How you can get a Protection Order
Here's how to go about getting a Protection Order from the Family Court. There are three important steps you need to take:
- decide to act
- find people who will help
- apply for the Order.
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; 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 111 and ask for the Police. They will respond immediately.
If the danger is not immediate, there are other organisations that 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, Police, the Ministry for Vulnerable Children, Oranga Tamariki (formerly Child, Youth and Family), Women's Refuge, Stopping Violence Services, your lawyer, Victim Support, and many other government and community organisations.
The Court takes applications for Protection Orders very seriously. The vast majority are granted immediately.
A list of community organisations that can help you can be found at the front of the phone book (White pages) under Emergency Services or Personal Help Services. Organisations such as the Women's Refuge can help women in many ways. They may:
- arrange to pick you up if you don't have money or a car
- arrange emergency accommodation for you and your children if you need to get out of your home
- discuss the choices you have and the different kind of legal, housing and financial assistance you can get
- provide you with information on how the system works - the Police, the Family Court, Legal Aid, etc
- quickly arrange an appointment with a lawyer
- support you in applying for a Protection Order.
Other organisations, such as Work and Income, 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 can help you find one.
Family Court – 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, which you are strongly advised to do 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.
Children can apply for their own Protection Orders (with the help of an adult). Your nearest Family Court, Community Law Centre, the Ministry for Vulnerable Children, Oranga Tamariki (formerly Child, Youth and Family) office, social worker or guidance counsellor can help.
If you can't afford to pay, you should ask for free Legal Aid.
Applications in the Family Court
Appearing in the Family Court
The Family Court 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 wig. If something isn't clear, just ask – after all, everyone is there to help.
The Family Court is 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?
The Protection Order will almost always 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. This means without the person named in the application (the respondent) being aware of it.
Sometimes the Judge will direct that the respondent receives notice of the application. Where this happens, the Judge will normally give the person a short 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?
Things happen quickly once the Order is granted. 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 are 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.
What does the Protection Order say?
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.
- 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.
In most cases, the respondent will be required to attend a Court-appointed 'stopping violence' programme to help them live without violence.
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.
The Order will include non-contact conditions which the respondent must follow. The applicant 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.
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 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
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.
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.
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 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 he/she 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 that 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.
If the abuse doesn't stop
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). 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.
A breach includes failing to attend a 'stopping violence' programme.
The maximum penalty for breach of a Protection Order is three years in prison. If other serious crimes of violence are involved, the penalties could be even more serious.
A restraining order is similar to a protection order except that it falls under the Harassment Act and applies where there isn't a domestic relationship. More information on restraining orders may be found on the communitylaw website.