Legal Information

The Domestic Violence Act

Applying for a Protection Order

Conditions of the Order

Penalties for Breaching an Order

Protection Orders and Children

Care of Children Act

Legal Aid

 

The Domestic Violence Act

The Aims of the Domestic Violence Act:

"To reduce and prevent violence in domestic relationships"

The Act aims to achieve this by:

  • Recognising that domestic violence, in all its forms, is unacceptable behaviour.
  • Ensuring that, where domestic violence occurs, there is effective legal protection for its victims.

Domestic Violence Defined:

In this Act, domestic violence, in relation to any person, means: Violence against that person by any other person whom that person is, or has been in a domestic relationship violence is defined as:

  • Physical Abuse
  • Sexual Abuse
  • Psychological Abuse including but not limited to:
    • Intimidation
    • Harassment
    • Damage to Property
    • Threats of physical abuse, sexual abuse, or psychological abuse
    • In relation to a child: allowing the child to see or hear physical, sexual, or psychological abuse of the person with whom the child has a domestic relationship, OR puts the child, or allows the child to be put, at real risk off seeing or hearing abuse occurring.

The person who suffers the abuse is not regarded as having caused or allowed the child to see or hear the abuse, or as the case may be, having put the child at risk of seeing or hearing the abuse

A Domestic Relationship is defined as:

For the purposes of the act a person is defined as being in a domestic relationship if the person:

  • Is the partner of the other person
  • Is a family member of the other person
  • Ordinarily shares a house with the other person
  • Has a close personal relationship with the other person

with regard to this the Court may define what determines a close personal relationship

A domestic relationship is not:

  • A landlord-tenant relationship
  • An employer-employee relationship
  • An employee-employee relationship

To view the entire act Click Here

Protection Orders

Applying For a Protection Order

  • An official court form needs to be filled out.
  • A sworn statement about why a protection order is required needs to accompany this. (An affidavit)
  • This paperwork is presented to the judge (usually the same day) at Family Court. At the same time Furniture, Occupancy, or Tenancy Orders can be applied for.
  • Applicant - the individual who applies for the Protection Order
  • Respondent - the person named as the  perpetrator of the abuse

In case of emergency or urgency a Temporary Protection Order is granted immediately and 'without notice'. This means the protection order is in effect and the respondent has not yet been notified.

If a Temporary Protection Order is granted the order is typed up and copies are made. A copy will be given to the applicant, a copy is sent to the Applicant's nearest Police station, and a copy is served on the respondent by a Police Officer.

If a Temporary Protection order is made the respondent must hand over any firearms to the police within 24 hours. Their firearms licence is also suspended.

A Temporary Protection Order lasts a maximum of three months. If the respondent does not defend the order it will automatically become a Final Protection Order until it is officially discharged. If an Order is made Final the respondent's firearms license is automatically revoked and all firearms must be handed in to the Police.

In other circumstances the Order will be made 'on notice', which means that both parties will have an opportunity to be heard by the Court. If this happens the respondent is given a short period of time to file a written defence. If a defence is filed the Court will then hear both sides and make a decision.

If the application is heard 'on notice' and goes to court the applicant will be advised of a hearing date. If a Final Protection Order is made copies are given to the applicant, the respondent, and to the applicant's nearest Police station. Once a Protection Order is final it will remain in effect until it is officially discharged.

Conditions of the Protection Order

Non-violence conditions

These conditions apply whether or not the respondent and applicant are living together or apart.

The respondent must not:

  • Physically, psychologically, or sexually abuse or threaten anyone protected by the order
  • Damage or threaten to damage the protected person's property
  • Encourage anyone else to physically, sexually, or psychologically abuse or threaten anyone protected by the order.

Non-contact Conditions

These apply when the respondent and applicant are living apart.

The respondent must not:

  • Go to applicant's home, workplace, or onto applicant's property without the applicants express consent
  • Intimidate or harass the applicant or any children staying with applicant
  • Hang around the applicant's neighbourhood or workplace
  • Follow the applicant
  • Try and stop the applicant or any children living with the applicant from coming and going
  • Phone, fax, write, email, text, or in any way contact the applicant
  • Encourage others to contact the applicant on their behalf

In most cases the respondent will be required to attend a programme related to family violence. It is a breach of the Protection Order not to attend the programme unless the respondent is excused by the programme director.

Penalties

If the respondent breaches any of the Order's conditions they can be arrested immediately.

