Family Court (Supporting Children in Court Legislation) Bill
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The Backbone Collective
Submission on
Family Court (Supporting Children in Court Legislation) Bill
Prepared by The Backbone Collective
February 2021
Backbone would like to thank the Select Committee for the opportunity to make our submission. Our
organisation is committed to ensuring that the insights of women who have experienced violence and
abuse (and their children) inform the continuous improvement of the way New Zealand responds to
family and sexual violence. Our submission is based on the experiences of hundreds of New Zealand
women who have taken part in our online surveys and shared their experiences via email and
Facebook messages. Backbone has been calling for urgent reform of the New Zealand Family Court
since our launch in 2017. We are encouraged to see that the draft of the Bill has attempted to make
considerations of family violence inform the way that COCA is interpreted and implemented. However,
our submission will explain that much more work needs to be done to ensure that the Bill enacts safe
and lasting change for children who have experienced family or sexual violence (either directly or
indirectly). We are happy to provide the Committee with more information if required. Backbone’s
reports can be read by visiting our website at www.backbone.org.nz
Overview - Creating a Family Court response for children that is safe,
accessible and responsive
The focus of Backbone’s submission is on the needs of women and children who have experienced
violence and abuse and become involved in New Zealand Family Court proceedings either through
their efforts to gain protection for themselves and/or their children or as a result of their abuser
making an application/s to the court. The experience of family and sexual violence in New Zealand
is influenced by gender and culture. Therefore, the impact of Family Court legislation responding to
victim/survivors of family and sexual violence is felt heavily and disproportionately by women and
in particular Māori women and other vulnerable women such as disabled women.1
The general policy statement in the Family Court (supporting Children in Court Legislation) Bill
(the Bill) explains that the Bill has arisen in response to the 2014 Family Court reforms and the
Independent Panel recommendations which examined those reforms. Backbone has written and
spoken extensively over the last four years explaining that the 2014 reforms are not the cause of
1Fanslow, Janet L. Violence against women in New Zealand: prevalence and health consequences. In: The
New Zealand Medical Journal117(1206) 2004
1The Backbone Collective
the issues that victim/survivors of family and sexual violence and their children face when they go
to the Family Court seeking protection.2
Backbone has maintained that it is the culture of the Family Court and the attitudes and beliefs of
those working in it that have impacted on the way in which the COCA legislation has been and
continues to be interpreted and implemented. Our overall view is that attempts to reform current
legislation will have little impact unless the way the Family Court responds to violence and abuse is
significantly and urgently reformed. The purpose of any reform or legislative change should be
creating a Family Court response for children (and their protective parents) that is safe, accessible
and responsive. The reforms we recommend are listed below and these would go a long way to
improving the current response. At the very least, the Family Court should be responding in ways
that place the safety of children and victim/survivors as its highest priority. Our fundamental view
is that unless there is an alternative pathway in place and screening for cases involving violence
and abuse is happening, the court will continue to put cases where family violence is an issue
through processes designed for cases where family violence is not an issue; an unsafe response.
The urgent reform we are suggesting involves the following changes and provisions;
Provide a specialist response in family and sexual violence cases such as an inquisitorial system
where a judge is assisted by specialists who gather the appropriate evidence and information to
support safe and reviewable decision making.
Provide a specialist kaupapa Māori Family Court response as suggested in Te Taniwha report.3
Undertake screening of all matters coming before the court to ensure family and sexual violence
cases are referred to a specialist response pathway.
Require all COCA proceedings which involve family and sexual violence allegations to undergo risk
assessments by trained family and sexual violence specialists such as independent child advocates -
not lawyers or psychologists.
Require professionals working in the court to be specialists who understand the dynamics of family
and sexual violence, child development, the impact of trauma and kaupapa Māori responses. These
specialists should be mandated to routinely undertake regular training and be audited on their
compliance to do so. Ensure that practice is evidence based and does not rely on unsafe
interventions such as the use of allegations of parental alienation.
Put measures in place to ensure the court environment and process is safe (physically,
psychologically, culturally) e.g. including giving evidence in alternative ways and/or allowing court
hearings to happen remotely so that victim/survivors, including children and young people do not
have to interact with abusers.
2Backbone has discussed this issue in our submissions, both internationally and locally - including to the
Independent Panel, reports, media interviews and in letters to and meetings with, various Government
Ministers.
3 https://www.whakauae.co.nz/publications/technical-reports/5/
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Make the court environment and processes accessible for victim/survivors and their children who
live with a disability.4
Have an independent monitoring system in place to oversee the court and its functioning and
review the decisions made and have an independent complaints avenue available regarding how
children are responded to.
About the Backbone Collective
The Backbone Collective, a registered charity, was established in March 2017. We are an independent
and unfunded organisation focussed on continuous improvement of the family and sexual violence
response system. We run online surveys to collect anonymous feedback from women survivors
(service users) and assist women to have their say on policy developments, intended legislation,
issues discussed in the media etc. From the survey responses and communications with women we
then write reports, submissions and media articles to identify where impactful and constructive
improvements need to be made.
We have a current membership (women who have experienced violence and abuse) of over 1800 and
Backbone has over 4000 followers on Facebook. In September 2020, 98% of members who
responded to a survey said that Backbone has been either ‘very effective’ or' ‘effective’ in achieving
its stated objective of providing a safe way for victim-survivors to say how the system responded to
them and their children.
