Use and abuse of protection orders

Duncan Garner interviewed Judge Peter Boshier yesterday on family violence and protection orders. In that Garner referred to problems with protection orders, and then took calls from men with different experiences.

Garner (in Boshier interview):

What about protection orders, I’ve heard from people on my show this afternoon, from a mother, a woman called Sue and her daughter who both have protection orders against the daughter’s ex, the son-in-law of Sue, who has breached the protection order three or four times and only been fined or different curfews put in. No prison time.

Talkback – Jamie:

I’ve had two protection orders put on me mate and both exceeding ten years ago. I think the protection order is like you know the ambulance at the bottom of the cliff.

Clearly I didn’t know how to be in a relationship.

Clearly I didn’t know how to handle my emotions.

Clearly I was uncontrolled.

If I hadn’t been caught, what I learned afterwards, at school or somewhere beforehand, I would have never had obtained a protection order on me.

My second point would be when people sign down and protection orders are put in place, it shouldn’t just be a contract, it should be a contract with the female as well, where they both agree that no one will go in their home.

Garner: How are things now?

Oh no I’m good now because I got away from the relationship. But I’ll give you one example. I sent texts to my kids, ok because I didn’t fully understand the protection order. I sent texts to my kids saying good morning and good night. When I got breached I’d had thirty two texts in a sixteen day period, good morning, good night, and I got breached.

Luckily the police understood and they only breached me twice instead of the three that would have put me in jail eh.

Alan:

I have to say that what’s going on in the media seems to be fairly one sided.

When I was in a bad relationship years ago and we had custody issues, after  two years of not getting information from the school, and I actually got back custody, I went to the school and said why didn’t I get anything?

And they said oh ’cause your wife said she had a protection order against you.

Garner: “And did you?”

No.

Relationship break ups and custody disputes can be very emotional for all involved. Protection orders are an essential part of trying to help deal with these situations, but they can be abused by both males and females.

Protection orders can be used as weapons in relationship and family disputes.

Protection of victims in relationships and especially of children is paramount – but fair use and protection of the rights of all parties is very important.

Transcript: Judge Peter Boshier on family violence

Judge Peter Boshier on family violence

Judge Peter Boshier on family violence

Judge Peter Boshier, law commissioner and formerly chief of the Family Court, talks to Duncan Garner about Government plans to find better ways of addressing family violence and on protection orders.

Duncan Garner: The Law Commission is about to release a discussion document on this domestic violence law review, what’s likely to be in it and what we need to do.

What do we need to do with these domestic laws. Do we need to beef them up and sort them out?

Judge Peter Boshier: I think that we need a stand alone domestic violence charge. I think it would focus on the issue and really make everyone much more aware of the true extent of family violence.

At the moment it tends to get a bit merged into other forms of crime, so I think what’s happened in terms of initiatives this week – very very encouraging.

Garner: I was looking at that family violence review report that showed 139 people including 37 children died from family violence and related homicides between 2009 and 2012, so that’s an average of 35 a year. It’s too many isn’t it.

Boshier: Yes, and I think what the Minister’s concentrating on this week is the fact that half of our homicides each year, 50%, the basis of those is family violence.

And when I look at the extent of it that passes through the courts, I’m still doing Family Court work, and I just look at what the extent of family violence is, I’m not surprised that a lot of it ends up in homicide.

So I think there’s a recognition that this is probably our number one social evil right now.

It has probably been our number one social evil for a long time.

Garner: So if it does end up in homicide what can we do earlier in that process so it doesn’t?

Boshier: Two things. One is, and I wanted this to say I’m speaking to you as Chair of White Ribbon, and the importance of me just saying that is that this is very much an attitude change organisation.

It’s aimed at saying that all the enforcement in the world won’t stop people who are determined to kill, but what you can do is begin attitude change.

And I think we’ve done that in New Zealand with things such as drunk driving, smoking, there are other examples where we’ve changed our attitude and we accept that something’s simply not acceptable.

So the first thing I think is attitude change.

Garner: How do you change attitude?

Boshier: I think you breed an ethos that instead of resorting to the fists and power imbalanced by intimidation you resolve conflict in a way in which there’s dignity and there’s a talking through of issues. That’s after all what old cultures of the world have done for years.

