Mon Mar 18

Victims need to be protected – regardless of whether they are testifying in family court or criminal court

Written by: Carrie Leonetti, Associate Professor of Law, University of Auckland, Waipapa Taumata Rau

Victims who experience family violence in Aotearoa New Zealand are treated differently, depending on which part of the justice system they turn to for help. But a new member’s bill ^[1] before parliament could change all that.

Currently, our law guarantees special protections for victims in the criminal justice system but not those in the Family Court.

Victims who testify in criminal proceedings are entitled to give evidence by alternate means, typically some combination of prerecording their evidence and testifying remotely.

While the Family Court can apply these protections to victims who testify in child protection or family law cases, they are not required to do so. In practice, it’s rare to allow victims to testify via these alternate means in Family Court proceedings.

This means people who have experienced family and sexual violence may be required to testify in person in the Family Court. Victims are often face-to-face and with little physical distancing between themselves and their alleged perpetrators.

Extending protections

Labour MP Tracey McLellan recently introduced the Evidence (Giving Evidence of Family Violence) Amendment Bill ^[2] to extend some of the special protections in criminal proceedings involving family and sexual violence to Family Court proceedings.

This is an important first step to implementing the “no wrong door” principle outlined in the Ministry of Justice’s Family Violence and Risk Assessment Management Framework ^[3]. The principle is victims should receive a consistent and safe response regardless of which door they knock on for help.

If anything, protection for victims is more important in the Family Court than in the criminal courts. This is because family proceedings are private, civil proceedings that the parties initiate and prosecute themselves.

Victims in the criminal courts have police, prosecutors, and support workers from Victim Support to assist them. But victims in the Family Court are often left alone to navigate a complex, hostile system.

Meanwhile, some perpetrators initiate or prolong these proceedings as a form of “systems abuse ^[5]” – weaponising the judicial system to prevent their victims from escaping their control and abuse. This approach inflicts additional harm on victims.

scales of justice and gavel in front of New Zealand flag.

Victims of violence have very different experiences based on whether their case is in the criminal justice system or the Family Court. studiocasper/Getty Images ^[6]

More support is needed

The member’s bill is a good step towards improving the system. But more needs to be done to improve the process for victims of violence or abuse.

This includes requiring police to seek protection orders on behalf of victims. In criminal cases, police can seek non-contact restrictions so victims don’t have to pay legal fees to do so for themselves.

In Massachusetts ^[7] in the United States, a victim witness advocate from the prosecutor’s office helps victims complete the paperwork for protection orders and offers them the option of filing criminal charges against their abusers, and a court advocate helps them through the proceedings.

Meanwhile, in Tasmania ^[8], the police can issue final family violence orders on the spot without requiring victims to undergo lengthy and burdensome court processes.

In Aotearoa New Zealand several improvements could be made to make the system less dangerous for victims.

This includes providing victims with free legal representatives (the equivalent of prosecutors) in child custody cases involving family violence or protection order cases. This would mean victims don’t have to spend their life savings (or get into debt) trying to get protection.

The Family Court could also be staffed with forensic investigators (the equivalent of police) to investigate claims of abuse and gather supporting evidence so that victims don’t have to struggle to do this themselves.

Children who have experienced family violence could also be given the right to participate safely and directly in proceedings that affect them – as they do when they are complainants in criminal proceedings.

The Victims’ Rights Act ^[10] and the services of Victim Support could be extended to include child-protection and family law proceedings. Victims would then receive the same support and practical assistance in the Family Court they currently receive in criminal proceedings.

Accident Compensation Corporation (ACC) coverage could also be extended for sexual abuse and assault to cover all family violence reports and not just criminal assaults.

Family violence isn’t a family matter. It’s a public health problem and a human rights violation.

When a family violence perpetrator inflicts abuse on other members of their family, we have an obligation as a society to protect their victims from further abuse and help them heal from past trauma.

We must keep working to improve the process for victims who have taken the brave first step of seeking help and find themselves in the Family Court.