In the following section we discuss our concerns regarding the general focus and language used in
the Bill. Following that discussion, we respond to relevant clauses and share our insights (based on
the experiences of hundreds of New Zealand women victim/survivors and their children).
The Bill needs a far stronger focus on responding safely to family and
sexual violence
Backbone cautions the Select Committee that the Bill lacks an adequate family and sexual violence
lens, meaning this Bill has the potential to increase harm to women who are victim/survivors and
their children. We believe it is imperative that the Bill is responsive to cases involving family and
sexual violence due to the nature of cases that fall under COCA proceedings, the co-occurrence of
intimate partner violence and child abuse and the impact of violence and abuse on children.
4Statistics vary, but rates of violence and abuse against disabled women could be as high as 1 in 2 disabled -
see Hager, D. Finding Safety. Provision of specialised domestic violence and refuge services for women who
currently find it difficult to access mainstream services: disabled women, older women, sex workers and
women with mental illness and/or drug and alcohol problems as a result of domestic violence. 2010.
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Family and sexual violence and abuse is prevalent in Family Court proceedings
The Family Court does not collect specific data on the incidence of family and sexual violence cases
in relation to COCA5 and in New Zealand more recently cases involving family violence have been
referred to as ‘complex cases’. The use of the term ‘complex cases’ often masks or distorts the
family violence dynamic thereby resulting in a response that views the parties’ inability to resolve
matters as the issue at fault. This view ignores the dynamics of violence and abuse, including
coercive control, which are what inhibit the fast or straightforward resolution of matters before the
court.
However, the majority of Care of Children Act proceedings coming before the New Zealand Family
Court will involve allegations or confirmed accounts of family and/or sexual violence or child abuse
and neglect. Research in Australia undertaken to assess parenting arrangements made after
separation found that while only 3% of families used court to make parenting arrangements after
separation, of that 3% family violence was a key feature with 54% reporting physical violence, and
85% reporting emotional abuse. Furthermore, almost half of the parents that went to court said
they had concerns for their own or their children’s safety.6 There is no reason to believe that the
numbers in New Zealand would vary as our rates of family violence are currently higher than
Australia.7 A recently published research study in New Zealand by the University of Otago looked at
parenting arrangements after separation and found that more participants had their parenting
arrangements determined by the Family Court when there were safety concerns and family
violence acted as a particular barrier in terms of parents being able to come to their own
arrangements.8
5Family violence data is collected in relation to Family Violence Act proceedings. However, not all
victim/survivors involved in COCA proceedings will have applied for a Protection Order. In Backbone’s first
Family Court survey we found that of the 496 women who were involved with the New Zealand Family Court
70% had applied for a Protection Order.
6Kaspiew, R., Carson R., and others, (2015) Experiences of Separated Parents Study (Evaluation of the 2012
Family Violence Amendments). Melbourne: Australian Institute of Family Studies and also
Kaspiew, R., Carson, R., Dunstan, J., Qu, L., Horsfall, B., De Maio, J. et al. (2015a). Evaluation of the 2012 family
violence amendments: Synthesis report. Melbourne: Australian Institute of Family Studies.
aifs.gov.au/publications/evaluation-2012-family-violence-amendments.
https://aifs.gov.au/publications/parenting-arrangements-after-separation,
7Prevalence of family violence in a woman’s lifetime is higher for New Zealand women (33%) than for
Australian women (25%) - for comparisons by country as of 2014
https://stats.oecd.org/index.aspx?datasetcode=GIDDB2014
8Gollop, M., Taylor, N., Cameron, C., & Liebergreen, N. (2019). Parenting Arrangements after Separation
Study: Evaluating the 2014 Family Law Reforms –Parents’ and caregivers’ perspectives–Part 1. Research
Report for the New Zealand Law Foundation. Dunedin, New Zealand: Children’s Issues Centre, University of
Otago
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Violence and abuse of adult victim/survivors impacts on their children
It is important that COCA recognises and responds to the connection between violence and abuse
perpetrated against adults in intimate partner relationships and the impact on children. It is
impossible to consider care and guardianship arrangements for children without first considering
the safety of children and the context in which they are/have been living. Violence and abuse
experienced by adults in their relationships is an indication that children are at risk. There is a
strong correlation between intimate partner violence and child abuse (30 - 60%).9 New Zealand
Police estimate that in 70% of intimate partner violence cases they attend, children are exposed to
some kind of abuse.10 The impact on children of exposure to family and sexual violence (either
directly or indirectly) is well researched and includes negative impacts on children’s physical
health, their social and psychological wellbeing, their experiences in intimate relationships and
their experience of other related social issues including homelessness, poverty, and involvement
with youth justice services.11 Therefore, it is imperative that legislation designed to respond to
children takes into account the context in which the child lives i.e. if their mother is being abused
the children will be impacted.
Unfortunately, professionals working in the Family Court currently tend to separate out and
minimise the experiences of mothers who are abused and the associated risks to them when
considering the needs and safety of their children.12 Failing to consider the connections can have
very unsafe consequences for these children. In Backbone’s Children in the Family Court survey we
found that over half the mothers stated that professionals working in the Family Court excused the
violence and abuse they had experienced and did not view it as having any impact on the
child/ren.13 In addition, many mothers said that their own lawyers said they should not mention
the violence and abuse in their proceedings because it would reflect badly on them e.g they would
be seen to be obstructive.
