Amendments to Domestic Violence Act 1995
Clause 4 provides that Part 1 amends the Domestic Violence Act 1995.
Clause 5 amends section 2 which is the interpretation provision. It changes the definition of a child from a person under the age of 17 years, to a person under the age of 18 years. This change brings that definition into line with the definitions in the Care of Children Act 2004, the Children's Commissioner Act 2003, and the United Nations Convention on the Rights of the Child. A consequential change is also made to the definition of representative. The definition of programme is also amended to exclude an addiction treatment programme. Clause 5 also inserts definitions for the terms day-to-day care and parenting order, which are used in new sections 28A, 28C, and 81(1)(b)(iii).
Clause 6 amends section 5(2), which lists the means by which the Domestic Violence Act 1995 aims to achieve its object of reducing and preventing domestic violence. Paragraph (d), which describes the programmes that respondents may be required to attend, is extended to cover addiction treatment programmes.
Clause 7 amends section 9 in line with the amended definition of child. The age at which a minor is required to apply for a protection order on his or her own behalf, without a next friend or guardian ad litem, is raised from 17 years to 18 years. Minors aged 16 years or 17 years may choose whether to make such an application on their own behalf or through a representative.
Clause 8 amends section 10 in line with the amended definition of child. The amendment raises the age at which a protection order may be applied for and made against a minor from 17 years to 18 years. (The existing exception for minors who are or have been married or in a civil union or de facto relationship remains.)
Clause 9 amends section 13 by inserting new subsections that require the Court to—
give written reasons for decisions to decline an application without notice for a protection order, or to put an application on notice:
promptly advise the applicant or his or her lawyer of the Court's decision and (if applicable) its reasons:
give the applicant an opportunity to discontinue the application rather than have it proceed on notice.
Clause 10 amends section 16 to clarify when a child of an applicant is, and is not, protected by a protection order. The amendments provide that:
Until it is discharged, a protection order also continues in force after the death of the applicant to protect any other person for whose benefit the order applied pursuant to a direction under section 16(2).
Clause 11 inserts a new heading Interim care and contact orders and new sections 28B to 28D, which in essence re-enact section 54 of the Care of Children Act 2004 (which is repealed by clause 42). New section 28B provides that where an applicant who has a child applies for a protection order, the Court may make interim care or contact orders to protect the welfare and best interests of the child. New section 28C provides that such interim orders cease to have effect on the earlier of 1 year after the date that the order is made or the date the child attains the age of 16. New section 28D requires a party in whose favour an interim order has been made to apply for a parenting order as soon as possible.
Clause 12 amends the heading above section 29 to read Information session and domestic violence programmes. The change ensures the heading relates to the new provisions covering information sessions, and aligns the heading with the new heading Addiction treatment programmes inserted by clause 23.
Clause 13 inserts new sections 28E and 28F, which relate to the provision of an information session to applicants and specified persons. An information session will cover how to make the best use of the protection order, the sorts of social assistance and programmes that are available to protected persons, and any other information prescribed by regulations. It will also describe the programmes that the respondent is required to attend. The Court must ensure that, reasonably soon after a protection order is made, the applicant is contacted and invited to attend an information session. The Court is also required to follow up every applicant who does not attend an information session within 6 months of the first invitation, and extend a further invitation to that person. The Court is not required to do this, however, if the applicant has advised the Registrar that he or she does not wish to be contacted for this purpose. Information sessions will be provided on a group basis, or on a one-to-one basis. Criteria for determining when a one-to-one information session is provided may be set out in regulations.
Clause 14 amends section 29(4), which provides for making and authorising requests for the provision of programmes to protected persons. New paragraphs (c) to (e) are substituted and paragraph (g) is repealed. New paragraph (c) enables a lawyer appointed for a child to request the provision of a programme for the child. New paragraphs (d) and (e) provide that applicants may make a request to attend a programme at any time while the protection order is in force, and that the Registrar may authorise attendance at more than 1 programme. Currently, section 29(4) authorises attendance at 1 programme only, and prevented, except in special circumstances, the Registrar authorising attendance at a programme if the request was made 3 or more years after the protection order was made.
