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From 1 July 2019, changes are being made to all Protection Orders, including those made before this date. The Family Violence Act 2018 repeals and replaces the Domestic Violence Act 1995 and modifies the Care of Children Act 2004 as part of ongoing efforts to tackle domestic violence issues in New Zealand with the aim of providing faster, more effective protection for protected persons and increasing accountability and compliance by respondents.
If you already have a Protection Order or one has been made against you, or if a Protection Order may be made in future, it is important to be aware of the changes taking effect on 1 July 2019.
1. Types of Violence
When making a Protection Order, the Family Court must find that there has been domestic violence, whether physical, psychological, sexual, financial or other violence. The new Family Violence Act 2018 expands prohibited behaviours to include:
2. Consenting to Contact
If a protected person wants to have contact with the respondent, the new law requires the protected person to tell the respondent in writing (message, text, email, letter) that they consent to contact. It is advisable for the protected person to say what kind of contact they consent to. Contact could include communicating with, living with or visiting the respondent. Unless consent has been explicitly given, any contact, whether initiated by the protected person or respondent, is a breach by the respondent and they can be arrested.
After consent has been given, the protected person can change their mind at any time and withdraw consent. The respondent must be told, but it does not need to be in writing.
However, if the Protection Order has special conditions restricting contact, such as no-contact between the protected person and respondent or supervised contact with a child, then these must be followed and cannot be overridden by giving consent.
3. Property Orders
When making a Protection Order after 1 July 2019 the Family Court will automatically make one or more Property Orders to provide the protected person with stability and continued access to their accommodation, belongings, childcare, education and employment, for instance, so they are not held back by the violence they have suffered. Property Orders include Occupation, Tenancy, Furniture and Ancillary Furniture Orders. A breach of a Property Order is a breach of a Protection Order.
4. Children
The Family Violence Act 2018 defines a child as a person under 18 and a child between 16-18 may apply for a Protection Order, whereas the age for both was previously 17. A Protection Order can also be issued against a child between 16-18 in special circumstances. When a child under 18 is involved, the Family Court can involve Oranga Tamariki.
A Protection Order automatically covers children living with the applicant, including those born after the Protection Order is made. Children are still covered after they turn 18 if they remain living with the applicant. An applicant can also ask for children not living with them to be covered.
In addition, the new law gives Family Court Judges the power to make a Temporary Protection Order (in place for 3 months) when considering matters under the Care of Children Act 2004, even if the applicant has not specifically applied for a Protection Order under the Family Violence Act 2018.
5. Transfer of Information Between Criminal and Family Courts
If you have faced or are facing criminal proceedings, information can now be shared between the criminal and family jurisdictions. The Family Court can request criminal information when making decisions about the safety and wellbeing of an applicant, their child and family in care of children and domestic violence matters, just as the criminal Courts can request family information when making bail or other decisions for a respondent appearing on family violence charges.
6. Police Safety Orders
The Police can now make Police Safety Orders of up to 10 days, extending the previous 5-day maximum. If a Parenting Order is in place when a Police Safety Order is issued, the Parenting Order is suspended for the duration of the Police Safety Order. This means the respondent cannot enforce their day-to-day care or contact rights until the Police Safety Order expires.
7. Overseas Protection Orders
A Protection Order that was or is made overseas for a protected person, whether they live in New Zealand or in another country, can be registered in New Zealand or overseas enforcement can be sought for New Zealand Protection Orders abroad.
If you are seeking advice or any questions or concerns about this topic, please contact:
Alissa Bell (abell@mcveaghfleming.co.nz) or ph (09) 415 4477 for our Albany Office.
See our Expertise pages
© McVeagh Fleming 2019
This article is published for general information purposes only. Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice. If you require specific legal advice in respect of any legal issue, you should always engage a lawyer to provide that advice.
