Robertson N.R. & Busch, R. (1994). Not in front of the children: Spousal violence and its effects on children. Butterworths Family Law Journal. P. 107-115.
Not in front of the children:
Spousal violence and its effects on children. [1]
By Neville Robertson and Ruth Busch [2]
Dedicated to the memory of Tiffany Anne Bristol (7), Holly Alyse Bristol (3) and Claudia Abby Bristol (18 months), killed by their father in Wanganui, 4 February, 1994.
In February of this year three children in Wanganui were killed by their father who had earlier been awarded interim custody of them by the Family Court. The father's solicitor reportedly described him as "devoted to the children" and said they thought he was "just the best."[3] A subsequent enquiry showed that while there was no evidence that the father had previously been violent towards his children, there was evidence of a history of violence against his wife.[4] The deaths and the subsequent enquiry have helped focus attention on the relationship between spousal violence and the welfare of children and raise particular questions about the relevance of spousal violence to custody and access decision making.
A theme to emerge from our earlier work[5] is that all too often, judges have seen violence directed against a spouse as irrelevant to determinations of custody and access. For example, one judge we interviewed in 1991 said:
If the violence has been directed toward the child, that must be of great significance. If there is violence in the presence of a child, that must be of considerable relevance. If there is violence, but not in the presence of the child, well you wouldn't necessarily give that great weight from the point of view of the custody/access situation. It's always a question of what's in the best interests of the children and it's impossible to generalise but I wouldn't rule out custody or access to a party because he had been violent in the presence of the children. I would tell him in no uncertain terms that he had acted very irresponsibly to have beaten up the mother or something in the presence of the child. He would be told from the child's point of view that it would have scared the child and that sort of thing but of itself I would not consider it to be a barrier or a bar to access.[6]
When asked whether he would consider denying access to a parent who had "backhanded a child across the room" because the child had tried to intervene to stop his mother being hit, the Judge responded:
No, because you might say that that violence was a result of the poor relationship between Mum and Dad. If they separate, there's less likelihood of that violence erupting and if Dad can establish that he has some good attributes and that there are some good things from the child's point of view in being with him, then access is appropriate.[7]
Another Family Court judge had a similar view:
The approach is prescribed by law and that is 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 toward 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.[8]
Similar attitudes have been expressed in various cases decided under the Guardianship Act 1968. In some of these cases, the violence against one spouse seems to have been interpreted as part of the two-to-tango scenario and therefore seen as irrelevant. For instance, in his decision in N v N,[9] a case involving an application in respect of a 6 year old child's (J) schooling, Judge Inglis stated:
A parent's performance as a parent is not to be judged by that parent's behaviour to a spouse in the stress of a collapsing marriage; now that it is accepted that the marriage is finished the real question is the quality of 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 wife which led to the recent crisis.[10]
"The recent crisis" alluded to by the judge was the rape of the wife by the applicant husband who made his application from prison, having been sentenced to three years in respect of the rape. The sentence was under appeal at the time the application was heard.
As part of his decision, Judge Inglis recounted that the parties had first separated approximately a year before and that an ex parte non-molestation order had been granted to the wife. She had alleged that she had been forced to have sexual intercourse with the husband "on more than one occasion". The parties had reconciled for a short time, separated again, and according to the wife, there had been further incidents where the applicant had forced himself on her. When the wife was 3 months pregnant with their youngest child, another such incident occurred which the wife reported to the police. It was this rape which resulted in the husband's imprisonment.
The view that spousal violence is irrelevant to determinations of custody and access is not limited to certain judges. For example, the New Zealand Psychological Society's Guidelines for psychologists working in the family court makes no reference to domestic violence. [11] Similarly, with one minor exception, a literature review on the welfare of children, prepared for the Department of Justice in 1989 as part of a major study on custody and access, completely ignored spousal violence.[12]
Either stated explicitly or conveyed implicitly by omission, the view that spousal violence has no relevance to custody and access determinations flies in the face of a growing body of research demonstrating the deleterious effects of witnessing abuse, the high correlation between spouse abuse and child abuse, and the impact of spousal violence on making and implementing custody and access arrangements.
In this article we provide a brief review of overseas and local research on the impact of spousal violence on children. We have structured our review around four questions:
- What do children see?
- To what extent are children directly abused?
- What are the effects on children?
- What are the implications for custody and access determinations?
What do children see?
