does the Care of Children Act 2004, which states that a child means a person under the age of 18 years.[62] The Care of Children Act 2004 amended the age at which guardianship of a child ends to 18 years, to conform to the age set in UNCROC. Children who have, with consent of their parents, married or entered into a civil union or de facto relationship when aged 16–18 years are also treated as independent adults for the purpose of guardianship matters.

Options

The options include:

1. Status quo – that is, the definition of "child" remains as someone who is under the age of 17 years. This means that the definition of a child in the Act would be inconsistent with both UNCROC and other related legislation.

2. Amend the interpretation of the age of the child to 18 in the Domestic Violence Act 1995. This means that the interpretation of the age of a child in the Act would be consistent with UNCROC, and related legislation.

2.2 INTERFACE WITH FAMILY PROCEEDINGS ACT 1980

2.2.1 Should the Family Proceedings Act 1980 be amended to empower Judges considering an application under Care of Children Act 2004 to direct that the parties not be referred to counselling or a mediation conference when a party has used violence against the other party or of a child of the marriage, civil union or de facto relationship?

2.2.2 Should the Family Proceedings Act 1980 be further amended to specifically exclude victims of domestic violence from being required to take part in a mediation conference?

Concerns have been expressed that parties have been referred to counselling and mediation in situations where domestic violence has been alleged. As a result victims have felt that they have been re-victimised.

The Family Proceedings Act encourages parties to use counselling in respect of the marriage, civil union or de facto relationship (section 9(1)) prior to any application to the Court being made. However, when an application for a separation order is made, the Family Court Judge may direct that the matter is not referred to counselling where the Judge is satisfied the respondent has used violence (within the meaning of s3(2) of the Domestic Violence Act 1995) against the applicant or a child of the marriage or civil union (s10(3)).

Section 19A states that joint counselling shall not be required where there has been violence.

These counselling provisions are aimed at trying to get parties to resolve their differences as much as possible without involving the Court. Nevertheless, the Family Proceedings Act provides that no-one can be required to attend counselling at which the other party is present if that party has used domestic violence (section 19A). Nothing, however, in section 19A prevents the provision of counselling to parties, if the victim agrees to attend.

There is no equivalent provision for mediation. On receipt of an application for a separation or maintenance order, or for contact or day-to-day care of the children, a Family Court Judge may direct that a mediation conference be convened (section 13(1)). The referral to mediation is at the discretion of the Family Court Judge and the matters that the Judge takes into account in reaching that decision are also discretionary. Alleged domestic violence will be taken into consideration by the Judge in deciding whether a mediation conference is appropriate in the circumstances.

Family mediation (i.e. non-judicial mediation) was recently piloted in the Family Court and is included in the Family Court Matters Bill, which has recently been tabled in the House. Family mediation is proposed as an alternative to counselling. The Bill contains provisions that provide that either party to a marriage, civil union or de facto relationship may request or be directed to family mediation in any matter arising in relation to the marriage, civil union, or de facto relationship. The Registrar of the Family Court will also have the power to determine whether the matter should be referred to a mediator or a counsellor, and in regard to specific applications the Judge may also direct a matter to be heard by a mediator (clause 55). Whether domestic violence is alleged will be a factor in whether a referral is made. The mediator also has the power to assess whether mediation is appropriate and if it proceeds, how it proceeds. Lawyers for the parties and child are also able to attend.

Counselling aims to promote reconciliation and/or conciliation between the parties. Where domestic violence is present there are good reasons why this may not be appropriate and the legislative provisions above reflect this. Mediation, however, has a different focus and aims to assist parties make their own arrangements concerning their children. Mediation offers the parties an opportunity to be involved in making decisions about their children’s future care rather than having these decided by the Court at a defended hearing. Mediation does not require parties to talk with each other but through the conference’s chair, a Family Court Judge. Lawyers for the parties and child are also able to attend. While mediation is not appropriate for every case in which domestic violence is alleged, where it does occur there are sufficient safeguards in the current legislative provisions to deal appropriately with these situations.

Note: It is possible that as a result of the Select Committee’s consideration of the Family Court Matters Bill that the above provisions are amended. The Bill may also be enacted over the next few months.

If submissions to this discussion document suggest that the enacted provisions need to be amended then that can be implemented in the future Domestic Violence Reform Bill.

Footnotes

56 Domestic Violence Act s. 3(2)(c) Meaning of domestic violence.

57 For example, Fielder v Hubbard (1996) NZFLR 769, Family Court, Judge Ellis

58 The allegations of violence referred to in section 60 can be of violence against the child that the proceedings relate to, a child of the family, or the other party to the proceedings (s60(3) refers).

59 The Domestic Violence Act 1995, Part 1, s2.

60 Young person means a boy or girl of or over the age of 14 years but under 17 years; but does not include any person who is or has been married [ or in a civil union ] : Child, Young Persons and Their Families Act 1989, s2.

61 Children’s Commissioner Act 2003, Part 1, s4(1)

62 Care of Children Act 2004, Part 1, s8.