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Child Abduction – Does the familycaught know what it is doing?

Filed under: General — MurrayBacon @ 7:41 am Tue 10th April 2007

Below, I attach two papers by judge jan doogue, presented in 2003 and 2004, one supporting that judges should give (almost illegal?) support to mother abductors and the other suggesting that maybe father’s relationships with their children are being damaged without reason by familycaught.
When reading these papers, keep in mind the quality and skills for “weighing evidence” in familycaught! When you consider the absence of reliable evidence in most cases, then the ideas propounded by judge doogue can be seen to be highly hazardous to family relationships (I would suggest family vandalism?)
Lets apply common sense to obtain a working familycaught.
Best regards,
MurrayBacon
Notes:
2003(6) mother abductors are about 85%, not 70% as stated.
2003(7) read this carefully and make your own judgement.
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2003
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SECTION 13(1)(c) DEFENCES UNDER THE GUARDIANSHIP
AMENDMENT ACT 1991
The Climate following DP v Commonwealth Central Authority; Re S
(Abduction: Custody Rights); E.S. v Secretary for Justice.
Judge Jan Doogue, Family Court, Auckland
INTRODUCTION
1. This paper deals with those cases where it is asserted by an abducting parent
that a child’s return to the country of habitual residence will either expose the
child to physical or psychological harm or otherwise place the child in an
intolerable situation because of domestic violence.
2. Social developments and recent legal developments in Australia, United
Kingdom and New Zealand have converged to make this an extremely
problematic and challenging area of the law for practitioners advising clients,
and for Judges determining cases. Some legal commentators argue that The
Hague Convention on the Civil Aspects of International Child Abduction 1980
(the abduction convention) convention now puts at risk some children in
abduction cases involving domestic violence.
3. In this paper, I will review recent decisions where the difficult tension
between the abduction convention and the changing demographic of
abductors and reasons for abductions has been grappled with by Courts, with
particular emphasis on the trans-tasman situation in New Zealand and
Australia.
BACKGROUND
4. When the abduction convention was first formulated, the usual abductor was
a non-custodial parent and a father. Since then, there has been a significant
change in the profile of the “abductor”. Lowe and Perry (1) did a comparison
between the profiles of abductors between 1987 and 1996. They found a
considerable shift in the ratio of mother to father abductors. This was
confirmed by the statistical analysis of applications made in 1999 and
presented by Lowe (2) for the attention of the Special Commission at The
Hague in March 2001.
5. On the basis of that analysis Lowe found that globally 70 percent of abductors
were now mothers.
6. Judicial recognition of this change was given recently in TB v JB
(Abductions: Grave Risk of Harm) (3) by Hale LJ wherein she stated:
LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 2
“Now, however, in 70 percent of cases, the abductor is the
primary carer: the parent who has always looked after the
children, upon whom the children rely for all their basic needs,
and with whom their main security lies. The other parent is
using the Hague Convention essentially to protect his rights of
access”.
7. Whilst not all primary carer abductions have a history of violence or abuse
against the mother or child, it would appear that very many do. In a
significant number of such cases, the eventual outcome will be that the child,
if returned to the state of habitual residence, will legally be allowed to leave
that country with the primary carer. If the relocation is not sanctioned by the
Court, custody is most often granted to the primary carer in any event.

This paper continues in the comments section……..