Despite the aphorism which gives this article its title, it is clear that much spousal violence is indeed in front of the children. For instance, Jaffe and his colleagues concluded:
From our own clinical experience, many parents minimise or deny the presence of children during incidents of wife assault by suggesting that the children were asleep or playing outside. However, from interviews with children, we find that almost all can describe detailed accounts of violent behaviour that their mother or father never realized they had witnessed.[13]
Empirical studies support this conclusion. The most detailed studies tend to be those which have investigated reported spouse assaults: between 41% and 68% of these have been found to have been witnessed by children[14] Other estimates suggest that between 80% and 90% of the children of battered women will have, at some time in their lives, either witnessed an assault on their mother or the aftermath of such an assault.[15]
The few local studies which are available suggest a similar pattern in New Zealand. The National Collective of Independent Women's Refuges reported that during 1990, 6,668 children were resident in a refuge. A survey conducted at this time found that 90% of the children had witnessed the abuse of their mothers on at least one occasion.[16] More recently, the Commissioner for Children has undertaken an analysis of victim impact information collected by the Hamilton Abuse Intervention Project (HAIP)[17] This showed that of the victims who had children in their care, in 79% of the cases, the children were present in the house at the time of the assault and in 73% of these cases the children witnessed the actual assault. These figures suggest that few children remain unaware of the violence between their parents.
Further analysis of the HAIP database showed that 34% of the child-witnessed attacks involved punching, 13% involved kicking, 10% involved hitting or throwing things at the victim, 7% involved pushing or shoving and 1% involved sexual attacks (27% were described as "general attack).[18] Comments about child-witnessed assaults recorded by the HAIP women's advocates included the following:
He hit her with the steel table leg over the body and punched her in the face and head.
Pushing her with her hand around the throat, he kept on punching her.
Dragged her around the house by the hair, banged her head on the floor, punched her in the face, grabbed her head and slammed it against the towel rail.[19]
It should not be surprising that children often witness the violence inflicted on their mothers. Nine of the twenty women interviewed in a Canadian study reported that their children were often the focus of the violence: that is, the women were assaulted because they were pregnant, because they were considered to be poor mothers, because they failed to keep the children quiet or because they spent time with the children when the abuser wanted their attention.[20] Sometimes, it is also clear that the abuser intends the children to witness the abuse of their mother. The following comment comes from American research:
Oh yes, they've seen me be hit. He used to delight in lifting them up out of their beds so they could watch... And he says to them, "Now you see her, she's a whore." And he'd say to Chris, "See her, she's a cow." And the baby was only months old, and he'd say to him, "See her, she's no good. She's dirt. That's what women are."[21]
A similar scenario was described to us by a local woman we recently interviewed. She told us that her children could "graphically describe rape scenes to you." Her husband
would use what was happening to me as an example to them...He's a very, VERY, very sexist man. I have four daughters and one son. My elder daughter can tell you exactly what she was told by her father from (the youngest) age, and that is that women are only good for one thing. (That) if she's got any brains at all she'll be just like her mother and lie back with her legs apart. And that's how women get what they want in this world. (That) she's lucky she was born attractive like me, because she'll be able to get a man - no - she'll be able to get a sucker really easily, if she just lies back and holds her legs apart, just like I do... You can gather the rest of it.[22]
To what extent are children directly abused?
Children themselves may become victims of abuse where there is spousal violence. The previous quotation provides an obvious example of this, albeit psychological abuse. Increasingly, researchers are identifying a strong correlation between spouse abuse and child abuse.
This correlation has been identified in two types of studies. Firstly, some studies of child abuse have collected information on spousal violence. For example, in American hospital-based studies, between 45% and 60% of abused children were found to have mothers who had been battered.[23] One study found that "battering is the most common context for child abuse" and that the "battering male is the typical child abuser."[24]
The second type of study to examine the correlation between spouse abuse and child abuse are studies of battered women. For example, a survey of 1,000 American women who had been battered found that 70% reported that their children had also been abused by the batterer. Although this study relied on the reports of mothers, the researchers considered their finding to be an underestimation, in that the women were unlikely to know of all cases of abuse, they were often reluctant to talk about abuse directed against their children, and some forms of abuse, including sexual abuse, were not included in the survey.[25]
New Zealand figures confirm this pattern. In the survey of refuge residents mentioned above, 50% of the children were reported to have been physically (non-sexually) abused, 12% had been sexually abused, 80% had been verbally abused and 82% had experienced other forms of abuse including mental abuse, isolation, intimidation, neglect and being forced to play adult roles. The same survey showed that 73% of the children had had fists used against them, 58% had had other parts of the body used against them, 30% had been hit using items of furniture, 30% had been deliberately burnt with cigarettes, 23% had had guns used against them, 18% had had knives used against them and a similar number had had bottles used against them[26]. For 43% of the children, a variety of other weapons were reported to have been used, including belts, sticks and cattle prodders, or other tactics such as having their head banged against a wall, solvents thrown at them, being thrown through a window, held under water and held against hot stove elements. [27]
The Refuge study recorded that in 85% of the cases, the father (or defacto father figure) was the abuser. Other male relatives such as grandfathers, uncles and brothers were also identified as the prevalent abuser. In some instances, refuge workers reported that mothers had been responsible for the abuse, especially where the abuse was primarily verbal.[28]
Relatively few assaults on children are reported to HAIP but an analysis of the victim impact reports indicate that children often become physically involved in the violence. For example, in 15% of the assaults in which children were present, the children were recorded as having actively attempted to stop the violence.[29] Some examples recorded by the advocates included the following:
The son, (14 years) tried to intervene but was also whacked and pushed.
