KEY POINTS:
The first in-depth study of New Zealand's current domestic violence law has found that men are breaking the law widely and getting away with it.
The two-year study by Waikato University law professor Ruth Busch and psychologist Neville Robertson recommends much tighter enforcement of the law, including automatic arrest for any breach of a protection order.
They condemn recent experiments with specialist Domestic Violence Courts in Waitakere and Manukau and recommend against establishing any more such courts until the existing trials have been properly evaluated.
The Government has in fact already established four more such courts - one in the Auckland District Court and three in Wellington - without waiting for an evaluation which is due by the end of this year.
CURRENT LAW
The study shows that New Zealand is barely recognising that violence within a domestic relationship should be treated legally in the same way as violence between strangers.
Historically, this has never been the case.
"Violence against wives was expressly permitted by what became known as 'the rule of thumb' after an 18th century British jurist ruled that a man could beat his wife as long as he used a rod no thicker than his thumb," the report says.
In 1990, Dr Busch and Dr Robertson produced a report on what was then the Domestic Protection Act 1982 and made 101 recommendations, including 35 proposed law changes.
All but one of those 35 proposals were implemented in the current Domestic Violence Act 1995, which now allows the courts to issue orders protecting people from their partners even when they are still living together.
FINDINGS
Ten years after that law was passed, Dr Busch and Dr Robertson were commissioned by the Ministry of Women's Affairs to review the law on protection orders.
They have done detailed case studies of 43 women who suffered domestic violence.
They have also interviewed lawyers, women's advocates and others and studied court decisions, official reports and international research.
Not surprisingly, they have found that their key informants were almost unanimous that the 1995 law is "sound legislation".
But they found concern at the way the law is being implemented in five respects.
First, they found that protection orders are too hard to get because judges appear to have "raised the threshold" of violence required for a woman to get a protection order without notice.
Second, most of the 43 women in the case studies reported that offenders repeatedly breached protection orders and were seldom subjected to "any meaningful consequences".
Contacts such as phone calls, texts, emails, following the women around and stalking them were repeatedly dismissed by police as merely "technical" breaches because the women were not physically harmed.
In effect, the men were issuing constant reminders of the violence they had perpetrated in the past.
Third, most of the case studies found that men failed to complete anti-violence programmes when they were ordered to by a court.
This was a major failing of the specialist Domestic Violence Courts, which have been set up on the basis that 80 per cent of battered women actually want to stay in the relationship - they simply want the violence to stop.
The report quotes Waitakere Judge Philip Recordon, who said the specialist court takes a "therapeutic" approach involving supervision, "restorative work", anger management, counselling, addictions treatment and relationship counselling.
The report says such measures should be combined with "consistent enforcement" of protection orders and independent advocates for the victims. Otherwise, they could simply push women into accepting violence "in the way countless generations of women have done in the past".
Fourth, the report found that the role of Child, Youth and Family Services (CYFS) was "deeply problematic" because women were scared to report violence for fear that CYFS would remove their children.
And fifth, it found that immigration laws sometimes meant that immigrant women had no protection against domestic violence.
"Non-resident women whose batterer was also the sponsor of their application for residence were in a particularly vulnerable position," the authors say.
"In the worst cases, such men rescinded their sponsorship of the residence application and, at the same time, got an order from the Family Court preventing removal of the child(ren) from the country.
"Under exactly these circumstances, one of our case study participants has been removed from the country, leaving her daughter in the care of the father."
RECOMMENDATIONS
The report recommends that the 1995 law should be tightened so that an application for a protection order could not be placed on notice without a hearing with the applicant and her lawyer, and requiring judges to give written reasons for either putting an application on notice or refusing it.
It calls for repeal of an existing clause in the law which says police should only arrest someone for breaching a protection order after taking account of the seriousness of the alleged breach, the length of time since the breach and the risk to the victim's safety.
This should be "replaced by a provision that, unless there are special circumstances, police shall arrest where there is cause to suspect" a breach.
The report says police should arrest the "predominant aggressor" where both parties have been fighting, and should not grant bail to any domestic violence offender unless there is good cause to do so.
It says "much higher priority" should be placed on prosecuting men who fail to complete anti-violence programmes.
It recommends independent advocates for victims of domestic violence in both District Courts and Family Courts, and says no more specialist Domestic Violence Courts should be set up until the existing ones have been evaluated.
It says CYFS social workers should be required to screen for domestic violence and "to evaluate battered women's parenting in the context of the constraints imposed by such violence".
In general, the report questions the modern assumption that children need contact with their fathers even where their fathers have been violent.
It recommends changing the new Care of Children Act to create a presumption that fathers should not get either day-to-day care or unsupervised access to their children if they have used any kind of violence, including "psychological violence", unless the judge is satisfied that the children will be safe.
Finally, the report recommends that the Labour Department should consider the interests of children in deciding on any woman's application for residence or a work permit.
Ending the cycle
* Tighten the law to make it harder to give men notice of protection orders until they are issued.
* Automatic arrest for breach of protection order.
* Punish non-attendance in anti-violence programmes.
* A "predominant aggressor" test for arrests where both parties are fighting.
* Presumption of no bail for aggressor in domestic violence cases.
* Court advocates for victims of domestic violence.
* No more specialist Domestic Violence Courts - the trial ones in Manukau and Waitakere don't hold perpetrators accountable enough.
* Free legal aid for all domestic violence victims, including immigration issues.
* Change immigration law to give regard to the interests of children where a mother applies for residence.
* CYFS social workers to screen for domestic violence, not just child abuse.
