Davison Report into familycaught$ – Christine Bristol And Alan Bristol
Given the significant changes in behaviour that occurred in familycaught$, both before the Bristol murders and suicide and after, it is important that this report receives close scrutiny.
If it was marked in accordance with professional social science research standards, in my opinion it would receive an E rating. It is not fit for the purpose of informing legislation, but unfortunately it did have a little impact.
When I suggest that this report had only a little impact, this is because the changes in the behaviour of the familycaught$ occurred well before the Bristol murders and suicide. This is seen in men’s suicide figures and also to a slight extent in spousal murders too, well prior to the Bristol murders and suicide.
This report just gave an illusionary basis for the Domestic Violence Act. Causation is very difficult to prove, even afterwards.
MurrayBacon – also a murderer.
Report Of Inquiry Into Family Court Proceedings
Involving Christine Madeline Marion Bristol And Alan Robert Bristol
Christine Madeline Marion Bristol (who I shall refer to as Christine Bristol) and Alan Robert Bristol (who I shall refer to as Alan Bristol) married on 15 February 1987, after having engaged in a de facto relationship from mid May 1984.
At the time of their marriage they had one child, Tiffany, born on the 18th December 1986. Two further children were born of the marriage, Holly, born on the 11th February 1990 and Claudia, born on the 19th August 1992.
Christine Bristol and Alan Bristol separated on or about 4 July 1993 and thereafter numerous proceedings followed in the Family Court at Wanganui with non-violence orders being sought by Christine Bristol against Alan Bristol and custody orders sought by both parties in respect of the three children of the marriage.
A full summary of the various court proceedings and their resolution will be given later in this Report, but suffice it to say in this introduction, that on 4 February 1994 all three children were in the care of their father Alan Bristol at the former family home at Mary Bank Rd, Wanganui. The following day (5th February) Alan Bristol and the three children were found dead in the garage at that property. It was believed that Alan Bristol had killed the three children and then himself.
On the 8th February 1994 an article appeared in the ‘Wanganui Chronicle’ under the heading: “Dead Man Devoted Father: Lawyer”which quoted Alan Bristol’s solicitor as saying that ‘Alan Bristol was a devoted father. That comment brought about a reply from Christine Bristol released through her solicitor in a statement which resulted in newspaper articles headlined: “Mother Rejects ‘Devoted Father Version.” ‘Victim of Domestic Violence, Woman Claims”.
(Note: It may be possible for judges to apply s.28 in a way that will allow my suggestions regarding presumptions to be adopted but for uniformity of practice and for giving emphasis to the changed philosophy for dealing with violent parents I think the amendment proposed is desirable.)
The court in making an order for access to a child where one of the parents has used violence to the other in a domestic situation shall first satisfy itself that adequate safeguards are imposed to ensure the safety of the non-violent parent during changeover times.
Where access to a child is granted to a parent who has used violence to the other or to a child in a domestic situation such access should be supervised by an appropriate person until such time as the violent parent satisfies the court that it is safe to allow unsupervised access.
The powers of the Court to make “consent” orders in cases where violence by one party has been established should not be accepted and acted upon until the Court is satisfied that such consent was freely and willingly given. The Family Proceedings Act 1980 s.170 should be amended accordingly.
Note: The practical difficulties of supervising access will need to be addressed.
In this regard it may be of interest that in Auckland on the North Shore a “visitation centre” called “Care for Kids” was set up with the goal of enhancing the emotional and physical well being of children during access visits. Such a centre may be a useful model worthy of study. Obviously it may not be possible to establish such “visitation centres” throughout the country to deal with all supervised access requirements but the idea may prove to be practical in main centres. Ability of parents to deliver children to and collect them from such centres and the ability of the other parent to be able to go to such centres would be matters for consideration.
“Judge Gave Girls to Killer Father”.
In that statement an independent inquiry into the conduct of the case in the Family Court was called for.
Mr Minister, you duly appointed me to inquire into the Family Court proceedings relating to Christine Bristol and Alan Bristol with a directive to report to you by the end of March 1994.
The Terms of Reference
The terms of reference require me to:
1. Examine the Family Court file relating to proceedings in the court between Christine Bristol and Alan Bristol.
2. Consider whether the material on the file and such inquiries as you may wish to make point to the need for any change in the law or in Family Court practice concerning any matter that arose in the proceedings.
History of Proceedinqs Between the Parties
I have examined the two Family Court files covering proceedings between the parties and I believe that a comprehensive picture of events will best be obtained by referring to matters in the first file in narrative form as they provide but an early background to my inquiry. Matters contained in the second file dated from July 1993 will be referred to in chronological order by _date of occurrence as best suited to following the various events as they occurred. Comments on matters contained on the files and on matters arising out of my inquiries will be deferred until a later stage of this Report.
There are two court files: the first covers a period from February 1986 to November 1989. The second covers a period from July 1993 to February 1994.
The First File
This shows that the parties entered into a de facto relationship in mid-May 1984. They were engaged to be married on 9 May 1985, but the engagement was terminated mid-December 1985. Following the breaking off of the engagement Christine Bristol (then Carter) made application to the Court on 3 February 1986 for an interim non-molestation order based on allegations of assault, threats and harassing conduct by Alan Bristol. An interim order was made on 5 February 1986 with a date of hearing (on the question of whether an order should be made in substitution for the interim order) fixed for 18th March 1986.
No hearing was held and no final order was made by this Court on that application after advice was received from Christine Bristol’s solicitor – that the application was to proceed no further.
The Court then struck out the application. The child Tiffany was born of the de facto relationship on 18 December 1986 and shortly thereafter Christine Carter (as she then was) and Alan Bristol were married on 15 February 1987. Christine Bristol left Alan Bristol on 28 January 1989 and on 30 January 1989 she made application to the Court for non-molestation and non-violence orders against Alan Bristol and at the same time sought an interim order for the custody of the child Tiffany. The applications were based on allegations of assault and violence on the part of Alan Bristol.
Alan Bristol consented to an interim non-violence order which was made by the Court on 30 January 1989 and a date of hearing to decide whether any other orders should be made was fixed for 8 February 1989.
The parties were referred for counselling and then attended a mediation conference chaired by a Judge on 8 February 1989.
On that day agreement was reached by the parties and the Judge made orders for:
- Extension of the non-violence order to 3rd April 1989
- Further counselling to be undertaken
- Interim sharing of the care arrangements for Tiffany.
At a further mediation conference on 13 March 1989 following agreement reached between the parties, the Judge made orders for:
- Variation of the shared access arrangements for Tiffany
- The discharge of the interim non-violence order
- The obtaining of a Social Welfare Report relating to the custody of Tiffany
- Further counselling
On 14 April counsel was appointed by the Court to represent the child Tiffany in relation to matters affecting custody of the child. On 18th April an application for a non-molestation order was made by Christine Bristol again alleging assaults and intimidatory conduct by Alan Bristol. It was opposed by Alan Bristol. However the application never proceeded to a hearing and no order was made by this Court as counsel for the parties with the help of counsel for the child reached agreement on matters of custody and the Court on 13 July 1989 made an order by consent for shared access to Tiffany.
A further order, by consent varying the access was made by the Court on 10 August 1989.
At this stage the first file was closed.
It appears that in or about late November 1989 the parties were reconciled and resumed married life together. Two further daughters were born. Holly on 11.12.90 and Claudia on 19.8.92.
In April 1993 the family moved into a home at Marybank Rd, Wanganui.
The Second File
The second file was opened on 13 July 1993. It discloses the following actions.
Alan Bristol applied to the Court for an interim custody order in respect of all three children
Christine Bristol gave notice of her intention to defend the application and applied for an interim custody order in favour of herself.
The circumstances giving rise to these applications were alleged by Christine Bristol to be that Alan Bristol had taken her from the home at Marybank Rd and left her at her parents home at 4 Toi St, Wanganui, at the same time making it clear to her that the marriage was over. Alan Bristol kept the three children in the family home. Affidavits filed by the parties contained allegations of assaults and neglect of children by Christine Bristol and denials and allegations of infidelity on the part of Christine Bristol by Alan Bristol.
A pre-trial conference was held by the Judge. By consent the Judge made orders:
- That Mr Refoy-Butler be appointed as counsel for the children with the immediate task of overseeing interim care arrangements for the children.
- Counsel for the children was authorised to obtain a psychological report on the children directed to custody issues.
- The Registrar to give the case priority for hearing on interim custody.
At that conference the parties were each represented by senior counsel.
