Scales of justice out of kilter

Women's refuges are not involved at the Family Violence Court at Manukau. Support comes only from court-appointed advisers who are required to be "neutral". Pictures / Greg Bowker

Victim Support put the lopsided nature of our legal system like this in a submission to a parliamentary inquiry this week: "Offenders are provided with advocacy throughout the entire process, and so victims should be treated similarly."

The Sensible Sentencing Trust called for "reversal of the current rights-based, offender-centred legal system to a responsibility-based, victim-focused system".

Stephanie (not her real name), a young teacher in a middle-class Auckland suburb, has more personal reasons to want change. Two years after her husband assaulted her, causing lasting brain damage, she has paid more than $3000 to lawyers, lost $14,000 in wages - and last month watched her former husband walk away free after claiming that he was insane when he earlier pleaded guilty.

Her former husband - let's call him George - had legal aid at every twist in the legal road. Stephanie had nothing. Her case reveals how our legal system may stack the odds against a woman trying to get out of an abusive relationship.

The couple had been together for five years, married for one. They had no children together, but Stephanie had a daughter from a previous relationship.

George comes from a rich family, but has never kept a job for long. "I think he's suffered depression throughout his life," Stephanie says. "His siblings are very successful. He has never felt good enough."

Early in the relationship, George started trying to take over Stephanie's life. "He was very verbally demeaning - the usual 'no one is going to look after you if I don't' making me feel guilty about going anywhere.

"It was almost a jealous thing. I had less to do with my family when I was with him ... I could go out, but I'd get the third degree when I got home and it would end up in an argument. And further on he would accuse me of having affairs and being out with other people. You live a split life. I was a happy-go-lucky teacher at school and living this nightmare at home. You lose who you are. You lose a true person. You become someone else."

George started punching and kicking her, but never badly enough for her to go to the doctor. She didn't tell anyone. "To me, it was very shameful."

But she always stood up to him. Finally he went too far by telling her daughter that "your Mum's a nutter".

"That was it," Stephanie says. "The next time he hit me, I called my family. We got his family to come and take him."

They tried an amicable separation. But when George realised that Stephanie was getting along fine without him, he came back in an angry mood.

She let him in. They argued. He assaulted her, injuring her head.

Stephanie rang her father, who rang the police. George left. He was arrested at his home and charged with assault. He went home on bail.

Stephanie went to a lawyer to get a protection order but the Family Court judge decided there was no urgency and put the order "on notice", giving George a chance to respond.

It took three or four months to get a hearing. Stephanie's modest teacher's salary put her above the limit for legal aid. She paid her lawyer $1600 to get the protection order and about $2000 in other fees. She got the order, but it was "useless". She rang the police four times when she saw George. Several times it was at the local mall, but "you can't prove you were there first so he didn't have to leave".

Once he drove past her house, but "unless I had a witness there was nothing they could do. After that I gave up".

In the District Court, George pleaded not guilty to assaulting Stephanie, so the case was referred to a pre-depositions hearing. Then, on the day that Stephanie was to give evidence, he switched to a guilty plea and was sentenced to 80 hours' community service. He also had to do an anger management course.

He did the course and apologised to Stephanie, saying he now realised that he had been violent.

Then a year later he decided that he was not mentally competent when he pleaded guilty and asked for a retrial by jury, pleading not guilty. Once again, he spun out the retrial into a series of scheduled hearings, demanding first to be heard in the Auckland court and then in a suburban court.

At both hearings, Stephanie had to take the stand. She felt as if she was the offender. "I was put through hell, to say it politely. Ripped to pieces, made to feel like I had done wrong, questioned in a way that is demoralising. It felt as bad as being assaulted all over again." The second time: "My ex's lawyer tore into me in every possible way and twisted everything to make it look like I was the one with the problems. All the times I fought back or stood up for myself were used against me to say I had instigated the violence."

By this time, Stephanie had been off work on accident compensation, living on only 80 per cent of her former salary for two years because of severe migraines and partial memory loss. She has had 18 months of speech therapy to try to recover lost words. At first, any loud noise was intolerable. But none of this evidence was admissible in court because she had no proof George caused the brain damage. "His lawyer said that I did this to myself to get my ex in trouble."

George was discharged without conviction, the previous conviction quashed. "It is over and for that I'm glad, but I have no faith in the courts system any more," Stephanie says. "I would never encourage women to proceed with a court case if they have to face what I did."

Unfortunately, Stephanie's experience is common. The National Collective of Independent Women's Refuges reported two years ago that many women found protection orders worthless and "had lost faith in the justice system".

A report this year by Alison Towns and Hazel Scott for Auckland's Inner City Women's Group found that women pay lawyers $1000 to $5000 to get protection orders, even though the orders themselves are free. The number of protection orders has dropped nationally in each of the past seven years, from 4322 in 1998-99 to 2392 in the latest year.

The family court hearing required to get an order forced women "to take an adversarial position to their violent partners, a position that clearly placed them at further risk," and they were "expected while traumatised following recent abuse to clearly state the circumstances of the violence they had received".

The Government responded with a taskforce that reported in July.

Police have been told to prosecute more protection order breaches. And in March the income limits for legal aid change from $2000 of "disposable income" to gross incomes of $19,741 a year for a single person, $31,225 for an adult with one child, and higher with more children. These are well short of the $42,005 average wage but extend legal aid from 25 per cent to 40 per cent of all adults.

