How to deal with family violence
Protection Orders & the Domestic Violence Act
What is family violence?
What is a Police Safety Order (PSO)?
Getting a Protection Order
Applications in the Family Court
What does the Protection Order say?
What happens if the abuse doesn't stop
How to serve a Trespass Notice
People who can help
"The Court takes applications for Protection Orders very seriously. The vast majority are granted immediately."
Principal Family Court Judge
Patrick Mahony
Hard Truths
- The longer it goes on, the more violent it gets
- About 10 children are killed every year in family violence
- One woman is killed by her partner or ex-partner every five weeks
- Women's Refuge assisted about 20,000 women and children last year
- Psychological abuse can be just as damaging as physical abuse
- Children who hear or see family violence can suffer psychological harm
What is Family Violence?
In a violent relationship, everyone is a victim. This information can help people stand up to family violence and make it stop.
It explains:
- What the law defines as family violence
- What Protection Orders are and how they are obtained
- What a Protection Order means for the person it is protecting (the applicant)
- What a Protection Order means for the person it has been taken out against (the respondent)
- What happens if the abuse doesn't stop
At the heart of the Domestic Violence Act 1995 is the Protection Order. It names the person who is abusive (the respondent) and states what behaviour is illegal under the Order. "The police and courts might not take me seriously." Family violence is an abuse of human rights. The courts and the Police take family violence very seriously.
The Domestic Violence Act helps protect people in many different relationships. These include:
- married couples
- unmarried couples
- gay and lesbian couples
- children
- family/whanau
- anyone in a close personal relationship
- flatmates or other people who share accommodation
What does the law mean by "domestic violence'?
Domestic violence is not only a fist in the face or a kick in the head. The law says that violence can be physical, sexual or psychological. Physical abuse. Nobody - including a husband, wife, partner, or an adult who looks after children - has the right 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 permission. Psychological abuse. This includes intimidation, threats and mind games. Below are just a few things that the Family Court recognises as psychological abuse:
- damaging property as a way of hurting someone
- making threats, such as "If you leave, I'll kill you", "Do that again and I'll give you a hiding", "Tell the Police and I'll beat up the kids"
- allowing a child to see or hear any family violence
- trying to control someone's life by constantly humiliating them
- controlling someone's money, time, car or contact with friends as a way of having power over them
What is a Police Safety Order?
A Police Safety Order (PSO) is issued in circumstances where the Police have reasonable grounds to believe that family violence has or may occur.
An order lasts for up to five days, but usually one or two days.
The purpose of the PSO is to protect people at risk from violence, harassment, or intimidation. The order stays in force until the expiry time/date listed on the order.
The Police do not need the consent of the person at risk to issue the order.
What is the effect of a PSO?
When a PSO is made, the person bound by the order must leave the address while the PSO is in force, even if they own the address and/or normally live there.
The bound person must not assault, threaten, intimidate or harass the protected person (the person at risk) or encourage anyone else to do the same.
They must not follow, stop or contact in any way the person at risk in any place, either at home, at work, or anywhere else the person at risk visits often.
The bound person must surrender all firearms and their firearms licence to the Police for the period of the PSO.
The PSO also protects any children living with the person at risk and any conditions of parenting orders or agreements permitting access or care by the bound person are suspended.
The Police may detain the bound person for up to two hours to issue and serve the PSO.
There is no right of appeal.
What happens if a PSO is breached?
If the bound person does anything that is not permitted by the PSO, the Police can take the person in custody and put them before the Court.
The Court may issue a warrant to arrest the bound person if it is required to bring them before the Court.
The Court may:
- release the bound person without any further order
- direct the Police to issue another PSO
- issue a Temporary Protection Order (if the person at risk does not object).
No criminal convictions result from the issue of a Police Safety Order.
Other offences, such as assaults or property damage will be investigated and charges laid where sufficient evidence exists.
Who can help?
There are several agencies available to help:
- Shine 0508 744 633
- Are You Ok Information Line 0800 456 450
- Women's Refuge 0800 REFUGE
Useful Websites
The following websites contain information that may be useful to you and your family:
- Are You Ok - www.areyouok.org.nz - this website is full of information and support services contacts for families experiencing violence.
- Family and Community Services - www.familyservices.govt.nz - has a directory of social services in your local community.
- Ministry of Justice - www.justice.govt.nz - has information about Protection Orders.
- The National Network of Stopping Violence Services - www.nnsvs.org.nz - has a directory of services nearest you.
