Selected extracts (summarised sections in [..]) from:

Judge D R Brown, Hamilton, "Domestic Violence and Children on the Eve of the Domestic Violence Act", paper presented at the New Zealand Law Society Family Law Conference, Wellington, October 1995.

This paper is written on 31 August 1995. the Domestic Violence Bill has been the subject of submissions to the Parliamentary Select Committee. Its final shape will not be known until it is reported back to the House. If passed, the Bill's enactment of a statutory presumption that there shall be no custody or unsupervised access for a violent parent unless a Court is satisfied that such is safe will represent one of the most radical reshapings of the law relating to children this country has seen.

[Discussion about approaches in the States, some moves in this direction, too soon to tell the effects. Identifies "presumption" codes and "best interests of the child" codes. Some mention of problems in the US and Australia where violence was not taken into account if it did not extend to the children.]

The New Zealand Bill advances these matters further and more uncompromisingly than any United States or Australian provision.

The centrepiece is the direction in s.16B(3) {footnote: The section numbers are the numbers of the sections inserted into the Guardianship Act by the Family Violence Bill.} that no party who has used violence against a child or the other party to the proceedings shall have custody of, or unsupervised access to a child who is the subject of the proceedings unless the Court is satisfied that the child would be safe if custody or unsupervised access were granted.

It is suggested that the word "safe" must, in this context, mean free from the risk of physical harm. [Details of criteria for assessment.]

The Principal Family Court Judge has authorised me to record his opinion that judicial treatment of the s.16B(3) presumption is likely to be conservative.

[Speculation on the effect of the legislation. More vigorous defense against allegations of violence, heavy burden on the overloaded family Court structure, problems with the "total lack of facilities in a great number of parts of the country for professionally supervised access".]

At the date of writing this paper, the country stands on the brink of a new era of resolution in its approach to what it expects for its children. The Domestic Violence Bill expresses its willingness to pay the various prices. The tyranny of rule of the family by force and fear and that most unspeakable human willingness, the willingness to destroy the lives of innocent children, have been vigorously addressed."

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Two key issues arise. What if both parents are violent? What if the court system is more likely to identify violence by some people than by others, will this bias the outcomes?

Note:

1) The presumption that only one partner is violent (see here for alternative information).

2) The gender bias in current police domestic violence policy (see here and here).

3) Even the Labour (opposition) spokesperson on justice downplays violence by women (see here).

4) Financial incentives for women to claim DV (although not so widely known) (see here).

5) At the same conference, Ian Freckleton, a barrister from Melbourne, also made reference to s.16B in his paper (see p.150-1 of Vol.1 of the Conference session papers). He quoted Sir Ronald Davison's report to show that the proposed law change was an application of "what criminal lawyers describe as the principle of general deterrence". He then goes on to say:

"Whether persons who erupt unpremeditatedly into violence in the cauldron of a dysfunctional relationship can be deterred by the potential for their being denied future custody or access by a court remains to be seen. What we do know is that the imposition or removal of the death penalty for acts of spontaneous violence has no impact upon the incidence of such crimes - people are not sufficiently calculating in the throes of passion to perform such evaluations."

Stuart Birks

7 December, 1995