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Family Court judges’ comments ‘ludicrous’

*This article was first published April 4, 2018*

Some Family Court judges stand accused of making inappropriate, 'idiotic' and 'ludicrous' comments towards women in domestic abuse cases, raising concerns they don't understand partner violence.

Newsroom has learned of comments that have astounded some experts on domestic violence.

One judge even implied a woman could not have been fully focused on doing her job as a mother because her case had been highlighted in a Newsroom news report and she was thus acting as an advocate against the Family Court.

But criticising a judge in New Zealand is a risky business.

If you are a part of the legal profession it can be fraught with danger as Family Court lawyer Catriona McLennan recently discovered.

MacLennan is under investigation by the Law Society for saying comments made by a judge in a domestic violence case were inappropriate and condoned violence.

The judge told a man who assaulted his wife, daughter and another man: “There would be many people who would have done exactly what you did, even though it may be against the law to do so.”

People speaking out against judges’ comments or decisions risk ending up in court themselves, charged with “scandalising the court.”

The convention that judges should not be criticised because it undermines confidence in the rule of law has endured here and in many other countries.

MacLennan’s predicament has re-ignited the debate over whether judges are held sufficiently accountable when there are questions around their competence, impartiality and equality of treatment.

A long running Newsroom investigation into the Family Court found many incidents where comments made by its judges raised concerns about attitudes held by some of them

We have chosen not to report on many of these comments because parents involved in the court process fear it will negatively impact the outcome of their cases.

What we identified were concerning attitudes held by of some Family Court judges

In one incident the continuation of a protection order was denied to a woman who suffered whiplash after being body slammed by her former partner.

The presiding judge found the woman’s occupation and character to be a factor in discharging the interim protection order.

A judge involved in a later appeal of the decision says the original judge had concluded: “Mrs N was a “successful school teacher” who was “assertive and strong” in her occupation, and “a robust and resilient person” who did not have an ongoing need for protection.”

Waikato University School of Psychology senior lecturer, Dr Neville Robertson, specialises in domestic violence. He said certain judges fail to understand the reality of intimate partner violence.

“What’s the connection between the woman’s employment, personal characteristics and need for protection. To me it’s irrelevant.”

Robertson has seen several cases of inappropriate, or incorrect views held by judges over the years he’s researched domestic violence.

“In one case the respondent had entered another relationship so that was thought to mean there would be no more violence directed against the applicant. That’s totally an unfounded belief.

“Often protection orders will be declined because there isn’t recent violence. Or they will be declined because the violence hasn’t been physical, there’s been a complete disregard of threats and psychological violence.”

Another case Robertson researched where a judge minimised controlling behaviour involved a foreign woman in a relationship with a New Zealand citizen. The male took the woman’s passport and refused to return it. The woman had no family in New Zealand and could not speak English.

Her application for a protection order was denied by a judge who saw the withholding of the passport as the man making sure the document was secure and not as an attempt to control the woman.

The judge’s ruling says: “For [the man] it was a matter of security while [the woman] saw it as a matter of control. The evidence does not go far enough to indicate a desire or wish by [the man] other than to ensure he knew the whereabouts of the documentation.”

In another case shared with Newsroom a judge implied a mother fighting to retain custody of her children had created a cauldron and the grandmother was arrogant: “I have already presented examples as to the unhealthy degree to which this rather arrogant person has immersed herself into the cauldron."

The new partner of the woman in this case has been a police officer for many years and had been involved in many court cases as a detective he told Newsroom: “I have never in my career ever had the misfortune of dealing with such misogyny and such a cavalier attitude towards justice and the truth. Evidence, where it corroborated [the woman’s] account, was disallowed.”

Robertson said he and his colleagues had noticed certain types of women were likely to get better hearings than others.

“Where women are seen to be compliant, where they are seen to be polite, where they are seen to be not rocking the boat they may well get a better hearing than women who are perceived as standing up for their rights and exercising some agency over their own future.”

In another case a judge’s comments regarding the mother’s involvement in a news story published by Newsroom were included in his judgment: “This article was printed in August at a time when she was supposed to be complying with the Court order and meeting her obligations as a parent and guardian. Clearly mother’s attention was diverted from her role as a parent to becoming a role as an advocate for problems she sees in the Family Court.”

Robertson found the judge’s comment extraordinary. “What this judgment tells me is that the judge has a particular view of what makes an appropriate victim, and an appropriate victim is not somebody who has agency or who wants to exercise her human rights.

“One can only surmise the judge is more concerned about the reputation of the Family Court than the particulars of the case.”

Social worker Paora Moyle described the judge’s comment as “ludicrous”.

“It’s absolutely idiotic to say that she is not being a parent because she is being distracted by media attention and the need to speak up on behalf of women and children. Advocacy in that role, because of lived experience is everything. Of course she would want to do that.”

Moyle has been a social worker for 27 years and supervises and educates other social workers. She describes attitudes held by some Family Court judges as misogynistic.

“We’ve got male domination at play here and it’s putting us at risk.

“Women are not disclosing to anybody when they need help. They are not calling for the help they need. It’s going underground.”

Moyle said she is not surprised MacLennan is being investigated by the Law Society.

“I support Catriona in saying that the majority of our women and children are subject to misogynist decision making and practices.

“She’s calling it out and they are worried.”

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