- Women's Refuge - www.womensrefuge.org.nz.
Getting a Protection Order
Here's how to go about getting a Protection Order from the Family Court:
Decide to act
This is usually the toughest of the three steps. It takes courage to stand up to family violence, but it's important to remember that everyone is better off when violence stops. That includes you, your children if you have any, anyone else who lives with you and even the person abusing you.
Remember: you are not alone. The sad, hard fact is that there are thousands of people in this country who are in the same situation.
Find people who will help
If you are in immediate danger: call the Police. They will respond immediately. If the danger is not immediate, there are other organisations which can help you arrange a Protection Order.
If you decide you want to make the violence stop, there are a lot of people and tough laws that will help you. These people include the Family Court, the Police, the Children and Young Persons' Service, Women's Refuge, Stopping Violence Services, your lawyer, Victim Support, and many other government and community organisations.
"Domestic violence is not only a women's issue. It is a men's issue. It's a children's issue. The Court takes applications for Protection Orders very seriously. The vast majority are granted immediately."
Principal Family Court Judge Patrick Mahony
Community organisations. A list of other organisations which can help can be found at the front of the phone book (white pages) under Emergency Services or Personal Help Services. See page 17 for further details.
Organisations like the Women's Refuge can help women in many ways, including:
- arranging to pick you up if you don't have money or a car
- arranging emergency accommodation for you and your children if you need to get out of your home
- discussing the different choices you have and the different kind of legal, housing, and financial assistance you can get
- providing you with information on how the system works - the Police, the Family Court, Legal Aid, etc.
- quickly arranging an appointment with a lawyer
- supporting you in applying for a Protection Order.
Other organisations, such as Work and Income New Zealand (WINZ), can help you with welfare or support services.
A lawyer. preferably one who is familiar with family law and the Family Court - will help you prepare your application, take down your statement and, if you are on a low income, apply for free Legal Aid.
If you don't know a suitable lawyer, all the main support agencies, like Women's Refuge, Citizen's Advice Bureau, Community Law Centre, Victims Support or Salvation Army can help you find one.
Family Court. Alternatively, you can go to your nearest Family Court, and ask the Family Court Coordinator how to apply for a Protection Order.
Apply for the Order
You will fill out an application form. You are strongly advised to do this with the help of a lawyer.
Your lawyer will also write down your story and why you need a Protection Order in a sworn statement (affidavit). At the same time you can also apply for a Property Order to give you possession of the house and/or furniture. Both the application and the statement will then be given to the Family Court, which will respond very quickly (normally on the same day) to your application.
Can a child apply for a Protection Order?
Children can now apply for their own Protection Orders (with the help of an adult). Your nearest Family Court, Community Law Centre, Children and Young Persons' Service office, social worker or guidance counsellor can help.
"I stayed because I couldn't afford a lawyer."
If you can't afford to pay, you should ask for free Legal Aid.
Applications in the Family Court
Appearing in Court
The Judge will read the application and, in many cases, make a decision without seeing the applicant. Sometimes the Judge will ask to see the applicant (with their lawyer or others who are helping).
The Family Court has an informal atmosphere - for example, the Judge doesn't wear a gown or wig. If something isn't clear, just ask - after all, everyone is there to help.
Will a lot of strangers be watching?
No. It's not like a District Court or High Court. There is no jury. Only Court officials and those supporting will be there. Family Court staff and Family Court Coordinators are trained to deal with families. Anyone coming to the Family Court will find the people there sympathetic, helpful and understanding. As well as a lawyer, the applicant can have a friend or family member there for support.
How long does it take to get an Order?
Almost always the Protection Order will be made the same day. Often it will be made within minutes of the application reaching the Family Court.
The Court's job is to be fair to both parties. There are therefore opportunities for the respondent to apply to the Court and to have their side of the story heard.
Will the respondent be present?
Most of the Orders made by the Family Court are made without notice - which means without the person named in the application (the respondent) being aware of it.
Sometimes, however, the Judge will direct that the respondent receives notice of the application. Where this happens, the Judge will normally give the person a short period of tirne (say 24 hours or a few days at most) to file a written defence. If a defence is filed, the Court will then hear each side and make a decision. However, in the majority of cases the Court will consider the application serious and urgent enough to make a Protection Order immediately.
How does the respondent find out about the Protection Order?
