Questions and Answers
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Question
​Disclaimer: this information is opinion only and does not constitute legal advice.

“Does s96(1)(a) of the Family Violence Act 2018 apply during the nationwide state of civil emergency?”

Normally a peson who is the subject of a Temporary or Permanent Protection Order may not contact the protected person except for certain exceptions. One of those exceptions is found under s.96 and involves 'any emergency'.
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96  Standard no-contact condition: other exceptions
(1) Contact by the respondent with the protected person is authorised, and not in breach of the standard no-contact condition, if the contact is--
      (a) reasonably necessary in any emergency; …

The answer (like so many answers about the law) is: there isn’t a single answer. 

Our principal lawyer Erin Ebborn wishes to share the following opinion. This is not legal advice.

Question 1: Is it an “emergency”? Yes, I think we can all agree it is.
Question 2: Is it “reasonable”? That is going to be case-specific and will depend on different factors.

For example:

1. What was the contact? A text message or phone message might be more reasonable (depending on other things). Turning up at the home probably unreasonable especially after the lockdown commences.
2. What was the communication about?
3. What’s the level of interaction they already have? 
4. The frequency of the messages.
5. To what extent was the communication distressing or intimidating as opposed to acceptable or merely an irritation?
6. The seriousness of the past violence
7. Whether the communication ought to have more properly been relayed via lawyers (if the parties are represented)

Case Scenario One

The parties do not have any children together. They don’t need to communicate with her. But the Applicant receives a text message “This has made me think and I really love you and want you back”. I think that would be unreasonable and a breach of the order. It’s not relevant to the emergency. It’s not reasonable that the Respondent make contact. I think it’s reasonable for the Applicant ot ignore the Respondent, give them a warning that any other approach will be reported to the police or block the person on their devices.
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Case Scenario Two

The parties have children together. The Respondent hardly ever sees the children but text messages saying “Are you and the children safe? Are any of them sick? Do you need anything?” I think this is reasonable. It is polite. It is relevant.

Case Scenario Three

The parties have children together and the children move between the home. I think it would be reasonable if there was contact between the Applicant and the Respondent about things like:

• Making the care arrangement work.
• Making alternative arrangements for contact e.g. swapping a meal visit for a bed time video call.
• Advising each other if they are sick, someone in their home is sick, one of the children is sick.
• Agreeing upon a plan for what will happen with the children if the parent is unable to care for the children or one of the homes becomes unwell such that it would become inappropriate for the child to visit.

This assumes a lot of co-operation but not all Applicants and Respondents eschew communication or can’t resolve parenting issues. If there is little co-operation then maybe Fairway Resolution can help the parents develop a safety plan over this period of time?

Case Scenario Four 

A parent who is usually supervised texts and asks whether they can have a video call at the usual time of their scheduled visit given the supervisor is no longer available. I think this is a reasonable request and the Family Court Judge has strongly recommended using social media and apps as a mode of keeping children in contact with their other parent. However, I would add that the call needs to be appropriate. It is not an opportunity for the parent to quiz the children, raise court proceedings, discuss child support, ask the children to walk around the home with the camera showing them things that is unnecessarily intrusive into the privacy of the applicant.
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Case Scenario Five

The message is something like “I hope you and my children aren’t shacked up with that boyfriend of yours. He better not give my kids Covid-19 or else.” Then that is not a reasonable communication. It’s clearly intimidating.

I’m sure there are a lot more scenarios that arise. However, we can’t give responses on individualised scenarios that advocates might be working on because it might result in a conflict of interest.

Even if the Respondent makes contact the Applicant can:

1. Ignore the message. (though this might not be the best approach as it usually leads to more messages)
2. Respond politely e.g “The children are fine. If they become unwell I will let you know. However, in the meantime, please do not contact me. If something changes I will contact you.”
3. Respond that there is a Protection Order in place and that the person is not to contact them and if they do so it will be reported to the Police as a potential breach.
4. Establish parameters for contact e.g. you may email me but not phone me.
5. Have a family member act as a go between for the negotiations
6. Seek FDR mediation
7. Block the other party.

