Catriona MacLennan: Law fails to protect abused

A review of the Domestic Violence Act being carried out this year needs to make major changes to ensure the law lives up to its aim of providing greater protection from domestic violence.

So far, the legislation has not done that. It has proved disappointing in practice, and New Zealand's shocking record of violence against women and children has continued.

Two key problems with the act are the difficulty in obtaining emergency protection orders and problems in having orders enforced by the police.

Urgent protection orders are supposed to be available when the court is satisfied that a delay in granting an order might cause harm or undue hardship to the domestic violence victim or her children.

However, the orders are difficult to obtain, with judges being increasingly reluctant to grant them.

As long ago as 1999, a group of South Auckland family lawyers wrote to the Family Court judges at the Manukau District Court to express concern about our perception that fewer emergency orders were being granted. The position has not improved.

The number of protection orders granted fell from 4066 in 1999 to 2645 in 2004, despite a rise in recorded assaults by males on females from 6949 to 7526 in the same period.

One cause of the problem is that some judges are simply not applying the law when dealing with protection order applications.

The test for granting an order is clearly set out in section 17 of the act. It requires the court to be satisfied that domestic violence has been used against the woman or her children, and that an order is necessary to protect them.

The emphasis of the legislation is plainly on protecting the victims.

However, some judges in considering applications focus on the position of the violence perpetrator. That is clearly not what Parliament intended. Other judges take into account irrelevant considerations, such as the age of the parties.

I used to think that stating in the application that the women and children were in a refuge made clear they were in danger and needed an emergency order.

However, some judges take the view that if the victims are in a refuge they do not require an urgent order as they are safe there.

Further, despite the fact that the act includes psychological abuse as domestic violence, it is well established that unless there has been recent physical violence it will be extremely difficult to obtain an order. That unstated criterion has become even tougher in recent years.

Last year an emergency application was declined as the most recent physical violence had been the previous weekend and the application was not filed until the following Thursday, As a result, the judge said the order was not required urgently.

The review of the legislation therefore needs to spell out even more clearly to judges that Parliament's intention in passing the law was to protect women and children, and this should be the focus in dealing with applications.

The difficulty in obtaining emergency orders in recent years has led to an increase in the number of applications being placed "on notice". This means they will not be granted until a copy of the application has been served on the violent partner and he has had a chance to respond.

When I act for clients, if it is my view that an order will not be granted on an emergency basis, I now advise clients simply not to proceed with the application.

It will take weeks to be dealt with by the courts, and the danger to the victims is increased during this period when the violent partner is aware of the application and angered by it.

What the woman has to go through to obtain the order is just not worth the end result.

A second key problem with orders is seeking to have them enforced by the police.

The police are overworked and understaffed. Although their response to domestic violence has improved greatly, domestic violence-inspired behaviour can sometimes appear trivial to them.

They may pay insufficient attention to the overall picture of abuse and intimidation, and the escalation in threatening behaviour. They may thus be reluctant to enforce the order, particularly if it is not a recent one.

This places the women and children in great danger, as analysis of cases in which women are killed by their partners generally reveals a clear pattern of escalating, violent behaviour.

If the system does not protect the woman, she learns that she is at the mercy of the abuser, and he learns that he can intimidate her without consequences.

In some overseas jurisdictions, death reviews are conducted in every case in which a woman is killed by her partner. That should be done in New Zealand so that police and others can learn lessons.

If protection orders are not enforced, they are literally no more than pieces of paper. The cost of obtaining a protection order is also a major barrier for many women.

Women on benefits will receive legal aid to apply for orders, but women who are working and earning more than $19,060 are considered too well-off and have to pay lawyers themselves.

This is simply not an option for most women, meaning they can't even apply for orders.

The review should also make it plain that family pets can be included on orders. Violent partners often threaten, abuse or kill pets as a means of controlling the woman. Including pets would mean that they could be removed to a place of safety.

It is to be hoped that changes to the act will mean it delivers better protection in its second 10 years of operation than it has done in the first 10.

* Catriona MacLennan is a South Auckland barrister.