The Law &
Your Rights
(The following information
has been adapted from the Ministry of Justice, The Family
Court, “Domestic Violence; information on Protection Orders
and the Domestic Violence Act” booklet. Free resources are
available at your local Family Court.)
The Domestic Violence Act 1995:
The Domestic Violence Act came into effect in Aotearoa New
Zealand in 1995.
The Domestic Violence Act was made to protect people in many
different relationships, including:
-
Married couples
- Unmarried couples
- Gay and lesbian couples
- Children
- Family/whanau
- Anyone in a close personal relationship
- Flatmates or other people who share accommodation.
The Justice Department of
Aotearoa New Zealand describes domestic violence as “An
abuse of Human Rights”. They go on to describe what domestic
violence is as:
Physical Abuse:
Nobody – including a husband,
wife, partner or an adult who looks after children, 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 that person’s
permission.
Psychological Abuse:
Includes intimidation,
threats and harassment. Examples of psychological abuse are
damaging property, allowing children to see or hear any
domestic violence, controlling someone’s contact with
friends as a way of having power over him or her.
At the heart of the Domestic
Violence Act is the Protection Order.
Protection Orders:
The Family Court can issue a
Protection Order if it is satisfied that domestic violence
has occurred and the Protection Order is needed to protect
you, (the Applicant), and other persons for whom protection
is sought, (such as children).
A Protection Order
automatically covers any child under the age of 17 years who
usually lives in your house.
The person the application is
being made against is called the “Respondent”. You can also
have the Protection Order made against a third person, an
“Associated Respondent”, (e.g. a friend or family member of
the person who has abused you), if you are at risk of
violence from them because the Respondent has encouraged
them to be violent toward you also.
You can ask for the
Protection Order to cover other persons, like your friends,
a new partner or anyone who may be at risk from the
Respondent or Associated Respondent because of their
relationship with you.
Children can apply for their
own Protection Orders with the support of an adult (e.g.
social worker, guidance counselor, family member.) However
they do not need to apply for one if they are covered by an
adult in the same household’s Protection Order.
(for help filling out a
Protection Order see
www.lovewithoutfear.org.nz
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Whether you want to have no
contact at all with the Respondent, or if you want to
continue living with the Respondent, you can still have a
Protection Order. In order to cover both these situations
Protection Orders have two types of “conditions” or rules
associated with them.
Non-Violence Conditions:
These apply in every case,
whether you are together or living apart.
The Respondent must not:
- Physically,
psychologically, or sexually abuse or threaten anyone
protected by the Protection 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 Protection Order.
Non-Contact Conditions:
These apply when you are living apart.
The non-contact conditions say that the Respondent must not:
- Go to your home or workplace or onto your property (unless you expressly consent).
- Intimidate or harass you or any children living or staying with you.
- Hang around your neighbourhood or workplace.
- Follow you.
- Try to stop you or any children living or staying with you from coming or going.
- Phone, fax, write, email, text or in any way contact you.
If you want to have contact with the respondent e.g. you may
want to continue living together, you can suspend the
non-contact conditions, so they don’t apply. However you can
decide you do not want contact anymore and withdraw you
consent of this contact, and immediately the non-contact
conditions come into effect. You do not have to go to court
to change this.
The non-violence conditions apply whether or not you are
living together.
If you have a Protection Order, you have specific protection
from any physical, sexual or psychological abuse (including
threats and harassment). The police policy is to arrest a
person who breaches (doesn’t stick to the conditions) a
Protection Order. The person will be dealt with in the
Criminal Court.
In most cases the Respondent will be required to attend a
Family Court approved stopping violence programme, such as
the ones provided by Te Kupenga Whakaoti Mahi Patunga/ The
National Network of Stopping Violence Services’ member
agencies throughout Aotearoa New Zealand. (See “Organisation
Details”). These are usually group programmes, but
individual programmes are also available when needed. It is
a breach of the Protection Order if the Respondent does not
attend, unless they are excused by the programme provider.
The maximum penalty for breach of Protection Order is six
months in prison or a $5000 fine. The penalty increases to
two years in prison where a person is convicted of three
offences and two of these are committed within a three year
period. If other serious crimes are involved, (such as
assaulting you), the penalties could be more severe.
Free, court approved programmes are also available for the
person who has taken the protection order out (the
applicant) and their children.
The programme is optional and it is different from the
stopping violence programme the respondent has to go on.
The programme for applicants and children provides
information, education and support, it is free confidential
and safe.