5 Responses to “Child Abduction – Does the familycaught know what it is doing?”

  1. MurrayBacon says:

    8. Freeman (4) argues that:
    “ If the best interests of children generally are to continue to be
    fully protected by the Hague Convention, special consideration
    may need to be given to the primary carer status of the
    abductor, especially when the background to the abduction is
    based in violence or abuse”.
    9. Commentators around the world observe that the time has come to look at
    not only the successes of the abduction convention but the problems as well.
    Numerous commentators such as Reddaway and Keating (5) suggest that
    Courts may be protecting the principles of the abduction convention and
    judicial comity at the expense of children “who are being returned only to
    experience further poverty, neglect or abuse”.
    10. Another commentator has said somewhat emotively “Unless a more realistic
    approach to violence is taken in Convention cases when interpreting Article 13
    defences, the Courts could be seen as a further tool of the abuser for
    exercising power and control over women and children” (6).
    11 These cases raise the question of whether a domestic violence victim who
    believes that escape is the only way to assure her safety and that of her
    children, (where there is a reasonable basis for that belief) should be
    subjected to the abduction convention’s remedy of return or whether Courts
    should be less restrictive in their interpretation of grave risk and intolerable
    situation.
    THE LAW
    12. In New Zealand, s 13(1)(c) of the Guardianship Amendment Act 1991 is the
    applicable statutory provision to this class of case. It enshrines Article 13(b)
    of the abduction convention.
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 3
    13. The starting point in case law in this area must be A v Central Authority
    for New Zealand [1996] 2 NZLR 517. In that case, both parents were
    Danish nationals. Against a background of allegations of sexual abuse by the
    father, the mother brought the child to New Zealand. The Judge at first
    instance refused the application by the Central Authority for return on the
    ground that there was a grave risk that the child’s return to Denmark would
    expose her to physical or psychological harm, namely alleged sexual abuse by
    the father. This decision was reversed in the High Court on the basis that an
    order for return was not an order for the return of the child to the custody of
    the parent resident in Denmark but rather to the country of Denmark and that
    the Court was entitled to assume the Danish legal system could protect the
    child if a sufficient case was made out for her protection.
    14. The next benchmark case in this area in New Zealand is S v S [1999] 3 NZLR
    513. Fisher J summarised the legal principles to apply in “grave risk” cases at
    pages 522 and 523. His decision was upheld on appeal by the Court of
    Appeal and it emphasises that, in exercising the Court’s residual discretion,
    even where there has been a finding of grave risk, the Court must exercise its
    discretion “in the context of the Convention and the Act in which it is
    incorporated”. Although the Court accepted the mother abductor had
    suffered sustained physical and psychological abuse which had devastating
    consequences for her in that she suffered from post traumatic stress disorder,
    he was not called upon to decide the case as to whether he should refuse the
    return on that ground. The decisive factor in that case was the wishes of the
    children. Nevertheless the principles to apply as enunciated by Justice Fisher
    were upheld by the Court of Appeal.
    15. In H v C [2000] NZFLR 775, I rejected a s 13(1)(c) defence because I did not
    find the mother’s evidence credible to the effect that she would not be able to
    function on return to Australia. She was the primary caregiver to a son aged
    12. She had removed him during custody proceedings in Queensland saying
    that she did not trust the Judge to make a fair and child-focused decision.
    The case was ultimately determined on the grounds contained in s13(1)(d) —
    Child’s Objection. At page 787, I said in relation to the s 13(1)(c) defence:
    …If the mother had proved on the balance of probabilities that
    she would not under any circumstances return, then the
    evidence satisfies me overwhelmingly that for Joshua a return to
    Australia would entail a return into the primary care of his father
    and that could in fact be psychological abusive for him and thus
    s 13(1)(c)(i) would be made out”.
    16. In August 2000 I summarised the general principles that applied to such
    cases in A v E [2000] NZFLR p 984 at p 995-996. They can be summarised
    as follows:
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 4
    (1) The onus is on the abducting parent.
    (2) The standard of onus of proof is very high.
    (3) There is a presumption in favour of the child’s return.
    (4) The focus is on the child’s situation not that of the
    abducting parent. The issue is not whether the abducting
    parent would be exposed to physical or psychological
    harm but whether the child would be exposed to physical
    or psychological harm.
    (5) The abducting parent must satisfy the Court that it is not
    the return to the care of the left behind parent which will
    expose the child to risk, but the return to the country
    itself which will threaten the child’s safety.
    (6) It is not sufficient to show merely that allowing custody or
    access to the applicant would involve grave risk to the
    child but also why the legal system of the country of
    habitual residence cannot be trusted to safeguard the
    interests of the child.
    (7) The risk of physical or psychological harm must be
    substantial or severe.
    (8) The harm done must be more than the damage that is a
    natural consequence of the disruption to the child’s life of
    the removal and the return.
    (9) The abducting parent cannot create a situation of
    potential psychological harm and then rely on it to
    prevent the return of the child.
    17. In that case, the primary caregiver mother had brought her son to New
    Zealand from Australia. The evidence established that the mother had been
    the victim of domestic violence perpetrated by the father of the child. She
    suffered a major depressive disorder as a result. The expert testimony was
    that if I ordered a return of the child to Australia the mother may suicide
    because she would be returning to the place where the trauma had occurred
    which would re-traumatise her in and of itself.
    18. Colin Pidgeon QC, counsel for the Central Authority in that case, cautioned me
    not to find the defence proven. He argued that it was a “standard type of
    Hague Convention application where violence was the trigger persuading the
    parent to abduct a child”.
    19. I was also referred to the obiter comments of Fisher J in S v S at pages 526
    and 527 of his judgment where he said:
    “The current impact of the Hague Convention upon battered
    wives may change. The Australian Law Reform Commission
    recognised the predicament of female victims of violence who
    take refuge elsewhere in its report Equality Before the Law,
    paras 9.39 to 9.46. The commission recommended that the
    Australian legislation be amended to provide that in deciding
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 5
    whether there is a grave risk that a child’s return would “expose
    the child to physical or psychological harm or an otherwise
    intolerable situation” regard might be had to the harmful effects
    on the child of past violence or of violence to the abductor likely
    to occur if the child is returned. More significantly, it
    recommended a provision that the child should not be returned if
    there is a reasonable risk that to do so would endanger the
    safety of the parent who has the care of the child. Perhaps
    there will be similar developments in New Zealand. Plainly,
    however, this is a matter which could be addressed only by
    Parliament which, in turn, would no doubt wish to consult more
    widely within the international community. It is not an area in
    which the Courts can defy Parliament by departing from the
    legislation as it presently stands”.
    20. This was a truly exceptional case given the expert evidence as to the risk of
    suicide and no evidence before me as to how that risk might be mitigated
    against on return to Australia. I found the evidence did meet the kind of
    exception the legislation provides for.
    21. In KMH v The Chief Executive of the Department for Courts [2001]
    NZFLR 825, Justice Young was considering an appeal against an order for
    return of a young boy to South Carolina in the United States of America. In
    that case, the mother and the child believed that the child had been subject
    to sexual abuse by his father and that the South Carolina Courts had not been
    able to keep the boy safe. Justice Young rejected the notion that the legal
    system of the Court of habitual residence had adopted anything other than a
    fair child-focused approach to the dispute between the boy’s parents. He
    ordered return having first secured “undertakings” from the father. At
    page 835 he concurred with Dr Perez-Vera’s comment on Article 13 lifted
    from her explanatory report (7) to the effect that these defences must be
    determined extremely restrictively.
    22. In M v C [2000] NZFLR 582 (April), Judge Twaddle was concerned with a
    case involving two children aged seven and four who were brought to New
    Zealand by their mother. The father sought their return. The Judge was
    satisfied that the father had perpetrated ongoing violence and emotional
    abuse against the mother and on one occasion had hit one of the children.
    Evidence was given by a psychologist who said that the older child exhibited
    symptoms of post traumatic stress disorder and that, if the children were
    returned to Australia, they would see a return of anxiety-related problems and
    that the primary caregiver’s inability to cope with a return would have a
    negative impact on them. What is of considerable significance in my view in