Christine Bristol applied to the court ex parte for a non-violence order and for a non-molestation order against Alan Bristol. The same day the Judge made an interim non-violence order and
directed that the application for a non-molestation order proceed on notice to Alan Bristol at a date to be fixed after counselling of the parties had been completed. A date of hearing for a review of the interim order was given for 24.9.93.
As the result of a conference of the parties which had been held by counsel for the children on the previous day (10.8.94) to discuss arrangements for the care of the children (although complete agreement was not reached on all issues) counsel for the child advised the Court of what he considered would be proper arrangements -for the care of the children and those arrangements were approved by the Court “until further order”.
The order provided for a “shared care” regime.
Counsel for Christine Bristol requested the Registrar to give a fixture for a 2 hour hearing in respect of interim custody. The Registrar advised however that he was not prepared to set the case down for hearing until he had received all affidavits and reports required by the parties and the Court and had been given a time estimate for the hearing. He indicated that then the case would be given priority.
The situation at this stage was that both parties had applied for custody of the children and an interim shared custody order had been made by this Court. A substantive custody hearing had yet to be held. Christine Bristol had applied for non-violence and non-molestation orders and the Court had – ex parte – granted an interim non-violence order but not a non-molestation order. Both applications were opposed by Alan Bristol.
Alan Bristol filed formal notice of defence to the applications for non-violence and non-molestation orders.
A psychological report on the three children relating to custody issues was sought.
The Judge held a conference of counsel at which he directed that counsel for the children should file a memorandum regarding the domestic protection applications (non-violence and non-molestation) prior to 23.9.93 – being the date given for the interim non-violence order to be reviewed.
Counsel for the children filed his memorandum which now set out in full.
- It is my submission that the defended hearings for Non-Violence and Non-Molestation Orders should not anticipate any custody decisions made by the Court.
- The parties have made a number of allegations, and counter-allegations, in their Affidavits. I submit that any public hearing would only exacerbate their polarisation, and such would be of no assistance in their common dealing with the children. It is obvious that the children are going to be shared above the norm, and an atmosphere embittered by parental hostility will not be in the best interests of the children.
- Mr and Mrs Bristol separated previously. They have previously filed papers and allege the same faults this time as they did last time. Without making any attempt to comment on the veracity of those allegations, I can only submit, that without the matter being contested in Court, the parties reconciled and appear to have lived happily together for the intervening years. Two more children have been added in that time to the family.
- With respect, I doubt that the veracity of the allegations made will affect the decisions on the day-to-day care of the children. I note that Mrs Bristol makes no allegations against her husband in his role as a parent, in fact the reverse. There is no evidence against Mrs Bristol in her capacity as a mother, in her case also there is evidence that she is a caring parent.
- Finally, I can advise that I am concerned that the children may be drawn into this dispute on violence. I have already been asked to see one child concerning such allegations. I can only say that if what she said to me was accurate, then it is likely that the Court would want to be aware of such matters prior to making any decision on the Non-Molestation and Non-Violence Orders.
Christine Bristol as a result of information which she discovered which led her to believe that applications had apparently been made or were being made by Alan Bristol to obtain passports for the three children, with a view to removing them from New Zealand, made application to the Court, ex parte, for orders for the surrender of any passports and travel documents.
An interim order was made by the Judge requiring the surrender of the children’s passports and/or travel documents to the Court. He also ordered that Alan Bristol and counsel for the children be served with the application and the order, and that the interim order be reviewed on 24.9.93 on which date the interim nonviolence order was to be reviewed, the earlier date of hearing of that review – 23.9.93 – having apparently been changed to 24.9.93.
The parties represented by counsel along with counsel for the children appeared before the Judge. He made the following orders:
- The interim non-violence order to continue until further order. Hearing of the domestic protection application is to be deferred pending hearing of the Guardianship Act proceedings. (This was in accord with the recommendations of counsel for the children made in his memorandum of 20.9.93).
- Interim order requiring surrender of children’s passports is cancelled. The passports may remain in the safe keeping of the Registrar at the request of Mrs Bristol, but are not to be released to any other person without leave of a Family Court Judge.
- Counsel for the children is directed to inquire into the circumstances of the issue of passports for the children and to obtain copies of the relevant documentation on behalf of the children and to report thereon to the Court.
- The other directions of 13.8.93 (shared care of children) are to continue.
The report of the Psychologist was released to counsel. That report confirmed bonding and attachment of the children to both parents. The oldest child, Tiffany, expressed a clear preference to remain in the care of her father. Both parents were regarded as equally capable of caring for all three children, but the psychologist clearly preferred ongoing arrangements where the children remained in the family home with the father but spending regular time with the mother.
The parties, their counsel and counsel for the children met and discussed care arrangements for the children and later that day met to sign a memorandum setting out matters agreed upon which were to be the basis of an application to the Court for a consent order. The same day counsel for the children wrote to the Court setting out proposals, “more or less acceptable”, for the custody of the three children and for dealing with the outstanding domestic protection applications and full custody hearing. Also on the same day Mrs Bristol’s counsel wrote to the Court advising that she had instructed him to proceed no further with the non-violence and non-molestation applications and to have them withdrawn.
Counsel for the parties and counsel for the children filed in the Court the “memorandum of consent” signed by the parties agreeing to the making of certain specified orders. On the same day the Court made the orders “by consent”. The Court order provided:
- The child Tiffany will be in her mothers care from 9am Sunday to 9am each Monday unless noted otherwise below.
- Claudia will be in her fathers care from 9am Saturday to 9am Sunday unless noted otherwise below.
- Holly will be in her father’s care from gam Monday to 9am the following Monday. She will then for the alternate week from gam Monday to 9am the following Monday be in her mother’s care.
- Both parties agree that the school holidays are to be shared in that all three children commencing at 9am on Monday will spend a week with one parent. The alternate week will be spent with the other parent.
- Christmas and birthdays are to be shared together.
- All other applications before the Court relating to domestic protection and custody and access matters are to be withdrawn.
- Both mother and father agree that if either parent requires baby sitting assistance then the other parent will be the first port of call.
- This order is subject to review on or about l4 February 1994.
It will be noted that that order of 1/11/93 provided for a shared custody regime. It was not however observed by Christine Bristol for long.
She left Wanganui and went to Whakatane taking the two younger girls with her. The reason given by Christine Bristol for leaving Wanganui was. that Alan Bristol would not accept that the marriage was over and that he frequently arrived at her house and subjected her to physical abuse and emotional intimidation.
Alan Bristol took steps through the Court to have the two younger girls returned to Wanganui so that he could exercise his shared custody in accordance with the Court order of 1.11.93. He applied ex parte for an order granting him interim custody of all three children and at the same time applied for a warrant to enforce the custody order when made. Although the applications were made ex parte copies of all documents were served on Christine Bristol’s counsel that same day and Mr Taylor telephoned Christine Bristol and told her he had received the applications. Both of those orders were made by the Court.
Christine Bristol on 12.11.93 through a Whakatane solicitor, had an affidavit in reply to Alan Bristol’s applications sworn and sent to the Wanganui Court by fax. It arrived at the Court after the orders were made by the Judge.
On this day Christine Bristol having been advised of the making of the interim custody order in favour of Alan Bristol and also of the issue of the warrant returned to Wanganui with the two younger children and surrendered them to Alan Bristol at the Wanganui Police Station. (Thereafter all three children remained in the custody of Alan Bristol).
Alan Bristol fearing that Christine might be about to go overseas with the children made application to the Court ex parte for an order that Christine Bristol surrender the passports and travel documents relating to all three children.
The passports had been uplifted from the Court by her on 4.11.93. The Judge declined to make the order sought ex parte and directed that the application be served on Christine Bristol. This was done and on 23.11.93 Christine Bristol consented to an order being made that the passports remain in the possession of the Registrar of the Court.
Christine Bristol applied to the Court for orders:
(a) Setting aside the interim custody order made on 11.11.93 in favour of Alan Bristol.
(b) Granting her interim custody of the two younger children Holly and Claudia reserving reasonable access to Alan Bristol.
(c) Granting her on an interim basis reasonable access to Tiffany.
(d) Granting her on a final basis custody of Tiffany, Holly and Claudia reserving reasonable access to Alan Bristol.
At the same time Christine Bristol applied ex parte for an order abridging to three days the time within which Alan Bristol should file a Notice of Defence to her custody application.
The Judge made an order abridging time for filing Notice of Defence as sought and directed:
(a) That the application (relating to custody) be served.
(b) That if opposing the application Alan Bristol should file and serve his affidavit in reply not later than 7.12.93.
