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Domestic violence laws in Australia

10. New Zealand: Domestic Violence Act 1995 (NZ)

2.10.1. In New Zealand, the principal legislation relating to protection orders in the domestic violence context is the Domestic Violence Act 1995 (NZ) (the NZ Act).

Objects of the NZ Act

2.10.2. The object of the NZ Act, as described in s 5(1), is to reduce and prevent violence in domestic relationships by:

  1. Recognising that domestic violence, in all its forms, is unacceptable behaviour; and
  2. Ensuring that, where domestic violence occurs, there is effective legal protection for its victims.

2.10.3. Section 5(2) states that the NZ Act aims to achieve that object by:

  1. Empowering the court to make certain orders to protect victims of domestic violence:
  2. Ensuring that access to the court is as speedy, inexpensive, and simple as is consistent with justice:
  3. Providing, for persons who are victims of domestic violence, appropriate programmes:
  4. Requiring respondents and associated respondents to attend programmes that have the primary objective of stopping or preventing domestic violence:
  5. Providing more effective sanctions and enforcement in the event that a protection order is breached.

Protection orders: Overview

2.10.4. Under the NZ Act, a court may make, on application, a protection order (PO) (s 14). A PO is an order for the protection of a person against someone with whom the person has or has had a ‘domestic relationship’. (The meaning of the term ‘domestic relationship’ is explained in paragraph 2.10.9 below. ) In the NZ Act, a person who is to be protected by a PO is called a ‘protected person’, and the person against whom the order is made is called the ‘respondent’ (s 2).

2.10.5. If no notice of the application for the order has been given to the respondent, a temporary PO can be granted. A temporary PO becomes final after 3 months if it has been served on the respondent, and the respondent has not sought a hearing. A final PO can be granted by the court if notice of the application is given to the respondent, or if a hearing is held before a temporary PO becomes final.

2.10.6. A temporary PO, while it remains in force, has the same effect as a final PO.

2.10.7. The NZ Act also include provision for the making of orders relating to property: occupation orders, tenancy orders and furniture orders (Part 3).

Who can make orders?

2.10.8. Protection Orders can be made by the Family Court or a District Court (s 7, definition of ‘Court’ in s 2).

Which relationships are covered?

2.10.9. A PO can only be made where there is, or has been, a ‘domestic relationship’. There is a ‘domestic relationship’ (s 4) if a person:

Who may or must apply for an order?

2.10.10. A person who is or has been in a domestic relationship with the respondent may apply to the court for a PO (s 7). An application may be made by a representative on behalf of a person who is unable to apply personally because of physical incapacity, or fear of harm, or for some other sufficient reason (ss 7(4), 12).

2.10.11. The application for a PO must be made by a representative where the person who is eligible to apply:

2.10.12. An application may be made either personally or by a representative where the eligible person is a 16 or 17 year old (s 9).

Grounds on which an order may be made

2.10.13. The court may make a PO if it is satisfied that:

2.10.14. A ‘child’ is a person under 17 years of age, who has not been married or in a civil union or a de facto relationship. A ‘child of the applicant’s family’ is a child who ordinarily or periodically resides with the applicant (whether or not that child is a child of the applicant and/or the respondent) (s 2).

2.10.15. ‘Domestic violence’ (see s 3) means any of the following conduct committed against a person with whom the respondent is, or has been, in a domestic relationship:

2.10.16. In addition, causing or allowing a child to see or hear, or to be at risk of seeing or hearing, the physical, sexual, or psychological abuse of a person with whom the child has a domestic relationship is ‘domestic violence’ against the child (s 3(3)). For example, a man who assaults his partner, while the partner’s child is in the next room, is likely to be committing domestic violence against the child as well as the partner.

2.10.17. A respondent who encourages another person to act in a way that would amount to domestic violence if engaged in by the respondent is regarded as having engaged in that behaviour personally. For example, if a father encouraged his son to intimidate his wife, an order could be made against the father if the court is satisfied that the order is necessary to protect the wife.

2.10.18. An order may also be made by consent of all the parties (s 86).

Application process

2.10.19. An application for a PO under the NZ Act must be made to the court in the form provided for in the Domestic Violence Rules 1996 (the NZ Rules) (rule 15). The application form for a PO requires the names of the protected person and the respondent, and any other person for the protection of whom, or against whom, the order is sought, any special conditions sought, and any request for the provision of a programme (Form DV 2, NZ Rules). It must be accompanied by a form setting out information about the respondent’s access to weapons (rule 23).