    this case is that — there had been two intervention orders made by the Court
    in Australia and the father had a conviction for breaching one of them. This
    had contributed to the mother’s anxiety and belief that the legal system had
    not protected her in Australia and that, even if the children’s safety could be
    ensured, they would remain in a state of high anxiety. Allowing for the
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 6
    restrictiveness of the test, Judge Twaddle found “grave risk” in these
    circumstances.
    23. Judge Clarkson rejected the s 13(1)(c) defence had been made out in S v Y
    (FP 004-503-N-01) Family Court Auckland, 14 June 2001). In doing so, she
    placed considerable reliance on the fact that the mother, primary caregiver
    abductor, had not taken any steps to attempt to protect herself or the child in
    Australia. She had not even taken any professional advice on the subject. At
    page 7 of the decision, she observed “…the Respondent is on much stronger
    ground, if the Court can be shown that there has already been deliberate
    flouting of the very Court orders which will be taken as being the protective
    net able to be put in place by a country of return. If those can be shown, in
    advance, to be insufficient to protect the respondent and children, then it
    seems to me that any respondent is a great deal further advanced towards
    satisfying the Court of grave risk than is the present respondent”.
    24. In McM v McM [2001] NZFLR 1, Judge Walsh declined to order the return of
    three children from Invercargill to the United Kingdom. The husband had
    suffered a nervous breakdown and indicated he wanted no contact with the
    children. His mental health problems continued and he was admitted to a
    psychiatric hospital. The husband was given notice of the wife’s intention to
    move to New Zealand with the children, but he took no steps to prevent this.
    The mother took sole responsibility for the children and the father provided
    no support. Several months after the mother had moved to New Zealand with
    the children, the father filed an application for return of the children.
    25. The totality of the evidence established that not only was there extreme
    physical and verbal domestic violence between the parties which had
    impacted on the children, but the husband’s mental illness, which had an
    uncertain prognosis, posed an ongoing risk factor which could not be ignored.
    The husband had refused to co-operate with the psychologist who was
    preparing a report for the proceedings, notwithstanding the husband’s
    awareness that this was relevant to the final determination. The Court
    considered the husband was still suffering from an ongoing mental illness
    which was serious enough to require inpatient care, and given the uncertainty
    and absence of independent professional knowledge about the husband’s
    state of mental health, there were doubts that the legal system in the United
    Kingdom could fully protect the children.
    26. In H v C, an unreported case of Judge J M Moss (Family Court, Lower Hutt,
    Ref: FP 368/00, 9 March 2001) an order was made for return of children to
    Australia. This case involved very serious domestic violence, including
    wounding with a knife and frequent bruising. There had been an interim
    invention order in place, it had lapsed — there was no suggestion it had been
    breached.
    27. Judge Moss found in the evidence that the primary caregiver mother had
    family support in Australia and that her depression would be managed (there
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 7
    was no risk of suicide) and her safety assured and that of the children by
    invocation of assistance from the legal system, social medical services. She
    adjourned the case for one month so that interim protection and custody
    orders could be made in favour of the abducting parent in Australia.
    28. As one commentator put it (8) “This is an example of the Court’s ability to
    obtain the co-operation of another jurisdiction to ensure that the return of the
    child will be safe”. That approach has been the subject of criticism also by
    Justice Kay in L v H and C (Family Court of Australia, Melbourne, Ref: ML
    8407/00, Judgment 12 April 2001). His Honour considered that there was a
    current of judicial thought which said it is not really the concern of the
    returning judge to inquire into the conditions on the return beyond the
    minimum amount of involvement, the nature of the abduction convention
    being that the countries who have signed it each have faith in the others’
    legal systems to provide the necessary protections.
    29. Up to this point, the way in which the Family Court and the High Court in New
    Zealand have interpreted and applied the law appears to be highly consistent.
    All Judges appear up to this point to have followed the Court of Appeal in
    A v A and S v S in restrictively interpreting the exception defence in
    s 13(1)(c) and only refusing to return in exceptional and rare cases. A theme
    appears to have emerged that return in domestic violence cases is only
    refused where the legal system of the country (primarily Australia in these
    cases) has not as a matter of fact been able to protect the primary caregiver
    where she has accessed the legal protection and it has been breached by the
    violent party.
    30. For a consideration of the New Zealand cases after this time it becomes
    necessary to consider the international position.
    INTERNATIONAL DEVELOPMENTS
    31. The New Zealand Courts, in determining issues of international conventions,
    are directed to look to other Commonwealth and American jurisprudence
    particularly, and interpret treaty or convention provisions consistently with
    other jurisdictions (9).
    32. A degree of uncertainty has been introduced by the divergence of views
    between two of our common partners in these cases — Australia and the
    United Kingdom.
    AUSTRALIAN DECISIONS
    33. DP v Commonwealth Central Authority/JLM v Director-General ,
    NSW Department of Community Service (2000) 180 ALR 402 were
    heard together by the High Court of Australia. In DP the mother was a Greek
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 8
    born Australian citizen and the father was a Greek citizen. The father and
    mother married and lived in Greece where their son was born. From an early
    age, their child was unwell and remained undiagnosed by the Greek medical
    services. The mother decided to seek an opinion outside of Greece. The
    parents separated, after which a Greek Court authorised the mother to have
    custody and ordered the father to pay maintenance. The mother obtained an
    Australian passport for the child, and the father obtained an order preventing
    the mother leaving Greece with the child. This order was not however
    brought to the mother’s attention before she left Greece for Australia. The
    father applied to have the child returned. The child was diagnosed in
    Australia as being severely autistic, and was obtaining therapy from several
    medical professionals. Following the therapy the child progressed well. The
    mother was concerned that if the child were returned to Greece, he would not
    be able to receive the quality of care he had received in Australia.
    34. It was held by the High Court of Australia that the unavailability of suitable
    treatment could be regarded as exposing him to physical or psychological
    harm or otherwise placing him in an intolerable situation and therefore that a
    finding of grave risk was open to be made. Whilst the return is to a country
    and not a place or a person, the application of the grave risk provision
    requires consideration of what the consequences of that return are. That was
    seen essentially as a question of fact which would fall for decision on the
    evidence adduced in the proceedings. The fact that there would be
    proceedings between the parties in the country of habitual residence as to
    custody and access did not mean that the “grave risk” provision could not
    operate.
    35. In JLM the child was born in Mexico. The mother (an Australian citizen)
    married the child’s father in Australia. The mother and father then moved to
    Mexico for several years, and then returned to Australia. The father returned
    to Mexico after which the mother refused to return either herself or their
    child. At first instance, after an examination of the evidence, the Court
    concluded that the mother was considered to have a very serious risk or high
    risk of suicide if the child were returned to Mexico, which would created a
    grave risk of psychological harm to the child. The Full Court on appeal did not
    review the evidence.
    36. The High Court on appeal considered it was not open for the Full Court to say
    that the first instance Court ought not to have made the findings that it did.
    37. Aspects which the High Court considered relevant, were the fact that
    although the Australian Central Authority could obtain certain undertakings
    from the father, it was not evident how or by whom an undertaking to that
    body was enforceable. If the undertakings were not readily enforceable by
    the parent for whose benefit they were made, there was no point in exacting
    them. The father had undertaken to co-operate with the mother to ensure a
    court of competent jurisdiction in Mexico determined the issue of residence
    without delay.
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 9
    38. The mother gave evidence as to her inability to provide the financial
    resources to fund a proceeding. The High Court considered the Full Court was
    wrong to conclude there was no evidence that the mother would be unable to
    contest a case in Mexico. The High Court also considered the Full Court was
    wrong to conclude there was no evidence which warranted the first instance
    Court’s conclusion that the mother was at a real risk of suicide.
    39. These decisions are significant because, put simply, the majority contended
    that defences such as the “grave risk” defence were not to be narrowly
    construed.
    40. As Colin Pidgeon QC put it in an address to the Fourth Biennial Conference of
