Family Violence: How the Law Can Help You Get Out and Get Help

Abusive relationships are unfortunately a common experience for many New Zealanders. The end of an abusive relationship can bring together a number of different strands of the law. Family matters, criminal issues and relationship property may all be involved. These can be complicated to navigate and often take time to settle.

1.      Protection Orders

For protection against an abusive partner, a protection order may be necessary. Protection Orders are similar to Restraining Orders, but apply in cases of close personal relationships such as against domestic partners. Getting a Protection Order in place then means that the violent person can be arrested if they approach, contact, or threaten you.

When applying for a protection order, it is necessary to fill out an application, an affidavit and an information form for the police. The affidavit is your chance to explain to the court why a protection order is necessary. It is the place to document all that has happened, and why you need protection from the person in question.

Violence comes in many forms. If you have experienced physical, sexual or psychological abuse, this should be included in your affidavit. Psychological abuse can be expressed through emotional abuse, manipulation, harassment, ill-treatment of pets, financial abuse, threats and intimidation. The Family Violence Act 2018 states that violence against a person can include a pattern of behaviour, made up of a number of acts to coerce or control a person, or it can include a single act of harm.

Depending on the urgency of your application and situation, the Court can make the order without giving notice to the violent person first. This is a ‘without notice’ protection order. The person will be informed once the Order is in place. The person will then have three months to defend the Order if they want to. If they choose not to defend the Order, it will become final.

If the application is deemed not urgent, the violent person will be served with the application and have a chance to defend themselves in Court. This is an ‘on notice’ application.

2.      Ancillary Orders

In the breakdown of an abusive relationship, living arrangements can become a key point of stress. You may share a property with the violent person, or have belongings currently in their residence.  The following may be necessary, depending on your circumstances:

Occupation orders: if you or the violent person own, or jointly own, the house, an occupation order would grant you the exclusive right to reside in the property. This means that the other person must move out. This can be granted even if the other is the sole owner of the property, and even if you have already moved out of the property. These are usually temporary, and give you a chance to sort out your relationship property.

Tenancy orders: if you have been renting a property with the violent person, you can apply for a tenancy order. This would allow you to live in the rental property, and would move the other person out. This can be granted even if the violent person is the only named tenant on the agreement. This order cannot be given if there are other tenants in the property.

These additional orders can happen ‘without notice’ if the circumstances deem this appropriate.

3.      Parenting Orders

Care of children following an abusive relationship can become a major concern. Parenting orders setting out day-to-day care arrangements and contact often become necessary. The other party may apply for a parenting order, and then defending this can become an issue.

A parenting order may set out who will look after the children and when, or when each parent will see the children. The parenting order may set out the form in which contact shall be observed, and whether one parent will have supervised or unsupervised contact with the child. This is governed by the Care of Children Act 2004.

In urgent circumstances, a parenting order can also be made ‘without notice’. This means that a temporary parenting order will be put in place immediately. If the application is made ‘on notice’, the other parent will be given a chance to respond before the Court makes a parenting order. A Final Order will usually last until the child turns 16 or until one of the parents involved applies to the court for a variation or discharge of the Order.

It is important to understand that a parenting order granting you day-to-day care of the child does not remove the other parent as a guardian of the child. This means that important decisions are to be made by both parents together.

If you have concerns about parenting or guardianship matters, get in touch with one of our solicitors.

Supervised vs Unsupervised Contact

In circumstances of a violent relationship, whether the violent parent is allowed supervised or unsupervised contact with the child can become a real debate.

The Care of Children Act states that when the Court is not satisfied that the child will be safe with one of the parents, they may only allow this person supervised contact with the child. Supervision may take place at a professional agency, or through a mutually approved person.

In assessing whether supervision is necessary, the Court will take into account the best interests, wellbeing and safety of the child. The Court will also take into account family violence. In some circumstances of domestic violence, the child may have been present during physical, sexual or emotional abuse by one parent to another. By definition, such violence is psychological abuse of a child. This violence may have been directed at the child. In these circumstances, it may be necessary that the violent person have only supervised contact with the child.

There are a number of other important factors to take into account when debating supervised versus unsupervised contact. If you need to discuss this possibility, it is best to get in touch with one of our team.

Parental Alienation

In L v Q [2003] NZFLR 440: Judge McKeeken defined ‘parental alienation’ as occurring when “one parent alienates the children from the other parent so that the children express negative views towards the other parent that are disproportionate to the child’s actual experience with the parent”. This is a factor for consideration when making a Parenting Order, and should be proactively avoided.

Guardianship Issues

Under the Care of Children Act 2004, a guardian of a child can apply to have another guardian removed. This is granted only in the most serious of circumstances, and the court must be satisfied that one parent is unwilling to perform the duties, powers, rights and responsibilities of a guardian. A guardian may be removed by the Court if for some grave reason the parent is unfit. The Court must be satisfied that removing the guardian will best serve the welfare and interests of the child. It is in the rarest case that this is granted by the court. 

4.      Relationship Property

Relationship property can often be used as a power tool by an abusive partner. In an attempt to prevent the abused from leaving, the abuser may leverage their earning capability or property against the other. Abusers often rely on the abused having no other choice but to stay. There is help available, and laws in place, to protect a person leaving these circumstances.

If you have been a relationship with a partner for a period of 3 years, residing in the same residence, it is likely that you will be deemed a de facto partner under the Act. If this is the case, you will have many of the same rights as if you were legally married. The starting presumption in New Zealand is that upon separation, each partner is entitled to 50% of the relationship property even if that property is not in your name.

The Courts acknowledge work done in terms of household maintenance and care, raising of children, and providing for the household, as equal to work that brings in money. There is no presumption that financial contributions to a relationship are greater in value than non-financial contributions. If at the end of the relationship, your income and living standards are significantly lower than your partner, due to the division of functions within the relationship, the Court may award you a payment or property to account for this.

Similarly, if you have contributed to an increase in the value of the separate property of your former partner, the Court may order that you receive a sum of money or specific property. For example, you may have helped fix a house owned separately by your former partner; you may have bought the furniture for the house; or worked in the garden. These contributions will likely see an increase in value of the house, thanks to your work, and as such you should be compensated for this.

You also may be eligible for, or to pay, spousal maintenance. This is given when you are unable to meet your needs due to the effects of the division of functions during the relationship, your earning capacity, your responsibilities relating to childcare, training, standard of living and other relevant factors. This is often in the form of a regular payment from one partner.

To talk about these issues and how to best manage your situation, get in touch with our team today.

5.      Getting Help

If you are in immediate danger, call 111 and ask for the police.

If you are dealing with family violence, it is important to reach out and get help. There are many resources available to help you get out, stay out and be safe.

Shine is a confidential resource dedicated to providing help and advice for those who are dealing with domestic abuse. They have a free helpline between 9am and 11pm 7 days a week: 0508 744 633

Women’s Refuge operate a 24 hour crisis line, provide information and safe housing for women, young people and children experiencing domestic abuse. Their number is 0800 733 843.

Women’s Refuge have a shielded website running through other websites such as The Warehouse. If you are after untraceable access to Women’s Refuge, head to thewarehouse.co.nz, scroll to the bottom of the page, and click on the small computer logo. This will take you to a secure and untraceable Women’s Refuge page.

Shakti provides free help and support to women, children and youth of Asian, African and Middle Eastern origin who have experienced sexual abuse, domestic violence and discrimination. Shakti provide a 24/7 Crisis Line at 0800 742 584. Shakti also operate safehouses and emergency pick-up services for victims of sexual abuse.