2.10.20. The application must be accompanied by an affidavit setting out the evidence supporting the application (rule 21). An applicant for a PO may request that his or her residential address be kept confidential from the respondent (rule 22).

2.10.21. A person against whom an application is made must be given notice of the application except where the NZ Act or Rules provide that the application may be made without notice (rule 13(1)).

Police powers when application made and obligation to investigate

2.10.22. There is no provision in the NZ Act for a person to be arrested on the basis of an application for a PO, and no obligations are imposed on police in respect of investigation of suspected domestic violence.

Content and effect of an order

General conditions

2.10.23. A PO applies for the benefit of the applicant and also automatically applies for the benefit of any child of the applicant’s family.

2.10.24. The court may direct that a PO will apply for the benefit of another ‘specified person’ if, because of a domestic relationship between the specified person and the applicant, the respondent acts towards the person in a way that would be domestic violence if there were a domestic relationship between the person and the respondent (s 16). For example, if a man threatens both his ex-wife and her new partner, the court could direct that a PO applied for by the ex-wife will also apply for the benefit of the new partner. Where practicable, the direction should be given with the consent of the person to be protected by it.

2.10.25. The court may also direct that a PO apply against the respondent’s associates, if the respondent encourages them to engage in conduct that would be domestic violence if engaged in by the respondent (s 17). For example, if the respondent asks a friend to intimidate the respondent’s ex-partner, the court, in granting a PO against the respondent, may direct that it will also apply to the friend. The associate concerned is called an ‘associate respondent’.

2.10.26. By virtue of s 19, every PO is subject to standard conditions that:

2.10.27. In addition, where the court makes a PO, it may impose any special conditions that it considers reasonably necessary to protect the protected person from further domestic violence by the respondent or associate respondent (s 27). For example, these may relate to arrangements for access to a child, or the manner and circumstances in which the respondent may make contact with the protected person.

Exclusion conditions

2.10.28. Part 3 of the NZ Act provides for the making of orders relating to property, including occupation orders and tenancy orders. An occupation order gives the applicant the right to live in a home and to exclude the respondent from it (ss 53, 54). If a tenancy order is made, the applicant becomes, legally, the tenant of the home, and the respondent ceases to be a tenant (s 58). These orders can only be made if it is necessary for the protection of the applicant, or if it is in the best interests of a child of the applicant’s family. A person who has an interest in the property that would be affected must be given notice before an order (other than a temporary order) is made (s 74). A temporary occupation or tenancy order can be made on an application without notice to the respondent, but only if (s 60):

2.10.29. A temporary occupation or tenancy order becomes final after 3 months in the same way as a temporary PO (s 60(2)). Where an occupation or tenancy order is made on an application without notice while the applicant and the respondent are living in the same dwelling, the order expires on being discharged by the court, or on the discharge of the relevant temporary PO order or, if no PO was made, 7 days after the occupation or tenancy order is made (s 60).

Firearms

2.10.30. Unless the court orders otherwise, protection orders are automatically subject to the standard firearms condition, i. e. that the respondent must not possess, or have under his or her control, any weapon, or hold a firearms licence, and must surrender any weapon or firearms licence within 24 hours of being served with the PO (s 21). Where a PO containing the standard weapons condition is served on the respondent, the nearest police station must be notified (s 89). The court may dispense with, modify, or discharge the standard firearms condition, but only if it is satisfied that the condition is not necessary to protect the persons protected by the PO (s 22).

2.10.31. A firearms licence is deemed to be suspended on the making of a temporary PO, and to be revoked by a final PO (ss 21(2), 24). The police must detain a surrendered weapon for the period of suspension of a firearms licence (s 25). Where a firearms licence is revoked by a final PO, the firearm may be forfeited to the Crown under s 28 of the Arms Act 1983 (NZ) (the Arms Act).

2.10.32. Where a copy of a PO is provided to a police station under s 88, the officer in charge must immediately establish whether or not the respondent holds a firearms licence (s 90). If so, and if the licence has not been revoked by the PO, the officer in charge must arrange for immediate consideration to be given to revocation of the licence under the Arms Act, and to the exercise of powers under s 60A of the Arms Act. Section 60A of the Arms Act provides that if a police officer has reasonable grounds to suspect that a person has a firearm, and that a PO is in force against the person, or that there are grounds for an application for a PO, the police officer may without warrant search for and seize the firearm.

