The Domestic Violence Act 1995 marked a new era in dealing with family violence when it came into force on July 1 in 1996. It is the primary legal weapon for fighting family violence. It overhauled the Domestic Protection Act 1982 and set out how victims of family violence could obtain protection orders. It amends the Guardianship Act, 1968, tightening its guardianship and custody provisions, giving children greater safety, particularly if allegations of domestic violence are made in custody and access cases.
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 broadens the scope of who can apply for legal protection from domestic violence as well as the behaviour recognised as domestic violence. 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 nonviolence 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 legal aid is not available, the lawyer’s costs will depend on how much time is entailed and how complicated it is. You could expect to pay from $500 to $1500. Ask the lawyer how much it is likely to cost. There are no other costs such as court fees. 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.
The forms can be handwritten – they just have to be neat and easy to read.
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; • making threats; • damage to property; • physical violence. 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. Old domestic protection orders (for example, non-violence and non-molestation orders) that existed before July 1, 1996, automatically became protection orders under the Domestic Violence Act, 1995. That meant a person with an old order did not have to reapply. 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.
Children and the domestic violence act.
The Domestic Violence Act beefed up protection for children (see also Hitting children – section 59 in this publication). Children under 17 can apply for protection orders in their own right through a representative. A child can also be included in their parent’s application for a protection order. The Act aims to keep children safe. If violence is proved, the court will not allow the violent person to have custody or unsupervised access, unless it is satisfied that the children will be safe. The court can allow supervised access in a safe situation with someone else around. The court will specify when the access can take place. The person granted supervised access will be responsible for any costs entailed.
In some areas, Barnardos run supervised access centres. Check to find out if there is a centre in your area. It is important to tell the school, day-care centre or other caregivers about a protection order so that the violent person cannot have access outside the court ordered arrangement. It is also important to say exactly who is allowed to visit or collect the children from school or day-care. If the parents of a child are married, or they were living together when the child was born, both parents have custody rights unless the court says otherwise. Make an application for sole custody if you are a parent who fears your partner will harm you or the children or take the children away.
Your partner will be ordered to attend a stopping violence programme. Occasionally the court might decide there are special reasons for them to be exempt. A programme is likely to entail sessions of two-three hours, usually in a group, for 30-40 hours. During the programme participants learn about: the nature and effects of domestic violence; how the Domestic Violence Act works; skills for dealing with conflict in a better way. Programmes are available free for protected people. It is up to the protected person to choose whether they want to attend a programme. The programmes support protected people to learn to live without violence.
The Police have a policy of arresting family violence offenders. For the Police, “family violence” includes: “… violence that is either physical, emotional, psychological or sexual. It includes people in all types of relationships; not just married couples, but those in de facto and homosexual relationships, children and other relatives of those directly involved in the abuse, flatmates or other people who share accommodation, and anyone in a close personal relationship.
It includes not only violence, but also intimidation or threats of violence, damage to property, and allowing a child to witness the physical, sexual or psychological abuse of a person with whom the child has a domestic relationship.” Police policy recognises that the protection of the victim is priority. Their aim when they are called is to stop the violence, ensure the safety of any children who might be present and organise support for the victims. Offenders will be held accountable for the violence by bringing them into the criminal justice system. When they investigate a case of family violence, Police will intervene immediately to stop any further domestic violence. Otherwise, they will proceed with standard investigation techniques that include taking photographs to illustrate injuries suffered; having the victim outline the complaint in front of the offender and noting his or her response; having the victim identify the offender and the nature of their relationship; noting the offender’s responses; arresting the offender and keeping them in custody.
These procedures are a necessary part of the Police investigation and might mean the victim can be excused from giving evidence in court. That’s the policy, and that’s how it is supposed to work. “We do our very best to put ourselves between the woman and the offender, so he is dealing only with us,” Lower Hutt Police family violence co-ordinator Senior-Sergeant Tim Castle says. “We try to take her out of the equation and proceed with prosecuting her violent partner, whether she complains or not – some women are just too frightened to lay a complaint because they are afraid of what the offender will do to her later.” This contrasts with earlier Police practice of prosecuting only if a complaint was laid.