Applicants can apply to attend a programme up to three years
after the Protection Order is granted.
Most programmes are open to referrals from people who have
or are experiencing violence, whether they have a Protection
Order of not, at little or no cost.
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It is good if you can to use the services of a lawyer. (For
lists of lawyers familiar with family law contact your local
Women’s Refuge, Te Kupenga Whakaoti Mahi Patunga/ National
Network of Stopping Violence agency, Citizen’s Advice
Bureau, Victim Support Services or Community Law Centre. If
you are worried about the costs of using a lawyer, you may
be entitled to legal aid, if you are on a low income. (Your
lawyer can help you apply for this). If you do not qualify
for legal aid, and do not want to use a lawyer, you can
still fill out the forms (which you can get from your Family
Court), yourself. A support person from your local Te
Kupenga Whakaoti Mahi Patunga/ National Network of Stopping
Violence Services, Women’s Refuge or Victim Support may be
able to help you. Family Court staff can also give you
information on this, but cannot give you legal advice. It
may also be that you local Community Law Centre or Citizens
Advice Bureau has the services of a free lawyer that you can
access.
- You need to fill in the application form, (with the help
of you lawyer if applicable). Your lawyer will also write
down evidence about why you need a Protection Order in a
sworn statement (affidavit). If the Respondent has access to
any weapons you must tell your lawyer, or the Police or
Family Court.
- These are seen by a Family Court Judge (usually on the
same day).
- In the case of an emergency or where there is urgency
Temporary Protection Orders are made immediately and
“without notice”. That means that the Respondent isn’t aware
of them being made until he is served with them. (Make sure
you are in a safe place at this time, contact Women’s Refuge
if needed.)
- In other circumstances the judge may direct that the
application will be heard “on notice”, which means that both
parties will have the opportunity to be heard by the Court.
If this is the case the judge will normally give the
Respondent a short period of time to file a written defence.
If the Respondent does file a defence the Court then will
hear each side and make a decision. This is done in the
Family Court, which is a “closed court”. That means there is
no one there except the court officials and those supporting
you.
(for help filling out a
Protection Order see
www.lovewithoutfear.org.nz)
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Once a Temporary Protection Order is granted, things happen
quickly.
The orders are usually typed up at the Court and copies
made. Your lawyer will be sent a copy, or you can pick up a
copy from the Family Court.
An agent of the Court (usually a bailiff, sometimes with the
Police), will visit the Respondent and give them a copy of
the Protection Order. They will explain what the order means
and what will happen if the Respondent disobeys the order.
Another copy will be sent to the Police Station nearest you,
so the Police are aware of the order.
If the Respondent disobeys the conditions on the Protection
Order contact the Police immediately.
Weapons:
When a Temporary Protection Order is made, the Respondent
must hand in any firearms within 24 hours (or earlier if
they tell you to). Their firearms licence will be suspended.
If the order is made final, the Respondent’s firearms
licence will automatically be revoked.
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The law requires that people are given the opportunity to
defend themselves. The Respondent is given up to three
months to defend the Protection Order. If the Respondent
does not do it within this time then the Order automatically
becomes final, which means it will stay in force permanently
or until the Order is discharged. (You can apply to the
Court any time to have the order discharged; however the
Judge will need to be convinced that you are no longer in
danger.)
If the Respondent does defend the Order a hearing date is
set by the Family Court where the Court will consider both
sides of the story and make a final decision.
Occupation and Tenancy orders
You may need to apply for an Occupation or Tenancy Order, to
enable you to stay living in the same house. Talk to your
lawyer or Family Court staff about this.
Furniture Order
You may also want to apply for a furniture order to enable
you to set up house in a new location. The Police can be
asked to accompany you to collect the furniture if needed
for your protection. Talk to your lawyer or Family Court
staff.
Custody of Children
By law both parents can apply for custody of the children,
however if there is a risk that one parent could take the
children away or harm them, the other parent can ask the
Court for sole custody. This requires a separate application
to Family Court. Talk to your lawyer about this.
When there is proven violence, the Court will usually not
allow the violent person to have custody unless the Court is
satisfied the children will be safe.
Access Arrangements
When there is proven violence, the Court will usually not
allow the violent person to have unsupervised access to
children, unless the Court is satisfied the children will be
safe. Supervised access can be provided by a number of
community agencies and also may be able to take place with a
friend or relative that is deemed safe and appropriate. Any
costs of providing supervised access are to be paid by the
person seeking access.
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