Ex-Files with Jeremy Sutton: I’ve been served with a protection order - what are my rights?

The first step is to establish whether there has been any violence. Photo / John Borren

OPINION

Questions: I was recently served with a temporary protection order. I think it is unfair I was not given the chance to reply.

• What does the Family Court look at in deciding whether to make a final protection order?
• How long will it take to get a final hearing if I defend the case?
• Can I travel overseas for six months and ask the court to delay my case?
• Will the order affect my job applications?
• What are the immigration consequences of a final protection order?

Answers:

There are two stages. The first stage is to consider whether there has been violence. This could include psychological, emotional and physical violence and intimidation.

The second stage is to consider whether there is a risk to the victim. The judge will consider factors including whether there have been any breaches of the order, whether the respondent has done a relevant course, and any insight gained from the course. The test and criteria for discharging a protection order is set out in Section 110 of the Family Violence Act 2018.

The court needs to be satisfied firstly that there has been violence, and secondly that there is the risk to the victim. Has the violence occurred at the end of the relationship or has there been a pattern of behaviour throughout the relationship?

These family violence hearings are given priority. Due to the clogged court system, these hearings can take two to six months to be heard.

To travel overseas, you will need the consent of the judge. If you travel overseas without consent or the knowledge of the court, the case could be heard in your absence.

Employment consequences (job applications)

You are not obligated to voluntarily disclose the protection order during a job application process, unless it would affect your ability to perform the role (e.g. the person who obtained the protection order works at the same location). An employer can only ask you about protection orders if it is relevant to the role. If you are asked and the protection order is relevant to the role, then you do need to answer.

Immigration consequences

We have asked immigration specialist Alastair McClymont.

A person who holds a temporary-class visa in New Zealand (a visitor, work or student visa, for example) may become liable for deportation if Immigration New Zealand deems there is sufficient reason to do so, and those sufficient reasons include “other matters relating to character”, so a protection order could potentially lead to deportation of a temporary visa holder.

However, for New Zealand resident visa holders, deportation liability is triggered by a criminal conviction, not a protection order.

However, what must be kept in mind is that if a final protection order is granted to a partner who holds a temporary visa, and that partner then uses the final protection order to obtain residency under the family violence category, then the perpetrator of family violence will be prohibited from ever sponsoring a new partner for a partnership visa.

Applicants for New Zealand citizenship must be of “good character.” The Minister of Internal Affairs has the discretion to consider what constitutes good character, and it is therefore likely a final protection order will adversely affect an application for citizenship.

Conclusion

You need to be aware of the consequences of having a final protection order made against you.

It is important you receive specialist legal advice and support from friends and family in any family violence matter. You need to display insight, and this is helped by actively attending the relevant courses and demonstrating you are able to change your behaviour.

Jeremy Sutton is a barrister and family lawyer at Bastion Chambers.