What is a Protection Order and how can it help?
A protection order is made by a Family Court Judge to help protect you (the applicant), your children under 18 who regularly live with you, and anyone else named in the order from the abusive person (respondent).
The respondent must not abuse you – physically, sexually, financially or psychologically; threaten to abuse you; damage, or threaten to damage your property; or encourage anyone else to abuse or threaten you.
The ‘no contact’ condition of a protection order means that the respondent may not come near you or contact you in any way, unless specific arrangements have been made, and they cannot send someone else to contact you on their behalf.
You can have a protection order without a ‘no contact’ condition and continue to live with, or remain in contact with, the respondent. The respondent may ask you to give your permission in writing for contact. You can tell the respondent at any time that you no longer want to live with them and the ‘no contact’ conditions apply immediately – they must leave.
A protection order can include an occupation or tenancy order so that you and your children can stay in the family home, whether it’s rented or owned, and the respondent has to move out immediately.
Even though a protection order automatically applies to any children under 18 who regularly live with you, it’s often a good idea to apply for a parenting order at the same time. You may want to get advice from a lawyer about this. Read on under ‘How do I get a protection order?’ about this.
When might a protection order not help me or make my situation worse?
A protection order tends to work best when the abusive person wants to protect their public image and avoid being arrested. They may not be effective if the abusive person already has a criminal history and is not particularly worried about being arrested.
They may not be effective when the abusive person can afford an expensive lawyer, has a lot of credibility as a ‘good citizen,’ and is able to successfully ‘defend’ the order (see below).
With children involved, a protection order may lead to a Family Court process to make decisions about child care and access. Unfortunately, our Family Court does not have a good record of prioritising safety of adult victims and children over the ‘right’ of parents to have access to or shared care of their children. The Backbone Collective has surveyed many women who have had such experiences of the Family Court.
You may want to ring Shine’s Helpline to talk through your situation and help you decide if you want to apply for a protection order.
How does a protection order work? What do I need to do?
If the protection order is breached (the respondent does something not allowed like contacting you), you can report the breach to Police:
- If you are in immediate danger, ring 111.
- Otherwise, report the breach to your local police station.
The respondent may be arrested and charged with the breach. If the respondent commits a crime against you, such as an assault or damage to property, they should get an additional charge for breaching the order which also makes it more likely that the sentence will be greater.
The respondent will usually be ordered by the Family Court to attend a non-violence programme as a condition of the order.
A protection order on its own cannot keep you safe. But it can help the police and others treat any further violence more seriously, and it means you can contact police as soon as the respondent comes near you, and not have to wait until you are being threatened or harmed.
Keep copies of your order:
- In your handbag
- In a safe place at home
- At work, possibly with HR/security
- At your local Police station
- At your children’s school or daycare
If you move, give a copy of your order to your new Police station, workplace, and school or daycare.
What you can do if your order is breached
If your order is breached:
- If you’re in immediate danger, ring Police on 111.
- Otherwise, report the breach to your local police station, and you may also want to tell your lawyer and/or your local domestic violence advocate. If Police do not arrest or prosecute a breach, you can ring the Shine Helpline or local specialist service or your lawyer for help.
It’s a good idea to keep a record of any/all breaches with the date, time, what happened, who else witnessed, and any evidence you may have. Having a record of all breaches can help establish a pattern of behaviour to the police and the court if your ex-partner is arrested for a domestic violence related crime and/or breach of the order. Even if police respond to a breach, it may be useful for you to keep your own record of the breach as well, including the names of responding police officers.
How do I get a protection order and what does it cost?
If possible, it’s usually best to have a lawyer who practises family law prepare your application, but you can also do it on your own. You may want to ask your local domestic violence specialist service to recommend a lawyer for you. Call our Helpline if you need help to find your local service. If you qualify for legal aid, then applying will be free.
You are eligible for legal aid if you are on a benefit, have a low income, or no income. You may also be eligible if you live with someone who has a high income and you apply for a protection order against that person. If you do not qualify for legal aid, using a lawyer can be very expensive. Your local Community Law Centre may be able to help or you can prepare the application yourself.
You can download application forms from the Ministry of Justice here
Protection order application requirements
You must prove that you were in a ‘family relationship’ as defined under the Family Violence Act, and document the history of abuse as thoroughly as possible, with dates or approximate dates of incidents and as much detail as possible about the pattern of coercive control over time. Your application needs to document a recent incident or otherwise prove that there is an ongoing need for protection.
If you are thinking about preparing your own application, you might want to ring Shine’s Helpline or your local specialist domestic violence service to talk through what to include in your application.
How long will it take? Can the respondent do anything to stop the order?
The order may be granted within 24 hours if a judge believes your situation is serious enough. Or it can take a few more days. If the judge does not consider it serious enough, the respondent will be notified before the order is made.
Unfortunately a number of women have told us and the Backbone Collective about situations that sounded quite serious where they applied for a without notice (ex parte) order, but the judge put the order on notice and notified the respondent before telling the applicant that this was going to happen, so this is a real risk.
You may be given a temporary protection order, which lasts for three months, while a decision is made about a final order. During those three months, the respondent can ask the court to cancel the temporary order. The court will set a hearing date and at the hearing, the judge will either cancel the temporary order or make it final. If the respondent does nothing, the order becomes final after three months.
A final protection order is permanent, unless you or the respondent asks to have it cancelled and the judge agrees, but the judge must be sure you and any children covered by the order will be safe from the respondent.
Unfortunately, it tends to be far more difficult to get a protection order if the abuse was psychological and there was no physical abuse, and far more likely the order will be put ‘on notice’ – the respondent notified before the order is made.
Ring Shine’s Helpline to talk through your situation so we can help you know what you might expect.
What do I need for my first meeting with a lawyer?
To speed the process, bring copies of:
- marriage certificate
- birth certificates for you and your children
- doctor/hospital records or photos from past abuse and injuries
- names and numbers of people who can back up your story, e.g. neighbour, relative, friend
- NZ citizenship, residency or visa documentation. If you are dependent on your abusive (ex)partner for your visa/residency, read about the Victims of Family Violence Work Visa and Victims of Family Violence Resident Visa.
Protection orders and children
A protection order also protects any children who usually live with the applicant. Because of the no contact conditions in a protection order, the respondent may only have contact with children if:
- There’s a parenting order, other court order or parenting agreement in place between the applicant and the respondent, or
- The applicant has agreed to live with the respondent.
An urgent parenting order can be applied for at the same time as a protection order. By applying for protection and parenting orders at the same time, you are letting the Family Court know about your safety concerns and that your case is not appropriate for family dispute resolution – which is otherwise the default pathway for separating partners who disagree about childcare and access (see following section).
For more information, talk to your lawyer, or ring the Shine Helpline, or read more from the Ministry of Justice website.
The Family Court
If you are separating from a partner and the court does not know about any risk to you or your children, the Family Court will refer you to a Family Dispute Resolution service provider. This service, offered by various providers, helps parties reach agreement about care of children. An impartial mediator helps parties try to reach agreement. The mediator does not have the power to make decisions or force parties to agree to anything.
If you are separating from a violent partner and you or your children are afraid of that person, we do not recommend this process. You have the right to decide whether you want to participate or not in Family Dispute Resolution.
If you are feeling pressured to participate OR if you feel your safety concerns are not being addressed by the Family Court, ring our Helpline to discuss your situation.