When the son intervened the assailant took him to the washhouse and gave him a hiding.[30]
In other cases, children seemed to have become unintended victims.
The chair missed the mother and hit the baby.
The baby, who was in the mothers arms, got hit instead sometimes. The 6 year old boy was screaming and saying, "Don't hurt my mummy." [31]
What are the effects on children?
Spousal violence clearly has implications for the children involved, whether they are involved as witnesses, unintended victims or intended victims. Given some of the examples quoted above, it would be remarkable if children exposed to spousal violence did not face increased risks to their long term welfare.
There is now a significant number of studies which address this issue. Some of these have focused upon the immediate responses of children to witnessing spousal violence. For example, a study conducted in Western Australia concluded that the overwhelming response of children was fear, both for themselves and their mothers. Frequently, children reported fearing for their mothers' lives. Some children blamed themselves for the violence. Some hid, some tried to intervene to stop the violence (some getting hit for their troubles). Older children often attempted to look after younger siblings. Some tried to run away. One child in the study attempted suicide.[32]
Other studies have examined the longer term impact of exposure to family violence. Typically, these studies have used standardised measures to compare the symptomatology of children of battered women with children from non-violent homes. The findings have been remarkably consistent: compared to children from non-violent homes, children who have been exposed to spousal violence have shown significantly higher levels of distress, greater anxiety, lower self-esteem, poorer social competence, and greater incidence of both internalising problems (such as clinging, complaining of loneliness, feeling unloved, sadness, easily jealous, worrying) and externalising problems (such as disobedience, lying, cheating, destroying things, cruelty and fighting). [33] Hershorn, M. & Rosenbaum, A. (1985). Children of marital violence: A closer look at the unintended victims. American Journal of Orthopsychiatry, 55, pp260-266.
Hughes, H.M. (1988). Psychological and behavioral correlates of family violence in child witnesses and victims. American Journal of Orthopsychiatry, 58, pp79-90.
Davis, L.V. & Carlson, B.E. (1987). Observation of spousal abuse: What happens to the children? Journal of Interpersonal violence, 2, 278-291. Psychosomatic symptoms (such as stomach aches, diarrhoea, asthma, enuresis and nightmares) have also been shown to have been more common among children exposed to such violence.[34] While the magnitude of these effects have varied somewhat from study to study (e.g. depending on the sensitivity of the measures, the size of the samples) some general indication of their significance is conveyed by Magaña's conclusion that three quarters of children who have witnessed spousal violence display clinically significant behaviour problems.[35]
The general tenor of these findings has been supported by a recent New Zealand study. Pocock compared children resident in women's refuges with a general population sample of children recruited through primary schools. The refuge children showed a far greater level of behavioural problems (such as hyperactivity, anxiety, aggression) than the general population sample,[36] with 75% of the refuge children having behavioural problems severe enough to fall within the clinical range compared to 25% of the general sample.[37] Compared to the general population sample, the refuge children were able to generate fewer alternative solutions to interpersonal problem scenarios (e.g. sharing toys, conflicts over which channel to watch).[38] They were also less likely to perceive either their peers or family members as being supportive of them.[39]
Some studies have made three-way comparisons between children from non-violent homes, children who have witnessed violence but have not been directly abused, and children who have been directly victimised. While interpreting these studies is more problematic (researchers have noted that there is typically an unknown overlap been those who witnesses violence and those who are direct victims) [40], it is clear that "witness only" children are more like the directly abused children than the children from non-violent homes.[41]
Another relevant group of studies are those which have examined the risk factors for becoming an abuser and/or a victim of spousal abuse. These studies can shed light on what is often thought to be an important long-term effect of witnessing spousal violence: the inter-generational transmission of violence. Hotaling and Sugarman conducted a review of 52 studies examining the risk of husband to wife violence (defined as physical violence between married, defacto or engaged couples). For men, witnessing spousal violence as a child was shown to be related to abuser status as an adult in 14 of the 16 relevant studies reviewed, making it a stronger predictor of wife abuse than other factors such as alcohol usage.[42] For women, the pattern was even stronger: witnessing violence as a child or adolescent was the only consistent risk factor (although being a direct victim of child abuse was found to be a significant risk factor in 9 out of the 13 relevant studies reviewed).[43]
While the evidence for the deleterious effects of witnessing violence is compelling, it is important to note that not all children are affected to the same degree or in the same way. In particular, age, gender and the support available to children have been observed to be important mediating variables.