But some women feel unable to break the cycle, Mr Castle says. “There’s the fear of breaking up the family, the fear of loss of security, sometimes there are pressures from relatives – hers and the offender’s. Some women will do anything to keep the family together. As a policeman I am constantly amazed at what some women will go through to keep the family together. Some cases go on for years. The assailant, if a male, will usually be charged with “male assaults female”. After three of those, he can expect to be a guest of Her Majesty for a while, and you’d expect that he might get the idea that he just can’t keep on doing that and that he should get help.
But many come out of prison and they just keep on doing it, picking up where they left off,” he says. If a victim takes out a protection order, the offender must, by court order, undertake a programme to help them deal with their violence. Offenders who have breached a protection order, or who are responsible for family violence offences, are arrested, unless exceptional circumstances exist. The arrest is to ensure the victim is made safe and has an opportunity to get help and advice without interference from the offender. The victim will usually be told if the offender is freed from custody. The Police will check the house for firearms and other weapons.
Where there are grounds for applying for a protection order, the Police will consider seizing any firearms or other weapons the offender owns or has access to, and also revoking his or her firearms licence. If the offender has breached a protection order, any weapons or firearms in their possession or control will be seized. Once the victim’s safety is established, the Police will normally arrange for help agencies to be called, whatever the hour.
In most areas, Women’s Refuge and Victim Support have 24-hour crisis lines that the Police can call. It means that a trained helper will call on the victim immediately to help calm the victim and advise what ongoing support is available. The Police will take the arrested offender to the local Police station to be charged. The offender will appear before a judge as soon as practicable. At the first appearance the offender will be asked to plead guilty, not guilty, or enter no plea.
If the plea is guilty the judge might sentence immediately or call for a probation or psychiatric report before sentencing. The accused person will be remanded in custody or given bail to wait for the report and a second hearing. The victim might be called to give evidence at a hearing, although the Police might have enough evidence without the victim having to appear. If you are in this position, make sure you take a friend or relative for support if you do have to attend.
Court volunteers, Victim Support groups and Women’s Refuge workers also offer practical help. The offender might be sentenced to supervision – where he or she must report regularly to a probation officer – and sometimes comply with special conditions such as attending a non-violence programme. Or the penalty could be a suspended sentence, periodic detention, or even a jail term. Be prepared: the offender, whether it is your partner, flatmate or whoever, might well resent the sentence. “Domestic violence is unlike any other offence,” Tim Castle says. “With other offences, such as a burglary, the offender comes, takes and goes, and might not be seen again. Or the burglar might not have been seen. Most people don’t have to face their assailant again. But a battered woman does. She’s constantly living with it – the fear, the offender, the pressures, especially the family pressure not to proceed.”
Don’t turn a blind eye.
Sometimes we know or suspect what’s happening. It could be:
- the woman wearing sunglasses that barely hide the black eye, explaining that she fell.
- the man who, fearing ridicule from his mates or co-workers, cannot confide that the burns on his arms came from his wife attacking him with a hot iron.
- the child with welts and bruises all over their body.
- the flatmate who is everyone else’s target for teasing that is malicious rather than just fun.
- the elderly woman who seems to have a lot of “falls” when a particular relative visits.
Victims can be good at hiding the signs of domestic violence in their homes. They might be ashamed, scared or too proud to say anything. Clues can be picked up from:
- non-specific complaints;
- depression that can’t be explained;
- taking more drugs or alcohol than seems normal;
- bruising or difficulty moving;
- excessive concern with housework or the relationship;
- isolation from people close to them;
- making last-minute excuses not to see people closer to them.
