In 1995 the law relating to domestic violence was changed in New Zealand. The Family Court was given extended powers to grant orders to protect victims of domestic violence. The old "non-molestation" and "non-violence" orders were replaced with the new "protection" order.
What is Domestic Violence?
Domestic violence is not only physical violence. The law says it can be physical, sexual or psychological abuse.
Physical Abuse - Nobody is allowed to hit, punch, kick or in any way assault another person.
Sexual Abuse - Nobody is allowed to have any sexual contact with another person without their permission.
Psychological Abuse - Nobody is allowed to use intimidation, threats and harassment to hurt or control another person. The Family Court recognises the following as psychological abuse:
- Damaging property as a way of hurting someone.
- Allowing a child to see or hear any domestic violence.
- Controlling someone’s contact with friends, or with money, as a way of having power over them.
Grounds for a Protection Order
The Court can make a protection order if it is satisfied that there has been domestic violence and that the order is needed to protect you or other persons for whom protection is sought. You can ask for a protection order to cover other persons such as your friends, a new partner, a specified person who is at risk from the person the application is being made against (the Respondent) because of their relationship with you.
Are you in a Domestic Relationship with the Respondent?
Before applying to the Family Court for a protection order you must be able to establish that you are in a domestic relationship with the Respondent. The law protects people of all ages in all sorts of close personal relationships: married couples, unmarried couples, gay and lesbian couples, people who are or have been members of the same family or people who have or have had a close personal relationship, whether or not they have ever lived in the same house.
What does a Protection Order Mean?
If the Court grants a protection order the Respondent must not:
(a) Physically, psychologically or sexually abuse or threaten anyone protected by the order.
(b) Damage or threaten to damage the protected person’s property.
(c) Encourage anyone else to physically, sexually or psychologically abuse or threaten anyone protected by the order.
A protection order also includes non-contact provisions which state that the Respondent must not:
(a) Go to your home or workplace or onto your property.
(b) Intimidate or harass you or your children.
(c) Hang around your neighbourhood or workplace.
(d) Follow you.
(e) Try to stop you or your children from coming or going.
(f) Telephone, write, fax or in any way contact you.
If you expressly agree to live with the Respondent, these conditions are suspended while you are together. If you withdraw your consent to living together, the non-contact conditions take effect again, without a further application to the Court.
There are certain exceptions which provide that contact can occur, for instance, if it is reasonably necessary in an emergency, or if it is permitted under a written custody or access agreement or Court order regarding children.
It is also a requirement that the Respondent must hand in any firearms licence and weapons (including firearms, guns, ammunition, and explosives) to the Police.
Special Court approved programmes are available free of charge to people who have been victims of violence and who have protection orders. A protection order will also usually require the Respondent to attend a programme about living without violence.
Further orders are available from the Court which can enable you to stay in the family home, or to have possession of particular furniture or household effects. The Court can make such an order if it is satisfied the order is necessary for your protection or is in the best interests of your children.
If your application is urgent, it can be made without notice, that is you can ask the Court to make the order without the Respondent being told that you are making the application. The Respondent is advised after the order is made and then has the opportunity to challenge it. To make an order urgently the Court must be satisfied that you and/or your children may be at risk of harm or undue hardship if your application is not considered immediately.
If There Are Children Involved
When there is proven violence, the Court will not allow a violent person to have custody or unsupervised access, unless it is satisfied that the child will be safe.
When applying for a protection order you may also wish to apply for a custody order which gives you the legally enforceable right to have your children in your day to day care.
When you get a protection order this automatically extends to protect your children and the non-contact conditions mean the Respondent cannot have contact with your children unless there is a Court order allowing this or a written agreement between you and the Respondent.
If the Respondent wishes to have contact with the children and you do not agree on the conditions of contact, then the Respondent can apply to the Court for an access order.
What should you do if you are a Victim of Domestic Violence?
In addition to contacting the Police in cases of assault, we have experienced lawyers who specialise in family law at each of our offices who can discuss protection orders and other family law matters with you and also advise you whether you will be eligible for legal aid. Urgent applications can be made.
What should you do if you are Served with a Protection Order?
It is important that you seek legal advice immediately as there are certain time limits that you must comply with if you wish to defend the applications. We can offer assistance with access arrangements and in respect of any Police prosecutions.