Garner: That could take a generational change for some people because they’ve never seen it in their own families.

Boshier: And I think you have hit the nail on the head. There is intergenerational  family violence which means that people grow up against that background, that’s what they’re used to.

I’m not at all daunted by the fact that it may take a long time. What I’m encouraged about when I heard the Minister talking on Q & A yesterday was that if there’s leadership at the top.

You know if there is a commitment by people like you, like me, like the Minister to achieve change, I think society can do it.

Garner: What about protection orders, I’ve heard from people on my show this afternoon, from a mother, a woman called Sue and her daughter who both have protection orders against the daughter’s ex, the son-in-law of Sue, who has breached the protection order three or four times and only been fined or different curfews put in. No prison time.

Boshier: Two things about that. One is that the Police, I believe, understand the importance of intervening meaningfully when there’s an alleged breach of the protection order, and i think that is a change that will occur.

With the courts quite often breaches of protection orders occur with other things and may get a bit lost or diluted when other crime is going on. I don’t want to apologise for that or sanction in any way.

What I would like to say is that if we can focus on a breach of a protection order being just as bad as any other breach of a court order like driving while disqualified, and we say that there is no excuse, and there will be no way out other than accountability, and I want to re-emphasise that word, accountability, by all of us, then I think we’re going to take things more seriously.

Garner: Could I just ask that question again though, with protection orders do you think we will see change then, I think you hinted there that there might be change in that area.

Boshier: My understanding of what I heard the Minister say yesterday was that in the overall review of family violence legislation, which I think is going to be unfolded by the Minister this Wednesday, it’s expected that there will be a number of suggested changes to the extent of protection orders and their enforcement.

I have not been privy to the discussion paper that the Minister is going to release, but I pick up the signs that what’s this far been just a breach of a protection order might now become elevated to a default position where someone’s in real trouble.

Last year I taught in Palau which is in Micronesia, and their family protection legislation has a default position, whereas for the first breach you get seven days imprisonment. For the second breach you get fourteen, and for the third and subsequent you get twenty eight days imprisonment. It’s snap.

Unfortunately our prisons have serious problems with perpetuating violent behaviour.

There’s no real way out of it. And I think the messaging is absolutely unequivocal, so it may be that our messaging needs to be clearer and women.

Look they should expect that if they go to the trouble of getting a protection order it will give them meaningful protection.

AUDIO: Law Commission to propose changes to domestic violence laws and protection orders

From the Q & A interview here are Amy Adam’s comments on protection orders:

CORIN One of the areas where you’re not getting the cut through is clearly around protection orders. Researching for this interview – a staggering number of breaches of people who have gone on to kill and do terrible things. They clearly aren’t working. Will you make it tougher to— easier to get protection orders and tougher if they are breached?

AMY Well, first of all, I wouldn’t say that they’re not working. I think they have a very valuable role in our system. But clearly if they’re being breached, serious consequences can flow. So absolutely we’ll be looking at protection orders, how they work, how you get them, what the consequences are of breach, who takes what action, who has to lead that, does it have to be victim-led, can the police act on their own initiative? So all of these things are being looked at. What we’re seeing is actually an increasing number of prosecutions for breaches of protection orders, which is a good thing, an increasing number of convictions every year for breaches, and we’ve already put the penalties up.

CORIN Do you need, though, to take more—? And this is one of the things that came through from the likes of Women’s Refuge when we talked to them. Do you need more of a zero-tolerance approach to protection orders? Because it seems as though, you know, a bit of a warning, first breach and nothing’s done. You know, and the police miss it or something. Does there a need to be a much tougher approach to the first breach of that order?

AMY I think we need to have very clear expectations that breaches of protection orders are taken extremely seriously. Now, the police do have to look at their arresting practices and how that works and getting it in front of the courts, and then the courts and the judges have to think about how they handle them. As I say, we’ve put that penalty up, so from the first breach, an offender can be liable to three years in prison, and I think that’s right. But I still think there are questions around how can they be more effective, how can we secure the victim’s protection under them more effectively, how can we make them easier to get, how can think about all of the myriad of things that flow from that, like where are the people going to live, how do we physically keep them safe? So there’s a lot of questions to ask, and as I said, the goal of this is to start that discussion, ‘How do we do this better?’

Amy Adams on overhauling family violence laws