The Bill refers to the final report of the Independent Panel examining the 2014 family justice
system reforms and their finding that there is limited participation by children in issues that affect
them, concern about whether their voices are heard and whether their views are taken into
9Edleson JL. The overlap between child maltreatment and woman abuse: VAWnet Applied Research Forum:
National Online Resource Center on Violence Against Women;1997
10 See NZFVC issues paper on prevalence and co-occurrence https://nzfvc.org.nz/issues-papers-3
11For an extensive discussion on the impacts of child abuse and neglect - including exposure to intimate
partner violence please see the issues paper developed by the New Family Violence Clearinghouse at this link
https://nzfvc.org.nz/issues-papers-3
12For example, in our first Family Court survey 259 women said they were told their experience of violence
and abuse was at the lower end of the scale, 209 said that the court did not see the pattern of abuse, 172 were
told violence and abuse is just something that happens when couples separate.
13Based on responses of 231 mothers
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account. Backbone agrees with this finding as our surveys with hundreds of New Zealand women
about their experiences in the Family Court, the submissions we gathered from 42 children to the
Independent Panel and the significant amount of communications we have received over the last
four years from mothers, family violence service providers and some young people has confirmed
that children are not believed when they disclose violence and abuse, their concerns about their
safety while in the care of the abusive parent is minimised or ignored and their mothers are blamed
for the child or young person’s reluctance to spend time in the care of the abusive parent. The result
of not being listened to or believed by those working in the Family Court has been that children are
often left traumatised, experiencing multiple negative health impacts and are put in more danger
through forced contact with abusers. These impacts were more often experienced by children of
Māori mothers.
Children’s safety should be paramount
The priority for legislative responses to children in the Family Court and the way the law is
implemented by those working in the Family Court, must be children’s safety. The overall stated
aim of the proposed amendments to the COCA legislation is to ‘enhance child wellbeing’. It is not
clear after reading the Bill how children’s wellbeing will be enhanced. However, Backbone
maintains that wellbeing for children is directly related to their experience of safety. Therefore,
safety should be the primary goal and the measure for successful outcomes of the Family Court.
Currently that is not the case for hundreds of New Zealand children who are involved in Care of
Children Act proceedings.
Unless extensive changes are made to the ways that the Family Court processes cases involving
family and sexual violence and there is a transformative shift from the minimisation of violence and
abuse disclosed by women and children to one that believes them, validates and affirms their
experiences and responds with their safety as the priority of the intervention, children’s safety and
therefore wellbeing will not be enhanced.
A further stated aim of the legislation is to assist parents to resolve disputes. It is an oxymoron to
include the two aims of enhancing child wellbeing with assisting parents to resolve disputes - these
two aims contradict each other in family violence cases. Connecting the two aims is highly
misleading and obfuscates the risk and dynamics of family and sexual violence. It is dangerous to
view family violence as merely a dispute between parents. Family violence as defined in the Family
Violence Act 2018 can include physical, sexual or psychological abuse (including coercive control)
and may involve a pattern of abuse over time, or a one-off event. The impact of family violence
results in one, or more people being controlled and abused by another. It involves a power
imbalance making attempts at resolution unsafe. It is impossible to ‘resolve’ family violence.
Therefore, this aim is not safe or fit for purpose for the majority of COCA applications that come
before the court.
The following section of our submission will provide our responses to relevant clauses in the Bill
and include recommendations for each section.
6The Backbone Collective
Clause by clause analysis and response
Clause 4 amends section 5 to insert a new principle relating to a child’s welfare and best
interests. The new principle is that a child should have reasonable opportunities to
participate in decisions affecting their care and welfare and that their views should be taken
into account commensurate with their age and maturity.
4 SECTION 5 AMENDED (PRINCIPLES RELATING TO CHILD’S WELFARE AND BEST INTERESTS)
After section 5(f), insert:
(g) a child who is capable of forming their own views about any matter affecting their care and
welfare should be given reasonable opportunities to participate in any decision affecting them and
that, commensurate with their age and maturity, their views should be taken into account.
Backbone recommends that section (g) include the word ‘must’ instead of ‘should’.
At face value the insertion of Clause 4 might appear to enhance how professionals working in the
Family Court respond to children involved in COCA proceedings. However, our reading of Clause 4
identifies a number of semantic issues which we believe will strengthen discretion of professionals
at the price of participation of children and young people. One step in reducing the discretion of
professionals would be to replace ‘should’ with ‘must’.
Backbone recommends that ‘reasonable opportunities’ should be replaced with the term
‘safe opportunities’.
The term 'reasonable opportunities’ is undefined and therefore open to broad interpretation and
discretion. In hearing from hundreds of New Zealand mothers about their children’s experiences in
the Family Court we hold the view that it is not adequate to rely on a term that is open to broad
interpretation. Currently many children are not given the opportunity to participate and it is
unclear why this is the case. For example, in Backbone’s Lawyer for Child report we showed that
even though the Lawyer for Child best practice guideline recommended they meet with children,
this did not always happen and was not a result of children being young or preverbal.14
Backbone recommends that the clause be amended to state that children must be given safe
opportunities to participate. To enable opportunities to be made safe for children a new way of
gathering and reporting their views will be needed. When children are at risk of further experiences
of violence and abuse, the professionals who seek their views must have a comprehensive
14There were 53 children that the Lawyer for Child did not meet with and of these the majority were aged
over 3 years and nearly half of these children were over the age of 5 years.