    Australian Central Authorities for the Child Abduction convention, Melbourne,
    6-7 December 2001 (10), where he was discussing the effect of the decision
    of the High Court of Australia.
    “Although the decisions of the majority of the High Court of
    Australia confirmed the general rule that a child should be
    returned to the country of habitual residence if he or she were
    removed to, or retained in, Australia if the removal or retention
    were in breach of rights of custody, it appears to have
    significantly changed not only the general understanding of law
    in Australia in relation to the application of the Hague
    Convention, but also departed from the way the Hague
    Convention has been interpreted by the New Zealand Courts,
    including the New Zealand Court of Appeal”.
    ENGLISH DECISIONS
    41. In contradistinction, the English Court of Appeal upheld the traditional
    approach in Re S (Abduction: Custody Rights) (11). At paragraph 45,
    Ward LJ said:
    “(45) Time did not permit full argument to be addressed to us
    on this point. Our tentative view is that we are not confident
    that this Court would take the same view as the majority in the
    High Court of Australia. It seems to us to follow that, since the
    Court requires compelling and convincing evidence, then the
    Court is imposing a strict test and, by being stringent, the Court
    is reining tight conditions for return. There is ample authority in
    this Court that a stringent test is appropriate. For example, Sir
    Christopher Slade has said in Re F (A Minor Child Abduction:
    Rights of Custody Abroad) (1995) Fam 224, sub nom Re F
    (Child Abduction: Risk if Returned) (1995) 2 FLR 31 at 238
    and 243 respectively:
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 10
    “[The Courts] are in my view quite right to be
    cautious and to apply a stringent test. The
    invocation of Art 13(b), with scant justification, is
    all too likely to be the last resort for parents who
    have wrongfully removed their children to another
    jurisdiction”.
    In Re C (Abduction: Grave Risk of Physical or Psychological
    Harm) [1999] 2 FLR 478, 487 Butler-Sloss LJ also spoke of the need to
    meet ‘the stringent test that is required to produce [the Art 13(b)]
    defence’. In TB v JB (Abduction: Grave Risk of Harm) [2001] 2
    FLR 515, this Court approved Singer J’s direction that:
    “Authority is multiple in this jurisdiction for the
    proposition that this Art 13(b) defence represents a
    high hurdle for an abducting parent to clear in
    order to open the door to the discretion not to
    order return”.
    In our judgment, that is now settled law in this jurisdiction”.
    42. This approach of the English Court of Appeal in Re S is in line with the
    approach of The New Zealand Court of Appeal and the Family Court of New
    Zealand since the Guardianship Amendment Act came into force in 1991.
    43. The English Court of Appeal referred in Re S to the Explanatory Report of Dr
    Elisa Perez-Vera on the Convention — a document to which Courts in any
    jurisdiction should have regard as an important interpretative tool. As to the
    narrowness or breadth of the exceptions including s 13(b), Dr Perez-Vera
    records: (12)
    ” The exceptions contained in (b) deal with situations where
    international child abduction has indeed occurred, but where the
    return of the child will be contrary to its interests, as that phrase
    is understood in this sub-paragraph. Each of the terms used in
    this provision is the result of a fragile compromise reached
    during the deliberations of the Special Commission and has been
    kept unaltered. Thus it cannot be inferred, a contrario, from the
    rejection during the Fourteenth Session of proposals favouring
    the inclusion of an express provision stating that this exemption
    could not be invoked if the return of the child might harm its
    economic or educational prospects, that the exceptions are to
    receive a wide interpretation”.
    44. An important decision by the English Court of Appeal dealing with the
    dilemma faced by a Court where, because of the failure of a parent to return
    to the habitual residence, the effect of the order would be to return the child
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 11
    into the care of the “abuser” by default is that of the English Court of Appeal
    in Re M (A Minor) (Child Abduction) [1994] 1 FLR 390.
    45. At p 395 of the decision, Butler-Sloss LJ said:
    “It is true that Article 12 requires the return of the child
    wrongfully removed or retained to the state of habitual residence
    and not to the person requesting the return. In many cases the
    abducting parent returns with the child and retains the child until
    the Court has made a decision as to the child’s future. The
    problem arises when the mother decides not to return with the
    child. It would be artificial to dissociate the country from the
    carer in the latter case and to refuse to listen to the child on so
    technical a ground.
    I disagree with the contrary interpretation given by Johnson J in
    B v K (Child Abduction) (1993) Fam Law 17. Such an
    approach would be incompatible with the recognition by the
    Contracting States signing the Convention that there are cases
    where the welfare of the child requires the Court to listen to him.
    It would also fail to take into account Article 12 of the United
    Nations Convention on the Rights of the Child 1989. From the
    child’s point of view, the place and the person in those
    circumstances become the same.
    The decision of this Court in Re C (A Minor) (Abduction)
    (1989) 1 FLR 403 related to an application under Article 13(b)
    and the attempt of the mother to create an intolerable situation
    for the child by refusing herself to return. I am satisfied that the
    wording of Article 13 does not inhibit a Court from considering
    the objections of a child to returning to a parent”.
    46. There appears to be no logical distinction between this type of case and
    “grave risk” situations.
    47. In other words, although it is normal in looking at grave risk as being a grave
    risk of return to the country and not to the parent, there may be
    circumstances, particularly when a mother decides not to return with the child
    and the reasons are genuine with the mother not simply trying to manipulate
    a situation to her advantage, where it is correct that it would be artificial to
    dissociate country from parent insofar as return is concerned.
    48. Re PQ [2000] ScotCS 114 (27 April, 2000) There was a petition by a
    French father, seeking return of his 2 children (aged 6 and 3) to France from
    Scotland. The Scottish mother left the matrimonial home amidst allegations of
    misconduct on the part of the father and in particular an incident of serious
    violence. The children were eventually placed in the custody of the father.
    After a period of time the mother became concerned for the welfare of the
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 12
    children and a medical examination indicated evidence of physical and sexual
    abuse whilst the children were in the father’s custody. The French authorities
    considered there was however insufficient evidence to found a prosecution. At
    this point the mother removed the children from France. Further medical
    opinions sought from Scottish experts confirmed the opinion that there was a
    considerable risk that children had been exposed to abuse.
    49. The Court made an extensive examination of relevant authorities and
    formulated the following propositions in relation to abduction Convention
    applications where sexual abuse allegations were present:
    (1) The fact that a criminal prosecutor did not consider there was sufficient
    evidence to secure a conviction did not exclude the possibility that a
    civil court, operating on a lower standard of proof, might find some of
    the allegations proved, or might simply conclude that it would not be
    safe to leave the child in unsupervised care of the alleged abuser. The
    court would require further investigation into the allegations.
    (2) Pending further investigations, the court would require an interim
    protection order to prevent unsupervised contact with the alleged
    abuser. In the event of the allegations being sustained after further
    investigation, more permanent protection would be required.
    (3) Prima facie, one abduction Convention country court can assume that
    another abduction Convention country court will be able and willing to
    provide adequate protection, whether interim or final.
    (4) In the normal course there is no reason to assume courts of another
    abduction Convention country will not have either the ability or
    willingness to provide adequate protection. To so assume would be
    presumptuous and offensive.
    (5) Accordingly a court in one abduction Convention country can return the
    child to the courts in another abduction Convention country (being the
    country of the alleged abuser), assuming the latter courts will provide
    adequate protection at all stages.
    (6) Thus at the time of the child’s return there is no grave risk to the child,
    as it would be inconceivable or presumptuous and offensive to suggest
    that the other country’s courts might fail to provide adequate
    protection at any stage.
    50. The Court considered there was reason in this case to assume the courts in
    France may not be able or willing to provide adequate protection for the
    children because there was considerable medical evidence of abuse, and the
    French court would not put in place a protection order. In these
    circumstances the father may have reacquired sole unsupervised care of one
    of the children. The reason for any apparent lack of willingness of an
    abduction Convention court to provide adequate remedies or procedures was
    irrelevant. It was not for the respondent to establish the source of the
    inadequacies. It was not for the Court in the country where the child was,
    hearing the petition for return, to identify or explain the reason for the
    incapacity or unwillingness to provide adequate protection. The Court