The maximum penalty for breaching a Protection Order is six months in prison or a $5,000 fine. This penalty can be increased to two years in prison if the person has committed three offences and two of those offences were committed within a three year period.

Useful Information

  • A Protection Order is applied for through the Family Court. Any breaches of the Protection Order are dealt with in a criminal court.
  • An applicant can apply to the court to have a Final Protection Order discharged at any time.
  • If a Protection Order is granted, the applicant is able to access free approved programmes through agenices such as Aviva to support them in dealing with their situation.
  • The applicant can suspend the non-contact conditions if they want to continue seeing the respondent. The applicant can withdraw this consent at any time, simply by advising the respondent that the non-contact conditions apply and the conditions are re-instated automatically. The non-violence conditions apply regardless.
  • An Occupation or Property Order allows the applicant to stay in their house and forces the respondent to move.
  • A Furniture Order allows the applicant to take furniture from their home in order to help them set up in a new home.

Children

When a parent applies for a Protection Order, children living in the same household are also covered by the Order. When this is the case, a Parenting Order will be granted by the Courts.

By law both parents can apply for care of the children. If there is a risk that one parent will take the children away or harm them then sole custody can be asked for.

The respondent will be able to visit the children after the Court's grant a Parenting or Contact Order.

Special conditions can be added to the Protection Order that cover what happens when contact is granted – e.g. the process picking up and dropping off children.

The Care of Children Act

The Care of Children Act 2004 came into force on July 1 2005.

The Act made some important changes to the laws that deal with:

  • The guardianship of children
  • Arrangements for the care of children
  • Resolving disputes about the arrangements for taking care of children

The Act makes the law more consistent with the responsibilities that parents have towards their children. It also recognises that children in New Zealand are brought up in many types of family arrangements.

The Act:

  • Puts more emphasis on the rights of children
  • Encourages co-operative parenting
  • Recognises the many new types of family arrangements that now exist for looking after children
  • Provides for more openness in the Family Court processes
  • Gives the Court more options when dealing with breaches of Court orders.

More emphasis on the rights of children

  • The Act emphasises that the welfare and the best interests of children are always the first and most important issue in any debate
  • A judge must listen to the children and take their needs and wants into consideration
  • The children must have an independent lawyer
  • Children can appeal Family Court decisions that affect them
  • Children can ask the court to review parents' and guardians' decisions
  • Guardianship ends at 18. Guardianship will also end if the child is 16 or over and enters into a civil union, marriage, or de facto relationship - the child needs written consent for this.

Encouraging cooperative parenting

  • The Act puts emphasis on the responsibilities that parents have rather than the rights
  • The Act also uses the words 'day-to-day care' instead of 'custody', and 'contact' instead of 'access'. Parenting Orders replace Custody and Access Orders
  • The Act emphasises that parents' responsibilities are on-going. Parents without day-to-day care are encouraged to have contact
  • The Act encourages parents to make their own decisions about their children and formalise it with a Parenting Agreement. A Court then can make an Order based on that agreement
  • If parents can't agree the Court can arrange counselling. If this is not an option then a Parenting Order can be applied for through the Family Court
  • A Parenting Order is seen as the last resort and gives day-to-day care to one parent or guardian. It also formalises contact.

Recognising Different Arrangements for Children

These days' children are brought up in many types of family arrangements.

  • The Act makes it clear that it is important for children to keep their links with wider family
  • It encourages wider family to participate in care and upbringing of children
  • With the Family Court's permission, members of the wider family can apply to the court for a Parenting Order
  • Parents can appoint a new partner as Guardian after that person has been with the children for a year. Usually they will have to get the other parent's agreement. The Family Court Registrar then checks this.

Greater openness in the Family Court

The Act allows the public to know more about what goes on in Family Court. If a person wishes to bring a person with them to Family Court for support, they may to so.

  • The Act allows news reporters to attend Family Court sessions. There are strict limits on what they can publish. They can not publish names or any information that might identify anyone involved.
  • The Judge has the power to remove them from the courtroom at any time

Legal Aid

Legal Aid is a scheme that provides you with a lawyer if you are unable to afford one yourself. If you are granted Legal Aid it will cover your lawyer's fees and your court costs. You may be required to pay some or all of it back.

To find about more about Legal Aid Click Here

To apply for Legal Aid, approach your lawyer (if you do not have a lawyer, check out the lawyers on our Links page) and advise them that you wish to apply for Legal Aid.

The lawyer will have a copy of the application form and will also be able to advise you on the process.