Once the Order is granted, things happen quickly. The Orders are typed up at the Court and copies are made. The applicant, their lawyer or anyone helping can pick up one copy. An agent of the Court (a bailiff, perhaps with the Police) will visit the respondent and will give them a copy of the Protection Order. They will often explain what the Order means and what will happen if the respondent disobeys the Order.
Another copy of the Order will also be sent to the Police station nearest the applicant, so they are aware of the Order.
How long is a Protection Order for?
When an Order is made before the respondent is given notice, it is temporary and runs for three months.
- If the respondent does not defend it, the Order will automatically become final after the three months is up and will stay in force permanently. The applicant can choose at any time to ask the Court to cancel the Order.
- If the respondent objects to the Order and defends it, a hearing date will be set by the Court and the applicant will be told about it. The Court will then consider both sides.
"I was in a relationship for nine years and each year he whittled away bits of me so that by the end there was nothing left of me."
The vast majority of victims who stand up to family violence go on to positive non-violent relationships.
What does the Protection Order say?
"A protection order could totally change your life. You could, for example, lose contact with your partner and children. For that reason you should see a family lawyer immediately."
Ann Wilson, family lawyer.
Family Court Protection Orders have standard conditions but they are also flexible enough to deal with individual situations. Some of the conditions the respondent must follow are listed below.
Non-violence conditions
The respondent:
- must not physically, psychologically or sexually abuse or threaten the applicant or their children
- must not damage or threaten to damage the applicant's property
- must not encourage anyone else to physically, sexually or psychologically abuse or threaten the applicant or their children
Programmes
In most cases, the respondent will be required to attend a Court-appointed stopping violence programme to help them live without violence.
Firearms conditions
When a temporary Protection Order is made, the respondent must hand in any firearms within 24 hours - or earlier, if required by the Police. Their firearms licence will also be suspended. If the respondent has access to firearms or weapons, the Police, the Court or the applicant's lawyer must be told. Once the Order is made final, their firearms licence will be revoked unless the respondent has satisfied the Court that the applicant will be safe.
Non-contact conditions
The Order will include non-contact conditions which the respondent must follow. The applicant, however, can choose to agree to contact. Standard non-contact conditions include that the respondent must not:
- come to the applicant's home or onto the applicant's property
- hang around the neighbourhood
- try to stop the applicant, their children or those close to the applicant from coming or going
- phone, write or fax or in any way contact the applicant unless it is an emergency, there is written permission or they are both asked to attend a family group conference
Non-violence conditions apply in every case. Non-contact conditions apply when the parties are living apart.
If you are the respondent
If you are named in a Protection Order, the consequences could be very serious.
- It will affect the contact you have with your partner and your children, if you have any.
- It may, in some cases, mean you have to move out of the house.
- In other cases, it may mean that your partner or family member can take furniture from the house.
- If you have a firearms licence, it will be suspended by a temporary Order and you will be required to hand over any firearms or weapons. If the Order is made final without modification, your firearms licence will be revoked.
- You will probably be required to attend a programme to help you learn to live without violence.
Receiving the Order/Application
A bailiff, a police officer or some other agent of the Family Court will give you a copy of the temporary Order and other papers. Sometimes, an application for an Order will be made on notice and you will receive a copy of the application before an Order is made.
Your rights
Because the consequences of a Protection Order are so serious, the law gives you the opportunity to oppose the Order or application or to challenge any of the alleged facts or special conditions. The procedure for doing this varies depending on whether you have received a temporary Order or an application on notice.
Deciding what to do
Whether you accept responsibility for the family violence or you totally disagree with the allegations, it's important you clearly understand what a Protection Order means and what could happen as a result.
Find a lawyer - preferably one who is familiar with family law and the Family Court. He/she will help you understand the Order or application and its consequences. Together, you can then work out what the next step should be. Do you wish to deny the allegations? Do you accept the allegations but want to learn to live without violence?
Defending the Order/Application
Temporary order. Where the Court makes a temporary Order, you are entitled to challenge whether a final Order should be made. A lawyer can help you prepare your statement. You or your lawyer will then notify the Court, which will set a hearing date. If you don't file a defence the Order will become final three months after the date it was made.
Application on notice
If the application is served on you before an Order is made, you will have an opportunity to present your case to the Court before it decides whether to make an Order. A lawyer can help prepare your defence. If you don't file a defence and don't appear at the hearing, the Court can make a final Order in your absence.
Free Legal Aid
If you cannot afford to pay, you should talk to your lawyer about Legal Aid.