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 13
    considered in this case the defence of grave risk had been satisfied on the
    basis the French courts would react in the same way that they had earlier on
    in the proceedings, by failing to put protection mechanisms in place.
    52. In Re C (minors) [1999] EWCA Civ 771 (12 February 1999) the England
    and Wales Court of Appeal reviewed the authorities on the grave risk grounds
    (in this case there were allegations of both serious physical and psychological
    harm) and noted that there is an established line of authority that the court
    should require clear and compelling evidence of the grave risk of harm or
    other intolerability which must be measured as substantial, not trivial, and of
    a severity which is much more than is inherent in the inevitable disruption,
    uncertainty and anxiety which follows the unwelcome return to the
    jurisdiction of the court of habitual residence.
    53. The mother had remarried and she and her new husband took the children to
    England, and refused to return. The father made application for the return of
    the children and the mother and new husband did attempt to return to the US
    but the new husband was denied an entry visa due to a criminal assault
    charge laid against him by the father. It was held that even though the stepfather
    was unable to return to the US, the court considered it was too great a
    leap to conclude that splitting the family (by requiring the mother to return
    without the step father to the US) would of itself amount to profound
    psychological damage. The concerns of the children were inherent in their
    return. The Court considered the courts in California could speedily exercise
    their jurisdiction to deal with risk of physical harm. With respect to the
    intolerable situation defence, the Court regarded that the same high test
    applied. It was not satisfied by the children not wishing to be returned to the
    US to be looked after by a mother subject to self induced stress.
    56. In Re T [2000] EWCA Civ 133 (18 April 2000) the court accepted the
    refusal of an 11 year old girl to return to her mother, because of the mother’s
    behaviour and alcoholism. The daughter had a very close relationship with her
    6 year old brother, and to separate the children so the 6 year old (who was
    seen as too young for his views to be taken into account) could be sent back
    to their mother, was seen as creating an intolerable situation such as to
    satisfy the requirements of the defence, even though the Court accepted that
    his return would give effect to the spirit of the Convention and acknowledge
    that a Spanish court was in the best position to decide the boy’s future.
    57. In DI [1999] Scot CS 119 (21 May 1999) the father threatened to use
    contacts in organised crime to remove the child from the mother if she would
    not return to Italy from Scotland. There was evidence of past criminal
    behaviour by the father. The Court acknowledged that the grave risk
    threshold was high and the crucial question was whether the Italian
    authorities could deal appropriately with the mothers concerns in relation to
    harm to which the child might be exposed. As the mother could not establish
    that they couldn’t do this, an order returning the child was made.
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 14
    58. Having reviewed the recent New Zealand decisions since the Court of Appeal
    decision of S v S and the most recent appellate decisions in Australia,
    England, Wales, Scotland and New Zealand, I can now turn to see if the law
    has in any way been affected by the E.S. decision.
    E .S. — THE FAMILY COURT DECISION
    59. In two judgments dated 11 June 2002 and 12 August 2002, Judge G F Ellis
    was considering s 13(1)(c) in respect of two young children abducted to New
    Zealand by their primary caregiver and mother. (13). Judge Ellis found
    proven the mother’s allegations of the most horrific domestic violence by the
    left behind parent and father against the mother, and that at least one of the
    children had witnessed this abuse. The mother had been granted an
    Apprehended Violence Order from a Court of first instance in Australia. The
    Judge observed at page 14:
    “[51] Having reviewed that evidence I am left in no doubt that
    the applicant father is a violent, vindictive and abusive man. His
    violence appears the more threatening because he simply denies
    that it has occurred. He allows no room whatever for
    interpretation or explanations of some of the worst events
    described by the mother. He simply denies that they ever
    occurred. There is no question therefore of him accepting any
    responsibility for his behaviour or appreciating in any way the
    effects of his behaviour on his wife and children.
    There is no suggestion of him having taken any remedial action
    to address his behaviour and he offers no plan or suggestion as
    to how the physical and emotional safety of the mother and
    children would be recognised, respected and safeguarded were
    they to return”.
    60. The Judge found that the police had responded appropriately to an alleged
    breach of the apprehended violence order and concluded on page 23:
    “[80] Having considered the whole of the mother’s evidence I
    could not say that she has demonstrated that the Courts and the
    police of Australia cannot be relied upon to safeguard the
    interests of her children or herself”.
    61. And at page 24:
    “[83] … I have already observed that I accept that the return of
    these children with their mother, unprotected, into a situation
    such as that from which she removed them could well expose
    them to grave risk of physical or psychological harm. It has not
    however been proved that an order for return to Australia itself
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 15
    would bring about such a result. For that fundamental reason I
    cannot find the s 13(1)(c) defences established”.
    62. He declared that the defence was not established but adjourned the hearing
    so that better evidence could be produced as to the circumstances of the
    children on return. At the resumption of the hearing the mother had
    tendered evidence in the interim to the effect that she would not return to
    Australia with the children.
    63. In conclusion, in this case there had been serious acts of violence, an
    Apprehended Violence Order had been made, there was serious conduct by
    the father which had the effect of breaching the Apprehended Violence Order
    (although at the time of the most serious alleged breach he had not been
    served with the order) and threats of violence were continuing. The father’s
    attitude to the violence as described by Judge Ellis could not give the Court
    any confidence that the father would abide by any further order of the
    Australian Family Court and the mother had not been safe despite the
    existence of such an order — so enforcement or efficacy of the legal system
    was in issue at the conclusion of the evidence before Judge Ellis.
    64. As a result of the mother’s decision to inform the Court she would not be
    returning to Australia with the children, the Court was placed in an invidious
    position.
    65. Had the mother given notice of her decision not to return to Australia with the
    children before Judge Ellis had made his decision as to whether or not to
    return the children, the outcome may well have been different.
    THE HIGH COURT DECISION — E.S. (High Court, Wellington: AP209/02 30
    Oct 02)
    66. The decision is remarkable in that no reference whatsoever is made to the
    New Zealand Court of Appeal decisions in A v A and S v S. although both
    decisions were referred to and relied on in the judgments under appeal.
    67. The pertinent section of the decision is found at paragraphs [57] to [61]
    inclusive on pages 17 and 18:
    ”[57] A particular limitation on s 13(1)(c) which appears in
    some Australasian decisions — that the “grave risk of harm” must
    arise out of the child’s return to a country — appears to us (with
    respect) to misread both the Convention and the statute, in
    relation to that specific defence.
    [58] First, the explanatory note to the Convention (Perez-Vera
    Report, at para 116) indicates quite clearly that the sub-section
    was to be addressed to harm which is contrary to the interests of
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 16
    the child. Whilst the exception is not to be invoked “if the return
    of the child might harm its economic or educational prospects …
    the exceptions are to receive a wide interpretation” (italics are
    where I have underlined).
    [59] In this respect, the principle of construction is that courts
    should promote “the objective of uniformity in [the]
    interpretation and application [of the Convention] in the courts
    of the states which are parties to the Convention” (Ulster-Swift
    Ltd v Taunton Meat Haulage Ltd [1971] 1 WLR 625, 628 per
    Megaw LJ). And, courts should aim for an approach “which is
    broadly in line with the practice of public international law”
    (Fothergill v Monarch Airlines Ltd [1981] AC 251, 290 per Lord
    Scarman). The antipodean narrowing of the section — to the
    extent it has occurred — is out of line with international usage.
    [60] Secondly, the narrow restriction to “a country” is
    redundant in face of the exception in s 13(1)(e) (which replicates
    Article 20 of the Convention). It is s 13(1)(e) which is directed
    to harm arising from the child’s return to a particular country.
    As the Perez-Vera Report plainly indicates (supra, note 2, at 433-
    34), this formulation was a distinct compromise between a
    general “public policy” exception (which could have potentially
    wrecked the major premise of the Convention by allowing
    contracting states to approve or disapprove the family law
    regime of another state) and the narrower formulation in
    s 13(1)(e).
    [61] If this analysis is correct, the jurisprudence of the s 13 is
    straightforward — and entirely orthodox. The Convention (Act) is
    a general rule and exception instrument. The s 13(1)(c)
    exception requires (a) the identification of specific harm to the