An experiment with specialist Family Violence Courts, which have operated in Waitakere since 1992 and in Manukau since last year, will be extended in March to Auckland, Masterton, Porirua and Lower Hutt.

The experiment has been hailed as a success in Waitakere (see separate story).

But things are not so rosy in Manukau. No women's refuge is involved in its Family Violence Court, and the only support for victims is from court-appointed victim advisers who have to be "neutral".

Lawyer Catriona MacLennan says: "The judges have on average 30 to 50 cases to deal with in a day. How can a judge possibly do justice to so many cases in one day? The courtroom is grossly overcrowded. ... The people are just piling out into the corridor. There are mums with crying babies, they can't get a seat in the courtroom."

Counties-Manukau police recorded 7133 family violence incidents last year - 1580 for every 100,000 people in the district, by far the highest rate in the country.

Domestic emergencies account for 42 per cent of all police callouts in the district. Nine people were killed in family homicides in the district in the first five months of this year - before the Kahui twins.

Counties-Manukau Victim Support manager Michael Donoghue says he has eight staff trying to counsel 20,000 victims referred to them each year. They have to set priorities, with homicides at the top, then kidnapping, robbery, serious assaults. Male assaults female cases rate eighth.

South Auckland Family Violence Prevention Network (Safvpn, pronounced "Safepin") manager Rodger Smith says judges are referring some couples to couple counselling without first ordering the men to do anger management courses - a practice which the experts say is unsafe.

Friendship House, the main provider of anger management programmes, has a financial crisis because judges are remanding men to appear later and urging them to go to courses in the meantime. But the men can't afford the fees.

Their fees would be paid if they were actually sentenced to do the courses as a condition of supervision on probation, or if the victim took out a protection order.

Judge Russell Johnson, the Chief District Court Judge who helped initiate the courts in Waitakere and Manukau, concedes that there are "quality control" problems at Manukau, although he says the court has succeeded in pushing cases through faster.

"We acknowledge there is some work to do with quality control in relation to quite a lot of areas: security, the outcomes of the sentencing process, the provision of programmes, community support, and professional knowledge of the judges and lawyers and prosecutors." He says the system needs independent victim advocates such as Viviana, a woman's refuge which has speaking rights in Waitakere court.

"Victims often need pushing along a bit and encouraging, and neutral court staff can't do that."

In Auckland, Preventing Violence in the Home director Jane Drumm says her agency is "super-keen" to take on the role that Viviana plays in Waitakere - if it can find the funding. Viviana relies on the ASB Trust.

The Ministry of Women's Affairs is expected to report next July on a plan to fund independent victims' advocates in courts, and Judge Johnson is talking to Drumm about what might happen in the meantime.

"Part of the plan at Manukau was that we would set up an advisory group, including Safvpn and ethnic groups and police and court users, but that hasn't happened," he says. "These courts are only going to work half-pie unless there is a way of mobilising community interest in them and support for what they are trying to do. That would require someone of extraordinary energy to bring it together."

But Judge Johnson is optimistic. He is introducing education for judges and lawyers, in co-operation with the Law Society.

He hopes for standard sentencing patterns which were developed in Manukau but have proved difficult to apply in practice.

"I'm confident that the situation can be made to work and Manukau can potentially be saved," he says. "When I was at Waitakere, until the end of 2002, the police domestic violence co-ordinator said they hadn't had a death from domestic violence for 18 months and they were over the moon.

"You can't put that down to the court. But the court can be part of a community enthusiasm for sorting itself out."

* Preventing Violence in the Home hopes to raise $500,000 at Auckland's biggest garage sale ever held. It will beat ASB Showgrounds on November 17-19 with the theme: Handle with care.


The case for special courts

A trial of special Family Violence Courts has been hailed as a success in Waitakere where it has operated since 1992.

These courts are normal District Courts, but bring all family violence cases together on one day each week, with a second day for defended hearings. Not guilty pleas are not accepted at a first appearance, giving offenders time to calm down after their initial anger that their partners have reported them to the police.

When they come up a week later they are encouraged to plead guilty on the basis that if they go to anger management or drug and alcohol programmes and learn to control their violence, they will avoid being sent to jail. Most sentences range from a discharge without conviction for a minor first offence up to community work.

The effects have been impressive. Guilty pleas in family violence cases at Waitakere jumped from 15 per cent to 65 per cent, and in Manukau last year the alleged offenders accepted responsibility in 81 per cent of cases. Some were discharged without conviction so were not formally found guilty, but still attended non-violence programmes.

Glenda Ryan, manager of the Viviana women's refuge which has speaking rights in the Waitakere court and provides reports from the victims in almost all family violence cases, believes justice is being done despite the apparently light sentences. "People have to accept that 85 per cent of the victims and offenders want to stay together," she says. "That is their choice. They will, no matter what the outcome is in court."

In other courts, most men plead not guilty, their partners get frightened and refuse to give evidence against them, and the cases lapse. In Waitakere, they go through quickly - and the men learn how to handle relationship strains without violence.

"That is why the court encourages guilty pleas that result in therapeutic interventions that those people would never have done on their own volition," Ryan says.

"You see results all the time of the guys who don't want to go to the courses actually going and getting a lot out of them. "We see the benefits for women."