The effects of exposure to spousal violence tend to vary with age. For example, infants have been found to be more likely to exhibit poor health, poor sleeping habits and excessive screaming. Preschoolers are more likely to show terror, exhibit irritable behaviour, and to hide, shake and stutter. Reactions characteristic of older children and adolescents are that they become guarded and secretive about home life, use aggression as a predominant form of problem solving, may project blame onto others, and exhibit high levels of anxiety.[44]
Sex differences are also evident. Males are more likely to be described as disruptive, aggressive, and throwing temper tantrums while females are more likely to withdraw, become passive and clinging, exhibit overly dependent behaviour and to distrust men.[45]
The response to the violence around them is also likely to make a difference to the way children are affected. For example, a New Zealand study found that the problems exhibited by the children of battered women reduced following separation from the abuser, particularly if the abuser did not exercise access.[46] The support provided to children also makes a difference[47] and overseas, there is increasing interest in developing appropriate services to assist children who have been exposed to spousal violence.[48]
It is also important to point out that the research evidence refers to an increased risk of the outcomes described. It would be unfortunate if such findings were to be interpreted as showing that exposure to spousal violence inevitably leads to psychopathology and irretrievably condemns children to repeat the patterns of their parents. This is clearly not so. Because of varying combinations of individual and environmental factors, some children who witness violence will emerge relatively unscathed. Witnessing spousal violence is a significant problem but the children do not need those around them to adopt a fatalistic attitude about the future.[49]
Implications
In a clear contrast to certain judgements referred to earlier, the implication of the literature reviewed above is that spousal violence is relevant to the determination of custody and access. A spousal abuser represents a significant risk to his, and/or his partner's children: he is typically regarded with fear, he will often have abused the children directly and his behaviour will have provided the children with unfortunate role modelling. Furthermore, his abusive behaviour inevitably has implications for the way custody and access disputes are resolved.
In this regard, it is clear that mediation has become a popular alternative to the adversarial process in custody litigation. Mediation (or indeed Family Court counselling which is really a mediation - rather than a counselling - process) involves sessions with the parents and an impartial third party to help the former work out a mutually agreeable resolution of custody and access conflicts. Although this intervention may be appropriate for couples where there has not been a previous history of spousal abuse, it is problematic when addressing the concerns of battered women and children. Mediation assumes some balance of power between parents. This is not possible when a mother is fearful of the children's father.[50] As the Boshier report stated:
Domestic violence, as a reflection of power, is obviously an important concept when it comes to considering how a Court process should operate when domestic violence exists. We believe that mediation should be avoided by the judicial process as a legitimate means of dispute resolution in such circumstances.[51]
As Pagelow points out, part of the power imbalance between abuser and victim is a consequence of what is at stake for each of the parties in custody and access disputes. Women are usually the primary caregivers and battered women usually have profound fears of what will happen to their children if the abuser gains custody, whereas the abuser may have nothing to lose by pursuing custody through the courts.[52] Indeed, it is likely that prior to the separation, the abuser has used threats to seek custody of the children as one of the tactics by which he maintains control over his partner, keeping her "a prisoner in her own home".[53] Post-separation, abusers may use custody and access applications to continue their attempts to control their partners and their children.[54]
Within a context of threats, intimidation, violence and other controlling tactics, battered women face particular difficulties in negotiating custody and access agreements. On the one hand, because mediation encourages cooperation and compromise, a battered woman may be characterised as overprotective,[55] rigid and uncooperative[56] because of her fear for the safety of herself and her children. On the other hand, in her attempts to avoid exposure to further abuse she may resort to placatory and appeasing responses (which may have afforded her some protection in the relationship), agreeing to consent orders under duress. Such has recently been recognised in the report into the Bristol deaths, in which Sir Ronald Davison commented:-
Evidence given before me has indicated that it is not uncommon for parties who have been subjected to violence to 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 person's own volition. It is often given after a bargaining session - you agree to this and I will agree to that. [57]
Sir Ronald went on to recommend that in cases where it has been established that one party has used violence, "consent" orders should not be accepted by the Court until it is satisfied that "such consent was freely and willingly given."[58] In accord with Davison CJ's recommendation, Judge Brown in the Hamilton Family Court recently drew the attention of the bar to the following informal practice note: "Where there has been a history of violence, Judges need to be satisfied that a consent memorandum has been consented to freely without any question of duress." [59] In the same court, Judge Twaddle recently appointed counsel for the child to enquire into the voluntary nature of a consent memorandum dealing with custody and access arrangements in the light of previous allegations by the wife of spousal abuse.[60]
Whether arrived at by consent orders or not, access can expose both women and their children to further abuse. Our previous work identified numerous examples of women being harassed, assaulted and, on one occasion, raped, by abusers who were either exercising court defined access or otherwise ostensibly visiting their children.[61] In some cases, the children were assaulted or forcibly removed from their mothers.[62] In one incident, a man who had failed to return a child after an access visit featured in an armed offenders squad call-out: he kept the police at bay by holding a knife to the child's throat and threatening to kill her.[63] Such problems have also been reported in overseas research: a Canadian study found that 25% of battered women reported their ex-partners made threats against their lives during visitation and 5% of them reported threats of kidnapping.[64]
Certain recent decisions in the Family Court appear to reflect an appreciation of the danger posed by abusers having unsupervised access to children, whether the danger is primarily to the child, to the mother or to both. These issues were canvassed in a decision by Judge Green in the North Shore Family Court.[65] In the decision, Judge Green granted an application by the mother to cancel an access order to the father. The application was supported by an affidavit which "set out specific instances of violence to confirm her assertion that the father was throughout their relationship abusive to her 'sexually, physically, emotionally, mentally and socially'"[66] Judge Green found the mother to be entirely credible and identified "3 main issues" in terms of the welfare of the children: safety of the children, role modelling and the mother's fragility.