Alan Bristol gave notice that he intended to defend Christine Bristol’s application for custody and filed his affidavit in reply. The two custody applications thus required a formal hearing by the Court before a decision upon them could be made.
As a formal defended hearing of the custody applications could not be held before Xmas, there was a conference of counsel with the Judge to resolve holiday access of all three children who were in the custody of Alan Bristol pursuant to the court order of 11.11.93.
Counsel appeared for the parties and for the three children. The Judge’s note records:
“Counsel for children to arrange for urgent referral of both parties to a counsellor with a view to, at least, agreed access being decided upon. Short hearing to be made available on 22 December 1993 in the hope that the parties will then agree on holiday access, failing which, the Court will be able to make orders after hearing the recommendation of counsel for the children. (There will not be time for anything more.) Counsel will try to agree on a timetable order for 22.12.93.”
The counsellor appointed duly reported to the Court on an agreed access arrangement.
A memorandum of consent to interim orders as agreed by the parties before the counsellor was filed. The Court then made the following orders:
… By consent the applicant (Christine Bristol) and the respondent (Alan Bristol) shall have access to the children on the following terms:
- Both parties will share Christmas Day 1993 with the children together at the family home.
- Each parent will have an equal time during the school holiday period for travelling holidays or the equivalent.
- The applicant shall have access to the three children for two days and two nights per week from 1 January 1994
Christine Bristol filed an application under the Matrimonial Property Act 1976 for orders determining the shares in and the division of the matrimonial property. That was served on Alan Bristol’s solicitor on 3.2.94.
Counsel for the children wrote to the Court advising: “Some access is continuing although I understand there is not universal satisfaction concerning same. I am being urged by counsel for the mother to take further steps with regard to the welfare of the middle child ….”
Also on the same date counsel for Christine Bristol wrote to the Court:
“This matter was last before the Court on 22 December 1993 when interim access orders were made. Since that time there have been numerous negotiations regarding access. In the meantime custody remains in dispute and we would appreciate the matter being placed back into the Family Court fixtures list for the purposes of a pre-trial conference. We seek directions at this pre-trial conference in order to timetable this matter to a defended hearing ….”
At this stage the court file ends
Summary of the State of the Court Proceedings As At 3.2.1994
The parties had on 1.11.93 agreed upon a shared custody regime and the Court had-made an order “by consent” on the agreed terms. Christine Bristol however on 8.11.93 left Wanganui for Whakatane taking the two younger girls (Holly and Claudia) with her. The eldest girl Tiffany was left in Wanganui with Alan Bristol.
Alan Bristol, when he learned that Christine Bristol had gone to Whakatane with the two younger girls, applied on 11.11.93 for and obtained an order in his favour for the interim custody of all three girls and at the same time obtained a warrant to deliver the two younger girls into his custody.
In the event it was not necessary to act on the warrant, as Christine Bristol on being advised of the interim custody order and the issue of the warrant, voluntarily returned the two girls to Wanganui on 13.11.93 and handed them over to Alan Bristol in whose interim custody all three girls thereafter remained.
Eleven days after returning to Wanganui Christine Bristol applied on 24.11.93 to set aside the interim custody order which had been granted ex parte in favour of Alan Bristol and in addition applied for a final custody order in her favour in respect of all three children.
Alan Bristol gave notice that he intended to defend those applications and sought orders for final custody of the children in his own favour.
With the hearing of the final custody applications being not possible before Christmas the parties on 10.12.93 sought a conference with the Judge in order to resolve questions of access to the children as an interim arrangement. This conference resulted in reference to a counsellor and to negotiations taking place between counsel culminating in the Court on 22.12.93 making a consent order defining on an interim basis the access of the parties to the children over the holiday period.
Those arrangements continued in force, albeit not to the general satisfaction of the parties, up until the tragedy occurred on 4/5 February resulting in the deaths of Alan Bristol and the three children.
In the result, at the date of the tragedy the only matters then before the Court to be dealt with were:
- The applications by Christine Bristol and Alan Bristol each seeking custody of the three children, to be decided by the Court after a full hearing to be held at a future date.
- The matrimonial property proceedings filed by Christine Bristol which had not reached the stage where a date of hearing could be given.
The Events Leading Up to the Tragedy
I do not wish to dwell at length upon these matters but in order to consider adequately my second term of reference – “As to the need for any change in the law or in Family Court practice concerning any matter that arose in the proceedings” – it is necessary to inquire whether any aspect of the law or Family Court practice was deficient or ineffective and thus causative of the events which subsequently occurred. The actual cause or causes of the tragedy insofar as such can be discerned need therefore to be considered.
The narrative of events which follows is based upon my examination of the court files and on my own inquiries of the Police, counsel for the parties and counsel for the child and Christine Bristol, and also from evidence presented at the Coroner’s inquest on 3 March 1994 and the findings of the Coroner.
The three children were as a result of the interim custody order -made by the Court on 11.11.93 and the delivery up of the two younger children on 13.11.93, thereafter in the custody of Alan Bristol. The parties had subsequently agreed upon holiday access for Christine Bristol to all three children and this agreement was embodied in a consent order made by the Court on 22.12.93. It provided for Christmas and holiday arrangements and from 1.1.94 gave Christine Bristol access to all three children for two days and two nights per week.
Those arrangements continued throughout January and early February although not without considerable friction between the parties due Christine Bristol alleged to Alan Bristol’s obstructive behaviour and to his verbal and sometimes physical assaults upon her when she was collecting or returning the children. On 29 December 1993 Christine Bristol complained to the Police that when she arrived at the house in Maryland Road to pick up the children, Alan Bristol tried to force her into the bedroom intending to have intercourse with her. Alan Bristol was subsequently visited by a police constable who warned him that a complaint had been made although the matter was not going to be taken further.
On 2 February 1994 Christine Bristol again made a complaint to the police to the effect that when she went to the house that day to drop off Holly and Claudia who had been with her for the day, Alan Bristol again assaulted her, this time the assault being accompanied by acts of indecency. The police investigated the complaint and also interviewed an independent witness who corroborated Christine Bristol’s account of events. Alan Bristol was arrested on 3 February 1994 and charged with indecent assault and assault upon a female. He was later bailed to appear in the District Court on Tuesday 8 February 1994.
Also on 3 February 1994 Christine Bristol’s solicitor in response to a suggestion by Alan Bristol’s solicitor that there should be fixed access arrangements (instead of the provision in the consent court order of 22.12.93 which simply gave Christine Bristol access for two days and two nights per week.) faxed to Alan Bristol’s solicitor Christine Bristol’s agreement to such a course provided she have all three children on Saturday and Sunday of each week until 8.30am on the Monday morning.
On 4 February 1993 Alan Bristol’s solicitor communicated with Christine Bristol’s solicitor and indicated that he believed that access should be on Sunday and Monday (being Christine Bristol’s non work days).
At 11.30am Alan Bristol called on his solicitor and discussed with another member of the firm the handling of the defence to the criminal charges. He also discussed with his solicitor the proposed new access arrangements. As a consequence of those discussions a fax was sent to Christine Bristol’s solicitor confirming that access until further agreement would be on Sunday and Monday of each week commencing next Sunday with Mrs Bristol Senior delivering and picking up the children at the same times as under the current arrangement. At the meeting that day both Alan Bristol’s solicitor and the other member of the firm who was to handle the defence to the criminal charges, found Alan Bristol to be calm and rational and he did not appear distressed. When he left their offices at 1.15pm he appeared his normal self.
Shortly after leaving his solicitors office Alan Bristol called on a male friend who he had known for’ many years. Alan Bristol discussed the charges laid against him and was concerned about having to spend 10 years in prison. He left about 2pm. When he left his demeanour appeared quite good and he gave no indication that the tragedy which subsequently occurred was likely to happen. At approximately 2.10pm that same day Mrs Bristol Senior was at the house at Marybank Road looking after the two younger children when Alan Bristol arrived. (I now give a precis of part of Mrs Bristol’s statement tendered to the Coroner relating to Alan Bristol’s condition and concerns on his return.)
He looked shocking. He was white from head to toe; his eyes looked tired: his face was sunken: he looked absolutely dreadful. He was concerned that if he was convicted he could get 10 years in gaol on the assault charge and 20 years on the indecent assault charge. (Those penalties are in fact incorrect.)
He was also concerned that the eldest girl Tiffany (with whom he appeared to have a very strong attachment) would be called to give evidence against him and that Christine Bristol had applied to the Court for custody of Tiffany (in addition to the two younger girls).