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understanding of family and sexual violence to respond safely to those views (we discuss this in
more depth later in the submission). That level of understanding and responsiveness is not
currently apparent in professionals contracted to the Family Court - including Lawyer for Child and
psychologists. In Backbone’s Children in the Family Court survey we found that even though
children were telling professionals in the court about fears and concerns they had about what
happened at the abuser’s home, those professionals were not accurately reporting those fears to the
court and this was an experience greatly exaggerated for children of Māori mothers. We explained
that professionals accurately reported children’s concerns to the Family Court in only 8% of
children of Māori mothers compared to 34% of children of non-Māori mothers.15
In Backbone’s report Seen and Not Heard: Force, which detailed the experiences of children in the
Family Court we explained that many children had a poor and unsafe response from the
professionals they spoke to, for example of the 231 mothers who responded to this question;
• 46% of children were not believed about the abuse
• 57% of children had their experience of abuse minimised
• 23% had medical evidence ignored
• Over half the mothers were accused by Family Court professionals of poisoning the child
against their other parent (parental alienation) to explain away children's disclosures of
violence and abuse and fear of contact with an abusive parent
• 59% of women said that reports written by the court professionals had been used by judges
to make unsafe parenting orders.16
As a result of the unsafe practice of professionals, children are being made less safe by their
involvement in Family Court proceedings. We reported that;
• 83% of mothers surveyed said the Family Court had not made their children safer after they
left the perpetrator
• 91% of children are ordered into unsupervised care and contact with the abuser
• 87% said Family Court views the abuser as being safe for the children to spend time with
• 67% of children of wahine Māori and 54% of children of wahine tauiwi are being forced into
care and contact arrangements they do not want
• 2% said a risk assessment to determine the risk of dangerousness and lethality had been
undertaken
• 86% say the Family Court has not responded appropriately to their child/ren’s
wishes/views/experiences and safety
• 89% of children received no follow up interviews or reviews from anyone working in the
court after orders were made placing them into care and/or contact with the abuser
15https://static1.squarespace.com/static/57d898ef8419c2ef50f63405/t/5a3171c59140b743f5abbe36/151
3189837189/Seen+and+not+Heard+Children+in+the+Family+Court+%281%29.pdf
16 There were 231 mothers who answered this question.
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• Many children are exposed to harmful behaviours (pornography, illegal behaviour,
substance abuse) and further violence and abuse (towards themselves or to the abuser’s
new partner and/or children) when in the care of the abuser
• 37% of children suffered physical injuries while in the care of the abuser.
Backbone discussed in our Seen and Not Heard - Force report that professionals working in the
Family Court did not believe children about their experiences of violence and abuse, and did not
respond safely to them because they chose to see the abuser as safe for the children to spend time
with.17 We argued, the reasons abusers were deemed safe appeared to be due to the lack of risk
assessments being undertaken18 and a view that mothers coach or poison their children against
wanting to spend time with the abuser as a way to get back at their ex-partner. This belief is
referred to parental alienation and has no scientific basis and has led to dangerous outcomes in
family law proceedings in cases where there is violence and abuse.19
Children and young people can be put at increased risk if they are expected to participate in ways
that pose a risk to their physical safety. Physical risk to children can result from consulting with
children or young people about their views in the presence of their abusive parent or relaying their
disclosures or views directly to an abusive parent without putting safety orders in place first.
Backbone reported in our Lawyer for Child Report in 2018 that some children were interviewed by
Lawyer for Child in the presence of the abuser. Furthermore, mothers reported that their children
were scared of telling the Lawyer for Child about the abuse or about what they wanted to happen in
case their abusive parent found out.20
Ensuring children and young people’s safety in terms of their participation must also relate to their
psychological safety. Backbone has heard from hundreds of New Zealand mothers that the
processes in the Family Court traumatise children on top of their experience of violence and abuse,
thereby having a compounding impact. For example in our Lawyer for Child report we shared that
50% of mothers said their children were traumatised by the interviews with professionals or
proceedings, 47% were denied a support person for their interviews (and the majority of these
children are younger children – 80% of them were pre-teen), 23% were put down by someone
working for the Family Court and 2% were unable to participate because they were not given
17Out of 271 responses, 87% of mothers said the Family Court views their abuser as being safe for the
children to spend time with.
18 Only 5 out of 225 mothers said a risk assessment had been undertaken in their case.
19Deborah Mackenzie, Ruth Herbert & Neville Robertson (2020): ‘It’s Not OK’, but ‘It’ never happened:
parental alienation accusations undermine children’s safety in the New Zealand Family Court, Journal of
Social Welfare and Family Law, DOI: 10.1080/09649069.2020.1701942
20https://static1.squarespace.com/static/57d898ef8419c2ef50f63405/t/5ae99c5588251bf787133d44/152
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access to support people or technologies to enhance their understanding or involvement in
proceedings (including assistance in interviews with report writers etc.)21
Backbone does not support the inclusion of the ‘age and maturity’ discretion wording in the
clause.
In addition to our apprehensions about the term ‘reasonable opportunities,’ we are very concerned
about the inclusion in Clause 4 of the qualifiers ‘age and maturity’ because these terms provide
more discretion in terms of regarding children’s views by those whose role it is to enable children
to participate in decisions made about them. We are concerned that the age and maturity clause
will allow for children’s voices to be included only when they will be “useful”, i.e. uphold the
dominant view of those working in the Family Court.