In respect of the children's safety, Judge Green noted that the mother "fears that the father at some time may treat the children as he has treated her. Given the history of spousal violence, I regard this concern as reasonable."[67]
In respect of role modelling, Judge Green noted that
Although the children have not witnessed violence according to the evidence, the father's attitude to the children's mother and his abuse of power must be a concern. The concern is strongly reinforced by the father's absolute denial of the occurrence of any violence.[68]
n respect of the mother's fragility, Judge Green queried "Should the children's settled existence be threatened by contact with the abuser of their primary caregiver?"[69] Judge Green held:
In carrying out the delicate balancing exercise of the benefit to the children in having some contact with their natural father as against the risk of disrupting their settled existence with their mother, I must give significant weight to the history of spousal violence. The mother has been severely traumatised, of that I have no doubt. To insist on, effectively, her co-operation in regularly handing over her three small children to her abuser, of whom she is still afraid, would be not only to trivialise his violent behaviour but demand too much of the mother.
I am concerned that her ability to continue to parent these children well could easily be undermined. To risk this would be to put the father's needs ahead of the children's primary need for stability and security with their principal caregiver. On balance therefore, I have reached the view that access must be stopped for at least sufficient time for the mother to have some respite and recovery (I am thinking in terms of years rather than months).[70]
Similarly, in a practice recently adopted by the Family Court in Hamilton, when ex-parte custody and protection orders are made, the Court now explicitly states that the respondent shall not have access until further order of the Court.[71] This provides a measure of protection for custodial mothers: instead of having to negotiate temporary access arrangements directly with their abuser, these negotiations take place within the context of Court and Court-sanctioned processes.
The recent changes in judicial approaches described above have occurred without the benefit of specific amendments to the Guardianship Act 1968. The concept of "welfare of the child" has been formulated to reflect concerns about children's welfare in the light of spousal violence. However, statutory provisions are in effect in some other jurisdictions. A resolution of the United States House of Representatives has stated that "for purposes of determining custody, credible evidence of physical abuse of a spouse should create a statutory presumption that it is detrimental to the child to be placed in the custody of the abusive parent."[72] In Arizona, the courts are mandated to "consider evidence of domestic violence as being contrary to the best interests of the child."[73] Similar provisions operate in Alaska, Minnesota, Montana, New Jersey, North Dakota, Wisconsin and Wyoming.[74] Other states have enacted presumptions against awarding joint custody where there is evidence of spousal violence[75] Since April 1991 section 64(1)(bb)(va) of the Australian Family Law Act specifically directs the court to consider on a mandatory basis (inter alia) "...the need to protect the child from abuse, ill-treatment, or exposure or subjection to behaviour which psychologically harms the child." In other jurisdictions there is a presumption that any access granted to a parent who has been violent will be supervised.[76]
Such provisions can be contrasted with a presumption favouring shared parental responsibility for children post separation, which is reflected in the operation of some other jurisdictions.[77] There is indeed some evidence suggesting joint custody is beneficial for children.[78] But as Lenore Walker has pointed out, such studies demonstrate the benefits of joint custody where parents actively wanted to share the custody and cannot be extrapolated to relationships in which there has been spousal violence.[79] On the other hand, American studies have showed that children of conflictual relationships fare better when sole custody is awarded and there is little or no paternal contact.[80] In New Zealand, Church investigated the effects of separation on 51 children of women who had been battered. He found that the problems these children had experienced improved following separation, especially where the father did not pursue custody, did not exercise access contrary to the child's wishes or did not use access to further harass the mother.
In his enquiry into the Bristol killings, Sir Ronald Davison recommended that:-
...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 (a) 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.[81]
He goes on to state:-
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 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.[82]
Very recently, Cabinet has had placed before it a proposal to amend s.23 of the Guardianship Act to require the Court to have particular regard to any violence by one parent to the other parent or to the child in determining the welfare of the child.[83] We support this form of amendment as well as an amendment to section 15 which would prioritise safety of the child and the custodial parent in access provisions ordered by the Court.