Alan Bristol sat down in the lounge and made very little further conversation and in Mrs Bristol’s words appeared “as if he wasn’t with us for the rest of the day … he spent a lot of time just sitting there with his head back and his eyes closed.”
About 5pm Mrs Bristol prepared a meal and she and Alan Bristol and all three girls (Tiffany had by then returned home) had tea.
About 7pm Mrs Bristol left to return home. At that stage Alan Bristol in the words of Mrs Bristol “was still looking like death warmed up, very quiet and very tired.”
Prior to Mrs Bristol leaving Alan Bristol never said anything to her or did anything that made her think he would hurt either himself or the children in any way.
On 5 February 1993 at approximately 9.30am Mr Bristol Senior visited the house at Marybank Road. He found no-one about. He entered the garage and found Alan Bristol and the three children in the rear of a Suzuki hatchback motor car, all apparently dead.
Subsequent police investigations showed that the deaths were planned and that the preparations must have taken some little time to accomplish. There was some evidence tending to indicate that Alan Bristol may have belatedly realised what he was doing and tried to take some steps to arrest the procedure he had initiated.
The Coroner held an inquest into the deaths on 3 March 1994. His findings were:
“… that the deceased Alan Robert Bristol died on the evening of 415 February 1994 at 25 Marybank Road Wanganui as the result of carbon monoxide poisoning, death being self inflicted. The deceased Tiffany Anne Bristol, Holly Alyse Bristol and Claudia Abby Bristol all died during the evening of 4 February and early morning possibly of 5 February 1994 at 25 Marybank Road Wanganui, each as the result of carbon monoxide poisoning.”
The Coroner also observed:
“It is to my mind reasonably clear that the deceased Alan Robert Bristol became deeply concerned, to the extent of being one might say, worried out of his mind perhaps, although there is no indication that he was mentally disturbed by the charges that were laid against him a day or two earlier. That presumably was the trigger but one can only speculate.”
THE LAW APPLICABLE TO AND THE PRACTICES OF THE COURT
1. The Statutory Provisions and Practices Applicable
The statutory provisions applicable to the exercise by the Family Court of its jurisdiction in this case are:
- The Family Courts Act 1980
- The Family Proceedings Act 1980
- The Family Proceedings Rules 1981
- The Domestic Protection Act 1982
- The Guardianship Act 1968.
Certain parts of those statutes and rules I now refer to, in order to highlight relevant procedures adopted by the Court which have been commented upon and been considered in my inquiry.
First: Nature of Jurisdiction
The Family Court was established as a division of the District Court (Family Courts Act 1980 s.4). Family Court proceedings shall be conducted in such a way as to avoid unnecessary formality s.10.
In all matters in issue between husband and wife in proceeding under the Family Proceedings Act or the Guardianship Act 1968 it is the duty of legal advisers to promote reconciliation and conciliation (Family Proceedings Act 1980 s.8) mediation conferences chaired by a Family Court Judge are provided for (s.14) and it is the duty of the Court to consider reconciliation and conciliation between the parties (s.19).
Second: “Ex Parte” Applications
Family Courts are authorised to hear and determine applications “ex parte”. That is to hear and determine them without notice to and without hearing the other party.
That power derives from two sources. The first is the Family Courts Act 1980 which makes the Family Court a division of the District Court (s.4) and which authorises a Family Court Judge to exercise any of the powers of a District Court Judge (s.5(4)) and gives the District Court power to hear and determine any ex parte applications relating to proceedings heard in a Family Court (s.15).
The second is the Family Proceedings Rules 1981 which provide that an order may be made or a warrant may be issued on an ex parte application made under stated sections of The Family Proceedings Act 1980 and of the Guardianship Act 1968 and in any other case if the Court is satisfied:
“(i) That the delay that would be caused by proceeding on notice would or might entail serious injury or undue hardship or (ii) That the delay that would be caused by proceeding on notice would or might entail risk to the personal safety of the applicant or any child of the applicant’s family or (iii) The application affects only the party moving or is in respect of a matter of routine or is of so unimportant a nature that the interest of the other party cannot be effected thereby.” (Family Proceedings Rules 1981 Rule 16(2)(a)(i, ii, iii)
Rule 16 goes on to say that any person against whom an order has been made ex parte under Rule 16(2) may at any time apply to vary or rescind the order.
The Family Court Practice Note relating to ex parte applications provides:
“Where an application is filed ex parte in the Family Court, seeking substantive orders, particularly under the Domestic Protection Act, it must be accompanied by affidavit evidence, which fully and frankly discloses all relevant circumstances, whether or not they are advantageous to the applicant.
This information will include disclosure of any other relevant proceedings past or present in any court, and the identity of any legal advisor acting for the respondent or for any children.
It is not appropriate for counsel to proceed ex parte at the same time serving copies of the application on counsel for the respondent before the application is heard.
In every case where an ex parte application is under consideration counsel should decide whether the proper course is not rather to proceed on notice accompanied by an application for an abridgement of time for a defence to be filed.
Where counsel is known to be acting for a respondent or children copies of the application and accompanying affidavits should be forwarded to such counsel immediately upon service of the, order of execution of any consequential warrants.”
Third: “Consent Orders”
Family Courts are given power (except in proceedings relating to the status of marriage) to make orders by consent. (Family Proceedings Act 1980 s.170).
The reader of this report will have observed that my examination of the court files contains a number of references to the court having from time to time made orders “ex parte” and by “consent”.
It is quite clear that the Court had power i.e. to make ex parte orders and consent orders. In the case of “ex parte” orders made under the authority of Rule 16(2) of the Family Proceedings Rules 1981 the only pre-requisite to the court doing so was that it be satisfied that the circumstances came within one or more of the provisions in subclause 2(a)(i, ii, iii) of that rule as set out ante. Once the Court was so satisfied, then, it was for the particular judge at the time to decide as a matter of judgment whether he would deal with the matter ex parte and make the order sought or drequire the application to proceed on notice but abridge the time for a defence to be filed.
In the case of “consent” orders, they may be made “by the consent of all the parties to the proceedings”. The Court is thus given a discretion as to whether it will make the order or not.
Fourth: Enforcement of Custody and Access Riqhts
Where any person is entitled to the custody of a child a Family Court may on the application of the person so entitled to custody issue a warrant to a constable, social worker or person named therein to take possession of the child and to deliver him to the person entitled to custody or to some other named person on behalf of the person entitled to custody. (Guardianship Act 1968 s.19(i)) However where more than one person is entitled to the custody of the child no warrant issued under subsection 1 (ante) shall authorise the removal of the child from the possession of one of those persons and delivery of him to another of them (Guardianship Act 1968 s.1 A).
The effect of s.1A is that the warrant procedure cannot be used by one joint legal custodian against another; however it is available whether there is an order granting custody to both parties but at different times i.e. shared custody.
Where there are practical difficulties in enforcing the return of a child for a short period, from a distance or where the child is taken away on what appears to be a permanent basis which is really an indication not to be bound by the order another procedure has been commonly adopted. That procedure is for the person whose custodial rights have been breached to apply ex parte for an interim order giving him full custody of the child and upon the making of such order to ask the Court to issue a warrant to take possession of the child and to deliver him to the applicant.
Such order for custody is an “Interim” Order only until the issue of custody is further determined by the Court, and the interim custody order having been made “ex parte” may be subject to an application by the person against whom it is made to rescind or vary it at any time.
2. An Examination of the Court’s Application of the Law and its Practices in the Bristol Case
At the outset of this section of my report I wish to establish unequivocally the basis upon which my enquiry has proceeded. My inquiry is limited by the terms of reference which have been given me.
They restrict my inquiry, after an examination of the Court files, to a consideration of “the need for any change in the law or in Family Court practice concerning any matter which arose in the proceedings”.
I am not empowered to exercise a judgment as to whether the Family Court Judges who dealt with the case were right or wrong in the decisions they made or in the ways in which they exercised the powers given them under the various statutes which they applied. I am not entitled to second guess – or should I say second judge those decisions. I am not sitting as an appellate body. My inquiry is directed solely at whether there is any need for change in the law or Family Court practice.
Having made those preliminary observations I now examine the course followed by the proceedings as disclosed by the files. This is necessary in order to see first, what matters arose in the course of the Bristol proceedings that I should consider, and second, whether the legal provisions which the Judges were required to apply were adequate to enable them to deal with circumstances that arose in this case and whether the practices of the court were appropriate or are in need of change.
