What to do after getting a Protection Order?
Family life will inevitably have conflicts. Sometimes these conflicts can escalate and become physical and emotional. Even otherwise reasonable people may take things too far.
New Zealand has comprehensive laws dealing with domestic violence. The latest iteration of the relevant statute is the Family Violence Act 2018. Anyone who has suffered domestic violence can apply for a protection order from the Family Court. Most protection orders are granted on a without notice basis. That is to say, most respondents (the person against whom a protection order was made) do not know that the applicant (usually their partners or other members of the family) have applied to the Family Court for a protection order until the order is served on them. As a result, most respondents are generally not mentally prepared.
Quite often, couples own properties and have children together after a few years of marriage. Generally, an applicant will simultaneously apply for an occupation order along with a protection order. As for any children of the relationship, they are automatically covered by the protection order. This means that the respondent will often be served with an occupation order along with a protection order. These orders have the effect of forcing the respondent to leave the home and prohibits the respondent from contacting their children. We have clients who, after having received protection orders, not only had to move out but were also unable to see their children for a long period of time. This can be very emotionally taxing.
If your partner has applied for a Protection Order, what should you do?
The first matter is to sort out contact with the children. Usually, the respondent is not permitted to contact or visit the children unsupervised while the protection order is in force. This is usually the case even if the children were not present when the incident that led to the protection order occurred. It is a criminal offence to breach the terms of the protection order, therefore one must be careful when trying to arrange for contact with the children.
It is for the parties to nominate a third party as the contact supervisor. While the Court has the power to direct a nominated person as the supervisor, the court process is slow, and it could take several months before the proceeding gets a hearing before a judge. Therefore, in practice, it is often better for the respondent to negotiate with the applicant and reach a consensus.
In the case where no friend, acceptable to the applicant, can be found to act as a supervisor, a third-party paid service is required. There are two types of paid service provider. The first type provides a venue along with a supervisor so that the respondent can meet with their children in the presence of a supervisor at the provider’s venue. The second type provides a supervisor who can be present during the contact, which can occur at almost any place of the parties’ choosing. The respondent may even apply for subsidy to pay for the third-party agencies. There are subsidies available that the respondent may apply for to meet the cost of third-party agencies.
After the supervised contact has been going for a period of time, the respondent may prove to the court that they are not a safety risk to the children and seek to remove the requirement of supervision during contact.
The second matter is that of the marriage relationship. The respondent needs to consider if the marriage has come to an end, or if there is still room for the parties to reconcile. These two possibilities determine what approach to take in responding to the protection order – whether to oppose or to accept.
Opposing usually requires the respondent to dispute the facts, implicitly (or explicitly) accusing the applicant of exaggerating or fabricating the incident which led to the protection order. This will often further deteriorate the parties’ relationship and diminish the chances of reconciliation.
If there is room to save the marriage, the parties may choose to attend counselling. There is provision in the Care of Children Act to obtain subsidised counselling.
The third matter is that of the division of relationship property. If the relationship has broken down irrevocably, it is necessary for you to consider whether the relationship property needs to be divided. There are a number of things to take into account. For example, they need to consider and discuss how to share the expenses of the children’s accommodation and living costs; whether there should be occupation rent paid to the party that has to leave the family home; and who should continue to pay the mortgage and other outgoings.
The fourth matter is that, when the Court grants a protection order, the respondent is usually directed to attend an anti-violence programme. If the respondent does not think they did anything wrong and does not wish to attend, they need to protest within a specific timeframe. On the other hand, if the respondent accepts fault, the sooner the anti-violence programme is completed the earlier and more likely it is that the respondent can have unsupervised contact with the children.
After being served with a protection order, many people find it difficult to cope with the various matters arising from it, especially if there are children and properties involved. We recommend anyone in these situations to engage an experienced lawyer as soon as possible. Communication is essential in family law cases, where there are issues often rooted in emotion and cultural nuances. Language barriers can cause misunderstandings and misinterpretation of ideas. A client may not be able to make the right decisions if they cannot fully understand the relevant legal analysis. A good family lawyer needs to have both the communication skills necessary to understand a client’s views, needs and cultural background, as well as the capacity to correctly analyse their legal position and provide advice for their specific situation.
About the Author:
Daniel Zhang is one of the partners of Advent Ark Lawyers and heads the Litigation Department. His experience spans all levels of the Courts of New Zealand. Notably, Daniel has acted as chief counsel on over 30 High Court judgements, published on Judicial Decisions Online (the official website of the High Court of New Zealand).
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