Let's Talk Law: Preserving Your Safety

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Comment:

Having the ability to protect yourself and your family from physical harm can be taken for granted.

However, in New Zealand almost half of all homicides are committed by a person who is identified as a family member of the victim.

It is a sad fact that a staggering one in three women in New Zealand experiences violence from a partner in their lifetime.

If you are wanting to leave an unsafe relationship, it is worth talking to a lawyer who could assist you by applying for a protection order under the Family Violence Act (the "Act").

A protection order gives someone protection from any contact by a specified person. This includes direct contact or indirect contact, for example through social media. A protection order will extend to any children of the protected person.

If you are applying for the protection order you become the "applicant". The person responding to the order is called the "respondent". There are two ways an individual can apply for a protection order.

The first is to request a protection order through an on-notice application to the Family Court.

An on-notice application gives the respondent an opportunity to formally respond before the court decides whether to make the order. This process can take a number of months.

The second way to request a protection order is through a without notice application to the Family Court. The application will go straight to a judge to consider making a temporary protection order.

If successful, the temporary order remains in place until the court decides whether to make a final order. The applicant will usually be notified that same day if the temporary order is granted.

To be eligible for an order, the applicant must prove the following matters:

1. That there is a family relationship. This is defined as a partner, family member, someone who ordinarily shares a house or has a close personal relationship to the applicant.

2. That violence occurred within that family relationship. The Act includes physical, sexual, psychological and financial violence. Intimidation, harassment and threats of abuse are recognised as violent behaviour.

3. That the order is necessary to protect the applicant from ongoing and future violence or abuse.

4. In the case of a without notice application, that the delay in applying for an on-notice protection order would or might cause undue hardship or a risk of harm to the applicant and/or their children.

It is important that the applicant is open about the violent events she or he has experienced at the hands of the respondent, as difficult as it may be to express.

A without notice application does not give the respondent a chance to put their evidence to a judge. The judge will simply read the applicant's affidavit and make a decision.

Because the respondent has no chance to respond, the applicant must disclose all relevant information, even if it is not advantageous to their application. This disclosure can include the applicant's drug use, alcohol use, criminal history and whether the applicant has been violent themself.

If granted a temporary protection order, the respondent will have three months to respond. Once a response is filed in court, the matter must then be heard quickly.

If the respondent does not respond, the temporary protection order becomes final automatically. If the respondent responds they have the right to dispute the applicant's allegations.

Circumstances can change while the court process plays out. Respondents to protection orders are required to complete a violence programme.

Serious issues that arise in and around separation can sometimes dissipate. If the applicant is comfortable with it, proceedings can be settled with the respondent giving an undertaking (a legal promise), not to behave violently.

This can avoid the need for a hearing, which is not always in everyone's best interests to go through with. Such an undertaking can include, but not be limited to, agreeing not to contact the applicant at work or home, and not to text, message or snapchat the applicant.

There are other orders an applicant can request to make the move from an unsafe home as smooth as possible. For instance, an application for a protection order may be accompanied by an application for a parenting order.

A parenting order determines whose care the children should be in. If violence has been involved, then a parenting order can be made without notice in the same way.

A furniture order allows the applicant to have possession of some or all of the furniture, household appliances and household effects from a house they have shared with the respondent.

An occupation order gives the applicant the exclusive right to live in a in a property that either the applicant or respondent owns or has a legal interest in.

The effect of the occupation order is that the respondent must move out, even if they are the sole owner. An occupation order can be made even if the applicant has moved out of the property.

The judge needs to be satisfied that the occupation order is necessary to protect the applicant and that the order is in the best interests of the children of the family. When deciding whether to make the order the judge must consider the reasonable accommodation needs of everyone who might be affected by the order.

If living in a rental property, the applicant can apply for a tenancy order which gives the applicant the right to live in any place that they and the respondent have been renting together.

This can occur even if the respondent is named as the sole tenant on the tenancy agreement. The tenancy order effectively makes the applicant the sole tenant. The respondent no longer has the right to live there. However, a tenancy order cannot be granted if other people are also tenants of the property.

In 2008, the Court of Appeal summed up the then Domestic Violence Act as being "concerned with providing protection from domestic violence quickly and inexpensively".

There are legal options that can be explored for individuals who are looking to leave an unsafe environment.

Genevieve Harrison is one of the law column writers from Treadwell Gordon