The Applicant needs to be reasonable in their approach. The other parent is probably a guardian and so polite, relevant requests about how a child is, is appropriate. The Principal Family Court Judge has made it clear, though I’m paraphrasing, that the lockdown is not a reason to marginalise the other parent. Children need stability and routine and are entitled to continuity in their relationships.

So the situation is more tricky when there are children involved and there needs to be common sense applied as to what will be breach and what might be an exception.

Finally, if the protected person is not endangered but unsure if this is a breach then they are best to contact their own lawyer for advice. I, for example, cannot give legal advice to people who are not my firm's client.

It goes without saying to contact the Police if the action is clearly a breach and puts the protected person at risk. Ultimately it is up to the Police to decide what constitutes 'reasonable' in the context of an emergency in terms of whether they will lay a charge or issue a warning.

​If a protected person or a person bound by a protection order is in doubt, they should seek legal advice about the communication. For a bound person this should be before they attempt communication.

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Question

“What is family violence?”
Disclaimer: this information is opinion only and does not constitute legal advice.
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The main piece of legislation in the Family Court addressing violence between adults is the Family Violence Act 2018.  Family violence includes physical violence, sexual violence and psychological/emotional violence (e.g. stalking, harassment, verbal abuse, economic abuse, controlling or manipulative behaviour, threats, belittling, etc.). More recently the terminology "family harm" has been favoured by Police and other sector agencies.
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When Police attend a family violence incident it is possible for them to issue a Police safety order (PSO) when they believe family violence has occurred or may occur. A PSO is a short term order which lasts between one to ten days.

The person named in the PSO (bound person) must leave the address even if it is owned by the person or is where they usually live. The bound person must not subject the protected person (or their children) to any further violence or harassment. The bound person must not encourage anyone else to abuse or harass the protected person on their behalf.

​Unlike PSOs, protection orders are issued by the Court. This requires a court application and an affidavit. The Court needs to know whether there is a domestic or close personal relationship; what violence has occurred and; why a court order is necessary. If made by a lawyer, the application must also be certified.

​An application is filed, served on the other person – who has a chance to reply – and if the application is defended then a hearing is held for a Judge to determine any disputed facts and decide if the order is necessary.

In urgent situations (and this is what leads to most applications being made) an application and affidavit may be filed and seen quickly by a Judge.

​The Judge will make a decision about whether a temporary protection order (TPO) should be issued so there is immediate protection for the applicant and the children of the family. Other people can also be specified as protected people or respondents in the order.

The Judge needs to be satisfied that the delay that might be caused by applying on notice (the standard process) might place the applicant or the children of the family at serious risk of injury, harm or undue hardship. The other party still has the chance to respond and have the matter heard in Court if the person disputes that a permanent order should be made.

In some situations (particularly when there are children) it is possible to apply for property orders permitting exclusive occupation of the home and use of the furniture (including to furnish a new home) by the protected person.

Under the Care of Children Act the Court must take into account the children’s safety. This includes exposure to family violence as well as whether there are past protection orders involving other people. If the Court believes a child is unsafe with their parent then the Court can direct supervised contact. This might be supervised by a family member or by a professional person or organisation.
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Depending on the circumstance, there is limited funding through the Court to pay for supervised contact but this is only intended to be a short term solution and is often used to receive reports from the supervisor.

Question

“Ive been served with a protection order... what do I need to know?”

Temporary protections orders (those issued 'without notice'/under urgency) will normally be served on a respondent by the NZ Police. If you've been served with a temporary protection order then the first thing you need to do is read it, understand it and do what it says.

Along with the protection order there will be an order to attend a non-violence programme. Our lawyers will almost always recommend you contact the provider and attend the programme.

You have the right to defend the order. If you do not defend the order then after three months the order will automatically become final. Legal aid might be available to help pay for your lawyer, depending on your income. If you have a permanent protection order against you, you are able to apply to Court to have it discharged (even if it is from years ago). Legal aid may also be available for this.

Defending or discharging a protection order - like anything involving the Court - is not as straightforward as it sounds. Seeking legal advice from experts is a smart thing to do.