THE DOMESTIC VIOLENCE ACT
The Domestic Violence Act 1995 marked a new era in dealing with family violence when it came into force in 1996. It overhauled the Domestic Protection Act 1982 and set out how victims of family violence could obtain protection orders.
A protection order is precisely that – a protection order. Issued by a court, it surrounds an applicant with a legal shield from the attentions of the violent person. The Domestic Violence Act sends a clear message that domestic violence is not acceptable and that people have the right to be protected from violence in their families and close personal relationships.
Who can apply?
Anyone can, if you and the violent person are or have been:
in a heterosexual or same-sex relationship;
family or whanau members;
flatmates or sharing accommodation;
in a close personal relationship.
You do not have to have lived together or have had a sexual relationship to be covered.
As well as getting protection from the violent person, you can apply for protection from another person (an associate) whom the violent person encourages to use violence against you.
A protection order automatically covers any children of the applicant’s family. You can also ask for the order to cover other people who are in danger from the violent person and their associates because of their relationship with you – for example, adult children, new partners, neighbours, friends and family.
The Act defines as domestic violence:
Physical abuse – for example, hitting, punching, kicking or in any way assaulting another person.
Sexual abuse – any unwanted sexual contact.
Psychological abuse – for example, intimidation, threats, mind games and harassment; damaging property to hurt someone; allowing children to see or hear any domestic violence; controlling someone’s money, time, contact with friends or family as a way of having power over them.
A protection order automatically includes non-violence conditions. The violent person must not:
physically, sexually or psychologically abuse the protected person;
damage or threaten to damage the protected person’s property;
encourage anyone else to physically, sexually or psychologically abuse or threaten the protected person.
A protection order will include non-contact conditions if the parties are not living together. These are that the violent person must not:
go to the home or workplace or onto the property of the protected person without his or her consent;
intimidate or harass the protected person;
hang around the protected person’s neighbourhood or workplace;
follow the protected person, phone, write, fax or in any way contact the protected person.
The exceptions to the non-contact conditions are when contact is:
reasonably necessary in an emergency;
permitted under a written access and custody agreement;
permitted under a special condition of the protection order;
necessary because of an invitation to a family group conference under the Children, Young Persons and their Families Act.
The non-contact conditions of the order are suspended if the protected person agrees to live with the violent person. If they stop living together the non-contact conditions come back into effect without having to reapply to the court. The non-violence conditions apply all the time and are not affected by living together.
A temporary protection order means that the violent person must hand any firearms or weapons to the Police within 24 hours (earlier in some instances). Their firearms licence will be suspended. Once the order is final their firearms licence will be revoked unless the court is satisfied that the protected person will be safe. A lawyer will ask a person applying for a protection order whether the violent person has any weapons or firearms.
Special conditions can be included in a protection order that are necessary to protect the applicant, such as excluding the violent person from attending the same church as the protected person, or that the violent person must pay the mortgage for a certain period of time, or conditions necessary to ensure safe access to the children.
How to apply for a protection order
Contact a lawyer. Make sure the lawyer specialises in family law and is experienced in domestic violence law. A women’s refuge will have a list of experienced domestic violence lawyers.
The lawyer will ask questions to prepare an application asking for a protection order and an affidavit or sworn statement setting out why the applicant needs the order. The lawyer will prepare all the papers. The papers will be signed by the applicant.
Then the lawyer will get the papers to the Family Court.
Legal Aid is available for protection orders. If the applicant is eligible (depending on income) they can receive free advice and representation from a lawyer. Even if someone thinks they might not qualify for legal aid, they should still check with a lawyer to be sure.
If custody and access matters are involved, it pays to see a lawyer.
Someone can apply for a protection order without a lawyer. This could be suggested where a person cannot get legal aid and the application is reasonably straight-forward and children and property are not involved.
Find out whether any community organisations offer a service to help you apply. Contact a women’s refuge or community law centre and find out how they can help. Contact the Family Court for copies of the forms and for advice about how to fill in the application forms and what other information is needed.
The documents the court needs are:
An information sheet.
A DV2 application form.
A DV3 affidavit form (an affidavit explains the facts about what has happened and supports the application by explaining why a protection order is needed). The affidavit should contain information such as the type of relationship it is, its length, history of the abuse and a description of any particularly serious or recent incidents of abuse. The affidavit needs to be signed by you and sworn in the presence of a lawyer or court registrar.
A DV4 form if the address and telephone number are to be kept confidential.
A DV5 notice to the Police form.
Getting a protection order
An urgent protection order application can be prepared, processed and granted on the same day or at least within 36 hours.
This will be done without notice – meaning, without the other person knowing about the application until after the temporary protection order is made. Such orders are temporary. The other person has three months from the date of the temporary protection order to file a defence to the protection order application.
An undefended temporary order automatically becomes final after three months from the date of the temporary protection order. A final order can be discharged (cancelled) only by a judge.
In most cases a judge will consider the urgent application for a temporary protection order without a court hearing.
An applicant would most likely have to appear in court if the application was made on notice to the other person because the situation was not so urgent or if there was a defended hearing.
If a defence is filed there will be a hearing in the Family Court before a judge. The judge will hear from both parties, then make a decision.
A notice of residential address and request for confidentiality form (DV4) can be completed. This means the courts will act to ensure the violent person cannot find out the protected person’s address or phone number from the court documents or the file.
The court must have an address for service where court documents can be delivered. This might be the address of the applicant’s lawyer. If the applicant does not have a lawyer, they will need to supply another address where documents can be served.
After the judge has granted the order, the violent person will be served with (given in person) a copy of the protection order by a court bailiff, private service agent or possibly the Police.
The Family Court will send a copy to the Police station nearest to the applicant. The order comes into effect immediately and the Police can be asked to intervene.
The violent person does not have to know about it before it can be used. They just can’t be charged with a breach of the order until they have been served.
Once an order has been granted, the violent person has to comply with its conditions. If they don’t, they can be charged with breaching the protection order.
A breach of a protection order is a criminal offence. The Police can arrest the violent person and hold them for 24 hours before releasing them on bail. If charged with a breach, the violent person will have to appear in the criminal court.
If convicted, they could receive a prison sentence and/or a fine. If the order is breached three times in three years, the violent person could go to jail for up to two years, as well as be fined.
Some examples of breaches are:
ringing work or home;
coming around to the house;
sending presents or flowers;
visiting the children at school;
damage to property;
In other words, a breach is anything the protection order’s conditions prohibit.
It is important to report all breaches to the Police, even what appear to be minor ones. If the Police know about a series of minor breaches it builds up a picture of what is happening. One incident on its own might not look serious enough to take action, but a lot of similar incidents over a time could have a serious effect on the protected person.
Encourage people to keep records of any breaches and also contact their lawyer or women’s refuge if the order is breached.
Someone applying for a protection order should also consider applying for orders to give them the right to stay in their home and keep or take some of the furniture and household items.
An occupation order gives the protected person the exclusive right to stay in the family home.
A tenancy order gives the protected person the sole tenancy of the rented house or flat.
An ancillary furniture order can accompany a tenancy or occupation order. This allows the protected person the right to keep particular furniture and household items.
Even if the protected person decides not to apply for an occupation or a tenancy order, they can apply for a furniture order that gives the protected person the right to take with them specified furniture and household items.
The Police can be asked to help the protected person to collect and remove furniture and household goods.