Re-introducing the concept of ‘age and maturity’ not only regresses both the status and rights of
children, it is also in direct conflict with the best interests standard. It is not possible to make a
fully informed decision as to what is in the best interests of a child without taking account of their
views. Academics have written about the ways in which COCA strengthened the rights and views of
children in court proceedings by removing the ‘age and maturity’ clause that was previously in the
Guardianship Act and changing the word ‘wishes’ to ‘views’.22 Antoinette Robinson comments in
her 2010 thesis on how children’s views are responded to by the Court in New Zealand, that the
changes around the understanding of childhood, children’s rights and development resulted in
legislation that potentially places New Zealand as an international leader in child-inclusive
provision.23 Similarly, Judge Boshier explained the significance of the change stating ‘it represented
an “unmistakable shift towards the recognition of greater rights for children and allows for their
greater input into decision making processes”.24 Therefore, we are at a loss as to why the term ‘age
and maturity’ would be reintroduced in the Bill.
We are concerned that the clause suggests that children will be given the opportunity to have a
voice, but then that voice may be discarded based on a lawyer or judge’s assessment of their
maturity or ability to communicate their wishes. What is a measure of a person’s maturity,
particularly in such an artificial environment like Family Court proceedings and on the heels of, or
in the midst of, violence and abuse? Defining maturity comes down to an individual’s subjective
opinion based on their own life experiences and understandings.
21These figures relate to the responses from 174 mothers who answered the question about things children
experienced in interviews with professionals. See pg. 35 of
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22 Please see Appendix 1A for a list of sources.
23http://www.otago.ac.nz/law/research/journals/otago036312.pdf
24Boshier, P. (2009). The child’s voice in process: Which way is forward. In Presentation by the Principal
Family Court Judge to the Association of Family and Conciliation Courts Annual Conference, New Orleans,
USA.
10The Backbone Collective
There is also a risk that the age and maturity clause will be used to simply provide a way for
children to express their views without actual weight given to those views in decision making.25
Henaghan, a New Zealand law academic, has argued that judges have a tendency to assess children
via a lens of age and maturity.26 Their perceived age and maturity is then prioritised over what
children actually say and any of their views that may be relevant to the hearing. He argues that if
the views of children were taken account of, but then overshadowed by competing factors in the
case, at least the decision would demonstrate the child’s views had been heard and where their
views sat within the range of facts judges are required to consider.
We explain below that if specialists are appointed to consult with children about their views then
the age and maturity of a child does not need to act as a barrier to their participation. Approaching
a child in an age appropriate manner means even very young children are capable of participating
effectively in matters which affect them. Wide ranging research has shown that children as young
as three have demonstrated the capacity to manage being involved in family law matters well.27
When a child is able to maintain their independence, and their views are respected, their capacity to
manage adversity increases and their self-esteem improves. Participation has been shown to
function as a protective factor, lead to improved outcomes and correlates with a sense of resilience,
empowerment and mastery.28 The key to achieving these outcomes in cases where family and
sexual violence are present is to ensure the people who are responsible for gathering and
presenting those views are specialists in this work. 29 It can be difficult for children to participate
but children want that opportunity. Backbone assisted 42 children to provide submissions to the
Independent Review Panel and those children were adamant that they want to have input into the
decisions made about them but the people who talk to them need to listen to what they say and
understand that sometimes it is hard for them to say what they really think because they are scared
of the abuser. Therefore, the court has a duty to provide children with an opportunity to share their
views that is safe, respectful, transparent and accountable.30
25Tapp contends it is common for children to be provided with the opportunity to have a voice but for
professionals to then consider that is all that is required to meet children’s rights. See Tapp, P. (2006). A
child’s right to express views: A focus on process, outcome or a balance. NZFLJ 209.
26Henaghan, M. (2012). Why judges need to know and understand childhood studies. Law and Childhood
Studies, 39-54.
27 Please see Appendix 1B for a list of sources.
28 Please see Appendix 1C for related sources.
29Pike, L. T. & Murphy, P. T. (2006) Invisible parties: Listening to children: A social science perspective. Paper
presented at Australian Family Law Conference, Perth, Australia.
http://www.familycourt.wa.gov.au/R/research_papers_and_reports.aspx?uid=8 6823893-2862-8160
30Walker, J., & Misca, G. (2019). Why listening to children and young people is important in family justice.
Family Court Review, 57(3), 375-386.
11The Backbone Collective
Backbone recommends that all children are supported to safely provide their views to the
court on any decisions being made about them by using the following approaches;
Independent child advocates who are specialists in family and sexual violence, child development,
trauma and tikanga Māori are resourced to safely gather the views of children and replace the
Lawyer for Child in this role.
Children are provided with a choice as to whether or not they directly provide their voice or do this
through a representative, and this choice reflects the need for children to protect themselves from
retaliation against them or their protective parent for sharing their views.
A range of ways of sharing their views is promoted to ensure children of all ages, abilities, and
ethnicities are positively and safely supported to participate, including using any resources
available to assist their participation, sign language, having access to interpreters and specialists
who understand the child’s cultural context, art, writing about what they want in a letter or
recording their views on devices, being supported by a trusted protective adult to share their views.
Professionals working in the Family Court believe children’s accounts of violence and abuse as
presented by the specialist child advocate and respond safely to the worries children express about
contact with an abusive parent.
Children's right to protection from all forms of violence - section 5 (a) is prioritised over the
principle that children have a relationship with both parents - section 5 (e).
Allegations of parental alienation are not accepted in response to the views expressed by children if
they do not want to have contact with a parent and violence and abuse is present (alleged or
confirmed).
