How to obtain a protection order under the Domestic Violence Act

Introduction

Applications for protection orders against domestic violence are made to the Family Court.

The relevant Act, the DOMESTIC VIOLENCE ACT 1995, is very broad, both in the types of relationships it applies to and in the type of behaviour it protects against.

Who can apply for a protection order?

You (the "applicant") can apply for a protection order against someone (the "respondent") who is being violent or abusive towards you if that person is:

  • your husband or wife, or your civil union partner or de facto partner
  • a member or your family or whanau
  • someone who ordinarily shares a household with you (such as a flatmate)
  • someone with whom you are in a close personal relationship

A boyfriend and girlfriend may well be in a "close personal relationship", even if they don't usually live together. But a close personal relationship doesn't have to be a sexual one. In deciding whether a close personal relationship exists, the court will consider:

  • the nature and intensity of the relationship (in particular, the amount of time you spend together, and where and how you usually spend that time), and
  • the length of the relationship

Although generally applications under the Act are made by women against men, a man can apply for protection against a woman or another man.

If you are not covered by the DOMESTIC VIOLENCE ACT 1995, you may be able to take action under the HARASSMENT ACT 1997 (see How to stop harassment).

What kinds of behaviour can I get protection from?

You can obtain protection under the DOMESTIC VIOLENCE ACT 1995 from any of the following types of behaviour:

  • physical abuse – such as hitting or shaking
  • sexual abuse – rape or any kind of non-consensual sexual contact
  • psychological abuse, such as:
    • intimidation or harassment – for example, shouting, insults, controlling where you go or how you spend your money
    • smashing objects in your presence
    • making threats

The Act therefore gives protection against a wide range of behaviour. If there is no direct physical abuse, the court will look to see if you are being threatened, intimidated, harassed or controlled by someone who is in a more powerful position in the relationship.

A series of acts that appear small and trivial when looked at one by one can amount to domestic violence when taken as a pattern.

How do I apply for a protection order?

You make an application for a protection order to the Family Court.

Frequently applications are made for temporary orders, which take effect immediately. These are called applications "without notice" (or "ex parte" applications), because the respondent doesn't have to be given notice of your application before the order takes effect.

To obtain a temporary order you will have to satisfy the judge that there will be hardship or risk of harm to you or to your children if the temporary order isn't made. It is therefore particularly important in preparing your application that you present all the relevant information. The Family Court will act swiftly in preparing an order, and one will usually be granted within hours. If the respondent doesn't contest the temporary order, it automatically becomes permanent after three months.

If you apply for a full protection order rather than a temporary one, your application is made "on notice", which means that no order takes effect until after the respondent is served with notice of your application and until after the respondent has decided whether or not to oppose the application. If the respondent does decide to oppose it, or simply wants to be heard by the Family Court, there will be a hearing before a Family Court judge, who will decide whether or not to grant the order.

What effect does a protection order have?

Protection orders contain standard "non-violence conditions" that apply in every case, and also "non-contact conditions" that apply unless you agree to the respondent living with you.

The non-violence conditions prevent the respondent from:

  • engaging in physical, sexual or psychological abuse towards you or any other person protected under the order (which automatically includes your children), or threatening to do this
  • damaging your property, or threatening to do this
  • encouraging other people to do any of these prohibited things

The non-contact conditions prohibit the respondent from doing things such as:

  • watching or hanging around your home or workplace
  • following you around
  • phoning or writing to you (except in emergencies or other excepted situations)

The court may also impose additional conditions, depending on your circumstances. The court is flexible in drafting an order that will give you the fullest protection that you need.

The respondent is not allowed to have a firearm, nor hold a firearms licence. You should therefore inform the court if you know the respondent has a firearm.

Protection of children

All the conditions of the order apply to your children in the same way that they apply to you. If the non-contact conditions apply, the respondent can't have contact with the children unless the court specifically allows this, in which case contact will generally be supervised.

The CARE OF CHILDREN ACT 2004 specifically deals with where a parent has applied for a parenting order to be given day-to-day care of or contact with a child and one of the parents has been violent towards the child or the other parent. In that case the court will not grant the violent person day-to-day care or unsupervised contact with the child unless it's satisfied the child will be safe. (Day-to-day care used to be called "custody" and contact used to be called "access". Parenting order is the new name for a custody or access order.)

What happens if the respondent breaches the order?

If the respondent breaches the protection order you should complain to the Police, who can then arrest the respondent without a warrant. If the Police charge the respondent, the respondent can't be given bail for 24 hours after the arrest.

Any breach of an order will make the respondent liable for a penalty of up to six months' imprisonment or a fine of up to $5,000. The penalties are even more severe if this is the respondent's third (or subsequent) conviction for a breach within three years.

What if I need to leave the family home immediately?

If you and your children need to leave your home immediately, you should contact the nearest Women's Refuge (see the "Personal Help Services" section of the telephone directory).

When you apply for a protection order you can also ask the court to make an "occupation order" or "tenancy order", giving you the right to live in the family home and prohibiting the respondent from living there.

Cautionary notes
  • You cannot get a protection order if the person committing the violence or abuse is under 17 and has not been married or in a civil union or de facto relationship. In that case you should contact the Department of Child, Youth and Family Services.
  • A lawyer will help you apply for a protection order and will ensure that the process is as quick as possible. If you cannot afford a lawyer you may be able to get civil legal aid (see How to obtain civil legal aid).


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