Two main issues concerned the Court in the Bristol case. They were: the protection of Christine Bristol from alleged assaults by the application of the relevant provisions of the Domestic Protection Act 1982 and the making of orders relating to custody of and access to the children under the relevant provisions of the Guardianship Act 1968.
I do not find it necessary for me to traverse the first file which closed when the parties were reconciled in 1989. The material on that file is merely historical. That phase of the Bristol case was long drawn out.
It covered about 31/2 years during which time proceedings were brought before the Court for non-violence and non-molestation orders against Alan Bristol and for custody orders in respect of Tiffany.
None of the proceedings ever reached the stage where a contested application was heard and decided by the Court. All matters were resolved by agreement and orders “by consent” were made by the Court. The significance of that is that the Court never had the opportunity to hear the parties give evidence or to test the truth or otherwise of the various allegations made. I commence my examination with the opening of the second file on 13.7.93. It discloses that on 5.7.93 whilst the parties were living at the family home at Marybank Rd, Wanganui Alan Bristol allegedly took Christine Bristol to her parents home and Wanganui, kept the three children at the family home and at the same time told her the marriage was at an end.
The important events which followed – omitting those not greatly relevant to the decisions made by the Court are:
The first occasion when the problems of the Bristol marriage came back before the Court was on 13.7.93 when Alan Bristol applied for interim custody of the three children. This was opposed by Christine Bristol who sought an order that custody of the children be given to her.
A pretrial conference before a judge at which both parties were represented by counsel was held on 28.7.93 and by consent the judge made orders, pursuant to the Family Proceedings Act 1980 s.162 appointing a senior family court counsel to represent the children. He authorised the obtaining of a psychological report on the children directed to custody issues pursuant to the Guardianship Act 1968 s.29A and requested the Registrar to give the case priority for hearing on interim custody.
Before custody issues could be brought before the Court, counsel for the parties and for the children discussed arrangements for the interim care of the children and on 11.8.93 the Court approved shared care arrangements to remain in force until further order of the Court. On the same day Christine Bristol applied ex parte to the Court for a non-violence order and a non-molestation order against Alan Bristol as provided for in the Domestic Protection Act 1982 ss.4 & 13. The issue of violence within the domestic scene was once again raised by Christine Bristol – as had been done earlier in the relationship. There were allegations of violence made by Christine Bristol in her affidavits and denials of violence by Alan Bristol in his.
The Court in accordance with its usual practice where there are allegations of violence made an interim non-violence order to protect Christine Bristol to the extent that such an order can provide protection but directed that the non-molestation order application proceed on notice to Alan Bristol.
The parties represented by counsel next appeared before the Court on 24.9.93 being the date fixed by the court for the review of the interim non-violence order. At that time a memorandum from counsel for the children was tabled relating to the course that the court might follow in dealing with the matters which were before it, namely:
- The custody applications by both Alan Bristol and Christine Bristol
- The hearing of Christine Bristol’s application for non-violence and
- Non-molestation orders which application was opposed by Alan Bristol.
The Judge directed that the interim non-violence order continue until the further order of the Court and that the hearing of the Domestic Protection applications (for non-violence and non-molestation orders) and he deferred pending the hearing of the Guardianship Act Proceedings (custody).
No further proceedings relating to custody came before the Court until 1.11.93 by which time the report sought from the psychologist relating to the custody of the children had been received and considered by all counsel.
Prior to that date the parties, their counsel and counsel for the children had all met and discussed care arrangements for all three children and a “memorandum of consent” had been signed setting out agreed arrangements for the care of all three children and requesting the Court to make orders by consent accordingly. It did so. The terms of those orders are set out in full earlier in this report.
Apart from defining the care arrangements which established a shared custody regime, the Memorandum of Consent and therefore the order also, provided that “all other applications before the Court relating to domestic protection and custody and access matters, are to be withdrawn”.
In making that order for the shared custody of the three children the Court was required to apply the provisions of the Guardianship Act 1968 s.23:
“Welfare of child paramount – (1) In any proceedings where any matter relating to the custody or guardianship of or access to a child, or the administration of any property belonging to or held in trust for a child, or the application of the income thereof, is in question, the Court shall regard the welfare of the child as the first and paramount consideration. The Court shall have regard to the conduct of any parent to the extent only that such conduct is relevant to the welfare of the child.
(1A) For the purposes of this section, and regardless of the age of a child, there shall be no presumption that the placing of a child in the custody of a particular person will, because of the sex of that person, best serve the welfare of the child.”
In view of the report of the psychologist and the consents of the parties and counsel for the children to the orders sought the court would have had little doubt that the consensual arrangement proposed would best promote the welfare of the children as required by the section of the Act above referred to.
That consensual arrangement followed by the court order effectively concluded all matters between the parties then before the Court.
Except that the order was to be reviewed on or about 14 February 1994. It should be noted that at the time when the order was made:
- There had been no formal contested hearings on their merits, of any applications made to the Court. The allegations of violence by Christine Bristol, the denials of Alan Bristol and counter allegations against Christine Bristol remained just allegations and no opportunity had been given to the Court to determine where the truth lay.
- Both parties and all counsel had received the report of the psychologist who considered both parents as equally capable of caring for the children but preferred ongoing arrangements where the children remained in the family home with the father whilst spending regular time with the mother.
- That although Christine Bristol had made allegations of violence against Alan Bristol there was no suggestion that the children would ever be in danger of violence at his hands.
- The Court had been asked to make the order on 1.11.93 with the written consent of the parties after both had been advised by competent senior counsel experienced in Family Court matters and after the interests of the children had been safeguarded by senior counsel having been appointed to represent them.
That Court order should have ended the problems of the Bristol family. It didn’t. The reason it did not was, according to Christine Bristol, because immediately after the order was made on 1.11.93 problems arose between her and Alan Bristol over the carrying out some of the arrangements agreed upon, Alan Bristol allegedly continuing to harass her and calling at her home on 5.11.93 and assaulting her. On 8.11.93 Christine Bristol left Wanganui with the two younger children and went to Whakatane. After he learned of Christine Bristol’s departure, Alan Bristol sought the assistance of the Court to have the children returned to Wanganui so he could resume the shared custody of them which had been provided for in the Court order of 1.11.93.
On 11.11.93 he applied to the court ex parte for an order for the interim custody of all three children and at the same time sought a warrant under the Guardianship Act 1968 s.19 to have an appropriate person take possession of the two younger children (then in Christine Bristol’s care in Whakatane) and deliver them to him. When that application was made to the Court the only Family Court Judge then available to deal with the matter was one of the three Family Court Judges then located in the central region of the Family Court but who had traditionally a responsibility for the Hawkes Bay area and sat only occasionally at Wanganui. He was temporarily sitting at Wanganui on 11.11.93.
Alan Bristol’s applications were placed before him to deal with as the matter was regarded as one of some urgency and the Judge who usually sat at Wanganui and who had dealt with the Bristol case earlier was not available.
The matter was placed before the Judge as one where Christine Bristol had departed from Wanganui, and on the affidavit evidence of Alan Bristol had done so with the intention not to comply with the Court Order of 1.11.93 to which she had been a consenting party. In point of fact as at 11.11.93 Christine Bristol was not actually in breach of the Order of 1.11.93 as Claudia was not due to be returned to her father’s care until 9am on Saturday 13.11.93 and Holly to her father’s care until 9am on Monday 15.11.93. But the evidence before the Court was that she had left Wanganui and her stay in Whakatane “has some permanency”, and that she would be unlikely to comply with the Court Order of 1.11.93 to give the children into the care of Alan Bristol when required.
The Judge because he had not dealt with the case previously, examined the Bristol file and the course followed by the proceedings leading up to the consent order 10 days earlier and finding nothing to indicate any reason relating to the children’s welfare or safety why the consent order should no longer be appropriate decided it would be better for the children to be returned to Wanganui. He therefore made the interim custody order in favour of Alan Bristol (to the extent that he did not already have custody) and ordered the issue of the warrant accordingly.
The procedure which was adopted of making an order for interim custody followed by the issue of a warrant to enforce it was adopted because there is no procedure provided for in the Guardianship Act 1968 s.19 (relating to the enforcement of custody and access rights) other than by the issue of a warrant to take possession of a child and to deliver the child to the person entitled to custody.
In the case of shared custody of a child and especially if the child is some distance away from the person entitled to custody, and such person is entitled to custody for only part of the time in short periods (as was so in the Bristol case) it is rather impractical to use a warrant to enforce a series of short periods of custody. In such cases the Court commonly makes an interim custody order followed by a warrant to enable the child to be returned to the custodial parent. Once that has been done the other party can then apply to have the interim custody order varied to enable the shared custody regime to be reinstated or some other arrangement made.
