Domestic Violence and Protection Orders

by The FindLaw Team

Domestic violence unfortunately does occur, and parties who are victims need legislative support mechanisms that exist through our courts, primarily through the provision of protection orders.

Previous domestic violence laws covered only heterosexual couples. The situation has changed, and the latest statute has reflected this by protecting same sex relationships, de facto couples, and a broad range of family/ whanau members outside of marriage.

What is domestic violence?

The Domestic Violence Act 1995 in New Zealand can be used by anyone who is suffering from domestic violence. The Act is specifically designed to protect someone in a domestic relationship from violence towards them in that relationship.

Domestic violence is defined in the Act in s 3 to include physical, sexual and psychological abuse against any person by another person with whom the person is or has been in a domestic relationship.

The s 3 definition of domestic violence is an objective test

Who can make a complaint of domestic violence?

A person who is or has been in a domestic relationship with another person can apply to court for a protection order in respect of that other person. “Domestic relationship” is defined in s 4 to include a person who is a spouse, partner or family member of the other person or who ordinarily shares a household or has a close relationship with the other person. The category of people covered in such domestic violence legislation is broad and covers people who are, or were in intimate relationships, regardless of whether or not they lived with each other or not. For purposes of determining whether a person has a close personal relationship with another person, the courts will have regard to the nature and intensity of the relationship as well as the duration of the relationship. It should also be noted that it is not necessary for there to be a sexual relationship between the persons.

What if a victim is under 18?

In New Zealand, a person under 16 years of age can only make a direct complaint in relation to domestic violence and take out a protection order through a representative according to the rules of court. However, a person aged 16 years can, subject to certain exceptions, apply on their own behalf or through a representative, while a 17 year old person can, subject to the same exceptions, make the complaint and apply for the order on their own behalf, and orders may be enforced as if the person were of full age.

What orders can be made?

Protection orders require that the party who an order is taken out against, will neither be violent or abusive towards the aggrieved party, nor come into contact with the aggrieved party unless the aggrieved party agrees to such contact. In addition, the party against whom the order is taken out will be required not to have any weapons. An order automatically applies for the benefit of any child of the aggrieved party’s family. The party who an order is taken out against may also be required to attend a programme, for example in anger management. Special conditions can also be imposed to regulate the contact between the party who an order is taken out against and any children of the relationship. The aggrieved party may also apply for an occupation or tenancy order, which would allow the aggrieved party to keep living in their home; or a furniture order, which would allow furniture from an old home to be taken to help in setting up a new home.

How to make an order to prevent family violence

There are a number of ways that a domestic violence order can be made. If there has been an instance where violence has occurred, and the police have been called, if the matter is pressing, the police can make an immediate order on your behalf if there are reasonable grounds to believe that such violence has occurred or may occur. However, the most common way to obtain an order is to go to the local Family Court, a lawyer, community legal centre or a welfare service provider who can help. Also, any order made in Australia and New Zealand protects individuals throughout both countries. Finally, if there is already an order in place relating to access to children for example, the courts may be able to vary the order that may lessen the impact of the party suffering from family violence.

There are numerous issues that individuals need to address when dealing with domestic violence. For anyone that needs assistance, please seek legal help.

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