Domestic Violence Protection Orders: When can you get one?

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If you are a victim of domestic violence and wish to seek protection from your abuser, a protection order can help. Taking action to protect yourself when you are feeling most vulnerable is often a daunting task. However, knowing what legal avenues you can take is the first step in the right direction. This article will specifically outline what qualifies as a domestic relationship, what actions amount to domestic violence and from that point, how you can obtain a protection order.

In order to be eligible to apply for a protection order, you must satisfy to the court that you were in a “domestic relationship” with the perpetrator.

What is a domestic relationship?
A domestic relationship encompasses a variety of relationships. These include:

1. Spouse or partner
This includes marriage, civil union, and de-facto relationship of both heterosexual and same-sex relationships.

Quick note: What is a de-facto relationship? The Court has scope to interpret what constitutes a de facto relationship based on a number of factors not just the length of the relationship.

2. Family member
The term family member includes grandparents, parents, children, siblings, and more. In modern society the term ‘family member’ can be very broad and the law has allowed for this.

For example: Jane and Bob were married and had two children Mary and John. Some time later they divorce and Jane forms a de-facto relationship with Sam. Sam is violent towards Mary and John. Even though Jane and Sam are not married if Mary and John were to make a claim against Sam, he would fall under the term family member. This is because a prima facie stepfather – stepchild relationship exists.

3. A person / people you share a house with
This includes a flatmate, border, partner or family member. However, this can’t just be a temporary house guest you did not have contact with; the court has noted there must be at least minimal interaction between one another.

4. A person / people you have a close personal relationship with
When determining whether you have a close personal relationship with someone the court will look at two main factors. Namely:

• The nature and intensity of the relationship. This includes:
o The amount of time spent together
   o The places where that time is spent
o The manner in which that time is spent

 • The duration of the relationship
In these types of relationships the court will often make a decision on a case by case basis. A pure legal test does not always aid in deciding whether a close personal relationship exists. Generally, if you feel you have a close relationship with someone you do.

What is domestic violence?
Commonly when we think of domestic violence our thoughts are limited to physical violence from one person to another. However the scope of violence is much boarder than physicality and the law has catered itself to ensure all forms of violence and abuse are not tolerated.

Critical factors to note about domestic violence:

• Abuse does not have to be a number of acts. Whether it is a number of acts, or one single act, abuse does not have to be tolerated.
• Psychological abuse does not have to involve actual threatened physical or sexual abuse.

When in a domestic relationship, the types of violence which are prohibited include:

1. Physical abuse
• Hitting, punching, spitting, biting, pushing.

2. Sexual abuse
• This includes situations where someone has been inconsiderate of your views and insensitive to your beliefs and boundaries.
• We encourage victims of sexual abuse to come forward as soon as possible, but it is important to note that even if the incident occurred years ago, bringing a complaint now will not damage your credibility.

3. Psychological abuse
This includes but is not limited to:
• Intimidation;
• Harassment;
• Damage to property;
• Threats of physical, sexual or psychological abuse to you, loved ones or pets; and
• Financial and economic abuse.

Psychological abuse is wide reaching and unlike physical abuse, there is often no physical bruise to show it is occurring. It can often be hard to realise it is happening to you, due to the behaviour by the abuser that chips away at your confidence.

Behaviour such as stalking, unwanted communication, making false allegations or hurtful comments can amount to psychological abuse.

Financial and economic abuse is relatively new to the Act but is no less important. If someone is controlling your actions through money, coupled with any of the emotions listed above, this is a recognised form of abuse.

In 2017 the Government announced other additions to what qualifies as abuse, for example coercion to marry.

It is important to note intention is not a relevant factor. It does not matter if your abuser does not mean to abuse you. If they are/have this is enough.

What is a Protection Order?
If you are in a domestic relationship and experiencing domestic violence, obtaining a Protection Order is the appropriate step to take.

It is important to note a Protection Order offers protection for the applicant and automatically applies for the benefit of a child in the applicant’s family.

Similarly, if you wish to file a separate application for a Protection Order for your child who is under 16 years, this can be done. In this instance you will be named the representative of the child/children.
You can apply for a protection order in one of two ways:

• On Notice:
o This order gives the alleged abuser an opportunity to respond to your application to the court before the Court makes any orders; or

• Without Notice:
o The Court will consider your application (and potentially make temporary orders) before the alleged abuser has their say. You would need to satisfy the Court that delay could cause a real risk of harm or undue hardship.

The effect of a Protection Order is to prohibit the abusers access to you and/or your family in order to ensure a safe environment.

If you need to protect your family from domestic violence with a protection order, please contact our family violence specialist, Ellen Harbidge on 09 837 6890 or at ellen.harbidge@smithpartners.co.nz

You may also find the following articles useful:

Preventing Your Child Being Removed From New Zealand

Child Relocation Disputes - What Happens When One Parent Wants To Move

 

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