One of the six principles is the child must be protected from all forms of violence. The protection of children from violence is one of the most important aspects of the Act. It is of course supplemented by the Domestic Violence Act which enables parents and other people to apply to the Court for a Protection Order on behalf of a child where there has been violence perpetrated on the child or indeed whether they have been witnessing violence between two parents.
Violence is particularly relevant when the Court is assessing whether it is able to make a Parenting Order in favour of one parent or another or whether a parent should have contact or otherwise.
Violence includes physical and sexual abuse; psychological abuse and emotional abuse and violence. This is an extremely wide interpretation of violence and comes from the United Nations Convention on the Rights of the Child.
However when it comes to making a decision on a Parenting Order the Courts powers are restricted in making their decision. The only violence relevant in the Court’s decision is whether there has been physical or sexual violence. Sections 59, 60 and 61 of the Act provide how the Court is to deal with allegations in which violence are contained.
Section 60 puts a statutory block on any contact other than supervised contact where there has been an allegation of violence made and the Court has not been able to complete its “enquiry”.
This section stops contact where there has been a “throw away” comment in an Affidavit by an applicant along the lines of:
“The Respondent has used physical violence towards me in the past”
Because the Court does not know what the violence is it will not make a Parenting Order providing contact for the Respondent until it is satisfied that the issues provided for in section 61 have been resolved.
Section 61 provides a list of matters to be considered such as the nature and seriousness of the violence, the frequency, how recently it occurred and so on. This will help the Court in determining whether the children are safe to have contact and/or be placed in the care of a party where there has been violence alleged.
One interesting case from Dunedin was where an Applicant asked the Court to make a Parenting Order in her favour. The Court was extremely concerned about the Applicant’s inability to keep the children safe from violence, specifically that the Applicant kept returning to her partner who was subjecting the children to violence. In that case the Court did ultimately make a Parenting Order in her favour putting in a number of safe guards to protect the children.
The inability of a parent in those cases to protect the children from violence may well see the Court or childrens own Lawyer step in and apply to have the children uplifted by the Child Youth and Family Service or to have the children appointed as wards of the Court and remove the decision making abilities of the parents. These are extreme steps but as discussed the welfare and best interests of the child are paramount and Courts will not hesitate to look to protect the children where it is possible.
As a final word, the Domestic Violence Act which provides for protection order has recently been amended. A new part, Part 6A, has been inserted providing the Police to give Police Safety Orders. A Police Safety Order is a “on-the-spot order” issued by a qualified Constable where the Constable has reasonable grounds to believe that the Order is necessary to ensure the safety of the non-violent person and any children. Importantly there is a provision where the welfare of any children residing with the non-violent person requires the Order.
A Police Safety Order is in effect immediately and requires the person to whom it is issued against to surrender any weapons and any firearms licence that they hold. They are also required to vacate the home. The Order requires the violent person to not physically or sexually abuse that person, threaten, engage in threatening behaviour, encourage anybody else to engage in threatening behaviour, to watch loiter or hinder the person from going about their daily life.
