A Brief Summary of Some Serious Flaws in the Domestic Violence Act
1. The DVA requires the Court to determine matters on the standard of ‘proof’ called the balance of probabilities. This may be suitable for legal decision making in some areas and perhaps for a strictly time-limited non-contact order in relationship conflict situations, but it’s inadequate and unjust when used to deprive or limit in ongoing fashion various fundamental rights of accused individuals such as the right to parent one’s own children and even to interact with them, the right to occupy one’s own house and to use one’s own possessions, the right to freedom of movement in the community, the right to freedom of speech and expression, the right to maintain a previously determined firearms licence and possession of firearms and the right to withhold consent to participate in treatment programs.
2. This removal and limitation of normal rights is also done under the Act to a respondent’s associates simply on the basis that the Court believes, without adequate or any evidence apart from the applicant’s claims, that the respondent has encouraged those associates to act against the applicant in ways that would amount to domestic violence. I.e. the Act allows rights to be removed from people who have never done or even been accused of doing anything violent.
3. The DVA states that its object is to protect ‘victims of domestic violence’ but then fails to require a reasonable standard of proof that there has been any domestic violence or any victim.
4. The DVA’s definitions of domestic violence are vague and unlimited, including the phrase “but not limited to” and undefined terms such as harassment and financial abuse. No boundaries are provided around what can be defined as domestic violence, meaning that all manner of normal relationship behaviour can be and is routinely treated as violence.
5. The DVA requires the Court specifically to take into account the applicant’s feelings when making its determinations and orders. This further erodes objectivity of decisions and the already inadequate’balance of probabilities’ standard of proof.
6. The DVA purports to improve safety by banning communication by a respondent towards the applicant. This means that the respondent is prevented from expressing his/her feelings to the respondent and from discussing the relationship issues. This will result in pent up emotions likely to decrease the safety of the respondent. The primary DVA basis is fundamentally flawed. In effect, the DVA only protects already quite safe applicants from the inconvenience of having to hear the feelings and concerns of ex-partners etc who were never at much risk of committing violence. Those respondents who are truly at high risk of violence are much more likely to be pushed into extreme violence by being banned from attempting to communicate about the problems.
7. The DVA continues to apply the provisions of ‘protection’ orders automatically to children, although since the 2014 changes the Court is now more easily able to make specific orders enabling contact between the respondent and children. For truly dangerous respondents, having their contact with their children routinely banned even when they have never done anything violent to those children will only increase risk towards the applicant. The results have been that numerous homicides have been committed by respondents subjected to the injustice of the DVA when they may never have reached that extreme point without the DVA.
8. Similarly, the inadequate standard of proof and poor respect for accused’s welfare and rights inherent in the DVA also provokes stronger anger and resentment in respondents and actually increases risk to the applicant. This was all predicted from the outset of the DVA and time has confirmed those predictions.
9. The DVA requires the Court, except in particular circumstances, to force respondents under threat of imprisonment to attend and to participate obediently in feminist indoctrination programs called ‘non-violence’ programs. Aside from amounting to a form of periodic detention on the basis of no reasonable justice process, this is an appalling abuse of commonly accepted human rights around consent to treatment and freedom of choice. Even prisoners, convicted beyond reasonable doubt of actual crimes, cannot be forced to participate in programs. But not so for respondents under the DVA. When totalitarian states elsewhere do this stuff to their people, NZ governments sanctimoniously criticize them at the UN yet here they are doing the same thing in NZ.
10. The DVA allows temporary ‘protection’ orders to be made against, i.e. many fundamental rights to be removed from, respondents without notice, i.e. before the respondent is informed about allegations or given any opportunity to reply to them. ‘Temporary’ is open-ended because the DVA allows the Court to extend it as often as pleased for 3 months at a time, and in effect this often means fathers are restricted from all contact with their children for large proportions of the children’s development before matters are dealt with.
11. Temporary ‘protection’ orders become final, meaning life-long (unless the Court at some time agrees to discharge the order), after 3 months by default if the respondent has not notified the Court that he or she wishes to be heard. However, the respondent only needs to be served the order, i.e. made aware of it at all, “10 clear days” before the end of the 3-months. If the respondent then doesn’t inform the Court (s)he wishes to be heard, the temporary order by default becomes final and permanent. Without-notice orders are made en masse and in routine fashion by a judge somewhere in the country on rotation who has never met the parties, on the basis purely of the paperwork so long as the requisite allegations are included (which the lawyers will ensure). That means the without-notice orders sometimes become permanent without any realistic Court scrutiny of allegations, without any cross-examination or judge’s examination of the accuser and without any need for corroborating evidence beyond the allegations. This all gives rise to huge injustice in cases where personal resources or circumstances of respondents impair their ability to deal with the system. If the DVA were based on any principle of fairness towards those accused, ‘temporary’ would be very short term (a few weeks) and would automatically lapse unless the applicant provided some corroborating, credible evidence of the respondent’s history and current risk of violence, and that evidence is scrutinized in realistic fashion.
12. The DVA, despite introducing a radically poor justice method for people to be found guilty of violence and punished accordingly, never included any requirement for evaluation of its effectiveness. It is not effective and we claim, on the basis of monitoring news articles since the inception of the DVA, that it has actually increased the most severe forms of domestic violence including homicide that it purports to protect people from.
These are only a few of the serious faults in the DVA. We claim that those faults were included and have been tolerated ongoing only because it’s mainly men who are disadvantaged.