A further implication of the research which has been described relates to resources. One way the Courts sometimes resolve custody disputes involving an abusive parent is to order supervised access for the abuser.[84] Where continued contact with the non-custodial parent is desirable, that contact can be maintained without compromising the safety of the child or that of the custodial parent if suitable supervision can be arranged. Recent discussions we have had with family law practitioners reveal that supervision arrangements, however, are often difficult to make and even more difficult to sustain. Qualified supervisors are not always available. Often supervision breaks down because it relies on volunteers, often relatives, who find the arrangements burdensome, even frightening, or alternatively may consider them to be unnecessary.[85] On the other hand, properly organised supervised access facilities, such as the Care for Kids programme in Auckland, permit supervised access arrangements to be made with greater confidence in the quality of supervision, in the safety arrangements made for the non-custodial parent and in the sustainability of the arrangements. Indeed, as one Family Court Judge recently commented to us, the existence of a visitation centre makes it more likely that supervised access will be ordered.[86] The provision of such facilities throughout the country, can be seen as an important priority.[87]
Conclusion
We began this article by identifying a tendency among certain professionals to regard spousal violence as irrelevant to the determination of custody and access. The literature we have reviewed illustrates the powerful effect spousal violence has on children, the strong correlation between spousal violence and child abuse, and the implications of a history of spousal violence for the way in which custody and access disputes are resolved. In a number of jurisdictions, these concerns have been incorporated into the relevant legislation with provisions dealing specifically with custody and access issues where there has been spousal violence.
New Zealand does not have any such statutory provisions. However, in contrast with some earlier decisions, certain recent custody and access decisions of the Family Court appear to take these issues into consideration in determining the welfare of the child. Similarly, the practices described above which have been recently implemented in some Family Courts show an increasingly sophisticated approach to custody and access disputes where there has been spousal violence. And now, as a result of his enquiry into the Bristol deaths, Sir Ronald Davison has recommended a statutory amendment: the incorporation of a rebuttable presumption into the Guardianship Act that, except in exceptional circumstances, a parent who has used violence against their spouse or against a child "is not to be regarded as a fit and proper person to have custody of/or access to that child."[88]
As these recent decisions and practices have occurred without statutory change, it might be argued that statutory amendments are not necessary. However, it is instructive to consider Sir Ronald Davison's conclusions about whether the Bristol deaths were preventable.
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 forseeable 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 by all who dealt with him, including counsel for the children, as being a proper person to have custody of 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.[89]
Sir Ronald Davison is unequivocal: the law should be changed. While he noted that "It may be possible for judges to apply s.23 (of the Guardianship Act) in a way that will allow my suggestions regarding presumptions to be adopted,"[90] he then went on to note that "for uniformity of practice and for giving emphasis to the changed philosophy for dealing with violent parents I think the amendment proposed is desirable."[91]
We agree. The on-going safety and protection of both the direct and indirect victims of family violence needs to be prioritised uniformly by judges, counsellors, lawyers, s.29A writers and all other people working within the Family Court system. Statutory amendment is needed.
Footnotes
01 This article was originally published in Butterworths Family Law Journal, 1(6), 107-115. [back]
02 Neville Robertson is a Lecturer in Psychology at the University of Waikato. Ruth Busch is a Senior Lecturer in Law at the University of Waikato. [back]
03 New Zealand Herald, 8 February, 1994. [back]
04 Davison, R. (1994). Report of inquiry into Family Court proceedings involving Christine Madeline Marion Bristol and Alan Robert Bristol. Report to the Minister of Justice. [back]
05 Busch, R., Robertson, N.R. & Lapsley, H. (1992). Protection from Family Violence: A study of Protection Orders under the Protection Act. Wellington: Victims Task Force. See particularly Chapter 11. [back]
06 Ibid, p 239. [back]
07 Idem. [back]
08 Ibid, pp 239-240. [back]
09 N v N (1986) 2 FRNZ 534. [back]
10 Ibid., p 537, emphasis added. [back]