Duration, revocation and variation of an order

2.10.33. A PO may be made without notice to the respondent if the court is satisfied that giving notice would or might entail delay that would cause a risk of harm or undue hardship to the applicant or a child of the applicant’s family (s 13). A PO made on an application without notice is a temporary PO. A PO made on an application of which notice is given to the respondent is a final order (s 22(1)(a)).

2.10.34. The court may extend the period for serving the temporary PO for up to 3 further months, and the temporary PO continues in force during any extensions. If, at the expiry of any extensions, the temporary PO has not been served on the respondent, the PO lapses.

2.10.35. The respondent to a temporary PO is entitled to notify the court that he or she wishes to be heard on whether a final order should be substituted for the temporary order (s 76). In that case, the Registrar must assign a hearing date within 6 weeks. In addition, if the court considers that there is good reason why a temporary PO should not become final without a hearing at which the applicant or the respondent, or both, are present or represented, the court may direct that there be a hearing and may summons the respondent to appear (s 78).

2.10.36. At a hearing, the court may discharge the temporary PO, with or without making a final order in its place (s 80). A hearing can be adjourned only once, in the absence of special reasons for a further adjournment, and a temporary PO continues in force during an adjournment (s 80).

2.10.37. A temporary PO continues in force until:

2.10.38. A final PO continues in force indefinitely, unless it is discharged under s 47.

2.10.39. On the application of the applicant or the respondent, the court may vary or discharge a special condition, impose a new special condition, or make, vary or discharge a direction to attend a programme (s 46(1)). On the application of the applicant, the court may vary a PO by extending it to apply against, or for the benefit of, another person (s 46(3)). Special conditions applying to protect a person other than the applicant may be varied or discharged on application of that other person (but not a child) (s 46(4)).

2.10.40. Under s 47, the court may, if it thinks fit, on the application of the applicant or the respondent, discharge a PO. An associate respondent or a protected person other than the applicant may also apply for the discharge of a PO in relation to them.

2.10.41. Where an application is made for discharge of a temporary PO, there must be a hearing within 6 weeks (ss 46(5), 47(6)).

Enforcement and breach of an order

2.10.42. A person who, without reasonable excuse, contravenes a PO is guilty of an offence, and is liable to a maximum penalty of 6 months imprisonment or a $5,000 fine. For offences other than failing to attend a programme, if the person has been convicted at least twice before in the last three years, the maximum prison sentence is increased to 2 years (s 49).

2.10.43. A police officer may arrest a person without warrant if the police officer has good cause to suspect the person of breaching a PO (other than by failing to attend a programme) (s 50). In deciding whether to do so, the police officer must take into account:

Procedural protections for applicants and witnesses

2.10.44. In proceedings other than criminal proceedings, the court may call and examine witnesses itself (s 82), and is not bound by the rules of evidence (s 8). The only persons who may be present during non-criminal proceedings are:

Protection of children

2.10.45. For the purposes of the NZ Act, a child is a person under 17 who has not been married or in a civil union or de facto relationship. A child can apply for a PO through a representative. A minor aged 16 or 17 can apply for a PO either personally or through a representative. In the case of a child, ‘domestic violence’ includes allowing a child to see or hear, or to be at risk of seeing or hearing, the physical, sexual, or psychological abuse of a person with whom the child has a domestic relationship.

2.10.46. In addition, a PO obtained by another person applies for the benefit of any child of the applicant’s family (s 16).

Provisions relating to mediation, counselling or rehabilitation

2.10.47. Normally, a court making a PO must direct the respondent, and may direct an associate respondent, to attend a specified ‘programme’ (s 32). A programme provided to a respondent has the primary objective of stopping or preventing domestic violence on the respondent’s part (s 2).

Recognition and enforcement of orders made in other jurisdictions

2.10.48. A New Zealand court can register a ‘foreign protection order’ that is sent to the Secretary of the Department responsible for courts, with the required certification from the court where it was made, and with information that the protected person is in, or will be in, New Zealand (s 97). In broad terms, a ‘foreign protection order’ is an order made by a court of Australia, an Australian State or Territory, or a declared foreign country, that has been made to protect a person from conduct that would justify the making of a PO under the NZ Act (s 2).

2.10.49. Once registered, a foreign protection order has generally the same effect and may be enforced as if it had been made under the NZ Act (s 99). A foreign protection order, in the terms in which it has effect in New Zealand, may be varied in the same way as a PO under the NZ Act (s 99).

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