Shared custody which usually involves a child being in the custody of each parent for a comparatively short time relies on the cooperation of the parties for its success rather than the enforcement by warrant.
The other factor which influenced the Court in making the interim custody order was that on the evidence before the Court Christine Bristol had taken the children to Whakatane’ with some permanency” and had thus indicated an intention not to comply with the order for shared custody. In the event the warrant did not need to be executed because Christine Bristol on being advised of the Interim Custody Order and the issue of the warrant returned voluntarily to Wanganui on 13.1.93 and handed over the two younger children to Alan Bristol at the Wanganui Police Station.
Now it is a feature of orders made ex parte by a court that the party against whom such an order is made can apply at any time to rescind or vary that order. This is a safeguard against orders claimed to have been wrongly made. Had Christine Bristol been concerned about the safety of her children, she could have applied promptly after she returned to Wanganui on 13.11.93 to have the interim order for custody rescinded. She did not do so however until 24.11.93.
On that date she applied to the Court for orders: setting aside the Interim Custody Order made in favour of Alan Bristol on 11.11.93, granting her interim custody of the two younger children, granting her reasonable access to Tiffany and granting her final custody of all three children, reserving reasonable access to Alan Bristol.
Alan Bristol gave notice that he intended to defend those applications. The whole issue of custody then awaited a court hearing but this could not be held by the Court before Christmas.
Counsel for the parties and for the children therefore on 10.12.93 arranged a meeting with the Judge, (who was the one who had mainly dealt with the earlier proceedings) to discuss access for Christine Bristol to the children over the Xmas period. The Judge directed that arrangements be made for urgent referral of both parties to a counsellor in accordance with the provisions of Part II of the Family Proceedings Act 1980 with a view to, at least agreed access, being decided upon. He also set a short hearing for 22.12.93 in the hope that the parties would agree on holiday access but if they failed to do so the Judge indicated that the Court, after hearing the recommendation of counsel for the children would make orders for access.
In the result the parties reached agreement upon access before the counsellor and at the hearing on 22.12.93 a Memorandum of Consent was filed and the court made orders in terms of that consent that:
- Both parties will share Xmas Day 1993 with the children together in the family home.
- Each parent will have an equal time during the school holiday period for travelling holidays or the equivalent.
- Christine shall have access to the three children for 2 days and 2 nights per week from 1 January 1994.
That was the last occasion on which the Court was to deal with this matter. Apart from the making of the Ex Parte Interim Custody Order and Order for the issue of the warrant on 11.11.93 all other orders had been made by the consent of the parties. The issues still outstanding before the Court to be dealt with were the separate custody applications of both Alan Bristol and Christine Bristol in respect of the three children, and the domestic protection applications.
A subsequent application was filed on 1.2.94 by Christine for division of matrimonial property under the Matrimonial Property Act 1976.
3. Is There a Need for any Change in the Law or in Family Court Practice Concerning Any Matter that Arose in the Bristol Proceedings?
Before change can be considered it is first necessary to see whether the law or practice of the Court failed or proved inadequate or ineffective to deal with a situation that arose in this case.
In the previous section of this report I have set out in summary form how the Court dealt with the various situations that came before it.
If there are found to be any applications of the existing law or practices which caused or contributed to the unfortunate deaths of the four persons in this case or there were any omissions in the law or practices which allowed them to happen then such would provide strong grounds for recommending change.
However before I can make any decisions on those matters and decide whether there is need for change I must first decide whether, the existing laws as contained in the Domestic Protection Act 1982 and the practices of the Court were adequate to protect Christine Bristol from the alleged domestic violence to her and next to decide whether the provisions of the Guardianship Act 1968 were adequate to protect the children in relation to matters of custody and access.the deaths might have been preventable it has been necessary for me to endeavour to establish why the deaths occurred and for that purpose to examine in some detail in my earlier narrative the known events which preceded them.
Insofar as the protection of Mrs Bristol is concerned the evidence shows that a non-violence order made by the Court under the Domestic Protection Act 1982 remained in force from 11.8.93 until withdrawn by consent on 1.11.93. During that period . I find no evidence of violence by Alan Bristol having occurred. Following the withdrawal of the non-violence order on 1.11.93 however, Christine Bristol made one allegation of violence on 5.11.93 supported by a medical certificate as to injuries, and she also made two complaints of violence to the police on 29.11.93 and 2.2.94.
The absence of any violence during the period the non-violence order was in force and the allegations of violence after it ceased may be considered to support a view that the existence of the non-violence order had prevented violence. To that extent it does not appear that the application on the provisions of the Domestic Protection Act was inadequate to protect Christine Bristol when an order under that Act was in force.
However I doubt whether the powers of arrest and detention provided for under ss.9-12 of the Act provide any great deterrent effect. A breach of a non-molestation order only incurs a penalty up to 3 months imprisonment or to a fine not exceeding $500. Heavier penalties may be incurred however if assaults are charged under the Crimes Act.
Insofar as I must examine the protection of the children and whether the provisions of the Guardianship Act 1968 and the practices of the Court were adequate to protect them from the tragedy which overtook them I first need to know what caused the tragedy – not merely to know what was the mechanism which caused their deaths but why that mechanism was set in train by Alan Bristol and whether any application of the existing law and practices of the Court could have prevented it.
Whilst it is not possible for me to be totally satisfied as to why Alan Bristol took the lives of himself and his three children, I believe the answer is to be found in the events which occurred on Wednesday 2nd, Thursday 3rd and Friday 4th February 1994 as narrated earlier in detail in this report. Those events were the alleged assault by Alan Bristol on Christine Bristol on Wednesday followed by her complaint to the Police: his being interviewed by the Police on the Thursday and his subsequently being arrested and charged with indecent assault and assault on a female: his being bailed to appear in Court on the following Tuesday to answer those charges: and his interview with his solicitors on Friday when the likely consequences of those charges were discussed.
The evidence given before the Coroner indicates clearly that a great change came over Alan Bristol after he left his solicitors at approximately 1.15pm on Friday and an old time friend nearly an hour later and returning to his home at approximately 2.10pm the same day. There is little doubt that by then he was of a disturbed state of mind – a condition which appeared to continue into the early evening when he was last seen. The Coroner in his findings as noted earlier observed that it was reasonably clear that Alan Bristol became deeply concerned to the extent one might say, worried out of his mind by the charges that were laid against him a day or so earlier.
That leads me to ask the question – what Court could when dealing with the issues involved up until the last Court order on 22.12.93 have reasonably believed that Alan Bristol posed a threat to the safety and the lives of his three children. Let me examine the known facts.
- Although there were allegations by Christine Bristol of violence against her by Alan Bristol and denials of such by Alan Bristol, the Court on no occasion was required to hear evidence and adjudicate on the issue. So to that extent the allegations were unproven. However even if, for the sake of argument the Court accepted there was such violence against Christine Bristol there was absolutely no evidence of any violence against the children. On the contrary Alan Bristol appeared to have a deep affection for them and appears to have been a very good care giver.
- Christine Bristol had no fears that Alan Bristol would harm the children when they were in his care. Throughout the whole proceedings except for the interim custody order on 11.11.93 arrangements for care were always resolved “by consent” and one would have imagined that had there been any such fears, that they would have been expressed in one or more of the affidavits filed in court in relation to custody proceedings and domestic protection proceedings or to counsel for Christine Bristol, counsel for the child or to counsellors or to the psychologist who reported to the Court.
- Counsel for the children who was appointed by the Court was senior and very experienced in Family Court matters and had a close involvement with the Bristol case over a number of years and he apparently saw no danger in the children being given into the care of their father as has been shown earlier in this report.
- The psychologist who reported to the Court preferred that the children remain in the family home with Alan Bristol.
- Neither of the counsel for the parties ever expressed any concerns for the safety of the children at the hands of Alan Bristol.
- The domestic protection orders which had been made from time to time were discharged or withdrawn by consent, the last occasion being when the Court made the consent order on 1.11.93 one of the terms of which was that all other applications before the court relating to domestic protection and custody and access matters be withdrawn. The withdrawal of Domestic protection proceedings would have tended to indicate to the court an absence of continuing fears of violence on the part of Alan Bristol towards his wife.
Now in deciding what a court knew or should have known about a certain situation it is important to realise that a court is dependent for its knowledge of the facts of a case upon the information supplied to it by the parties and witnesses in evidence given orally or by affidavit: in reports supplied to the court such as from psychologists, counsellors, counsel appointed to represent children etc and from inferences properly drawn from that information.