11 Maxwell, G.M. (ed). (1992). The practice of psychology and the law: a handbook. Wellington: New Zealand Psychological Society. See section C, Guidelines for psychologists working in the family court. This section makes no reference to domestic violence, even though it does say that "Psychologists should familiarise themselves with the growing body of research literature relevant to their Family Court work, including research on marital breakdown, separation, reconstituted families and the outcomes for children and adults." (pC6). The Guidelines also state that psychologists should become familiar with the Domestic Protection Act. (pC2) [back]
12 Hall, G. (1989). The welfare of the child: A literature review. Family Court Custody and Access Research Report 1. Wellington: Department of Justice. The review does discuss inter-parental conflict as relevant to joint custody but the only explicit reference to spousal violence occurs on page 63 where it is noted that "where there is a lot of conflict between the parents, contact between them should be reduced - particularly when there has been history of physical abuse." [back]
13 Jaffe, P.G., Wolfe, D.A. & Wilson, S.K. (1990). Children of battered women. Newbury Park CA: Sage. p20. [back]
14 Ibid, pp20-21. [back]
15 Ibid, p20. See also, Hilton, N.Z. (1992). Battered women's concerns about their children witnessing wife abuse. Journal of Interpersonal Violence 7, pp 80-83. [back]
16 National Collective of Independent Women's Refuges. (1991). Treasure the Child: Children Living Without Violence. Wellington: Report published by the author. p3. [back]
17 Maxwell, G.M. (1994). Children and family violence: The unnoticed victims. Office of the Commissioner for Children, Occasional Paper No 3. p3. [back]
18 Ibid, p5. [back]
19 Ibid, pp5-6. [back]
20 Hilton, supra at note 14, p80. [back]
21 Dobash, R.E. & Dobash, R. (1979). Violence against wives: A case against the patriarchy. Free Press: New York. p15. [back]
22 Transcript of interview conducted as part of a study in progress. The interviewee was promised anonymity. The study will be reported in full when completed. [back]
23 For example, one study found 45% of the mothers of abused children had themselves been abused. (Stark, E. & Flitcraft, A. (1984). Child abuse and the battering of women: Are they related and how? Paper presented to National Family Violence Conference, Durham, NH.) A higher proportion, 60%, was found in another similar study (McKibben, L., De Vos, E. & Newberger, E. (1989). Victimisation of mothers of abused children: A controlled study. Paediatrics, 84. p531. [back]
24 Stark & Flitcraft, supra at note 22. [back]
25 Bowker, L.H., Arbitell, M. & McFerron, J.R. (1988). On the relationship between wife beating and child abuse. In K. Yllö & M. Bograd, Feminist perspectives on wife abuse. Newbury Park, CA.: Sage. p162. [back]
26 National Collective of Independent Women's Refuges, supra at note 15. p10. [back]
27 Ibid, p12. [back]
28 Ibid, p11. While other researchers have also commented on the potential for some battered women to abuse their children, most agree that the abuse is likely to stop after separation. ( See Walker, L.E.A. (1984). The battered women's syndrome. New York: Springer.) [back]
29 Maxwell, supra at note 16. p10. [back]
30 Ibid, p11. [back]
31 Idem. [back]
32 Blanchard, A. (1993). Violence in families: the effect on children. Family Matters, 34, pp31-36. [back]
33 Jaffe, P., Wolfe, D., Wilson, S. & Zak, L. (1986). Similarities in behavioral and social maladjustment among child victims and witnesses to family violence. American Journal of Orthopsychiatry, 56, p145 [back]
34 Blanchard, supra at note 31, pp31-36. [back]
35 Magaña, H.A. (1993). Child custody mediation and spouse abuse: A descriptive study of a protocol. Family and Conciliation Courts Review, 31, pp50-64. [back]
36 Pocock, T.M. (1994). The forgotten victims of wife abuse: A comparative analysis of children of battered women and a representative population subsample. An MA thesis submitted to the University of Auckland: Auckland. pp108-109. [back]
37 Ibid, p109. [back]
38 Ibid, p125. [back]
39 Ibid, p118. [back]
40 Jaffe, Wolfe, Wilson, & Zak, supra at note 32, p145. [back]
41 Idem. Also Hershorn & Rosenbaum; Hughes; and Davis & Carlson, supra at note 32. [back]
42 Hotaling, G.T. & Sugarman, D.B. (1986). An analysis of risk markers in husband to wife violence: The current state of knowledge. Violence and Victims, 1, pp101-124. [back]
43 Idem. It is interesting to compare the significance of witnessing spousal violence as a risk factor with the list of factors for which the reviewers found no evidence. The later included limited education, poor self esteem, low income, alcohol usage and housewife status. [back]
44 Jaffe, Wolfe & Wilson, supra at note 12, p40. [back]
45 Ibid, p41. [back]
46 Church, J. (1985). Family violence: Its effects on children and schools. Set, No 2: New Zealand Council for Educational Research. p3. [back]
47 Blanchard, supra at note 31, pp31-36. [back]
48 See for example, Peled, E. & Edleson, J.L. (1992). Multiple perspectives on groupwork with children of battered women. Violence and Victims, 7, pp327-346. [back]
49 During July, 1994, there was a debate about precisely this point on the internet news group Intimate Violence Research and Practice Issues List. Several correspondents pointed out the danger that, misused, statistics of relative risk can seem to be a determinative finding for those affected. [back]