Follow up interviews are undertaken with children at regular intervals (at three months, at 6
months, after one year) to assess the impact of the care and contact arrangements and check on
children’s ongoing safety - conducted by specialist independent child advocates/specialists.
Our view remains that unless the current culture of the Family Court is disrupted through the
introduction of new ways of responding to cases of family and sexual violence, the wishes of
children will continue to be disregarded. It will require significant Family Court reform such as that
suggested in our introduction and detailed above, rather than an insertion into existing legislation
such as clause 4 to change this paradigm. Our view is supported by researchers and academics who
write extensively about how the views of children are responded to by family law professionals.31
Often the responses are informed more about ideas about gender constructs and gender relations
than they are about the views, ability or needs of children. In Backbone’s analysis of survey results
from our Family Court survey we concluded that many professionals working in the Family Court
held an unsafe view that women;
• lie or exaggerate about their experiences of violence and abuse
• are mentally unwell
31 Please see Appendix 1D for related sources.
12The Backbone Collective
• are trying to get back at their ex-partner by refusing contact and custody arrangements.32
When professionals rely on views like these, they may be inclined to disregard the views of children
and force contact even when children are clearly articulating they do not want that contact or do
not feel safe with the abusive parent. This was certainly evident in Backbone’s analysis of the
impact of accusations of parental alienation on the care and contact recommendations made by
professionals in the New Zealand Family Court.33 If professionals do not understand the dynamics
of family and sexual violence as their starting point, then they may not see that there is a valid
reason that children don’t want contact with the other parent.34 We found evidence of this failing in
our Children in the Family Court survey where professional’s responses to children mirrored
responses to women victim/survivors that we found in the first survey;
• 46% of children were not believed about the abuse
• 57% of children had their experience of abuse minimised
• 23% had medical evidence ignored
• 59% of women said that reports written by Family Court professionals have been used by
judges to make unsafe parenting orders.
Clause 5 amends section 5A to require that where there has been previous evidence of family
violence, the court, when dealing with proceedings under the Care of Children Act 2004,
must again have regard to the principles set out in section 4 of the Family Violence Act 2018.
It is encouraging to see that reference to the Family Violence Act has been included in the
amendments. Backbone is satisfied that having the word ‘must’ in section 1A has the potential to
require that the court have regard for the principles set out in section 4 of the Family Violence Act.
However, the current culture of the Family Court shows little adherence to these principles and in
fact COCA proceedings run contrary to Family Violence Act proceedings even when women have
active proceedings under both articles of legislation. Therefore, the success of this amendment will
rely on significant reform and cultural shifts in the way family and sexual violence is responded to
by those working in the court as described previously. Believing victim/survivors about their
experiences of violence and abuse is the first step in responding safely to them and their children.
This step is currently missing in COCA proceedings and must be addressed urgently. Unless this
32https://static1.squarespace.com/static/57d898ef8419c2ef50f63405/t/5949a425a5790a3989f7e74e/149
7998414103/Family+Court+Survey+report+final+080617.pdf
33Deborah Mackenzie, Ruth Herbert & Neville Robertson (2020): ‘It’s Not OK’, but ‘It’ never happened:
parental alienation accusations undermine children’s safety in the New Zealand Family Court, Journal of
Social Welfare and Family Law, DOI: 10.1080/09649069.2020.1701942
34Harrison, C. (2008). Implacably hostile or appropriately protective? Women managing child contact in the
context of domestic violence. Violence Against Women, 14(4), 380-405. 10.1177/1077801208314833
Holt, S. (2011). Domestic abuse and child contact: Positioning children in the decision making process. Child
Care in Practice, 17(4), 327-346. 10.1080/13575279.2011.596817
13The Backbone Collective
happens amending section 5A will have no impact whatsoever on the safety of children in COCA
proceedings.
At present, the way the Family Court responds to family and sexual violence in COCA proceedings
does not uphold the principles set out in section 4 of the Family Violence Act.35 Backbone has heard
from hundreds of victims/survivors that their family violence proceedings/applications are put to
the side and COCA proceedings take precedence. Many women have explained that their Family
Violence Act proceedings and COCA proceedings have been conflated into one proceeding which
has the effect of the court minimising the violence and abuse perceiving family violence allegations
as attempts to influence parenting orders. We have heard from many women that professionals
working in the Family Court use parenting orders as a negotiating tool to pressure victim/survivors
to drop their Family Violence Act proceedings.36
Backbone is of the view that family and sexual violence issues must be attended to first and as a
priority before any parenting orders are made. In this way, the court has available to it information
pertaining to the context of violence the child has experienced, and any future risk to that child
regarding their own and their protective parent’s safety - including the risk to the protective
parent’s relationship with the child in light of the abuser’s past and ongoing use of violence and
abuse.