In my opinion there was nothing whatever in the material placed before the court from which a Judge could have been alerted to the probability or even the possibility that to give the children into the custody of their father might create a situation of danger for them.
The trigger to the unfortunate events on 4/5 February 1994 appears to have been the assault allegedly committed by Alan Bristol on Christine Bristol on 2.2.94 resulting in her laying a complaint with the police, and to Alan Bristol being subsequently arrested and charged with the two offences earlier referred to. The evidence before the Coroner clearly indicates the concerns Alan Bristol had about those charges and the state in which he appeared at his home at approximately 2.10pm on 4.2.94 shortly after a meeting with his solicitors and a visit to an old friend.
What he did later that night may not be thought to be violence or assault of the type commonly found in domestic situations. It was not of the same type of violence alleged by Christine Bristol to have been committed against her. In effect however it was the ultimate violence. It appears that Alan Bristol was worried out of his mind and for reasons best known to himself – which one can only guess at – decided to take his own life and to take those of his three children also. There was nothing before the Court which could have alerted it to the possibility of Alan Bristol acting as he did.
It might be suggested that had Alan Bristol not assaulted Christine Bristol on 2.2.94 and thus been charged with assaults then he would not or might not have become worried out of his mind and done what he did. But from the court’s perspective, Christine Bristol had withdrawn by consent on 1.11.93 all domestic protection applications then before the court. In any event it was not reasonably foreseeable that even if Alan Bristol were to assault his wife and be charged before the Court that that would cause him to act as he did and to take his and the children’s lives. If he were to vent his anger on anyone it would surely be more likely to be on Christine Bristol.
I commenced this section of my report by considering whether the deaths in this case could have been preventable by any action of the court. My conclusion is that under the law as it presently is and with the current practices of the Family Court the deaths in the circumstances of this case were not foreseeable and were not preventable.
They were not preventable simply because the law and practices did not deal with a situation where a parent, although he had allegedly been violent to his spouse was otherwise regarded [section of text missing] , with him including his children and there was no requirement of the law or practice of the Court that it should investigate his fitness to do so when faced with an application to make the orders sought by consent.
But that conclusion goes only part way to answering the question posed earlier or whether there is any need for any change in the law or in Family Court practice.
The conclusion gives rise to the further question of whether had the law and practices been different might the deaths have been preventable – with the consequence that the law and practices should now be changed so as to avoid possible repetitions of the events of the Bristol case in the future. Whether such changes should be made is in my view dependent upon there being a willingness of society to recognise the seriousness of domestic violence and to be prepared to adopt a quite different philosophical approach to dealing with it.
The present law and practices are adequate to deal with cases where domestic violence is not an issue but I believe that the increase of such violence over the years, the growing public awareness of it and the recent examples of some of the horrific consequences that have ensured have brought about a situation where there will be general approval for the law to be changed to provide for new rules relating to custody and access to be laid down to deal specifically with the person who uses violence and abuse in a domestic situation.
For myself I believe that there should be changes to both the Domestic Proceedings Act 1982 and to the Guardianship Act 1968.
What Changes Should be Made?
Before I consider any changes to law or practice I propose first to consider what circumstances require change and then decide what changes if any should be made to deal with such circumstances. I do this under several headings.
1. Does Violence to a Spouse Indicate a Potential for Violence to Children?
In my examination of the circumstances of the Bristol case and particularly in relation to issues of custody and access I have noticed that no great significance appears to have been placed upon the fact that Alan Bristol was alleged to have used violence to Christine Bristol in spite of the numerous allegations she made and the nonviolence orders issued. It seems as though it was generally assumed that even although Alan Bristol might have used violence to his wife he had not done so to his children and that he could still be regarded as a suitable custodial parent for his children. It was not thought necessary to investigate the alleged use of violence further.
The psychologist reporting to the Court apparently did not consider the matter at least it is not referred to in his report and counsel for the children and counsel for Christine Bristol did not raise objections on these grounds when various consent orders were being sought. And of course the matter not having been raised before it the Court did not raise the matter when faced in the circumstances with applications to make consent orders for custody. A study of reported decisions in domestic cases indicates that it is not uncommon for courts to allow a person who has been a spousal abuser to be a custodial parent to a child and that violence towards a spouse is regarded as not necessarily detrimental to being a custodial parent.
It also appears to be a commonly held view that it takes two parties to create circumstances resulting in violence and abuse by one party to the other and to use an expression I have encountered in my researches – it takes two to tango.
I have wondered how it can be accepted that a person can use violence to a spouse and yet so long as he has no record of violence or abuse to a child or children be regarded as no danger to the child or children if he is allowed to become the custodial parent or even have unsupervised access to them.
Various studies from around the world have concluded that children from homes where a wife is battered are in a very high risk category in terms of child abuse. In a study carried out by the US Department of Health Education and Welfare in 1990 half the women interviewed related that their children had been abused by their fathers. (Bowker Arbitell & McFerron “on the relationship between wife beating and child abuse”).
In a paper delivered to the (US) National Family Violence Conference in 1984 Starke & Flitcroft examined direct links between violence to children and violence to mothers by screening the medical records of abused children for indications of violence to their mothers. They found that “battering is the most common context for child abuse” and that “the battering male is the typical child abuser’.
The same authors in a publication “Women and Children At Risk” (1968) found that 45% of children had mothers who had also been abused. A further 25% were identified as coming from families where there was “conflict” within the family. A similar result was obtained in a 1988 study conducted by the Paediatrics Department of Boston City Hospital. In that study 60% of mothers of child abuse patients had themselves been battered.
In another study, of a volunteer sample of 1000 battered women Bowker, Arbitell & McFerron found that men who battered their wives also abused children in 70% of the families in which children were present.
These findings have been replicated by research in the United Kingdom on child protection te findings recorded in the overseas literature have been mirrored in New Zealand. In a study carried out by the National Collective of Independent Women’s Refuges in 1991, of the 6668 children who were admitted (with their mothers) to womens refuges in 1990 50% had been physically (non-sexually) abused: 12% had been sexually abused: 80% had been verbally abused and 80% had experienced other forms of abuse, isolation, intimidation and neglect. So far as weapons were concerned 72.5% of children had fists used against them: 22.5% guns: 17.5% knives: 17.5% bottles: 30% by burning cigarettes and 42.5% had been abused by other weapons, including belts, sticks, cattle prods and stove elements.
In the recent “High Profiles” child homicide cases (Ratima children, the Poli children, Craig Manakau, Delcelia Witika) the mothers were all victims of spousal abuse.
If one accepts as a generalisation that studies show that a large proportion of persons who use violence to or abuse their spouses use violence to and abuse children of the family or the relationship also, one must surely ask the questions:
- Is there a factor in the make up of a spousal abuser that he has the potential to abuse children also?
- Can one safely assume that such a spousal abuser will not abuse children where they are in his care after he has separated from his spouse?
I do not presume to be able to identify all the possible behavioural factors which cause one person to use violence and to abuse another in a domestic situation but surely elements of power, domination, control, anger and punishment must feature amongst them. There may in some cases be some psychiatric disorder present (probably a small minority) but I do not believe they are by any means the root cause of domestic violence.
I believe that in the great majority of such cases the violence or abuse is triggered off by situations arising where circumstances give rise to one or more of the elements I have referred to above.
I have not in the time available to me been able to conduct more detailed research into any studies which might deal with this particular topic nor to see whether cases in NZ throw light upon it.
But this is a subject upon which it may be thought proper to commission further research.
It does however seem to me that there is good cause to suspect that factors which trigger off violence in a domestic situation aimed at punishing a spouse when they are living together may also cause violence to children when the parties are living apart even though there was no evidence of violence to the children whilst the parties were living in the same household.
Could not a situation which triggered violence when parties were living together also trigger violence if they are living apart if such a situation then arose? Is not the Bristol case an example of that? There was evidence of violence by Alan Bristol to Christine Bristol before and after separation but no evidence of violence to the children. An alleged episode of violence to Christine Bristol occurred on2.2.94 and Christine Bristol reported the matter to the police, who subsequently arrested Alan Bristol and charged him with two assaults and bailed him to appear in court to answer the charges the following week. The next day Alan Bristol killed the children who were in his custody. Why did he do so? One can only speculate.
There was no apparent psychiatric dysfunction. What triggered his actions? In all probability it was something to do with his being arrested and charged and the anticipated effect of his being convicted upon his chance of obtaining custody of the children. Was it that Christine Bristol went to the police with the consequences that followed that caused him to decide to deprive her of her children?