The signs of abuse in children can include:
- moodiness, irritability, excessive crying;
- loss of appetite and change in eating habits;
- changes in behaviour at school or towards other people, regularly missing school;
- personality changes;
- dirty appearance, wearing clothes not adequate for the climate;
- withdrawing into themselves;
- being afraid to go home, running away;
- undernourished and not taken to the doctor when ill;
- inability to concentrate;
- having unexplained fears – of the dark, of being alone, of specific people (relatives and friends), and of places such as the toilet or bedroom;
- sleep disturbances – nightmares, fear of going to bed or sleeping alone;
- being unsupervised for long spells.
Violence against children can also be indicated by signs of physical harm – bruises, burns, fractures, scalds or grazes. Injuries can be accidental, but if a child seems to be hurt often, the injuries are getting more serious, or there is something odd about them, then it could be abuse.
Emotional abuse is more difficult to see, and because emotional abuse doesn’t wear bruises or broken bones, we might not treat it as seriously as we do physical violence. Emotionally abused children might:
- tend to believe they’re bad and worthless;
- have problems getting on with others or be hard to live with;
- “shut off ” or become too good;
- have difficulty controlling their anger.
Sexually abused children might:
- complain of genital pain or irritation, or get infections and urinary problems;
- start doing something they’ve grown out of, such as crying, wetting or soiling their pants, or being “clingy”;
- indulge in inappropriate sexual play;
- give a coded message, or say straight out that they’re being abused.
Hitting children – section 59 of the Crimes Act.
The outdoor lifestyle, political stability, lack of terrorist threat and generally caring attitude of New Zealand provides an ideal environment for raising children. Many New Zealanders have returned recently from overseas because they want their children to grow up happy and confident, and free from fear. It is true that the vast majority of our children live in loving homes that are free from domestic violence. Sadly, that does not apply to all children in New Zealand. Some children are badly treated, and in the worst cases, the law has dealt with the adult offenders. However, until 2007, parents and carers who inflicted violence on their children in the name of discipline were often able to do so without fear of prosecution because they were allowed to if the discipline was “reasonable in the circumstances”. That all changed when The Crimes (substituted section 59) Amendment Act 2007 came into force in June 2007. The new law brought New Zealand into line with many other countries that ban physical punishment of children. Children in some other countries are not so fortunate – punishment continues to be sanctioned in schools and homes. The old section 59 provided a “statutory defence” – in effect an excuse – for parents or carers who were being prosecuted for assaulting a child. They could claim they were correcting a child’s behaviour. They had only to prove that the correction was “reasonable in the circumstances”. The amendment took away that excuse. Children who are victims of assault can now expect be treated the same as adults in the eyes of the law. The amended section 59 states: “(1) Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of – (a) preventing or minimising harm to the child or another person; or (b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or (c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or (d) performing the normal daily tasks that are incidental to good care and parenting. (2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction. (3) Subsection (2) prevails over subsection (1). (4) To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.” What this means is that any force used must not be for correction or punishment – it may only be for the purposes of restraint or, by way of example, to ensure compliance (s 59(1)(d)). It may be used to prevent or minimise harm to the child or another person, for example, to stop a child:
- running across a busy road;
- touching a hot stove;
- inserting a metal object into a powerpoint;
- striking or assaulting another child or person with an object;
- damaging or stealing property.
When the law was amended, Parliament expressly affirmed that for minor cases of assault against children, the Police would have discretion whether to prosecute where the offence was considered to be so inconsequential that there was no public interest in a prosecution. The use of objects or weapons to smack a child, strikes around the head or kicking are not considered inconsequential. And while smacking might in some cases be considered inconsequential, a prosecution might be warranted if the smacking is repetitive or frequent, and other interventions or warnings to the offender have not stopped the smacking. Police investigating cases where force is used against a child, as is the case with all assault investigations, consider the amount of force used in the circumstances, among other things, before making a decision about whether a prosecution is required. In other words, for minor cases of assault against children, Police can use their discretion about arrest and prosecution – just as they do when an adult assaults another adult. Many New Zealanders were concerned that the new law would allow prosecutions of people who lightly smacked a child occasionally. That has not happened. The cases that have been taken under the new law have been where the Police have considered the violence against children to be excessive or frequent.