    child; (b) of a requisite character; (c) that harm must be
    demonstrated to be of a grave character; (d) by clear and
    compelling evidence; and (e) if harm of that kind is established
    the trial court then has a wide discretion as to how the return
    dilemma is to be addressed”.
    And a passage in Paragraph 67 where Hammond ACJ said:-
    “… once there is a grave risk in statutory terms, we think the
    exercise of the discretion strongly favours refusing an order for
    return”.
    68. These observations by Hammond ACJ appear contrary to the way in which the
    New Zealand Court of Appeal have interpreted the Guardianship Amendment
    Act defences to date.
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 17
    69. Allowing for the fact that as in Re M (A Minor) (Child Abduction) [1994] 1
    FLR 390 there may be some cases, particularly when a primary caregiver
    abductor decides they are unable to return with the child and the reasons are
    genuine and not manipulative, where it is correct to say that it would be
    artificial to dissociate country from the left behind parent, the decision
    appears out of step with the majority of Court of Appeal decisions.
    70. The majority of the decisions at Court of Appeal level in New Zealand,
    England and Scotland establish that the normative approach is that the Court
    will consider the potential psychological and physical harm from a return to a
    country and not to the left behind parent. The E.S. High Court decision is
    more aligned to the Australian approach in DP.
    71. There is another difficulty inherent in the decision and that is, the learned
    Judge misquotes and possibly misdirects himself by an incorrect reading of
    the major interpretative aid in this field, the Explanatory Report by Dr Elisa
    Perez-Vera. The quotation from Hammond ACJ, purported to state that the
    Report contended that the exceptions were to “receive a wide interpretation”.
    The actual extract in para 11b reads as set out in para 43. The statement
    correctly interpreted reads “thus it cannot be inferred … that the exceptions
    are to receive a wide interpretation.”
    SUMMARY
    72. In summary then, the High Court of Australia appears to be out on a limb
    internationally in its less restrictive interpretation of the Article 13(b) defence
    and its requirement that the Family Court of Australia take into account the
    best interests of a child where a statutory defence is raised. And the E.S.
    High Court decision appears to be out on a limb in New Zealand in its
    broadening of interpretation of 13(b).
    73. However both appear to be attempts to respond to the perceived iniquities
    referred to by the legal commentators who argue restrictive interpretation
    places some children at risk.
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 18
    DECISIONS SINCE E.S. — HIGH COURT
    76. In S v S (Family Court, Auckland, FP 004/766/02; 13 December 2002), Judge
    Clarkson was dealing with an application by the father for the return of his
    daughter to Australia. The mother alleged the daughter was at risk of sexual
    abuse from the father. The mother’s allegations were never tested in the
    Australian Courts, where the parties had agreed to consent orders, which
    allowed the father supervised access with monitoring by a Family Court
    counsellor, prior to unsupervised access commencing. The daughter was
    brought to New Zealand by the mother using a passport which had been
    obtained using the forged signature of the father. Whilst in New Zealand the
    mother was diagnosed with breast cancer, which was unable to be
    appropriately treated in the area in Australia where the father lived. The
    mother did not know whether she would return to Australia and if she did,
    whether she would elect to not have treatment whilst the proceedings were
    resolved.
    77. Judge Clarkson was satisfied the evidence established a grave risk that the
    child would be exposed to either psychological harm or placed in an
    intolerable situation. The Central Authority could not confirm that if the child
    were returned, that she could stay in the care of her mother. There was also
    a serious risk that contempt proceedings would be taken against the mother if
    she returned, which was regarded as a factor to be taken into account. The
    removal of the child from the mother had serious implications due to her
    attachment to her mother, the emotional disturbance caused by a return and
    the return of the daughter in the context of her mother’s illness. The mother
    was due to have surgery, and Judge Clarkson considered it was intolerable for
    a nine year old to be parted from her primary attachment figure at such a
    time. The alternative of the mother electing to not undergo treatment to
    return to Australia with the child, with the risk of her suffering possible
    contempt proceedings was equally unacceptable. Judge Clarkson made no
    reference to E.S. preferring to rely on S v S despite exercising her discretion
    to refuse to make an order for return.
    78. In Family Court, Auckland, FP 004/621-C/02; 16 December 2002; Judge
    Kendall, an application for the return of 2 children to Australia was made by
    their father. The mother defended this application on the basis of s13(1)(c)
    applying. The parties separated after 4 years of marriage. They entered into a
    detailed consent order in Australia, which allowed for extensive residence
    time for the children with their father, whilst the mother was the primary care
    giver. One of the children made an allegation of sexual abuse against the
    father. Expert evidence from a psychologist indicated the wife was suffering
    from “battered women’s syndrome”, and Judge Kendall was satisfied the wife
    was in a fragile, emotional state, particularly at the thought of her children
    being returned to having contact with their father. During the hearing the
    wife produced a carving knife in protest at the prospect of the return of the
    children. It was also acknowledged there was a continuing risk of the mother
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 19
    committing suicide, for which she was receiving therapy and counselling
    assistance. She also had family and community support. This risk would
    continue until issues surrounding the father’s access to the children were
    resolved, either by the legal system in New Zealand or Australia.
    79. Judge Kendall did not consider the “grave risk” defence made out — the law
    and legal system in Australia was very similar to that in New Zealand, and it
    could be expected to act quickly to protect the children pending any review of
    access. An order was therefore made for the return of the children. Judge
    Kendall found that the circumstances of the case did not require him to
    express any view of the difference of approach adopted by the Court of
    Appeal in A v A and S v S and the High Court in E.S.
    80. Both the S v S (family court) and C v C decisions are the subject of appeal at
    the time of writing this paper.
    CONCLUSION
    81. In the New Zealand context, The Abduction Convention appears to be
    operating generally very well within the guidelines laid down by the decisions
    of our Court of Appeal. There will continue to be cases in the area of
    “justifiable” abduction from violence that are easy to determine on the facts in
    favour of an order for refusal to return.
    82. But there will also continue to be cases where there are credible allegations of
    domestic violence that raise the defence but where the Court may find itself
    unable to exercise its discretion to refuse an order for return where that is in
    fact ultimately an unfair result because it is more likely than not that at the
    end of a substantive hearing in the Court of habitual residence the abductor
    will be granted either or both primary care and permission to relocate to
    escape the violence.
    83. The legal community will need to wait for a case where at Court of Appeal
    level the Court is asked to revisit its interpretation of Article 13(b), defences
    based on the changing demographic of abusers, the DP case, the English
    Court of Appeal decision of Re S and decisions of other jurisdictions since
    1997.
    84. That will have the beneficial consequence that the highest Appellate Court will
    have considered the issue anew and confirmed the New Zealand approach or
    given fresh direction in this difficult class of case. In the interim it may be
    unwise for Family Court practitioners to rely on the E.S. High Court decision.
    –//–
    LexisNexis Professional Development Child Law Conference 2003 — Judge Jan Doogue Paper Page 20
    Footnotes:
    1. Lowe & Perry “International Child Abduction — The English Experience” [1998]
    48 ICLP 127 at p.133.
    2. Preliminary Document No. 3 of Special Commission of The Hague March
    2001.
    3. [2001] 2 FLR 515.
    4. M. Freeman In the Best Interests of Internationally Abducted Children? —
    Plural, Singular, Neither or both? May [2002] 1 FL77.
    5. J. Readaway and H. Keating “Child Abductions: Would Protecting Vulnerable
    Children Drive a Coach and Four Through the Principles of The Hague
    Convention?” The International Journal of Children’s Rights 5. 77-96 1997.
    6. M. Kaye “The Hague Conventions and the Flight from Domestic Violence: How
    Women and Children are being returned by Coach and Four” International
    Journal of Law Policy and the Family 1999 No.2 p.191 and p.205.
    7. The (authorised) Explanatory Report which is attached to the official copy of
    the Convention) (see Actes Et Documents of the XIVth Session [1982] Vol III
    426 at 461).
    8. M. O’Dwyer Current Issues in Hague Convention Cases: a New Zealand
    Perspective Butterworths Family Law Journal Volume 4 March 2002 Part 1.
    9. Dellabarca v Christie [1999] NZFLR 97.
    10. C. Pidgeon Q.C. Implications of the High Court decision in DP v
    Commonwealth Central Authority and JLM v Director General, NSW
    Dept of Community Service 27 Fam L.O. 569.
    11. [2002] 2 FLR 815
    12. Dr Perez v Vera: supra no. 7
    13. E.S v Secretary for Justice (Family Court, Lower Hutt, F.P. 432/01
    11/6/02, 12/8/02).

