Our Associate, Chris Bell, recently shared an article with the Horowhenua Chronicie on Family Violence proceedings, and more specifically relating to Protection Orders.
Under the Family Violence Act, parties who have been the victim of family violence may make applications to the Court for a protection order and where they intend to continue residing in a home they shared with the Respondent. They can also apply orders allowing them sole occupation of the home and the sole right to use the home’s furniture.
The effect of a protection order is that the respondent may not engage in any form of abuse against the Applicant. Essentially, it prevents any contact without consent (whether direct or indirect).
For an application for such orders to be granted, the Court must be satisfied of three things. Firstly, that the parties are in a relationship (or previously in a relationship), family members, flatmates or close personal friends. Secondly there needs to be evidence of violence. Violence under the Act includes psychological, sexual, and physical violence. Thirdly, the Applicant must prove that the protection order is necessary for their protection.
Necessity requires evidence of someone acting in a self-interested way at the earliest possible opportunity. Applications have been declined in the past where somebody has made an application for a protection order based on violence that has occurred historically but not recently. The rational is that, were such an order necessary, an application for a protection order would have been made sooner. This means the proximity of the violence to the date of application is important and sometimes determinative.
If the Court makes a protection order against a Respondent, it will initially be a temporary protection order. If the Respondent is served and takes no steps, then by operation of law, after three months, the temporary order becomes final. If someone wanted to oppose the order at that point they would need to make a new application to discharge the order.
Timing is important for protection orders. If you are served with temporary orders you have three months to file a response if you intend to oppose the orders being made final. Your response takes the form of a notice of intention to appear and you need to file a sworn affidavit in support outlining why (on the basis of the three grounds noted above) the order should not be made final.
Typically the Court will also order the Respondent attend a non-violence programme. Importantly, if you are served with a temporary protection order you only have ten working days to oppose the direction to attend a programme. There is no provision by which you can extend this timeframe so it is important to register your objection (if you intend to object) within that time.
If the Respondent does oppose the protection order and files a notice of intention to appear, the Court is required to set the matter down for a hearing within 42 days of the date of the application. In practice, given the numerous cases and time constraints of the Courts, it is unlikely that a hearing will be set down within that period and it is more likely that the hearing will be at least a few months from the date that an intention to appear is filed.
If you are in this situation either as an Applicant, potential Applicant or a Respondent then it is advisable that you seek legal advice.