Was he seeking to punish her? or had he adopted the attitude – ‘If I can’t have the children then neither will you?” Whatever the reason Alan Bristol might have had for killing the children does that case itself not provide an example of the risk which may be involved in permitting children to be given into the care of or even allowing unsupervised access to one alleged to have used violence to his spouse until such time as one can be satisfied that the risk of harm probably no longer exists.
I know that there are those who quite rightly would argue the importance of maintaining the parental relationship between father and child and in allowing a father to participate to the greatest possible extent in the upbringing of that child but what is in the best interests of the child? Is it not that its safety should first be ensured as far as possible and then that it enjoy the development of a relationship with the father.
2. Do Times of Access and Chanqeover Times Create Opportunities for Conflict and Even Violence Between Spouses?
One of the difficult problems in the case of a broken marriage or a broken relationship where there are children is to make satisfactory arrangements for access to the non-custodial person so as to ensure that antagonisms are avoided at changeover times when there is opportunity for the former partners to meet face to face.
Evidence placed before me indicated that in terms of NZ homicide statistics, domestic violence is a major cause of homicide in NZ with almost half (24) of the 55 deaths in 1993 a result of such violence.
As well it was said that approximately 80% of assaults attended by police were domestic assaults and that within the domestic homicide statistics the highest risk occurs during access changeover times.
A recent example of domestic homicide during an access changeover is found in the R v Keoqan (CA unreported 29.9.93 CA266/93) again the Bristol case is another example of conflict during access changeover.
It was on Wednesday 2.2.94 that Christine Bristol whilst returning the children after access, claims she was assaulted by Alan Bristol and reported the assaults to the police with the consequences that then followed. In fact it may be thought that it was the alleged assault on that occasion, and what followed from it, that provides some insight into the reason for the deaths of the children.
3. The Current Community Attitude to Domestic Violence
I believe that the incidence of domestic violence in NZ has reached the point when the community as a whole recognises that drastic steps must be taken to protect as far as possible those persons at risk whether they be children or adult. 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.
In considering laws relating to domestic protection and to protection of children in custody.and access situations I believe that they are inadequate to deal with the types of domestic violence that we are currently faced with.
The present laws and practices dealing with domestic cases where violence and abuse are not factors to be considered, seem to me to be quite adequate.
In order to deal with cases involving domestic violence however a completely new social philosophy needs to be adopted.
Domestic violence must no longer be considered on the basis that the other spouse in some way induced or provoked the violence or abuse. No-one has a right to use violence to or abuse another no matter what the circumstances. Domestic violence must not be regarded less seriously than violence committed in a non domestic situation.
Penalties for violence committed in breach of non violence orders and non-molestation orders should equate with
penalties for assaults under the Crimes Act.
Whilst I do not believe that deterrence will of itself be sufficient, it must be considered as one factor. A major improvement will only be brought about by such things as anger training and by education aimed at showing young people that violence is not an acceptable form of conduct. I wonder how many children witnessing violence in the home come to believe that such is acceptable as the norm. One only has to recall the numbers of young people brought before the courts charged with offences of violence for whom the plea in mitigation is often made that they came from a broken home and were themselves subjected to violence in their home environment.
They would likely carry their notions of violent conduct into their own domestic situation. That cycle of violence must be broken.
There should be stricter enforcement or laws relating to domestic violence.
In the areas of custody of and access to children, once a person has been shown to have used violence in a domestic situation either to his spouse or to a child or to both, then such person should be presumed (unless exceptional circumstances are shown to exist for deciding to the contrary) 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 to be given into his/her custody or for him/her to have unsupervised access to that child.
It should be recognised that there are danger periods during access arrangements when persons one of whom has been subjected to violence by the other are required to meet at changeover time. Ideally I suppose children should be delivered and collected by an independent person or the delivery and collection should be supervised by an independent person. There may be occasions where that person is a family member but that is not an ideal situation as it would depend on the availability of the family member from time to time and further there may arise friction between that member and the person to whom or from whom the child is to be delivered or collected.
A social service officer would appear to be the ideal person. Whether such would be feasible – I have not had time to investigate.
Where access to a child is granted to a person shown to have used violence in a domestic situation, it should initially be supervised access until such time as that person can show that it would be safe for the child to allow that access to be unsupervised. The violent person, who has been shown to have used violence to his spouse may well prove to be a good parent who can safely care for the child.
But he should first satisfy a court that such is so before he can be given the opportunity to have the child in his uncontrolled care.
It would be hoped that the adoption of the principles referred to above would go some way to deterring domestic violence first by reason of the heavier penalties suggested and secondly by sounding a warning to would be abusers in a domestic situation that violent conduct could make it difficult for them to have free control and access to any child should the parties separate and questions of custody and access become issues before the Court.
It may be thought by some that adoption of the foregoing principles would be too hard on the violent spouse or that they would deprive a child of the opportunity of benefiting from a close relationship with his or her parent. However I see no middle course which could be adopted if we are to try seriously to reduce the amount of domestic violence we are experiencing in this country and to protect those persons that society deems in need of protection.
I recognise that there are strong views held that a child should not be deprived of one parent. A recent decision of the Family Court illustrates this:
“The approach is prescribed by law and that is that the welfare of the children is of paramount concern. While the man is a poor partner if he is a good parent it would be wrong to deprive the children of the father as a matter of moral condemnation of him in respect of his conduct towards his partner. Moreover, once the parties have separated, the problem of violence occurring in front of the children may no longer be present. The focus is on the children. All the facts need to be considered. It is usually in the interests of the children to have access to both parents. It is a dramatic thing and an extremist thing, to deprive the children of one parent.”
In another statement the Court said:
“Now that it is accepted that the marriage is finished the real question is the quality of the parenting each of these people will be able to offer in the future. As I have already indicated there has been no suggestion that the father’s qualities as a parent should be judged by the events between the husband and the wife which led to the recent crisis.”
I have no great quarrel with the opinions so expressed except to say that the question of the safety of the children if given into the care of a violent parent (albeit violent to the other party only) is not really addressed by the Court. The existing laws governing this topic were enacted before cases of violence had grown to the numbers being experienced today. Possibly there are more cases now coming to public notice. I do not know. It seems to be assumed that if one party has shown violence to the other party only – then he is still a suitable person to be given the care of a child or children. In many cases he may be. But I think in order to provide a greater element of safety for the child he should be presumed not to be so until he satisfies a court to the contrary. If one accepts the possibility, even in a small proportion of cases that a person using violence to his spouse may when the parties are separated if the right trigger to do so exists also use violence to a child, then persons who have used domestic violence to a spouse should be screened, as it were, by being required to satisfy a court that it is safe to be given custody of the child or unsupervised access to the child.
The Family Proceedings Act 1980 s.170 empowers a court to make orders by consent. Many orders were made by consent in the Bristol case. This is in line with the philosophy behind the practices and procedures of the Family Court. However where there have been allegations of domestic violence or where such has been shown to have occurred I believe that all persons involved in Family Court proceedings – the parties, their counsel, counsel for the child – psychologists, counsellors and other disciplines reporting to the court should be required specifically to take into account such violence and the safety of the child when considering whether or not the Court should be asked to make consent orders.
Evidence given before me has indicated that it is not uncommon for parties who have been subjected to violence may be overborne by the conduct of their partner to the extent that a consent given in a domestic proceeding may not be given freely and of the persons own volition. It is often given after a bargaining session – you agree to this and I will agree to that.
What Changes in the Law are Suggested?
I do not intend to act as a draftsman and draft suggested law changes but simply to indicate the nature of the suggested law changes themselves. They are:
- Penalties for breach of non-violence orders and non-violence orders should be increased to indicate the seriousness with which the law regards such breaches.
- Where proceedings come before the court relating to the custody of and/or access to any child and allegations of violence and/or abuse in a domestic relationship are made the court shall forthwith satisfy itself whether they are true or not.
- The Guardianship Act 1968 s.23 provides that “welfare of a child is paramount”. There should be incorporated a presumption that a parent who has used violence or to a child in a domestic situation is not to be regarded as a fit and proper person to have custody of/or unsupervised access to that child. However such presumption may be rebutted at any time if such parent satisfies the court that it is safe for the child to be entrusted into his care or if there are established exceptional circumstances which require the child to be given into that parents care. (A case of exceptional circumstances may arise if for example the other parent is living in a situation which gives adequate protection for the safety of the child.)