    >
    >
    2004
    >
    Judge Jan Doogue Paper presented to Child and Youth Law Conference 2004
    http://www.fairgo.org.nz/modules.php?name=News&file=article&sid=28

    Judge presents paper on Domestic violence Act……
    Contributed by Anonymous on Sunday, December 05 @ 00:53:27 CST //
    Topic: Justice/court There needs to be greater research into this legislation and its impact on New Zealand families for it appears there are iniquitous results arising from what was acknowledged to be social experimentation.
    Judge Jan Doogue acknowledges misuse and concerns of the Domestic Violence Act and s.16B of the Guardianship Act 1968.
    THE DOMESTIC VIOLENCE ACT 1995 AND S.16B OF THE GUARDIANSHIP ACT 1968 — THE EFFECT ON CHILDRENS’ RELATIONSHIPS WITH THEIR NON-CUSTODIAL PARENT
    Judge Jan Doogue
    Paper presented to Child and Youth Law Conference 2004, Lexis Nexis
    Introduction
    Domestic Violence is morally indefensible. Domestic Violence is perpetrated by both men and women. Children who are exposed to domestic violence are detrimentally affected by it.
    In 1995 the Domestic Violence Act and s.16B of the Guardianship Act 1968 gave legislative effect to the proposition that once a person has been shown to have used violence in a domestic situation, either to his or her spouse or to a child or to both, then such a person shall be presumed to be unsuitable either to have custody of or unsupervised access to the child until such time as such person can establish that it is safe for the child. There is of course a difference in the definition of violence between the two Acts — s.16B is limited to physical or sexual violence.
    At this point social science cannot support the assumption that any access, even supervised access with a parent who has been violent, is necessarily in a child’s best interests. But nor does it support the assumption that access to a parent who has been violent is necessarily detrimental to a child’s best interests.
    The Domestic Violence Act 1995 and s.16B of the Guardianship Act 1968 were based on the classification of violence within the power and control model. In my experience and that of other Judges this model does not fit the profile of many cases coming before the Family Court in New Zealand.
    Research and experience supports the proposition that in New Zealand some children are being deprived of contact with a parent who has been alleged or judged to be violent when that is not in their best interests.
    Considerable reliance has been placed on “Supervised Access” as being a panacea to balancing a child’s rights to be safe and a non-custodial parent’s right to access. This sometimes results in either inappropriate outcomes for children or unacceptable disenfranchisement for parents.
    The social and political climate around domestic violence has changed since the Act came into force. The legislation has been effective in de-normalising domestic violence but it has had the effect of detrimentally affecting some childrens’ relationships with their non-custodial parent. In my view we need to provide a more sophisticated approach to the implementation of this legislation, all the while recognising that it is not fair nor just to view all violence as fitting within the classification of the power and control model.
    It is incumbent on the legal community not to dismiss the views of critics of the legislation because they appear in some instances to be so extreme. Let me put the challenge in the words of Harry Brod from “Men and the Future”:
    “When I observe a group of people acting in what seems to me irrational ways, the question I pose is not “what’s wrong with them?” but rather “what are the distorted and distorting features of their situations which make these actions appear rational to them?” Until I have satisfied myself that if I were in their shoes, their actions would also appear as legitimate options to me, I consider myself not to have succeeded in understanding or explaining anything.”
    This paper suggests that whilst there are many positive features to the present legislation, the time has come to review the social experimentation arising and the effects and implications of the legislation. The paper proposes steps to be taken to moderate the detrimental effect and implications that are presently occurring until such time as any review of the legislation has been undertaken.
    Background
    In his 1994 report of inquiry into the Family Court proceedings involving Christine Bristol and Alan Bristol former Chief Justice Ronald Davidson wrote:
    “Recent high profile cases involving domestic violence have appalled serious thinking people and there is agitation afoot for appropriate action to be taken to curtail it.”
    He concluded that in order to deal with cases involving domestic violence that “a completely new social philosophy needs to be adopted”. He advanced the presumption now enshrined in s.16B of the Guardianship Act 1968 that once a person has been shown to have used physical violence in a domestic situation either to his or her spouse or to a child or to both, then such a person should be presumed to be unsuitable either to have custody or unsupervised access to the child until such time as such person can establish that it is safe for the child. The previous legislation had the opposite effect of requiring Judges to justify any order specifying that supervised access was necessary.
    Sir Ronald acknowledged that one consequence of such principles might inevitably be that it could deprive some children of a close relationship with a parent. In this respect he has been quite prophetic.
    He also observed that he could see no middle course which could be adopted if the community was seriously trying to reduce the amount of domestic violence experienced in New Zealand.
    There are now vociferous calls for the abolition or reform of the Domestic Violence Act 1995 and its sister provision s.16B of the Guardianship Act 1968 because they have been seen by many in the community, particularly fathers, as having been employed by the Court to deprive them of natural and meaningful relationships with their children. Some fathers groups have used extreme tactics to bring their views and their grievances to the attention of the community as a whole. It is incumbent on us to analyse whether or not there is empirical data to support their views.
    Research – How Respondents experience the effects and implications of the legislation
    Service
    The first significant research into the effects and implications of the new legislation took place in 1999. In April 2000 the Ministry of Justice and Courts conducted an evaluation of the implementation of the Domestic Violence Act 1995 (“the evaluation”). The evaluation was limited to a period in time and it was a representative evaluation and not a comprehensive national evaluation. However I consider the data gathered and the conclusions reached resonate with my experience as a Judge and with the experience of other Judges with whom I have consulted about the issues addressed in the paper. They also resonate with widespread community concerns about the impact of the legislation, particularly on parents’ relationships with their children.
    The authors concluded that many more respondents indicate that they intend to defend the making of a final order than actually do so. In the file study they reviewed some 335 Court files. Only 18% of respondents who were served with temporary protection orders defended them and in only half of those cases was a final order made.
    The reasons given by those interviewed in the evaluation for the very small proportion of defences which reach hearing were (a) that the effluxion of time had settled the issues and behaviours; (b) the respondent had become more accepting of the order; (c) acceptable contact between the children and the respondent had been negotiated; (d) the respondent had been advised by a lawyer not to proceed with a defence; and finally (e) cost was an important reason for often deciding not to proceed with a defence.
    The last two areas give rise for concern because this means children’s relationships with their non-custodial parent are being regulated by default rather than by assessment of their actual needs and how they might best be met.
    When looking at a child’s needs post-separation (of his or her parents) the data concerning the conditions that attach to such orders are somewhat concerning. The evaluation confirmed even earlier research that there are significant variations in Judges’ practice in relation to contact between respondents and children. The authors found that some Judges always or frequently make supervised access a condition of a protection order while others rarely make access orders unless the protected person had first made a specific request to that effect.
    Fifteen respondents to the evaluation discussed subsequent access arrangements after the making of a Temporary Protection Order. Worryingly, these respondents (all men) were either no longer in contact with their children or saw them only rarely. They were embittered about the effects and implications of the legislation as far as they and their children were concerned.
    This disenfranchisement of fathers, and therefore the loss of a relationship between them and their children, can start with the service of the documents. Often the first knowledge a respondent will have that his or her rights to contact with their child have been materially changed is when they are served with the Temporary Protection Order. Those who serve the documents can include bailiffs, private process servers, police and lawyers. The evaluation established that when service takes place at least 25% of respondents were not advised of the implications of the order. Obviously in a situation where language is an issue (and it increasingly is) the implications cannot be explained, but in other cases no attempt was made.
    Poor literacy skills, speaking languages other than English as a primary language, and intellectual and educational impairment can cause a respondent not to understand that they can object to an order regardless of an attempted explanation or pursue avenues to ensure contact with their children. The current documents are expressed neither with sufficient simplicity nor in a multiplicity of languages which would help to engage respondents at this early and critical phase of the process. Given that these cases involve urgent situations that dramatically affect children and families alike, it would seem preferable that there be a simple mechanism for contact for respondents e.g. a simple document containing an emergency telephone number which could be manned by a person/s skilled in managing crisis and knowledgeable about to whom a respondent might most usefully be referred for assistance.
    In addition, respondents to the survey reported dissatisfaction on approaching Court staff for an explanation or assistance saying they were “treated rudely” or that there was no one available to spend the time with them to help them. The suggestion I make in the previous paragraph could mediate some of these difficulties but I consider there is an argument for dedicated staff within Family Court registries to deal with these cases.
    Delay
    When the respondent does notify his intention to appear in defence of the order, the Domestic Violence Act 1995 requires that the Registrar assign a hearing date (a) as soon as practicable and (b) unless there are special circumstances, in no case later than 42 days after the receipt of the respondent’s notice (s.76). The authors of the evaluation found this does not happen and the most usual reason for this was the lack of Court sitting time and judicial staffing resources. It is my experience, and that of other Judges, that families can be in fact subjected to undue delays in the Court dealing with applications under this legislation.
    There is often an initial delay in hearing a defended application for a protection order. Generally speaking an access application will not be considered until the issues of any alleged physical domestic violence have been determined. The end result, with current resourcing of the Family Court is that the parent against whom a protection order has been made can be effectively debarred from seeing their child for a period of months in circumstances where the primary caregiver, of whatever gender, holds a protection order, alleges physical violence and does not agree to any access whatsoever.
    Although there is a specified time-frame within which protection order applications are meant to be heard if a temporary protection order has been made, this time-frame can be difficult to achieve. This is untenable because by inattention to childrens’ needs arising at this critical time the opportunity to maintain a relationship with the non-custodial parent can be lost not just in the short but also the long term. There is an argument that given this difficulty counsel for the child shall be appointed at the outset to investigate and represent the case on behalf of the child so that the child’s needs are given the predominance they deserve.
    Statistically, the primary caregivers of children prior to separation are more frequently mothers than fathers. It is accordingly fathers seeking access to their children who are more disadvantaged by the requirement of the legislation — that the Court determine whether a child will be “safe” in the unsupervised care of a parent against whom allegations of physical violence (to the other parent or a child of the parties) have been made.
    These issues have been addressed by Judge K G MacCormick in his recent decision in A v R [2003] NZFLR 1105 where he says:
    “[13] Criticism of delay is acknowledged. On many occasions Judges themselves observe that a matter should have been dealt with much earlier and that the extent of the delay has been quite unacceptable. That, however, is also substantially a resourcing issue. The Law Commission Report No. 82, referred to above, also made extensive comment on resourcing issues. [14] In the interim Judges of the Court must