We would like to provide an example of how the Family Court is currently ignoring section 4 of the
Family Violence Act is in considering sub section (k) which states that ‘arrangements that support
the ongoing safety and well-being of a victim of family violence should whenever practicable be
sustained (for example, employment, education, housing, or community)’. Nowhere is this failure to
uphold the principles more obvious than in the Family Court forcing victim/survivors and their
children to stay living in particular regions where they are forced into ongoing contact with the
abuser by being forced to live in the same town or through contact and care arrangements ordered
by the Family Court. In Backbone’s report in 2020 into longer term support services and support
for victim/survivors of family violence, commissioned by MSD, the factor that women most often
made the violence and abuse stop was victim/survivors being able to have no contact with the
abuser. However, a significant barrier that women identified for them and their children being able
to get safe was Family Court Orders preventing their ability to relocate with their children to
somewhere where they would be safer, have access to housing, support from friends, whanau or
family or ability to get employment.37
35 https://www.legislation.govt.nz/act/public/2018/0046/latest/LMS112851.html
36In our first Family Court survey we asked women to describe the reasons their applications for Protection
Orders were denied, 12 out of 66 women who gave a reason explained they were threatened by their own
lawyer and/or Lawyer for Child not to proceed with their application or were pressured to accept
undertakings in place of a Protection Order.
37This report is based on the survey responses of 528 women who live throughout New Zealand and who
have experienced violence and abuse.
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14The Backbone Collective
There are a number of improvements that should be made to clause 5 to ensure it is responsive to
children and adult victim/survivors’ safety. These improvements include practical requirements for
how cases are responded to, an extension of what is considered ‘evidence’ of family violence, and
safe decision making supported by the introduction of specialist family and sexual violence
specialists.
Build practical changes into proceedings to bring principles in section 4 to life in COCA
proceedings
If section 5A is to have any teeth, the ways in which the principles of section 4 of the Family
Violence Act are lived out in COCA proceedings need to be clearly stated and decisions checked
against for compliance. Backbone understands that simply ‘having regard’ for the principles is not
going to be enough to ensure that COCA proceedings are responsive to the risk of harm to children
involved in cases where family and sexual violence is an issue. We would like to see the principles
‘enacted’ rather than merely regarded. Practical measures will be required to assist decision
makers and other professionals to change their practice and thereby disrupt the current culture of
the Family Court. Introducing a new specialist response would immediately enable the principles in
section 4 to inform COCA proceedings. We have explained throughout this submission the urgent
need for a new way of responding to cases involving family and sexual violence and we described
this new model in our introduction.
Backbone further recommends the following practical steps should be taken to ensure
principle 4 is enacted;
Recognise and respond to the gendered and cultural contexts in which violence and abuse
predominantly occurs.
Believe women and children about their experiences of violence and abuse and do not minimise
them by saying they were just part of separation or happened too long ago.
Prohibit the use of parental alienation accusations by professionals working in the court38
Prioritise section 5A over section 5e and all other subsections in section 5.
Protect children and adult victim/survivors from ongoing contact with abusers by limiting contact
to what the child wants, ensuring any contact that happens is supervised.
Assess applications under COCA to monitor if they are being used as a tool of abuse by abusers post
separation. Use section 163 of the Family Court Act 1980 for this purpose.
Mandate and monitor regular training of all specialists working in the Family Court
38CEDAW recommended in 2018 that ‘NZ Review the reliance on the parental alienation syndrome theory,
with a view to limiting its usage in child custody disputes’.
15The Backbone Collective
Ensure the court environment is safe for victim/survivors (culturally, physically and
psychologically) including providing cultural advocates, safe waiting areas, alternative ways of
giving evidence, independent victim advocates and support people.
Ensure the court is accessible for victim/survivors who live with a disability (including mental
health issues related to their trauma experiences).
Make COCA proceedings free for victim survivors and their children to limit the ongoing harm and
poverty that comes from their experience of abuse.
Backbone recommends that the definition of what should be considered ‘evidence’ of family
violence must be reflective and inclusive of current best practice approaches
Backbone recommends that what is considered ‘evidence’ be extended to include a much wider
(and more nuanced) selection of information. The goal of expanding the evidence available to the
court is to enhance the safe decision making relating to children. We believe that relying solely on
final Protection Orders as evidence of family violence, as currently included in section 5A, is
insufficient and far more sources of evidence should be made available to enhance safe decision
making in COCA proceedings.
At local levels in communities throughout New Zealand, and existing outside of the Family Court
jurisdiction, is a vast amount of family and sexual violence sector activity that aims to put supports
and services in place to protect victim/survivors and their children from more violence and abuse.
Sometimes victim/survivors come through this pathway because of Police call outs for family
violence. Sometimes victims/survivors approach services themselves and sometimes notifications
are made to Oranga Tamariki by people concerned about the safety of children.39 As part of these
interventions and investigations evidence is gathered relating to victim/survivors and their
children's experiences of violence and their own perceptions of ongoing risk of harm. The evidence
is used to make safety plans, connect victim/survivors with support services and prevent further
abuse by the perpetrator. Currently very little of this ‘evidence’ is used in Family Court decision
making; but it should be. The expertise and analysis of family and sexual violence specialists
working from an evidence based, best practice approach is not used to help inform Family Court
decision making. However, the professionals who currently do work in the Family Court do not hold
expertise in family and sexual violence and are not linked in with the family and sexual violence
sector as the diagram below shows.
39Please note not all victim/survivors of their children access support services. In our most recent survey of
528 women we found that only 35% of participants had accessed a specialist family violence service.
16The Backbone Collective
Professional segregation from the family and sexual violence sector.40
Backbone recommends that safe judicial decision making is supported by the provision of
evidence and information provided by specialists (not Lawyers for Child or psychologists)
It is imperative that the consideration of the principles set out in section 4 of the Family Violence
Act 2018 does not rely on judicial discretion alone. Such a response will require significant reform
to how the Family Court responds to cases where there is violence and abuse (alleged or
confirmed) as discussed in the introduction to this submission. Under a new inquisitorial approach
information can be gathered and provided by independent specialists to build a picture of risk to
the protective parent and therefore her children regarding contact arrangements for children with
an abusive parent. This information, with the victim/survivor’s consent, must include sources that
are not currently included in court decision making but are available at local levels including;
• information from local interagency case management processes (ISR, FVIARS, Whangaia
Nga Pa Harakeke etc.)