50 For a full discussion concerning the appropriateness of mediation in relationships characterised by domestic violence, see Astor, H. "Doing the Impossible: Talking About Violence in Family Mediation," in J. Stubbs (ed). (1994). Women, Male Violence, and the Law. Institute of Criminology: Sydney. pp175-192. [back]
51 Boshier, J et al. (1993). The Review of the Family Court: A Report for the Principal Family Court Judge. Auckland. p119. [back]
52 Pagelow, M.D. (1992). Adult victims of domestic violence: Battered women. Journal of Interpersonal Violence, 7. p104. [back]
53 Jaffe, Wolfe & Wilson, supra at note 12, p107. [back]
54 Pagelow, supra at note 51, p104. [back]
55 Magaña, supra at note 34, p51. [back]
56 Jaffe, Wolfe & Wilson, supra at note 12, p109. [back]
57 Davison, supra at note 3, p45. [back]
58 Ibid, p46. [back]
59 Included in a practice note circulated by the Family Law sub-committee of the Waikato-Bay of Plenty Law Society on 7 June, 1994. [back]
60 Personal communication from a Hamilton solicitor. [back]
61 Busch, Robertson & Lapsley, supra at note 4. See the case studies of Esther, pp56-68; Deb, p85; Sandra, pp 91, 93: Lynette, p101-103; Diana, p107; Jane, pp120-121; Tania, p124; Judith, p127; and Roslyn, pp145-147. [back]
62 Ibid. See case studies of Judith, p127; Sandra, p93; and Diana, p107. [back]
63 Ibid, p101. [back]
64 Jaffe, Wolfe & Wilson, supra at note 12, p109. See also Hilton, supra at note 14, p82. [back]
65 Unreported decision, V v T, North Shore Family Court, FP no 33/93, 18 April 1994. [back]
66 Ibid, p3. [back]
67 Ibid, p6. [back]
68 Idem. See also a decision by Twaddle J (B v C, Unreported decision of the Hamilton Family Court, FP 383/91, 3 May 1994) in which the judge, in considering the disadvantages of placing the child in the custody of the father, comments "he would be exposed to a risk of harm from his father's violent abusive personality and his father is likely to provide a poor role model for him." p13. [back]
69 Supra at note 64, p6. Judge Green refers to a decision by Judge von Dadelszen (N v D, Unreported decision of the Napier Family Court, FP 041/277/92, 16 August 1993) in which a father's application for access was declined. Judge von Dadelszen commented, "I have no reason to doubt what Miss D told me of her fear of Mr N and, although she has the protection of a non-molestation order, nevertheless I believe that her ability to mother her child will be adversely affected if Mr N is involved in any way in her life." p7. [back]
70 Supra at note 64, p8. [back]
71 Statement by Judge Twaddle to the Inter-agency meeting of the Hamilton Abuse Intervention Project held in Hamilton on 14 July 1994. [back]
72 House of Representatives. (1990).Congressional Resolution No 172. [back]
73 Arizona Rev,Stat.Ann. Section 25-332B. [back]
74 Concerning the correlation between child abuse and wife battery: An annotated bibliography, Children's Legal Rights Journal, 12. Number 16 (1991) [back]
75 Idem. Specifically, Colorado, Minnesota and Texas. [back]
76 Idem, Specifically California, Illinois and New Hampshire. [back]
77 See for example, Hester, M. & Radford, L.. (1992). Domestic violence and access arrangements for children in Denmark and Britain. Journal of Social Welfare and Family Law, 57-70 for a review relating to those two countries. For discussion relevant to jurisdictions in the United States of America, see: Pagelow, supra at note 51; and Walker, L.E.A. (1989). Psychology and violence against women. American Psychologist, 44, pp695-702. [back]
78 Wallerstein, J.S. & Kelly, J.B. (1980). Surviving the breakup: How children and parents cope with divorce. New York: Basic Books. [back]
79 Walker, supra at note 76, p701. [back]
80 Furstenberg. F.F., Morgan, S.P. & Allison, P.D. (1987). Paternal participation and children's well-being after marital dissolution. American Sociological Review, 52, pp695-701. Also Pagelow, supra at note 51, p105. [back]
81 Davison, supra at note 3, p42. [back]
82 Ibid, p43. [back]
83 Personal communication from a senior government official. [back]
84 See for example, B v C, Unreported decision by Judge Twaddle, Hamilton Family Court, FP 383/91, 3 May 1994. [back]
85 These conclusions have been drawn from interviews conducted as part of a study we are currently undertaking. The interviewees participated under conditions of anonymity. The study will be reported in full when it is completed. [back]
86 Ibid. [back]
87 This need not be prohibitively expensive. Existing playcentres and kindergartens can be utilised as access most commonly occurs during the weekends when such facilities could be available. An evaluation of the Care for Kids programme suggested that the direct costs of providing such supervision is approximately $2,000 for a full year. Normally, supervised access is an interim, rather than a long term arrangement. (Hitchman, B. et al. Care for kids: An evaluation of a supervised access centre. Broad Perspectives Ltd, Auckland.) [back]
88 Davison, supra at note 3, p45. [back]
89 Ibid, p35. [back]
90 Ibid, p46. [back]
91 Idem. [back]
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Community Psychology