KEY POINTS:
A report about inadequate enforcement of protection orders has been described as simplistic by the New Zealand Law Society.
The report has also come under fire from the Judiciary.
It was described as unbalanced by Principal Family Court Judge Peter Boshier, while Chief District Court Judge Russell Johnson said the researchers had misunderstood the working of the Family Violence Courts - criminal courts that focus on family violence charges.
The society's family law section said yesterday that while the recommendations in the Living on the Cutting Edge report were worthy of full consideration, the statistical sample on which it was based was too small to provide a proper basis for developing policy.
The Waikato University study, commissioned by the Women's Affairs Ministry, said abused women were often open to harassment and further violence despite seeking safety through protection orders.
The legislation was sound but applications for protection orders were often badly handled by the courts and few men who breached them were convicted, it said.
Paul Maskell, chairman of the section, said while there may be some room for improvement in its implementation, by and large the system was working satisfactorily within the Family Courts.
In particular, family lawyers did not accept that the threshold for obtaining such orders on a "without notice" basis had been raised or that current judicial practice ran counter to the objectives of the Domestic Violence Act.
"The report itself is short on evidence for saying this and it is certainly not our experience as lawyers working in the Family Courts," Mr Maskell said.
"Indeed, this research found that 87.5 per cent of the women in its case studies who applied for a protection order without notice to the other party were successful - a rate that is higher than the national average which, in 2006-2007, was 78.4 per cent.
"However, the study is very small, just 43 women, which is fewer than 1 per cent of applicants for protection orders in 2006-2007.
"We need to be careful about drawing major conclusions from a study based on such a small sample. There is a danger in making changes without across-the-board empirical research."
Mr Maskell said a concern with the report was that it did not seem to recognise that a respondent to an application for a protection order also had rights and that judges must have regard for those rights as well as those of the applicant.
"The report refers to advice to abandon an application as being poor legal advocacy.
"Advising someone to abandon an application for a protection order is not, in itself, poor advocacy. A lawyer will advise according to the information provided and it would be irresponsible to simply endorse the making of any application without having due regard for the evidence the court will require.
"Making a 'without notice' protection order is an extraordinary infringement on normal rights and it is vital that the prescribed legal criteria for doing so are adhered to strictly."
Family lawyers supported the general thrust of the recommendations, but believed wider research was needed before changing policy or law.
- NZPA