• information and risk assessments from family violence specialists known to the
victim/survivor and/or her children41
40Currently social workers from Oranga Tamariki are the only professionals who work in the Family Court
and in the community in response to family and sexual violence.
41We discussed the use of risk assessments in our Seen and Not Heard - Force report - see Appendix One.
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17The Backbone Collective
• risk information provided by the protective parent
• information from protective people close to the victim/survivor and child e.g. school
teachers, G.Ps, counsellors, therapists
• police call out information (including non-arrests and prior call outs relating to other
victim/survivors)
• Protection Order applications and affidavits.
A formal process must be put in place to routinely audit how well the Family Court is
enacting section 4 of the Family Violence Act
Backbone suggests that an independent body be set up to formally monitor how the Family Court is
enacting the principles set out in section 4 of the Family Violence Act 2018 in COCA proceedings. It
would assist the process if Judges were required to complete a checklist for decisions they make
regarding the care of children to show how they have regarded each of the subsections included.
Specialist independent advocates could provide a review of each case at its conclusion to consider
the way evidence was considered and how the context of family and sexual violence and associated
risk was considered and the impact of this consideration on the subsequent decisions reached. This
information could be lodged with the independent body that is responsible for monitoring the
Family Court.42
Clause 6 inserts new section 6(1AAA), which states that the purpose of section 6 is to implement
Article 12 of the United Nations Convention on the Rights of the Child.
Backbone recommends that more research is undertaken to explore how UNCROC article 12 could
be implemented safely in cases where there is violence and abuse. We have explained throughout
this submission that unless the culture of the Family Court is dismantled and a specialist new
response is implemented then inserting articles of legislation will do little to improve the outcomes
for victim/survivors and their children. We support the submission of The Auckland Coalition for
the Safety of Women and Children who recommend that the work of Lundy Bancroft on article 12 of
UNCROC and his concept of four dimensions, be used.
Clause 7 inserts new section 7(2) to require that, when appointing a lawyer to represent a
child, a lawyer’s personality, cultural background, training, and experience must be taken
into account.
As discussed previously in this submission, Backbone is of the view that the Lawyer for Child role
should be replaced with fit for purpose specialists - independent child advocates who are
responsible for safely gathering the views of children in ways that make the process accessible for
all children and presenting these views with a family and sexual violence analysis, to the court. In
2018, Backbone released a report focussing entirely on the Lawyer for Child role and its
42Backbone has advocated for an independent body to monitor the Family Court for a number of years. We
believe this is necessary to ensure that experts working in the Family Court are independent of the judge and
of the respective parties and that all parties can be assured that these individuals are appropriately trained
and audited and are providing independent high-quality expertise.
18The Backbone Collective
appropriateness for family and sexual violence cases in the Family Court.43 The report findings
were based on the experiences of 291 mothers of 591 children involved in Family Court
proceedings who took part in our Children in the Family Court survey. Most of the children were
appointed a Lawyer for Child and the majority explained that the Lawyer for Child made their
children’s situation less safe. The reasons for the poor and unsafe response was due to the practice
of individual Lawyers for Child and the model itself and showed that Lawyers for Child were;
• not responding to children’s safety concerns
• minimising children’s experiences of violence and abuse
• blaming mothers for the violence and abuse
• accusing mothers of parental alienation
• recommending unsafe care and contact for children with abusive fathers
• refusing to let children have support people present in interviews
• interviewing children in their offices or at the abuser’s house where children do not feel or
are not safe
• contracted under a model that is not fit for purpose
• lacking in training, accountability, monitoring and regulating
• failing to meet the legislation or Best Practice Guidelines.
Backbone’s findings are not unique; there has been criticism of the Lawyer for Child role for the last
35 years.44 In addition, our Australian neighbours also reported similar issues with their Lawyer for
Child model. Kaspiew (et al) undertook an extensive study into children’s experiences with their
independent child lawyers. The authors found that children were dissatisfied with their
experiences and felt a sense of betrayal and of being marginalised.45 Most importantly, many of the
children in their study felt that their safety was substantially minimised and their lawyer has
assumed (wrongly) that there had been no abuse, or minimised what violence and abuse had
occurred.
Backbone concluded in our Lawyer for Child report that the widespread systemic failures in the
New Zealand Family Court resulted in serious damage being done to the children who have
experienced violence and abuse and who are involved in the Family Court. We explained that
tweaking the Lawyer for Child role would not fix the issues we had uncovered. Backbone made a
series of recommendations in our report and they included the following;
• urgently establish a national network of independent, specialist trained children’s
advocates to provide safety assessments for the judge and to work alongside children who
43https://static1.squarespace.com/static/57d898ef8419c2ef50f63405/t/5ae99c5588251bf787133d44/152
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44For example, in a 2003 Law Commission report to the Government, they referenced criticism of Lawyer For
Child practice dating back to 1997.
45Kaspiew, R., Carson, R., Moore, S., De Maio, J., Deblaquiere, J., & Horsfall, B. (2014). Independent children’s
lawyers study: Final report (2nd ed.). Attorney-General’s Department.
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