If you are the applicant
Contact with respondent
If you want to have contact with that person - for example, you want to continue living with them - the non-contact conditions are suspended.
Special conditions
You can work with your lawyer or the Family Court to get special conditions - for example, what happens when you pick up or drop off the kids.
Support programmes
You and your children can, free of charge, attend special, Court-approved programmes that will help you deal with your situation. These programmes will help you and your children deal with emotional turmoil and help you keep safe and in control of your life. Ask your lawyer or Family Court staff how to apply.
Do I have to move out of home?
One of the real fears people have about standing up to violence is that they will end up with nowhere to live. Talk to your lawyer about whether you need to get a Property Order in addition to the Protection Order so you can stay in your home.
Do I lose all my furniture if I decide not to go back to the house?
No. If you move out of a house because of violence, a Furniture Order may state that you can take furniture from your old home to set up a new home. The Police can be asked to accompany you to collect the furniture. Talk this over with your lawyer.
What if I change my mind and don't want the Order any more?
Getting a Protection Order doesn't mean that you've made a decision that's set in concrete. It doesn't necessarily mean you have completely ended the relationship. If you choose to, you can have a Protection Order and still be living with that person.
At any stage, you can let the person back into your life, in which case the non-contact conditions of the Protection Order will be suspended - but not the non-violence ones.
You can also apply to the Court to have the whole Order discharged.
What if helshe starts abusing me again after I stopped/suspended the non-contact conditions?
Whether you live together or not, you are always protected from violence by the Protection Order. Once you've got a Protection Order, the non-contact conditions automatically come back into force if you ask the respondent to leave. Remember: the respondent is only allowed contact with your express consent.
Custody and Access
Who will get custody of the children?
By law, both parents have custody rights unless the Court says otherwise. If there is a risk that one partner will take the children away or harm them, the other can ask the Court for sole custody. This would mean making a separate application to the Family Court. When there is proven violence, the Court usually will not allow the violent person to have custody.
Will the respondent be able to visit the children?
Sometimes yes, sometimes no. A custody or access order issued by the Court will outline when visits can occur. When there is proven violence, the Court usually will not allow the violent person to have unsupervised access to children. Any costs of providing supervised access are to be paid by the person seeking access, usually the respondent.
If a parent can only have supervised access to the children, it is very important to tell the school, day care centre and other caregivers about the Order and exactly who is allowed to visit or take the children away.
What happens if the abuse doesn't stop
"Marriages and other relationships are about love and respect, not violence. The law sees domestic violence as an abuse of human rights."
Hon. Douglas Graham, former Minister of Justice.
People often want to give their violent partners another chance and let them back into their lives. Sometimes it works; sometimes it doesn't. It's your right to choose and the law respects that. If you give it another chance and the violence starts again, tell your partner that the non-contact conditions are on again (the non-violence ones can never be suspended). All the original conditions immediately come back into force and the abuser must immediately leave you alone. If that doesn't happen, call the Police.
What happens if he/she hassles me but isn't physically violent?
If you have a Protection Order, you have specific protection from any physical, sexual or psychological abuse (and that includes threats or harassment). The Police policy is to arrest a person who breaches a Protection Order. They will be dealt with in a criminal Court, not the Family Court.
What are the penalties for breaches of a Protection Order?
The Court will give highest priority to the victim's safety when considering bail applications. Where there is evidence that a breach of a Protection Order has occurred, the person will be arrested and cannot be bailed by the Police for 24 hours.
The maximum penalty for breach of a Protection Order is six months in prison or a $5000 fine. The penalty increases to two years in prison where three offences are committed within three years. If other serious crimes of violence are involved, the penalties could be even more serious. A breach includes failing to attend a stopping violence programme.
How to serve a Trespass Notice
You can print your own Trespass Notice and serve it on someone.
People who can help
Most are listed at the front of the phone book (white pages) under Emergency Services or Personal Help Services. Prepare a list of numbers for your area.
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Age Concern |
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Citizens Advice Bureau |
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Shine - Safer Homes In New Zealand Everyday Services |
www.2shine.org.nz |
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Family Court |
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Maori Women's Welfare League |
See the Yellow Pages. |
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Police |
www.police.govt.nz |
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Rape Crisis (Auckland) |
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Victims Support |
www.victimsupport.org.nz |
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Women's Refuge |
Chch www.womensrefuge.co.nz |
See also: Church groups, your family doctor, or your family lawyer.