  2. Jan Doogue is an enigma as are many beneficiaries of NZ-Govt salaries like all powerful politically directed Judges and Bureaucrats

    Jan Doogue issued what I have no reason to believe is the only NZ-Family-Court Ordered **Equal** Parenting Order for Javan March 2005 after 10years of litigation – I am aware of plenty of **Any Share of Parenting** Orders and would be dighted to hear of other **Equal** Parenting orders and how they have been procured

    Not only did she do this but made it clear in her Oral Judgement that I could use the Order at my discretion to gain real **Equal** Parenting in any situation – Thus my success in several difficulties with CS, Schools and Sports Clubs

    Not only did she do this but made it very clear to WINZ that they where a major factor in restricting Javan’s real **Equal** Parenting and demanded they change that

    I can’t prove this but have know doubt she did endorsed by Counsel for child

    These Oral and actual Orders have been on my website since day one

    It has been suggested that she helped me and Javan for political reasons but I am not so sure

    I believe my God stood with me thru this and directed things accordingly

    I know many will cringe but that is the major factor different to others in the case except for my charm of course which has helped many others

    In fact I insisted that Judge Doogue allow prayer during the case as several of us in the court room claimed to be Christians including Javan’s Mother, Jan herself and the Counsel for Child

    When asking Judge Doogue if I could proceed I said my prayer would be base on Micah 6;8 and went for it – read it for yourself.

    I believe God, Jan, Greg Milisich honoured that prayer and still do.

    Onward – Jim

  3. To answer directly

    **Does the familycaught know what it is doing?**

    YES – I believe the FC-CS-WINZ-CYFS and ALL NGO’s receiving NZ-Govt-Funding know exactly what they are doing.

    Most so cleverly directed the vary staff operating them have know idea what evil they promote

    The Lawyers cashing in on the Family Caught for Narcissistic/Arrogant/Intellectual purposes being a prime example and of course many of those become the ALL Powerful Judges who do the dirty work deliberately with Maoist trained Boshier having been groomed since varsity days to grow his ORG even further.

    Yet many Judges, lawyers and bureaucrats do a great job

    Clever really

    ManAlive, Anger TRUST, Banardo’s, Strengthening Families, being prime examples of how close to nice touchy feely NGO’s can get – So called family orientated Orgs – Yet how many Families survive these outfits that go to them for help?

    They are designed to tear our **Whole-NATURAL-Biological-FAMILIES** apart.

    All our tinkering with the system mearly helps this **Empire of Injustice** see its weak points or gloat over its defences and thus it learns to strengthen its weak points and expand.

    My walk to give my Son his FATHER confirms this at http://www.HandsOnEqualParent.org.nz

    A close study of;

    **Germany/Russia – Stalinism as an Aberration of Communism – Is this where HELEN’s taking us??** at;

    http://groups.yahoo.com/group/HandsOnEqualParent-News

    will help those who really want to make sure our Kids don’t lose theirs see a much bigger picture if you care to open your eyes

    Onward – Jim

  4. MurrayBacon says:

    One of my biggest worries about the apparently illegal behaviours of familycaught$ judges, setting up opportunities for child abduction, is that most, maybe all? familycaught$ judges consider that abduction by a mother is not abduction at all. Put another way, they expect that such an abduction would have no negative consequences for the children at all.

    Such abductions generally do have serious consequences for the children, due to lies told about the left behind parent and the effects of suddenly disrupted access to the left behind parent. This usually impacts seriously on to attachment security, which affects all future relationships.

    The documentary Victims of Another War uses the words of adults, who were abducted by a parent when they were children, to describe these consequences.

    2006 Launch of Victims of Another War

    Film Synopsis

    DVD Purchase on Amazon

    Victims of another war – Documentary

    These consequences are described in more detail in the book Adult Children of PAS, by Dr. Amy J. Baker. Review

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