Clause 15 inserts new section 29A, which allows the Registrar to authorise the provision of a programme to a child of the applicant's family until he or she reaches the age of 18 years, even if that child no longer resides with the applicant, and even if the protection order has been discharged.
Clause 16 repeals section 32(3), which provides that a direction to attend a programme is a condition of a protection order. The purpose of making a direction a condition of the order is to make non-attendance an offence under section 49. However, this is no longer necessary because new section 49A (as inserted by clause 26) creates a separate and specific offence for failure to attend a programme.
Clause 17 amends section 33 to address the difficulty that arises when the respondent or associated respondent has not been served with a copy of the protection order prior to the date specified in a direction for his or her first attendance at a programme. Section 33 is amended to provide that in these circumstances the Registrar can enlarge the date in the direction and, if necessary, require the respondent or associated respondent to attend the programme at a different time and place.
Clause 18 amends section 36, which relates to directions to attend a programme made on applications without notice. The amendments—
extend the time period between service of the direction and its taking effect from 5 clear days to 10 working days; and
allow the respondent or associated respondent to lodge a notice of objection within those 10 days; and
provide for the direction to be suspended from the time a notice of objection is received by the Court, until the Court confirms the direction.
Clause 19 inserts a new section 40A that gives the Registrar power to authorise a respondent or associate respondent to attend additional programmes if the Registrar is satisfied that he or she would benefit from doing so.
Clause 20 amends section 41A by adding a reference to new section 44E. The addition of that reference will enable the Registrar to deal with notices of absence from addiction treatment programmes in the same manner as notices of absence from programmes.
Clause 21 amends section 42 by adding references to sections that relate to addiction treatment programmes. The effect of adding these references is to allow the Judge to call before the Court a respondent who has failed to attend any session.
Clause 22 consequentially updates a cross-reference in section 43(4)(c)(i), which is necessitated by the creation of new section 49A inserted by clause 26.
Clause 23 inserts a new heading and a series of new sections that relate to addiction treatment programmes.
New section 44A sets out the meaning of addiction assessment, and new section 44B gives the Court power to direct that a respondent or an associated respondent must undergo an addiction assessment. That power can only be exercised if the Court grants a protection order at a defended hearing.
New section 44C provides that fees and expenses for such assessments may be prescribed by regulation and are payable out of public money appropriated by Parliament for the purpose.
New sections 44D, 44E, and 44F relate to addiction treatment programmes. New section 44D gives the Court power to direct that a respondent or an associated respondent must attend an addiction treatment programme, if an addiction assessment determined that a suitable programme can reasonably be made available and that he or she may benefit from receiving treatment. New section 44E requires the provider of an addiction treatment programme to notify the Court if the respondent or associated respondent fails to attend any session of a programme that the respondent has been directed to attend. New section 44F provides for the provider of an addiction treatment programme to notify the Registrar when that programme concludes, and to state whether the person participated fully in the programme.
Clause 24 amends section 47 to include a new subsection (1A) that sets out the matters that the Court must take into account when exercising its discretion to grant a discharge of a protection order.
Clause 25 inserts new sections 47A, 47B, and 47C. New section 47A provides that the Court may request a report on certain matters when considering an application for the discharge of a protection order. New section 47B provides that copies of a report must be given to the lawyer for each party, and to any lawyer appointed to act for a child who is the subject of the proceedings. New section 47C provides that fees and expenses for such reports may be prescribed by regulation and are payable by the parties to the proceedings or out of public money appropriated by Parliament for the purpose.
Clause 26 substitutes new sections 49 and 49A. The effect of the substitution is to—
remove the first-and second tier penalty structure for the offence of contravening a protection order, leaving only the current maximum penalty of a term of imprisonment not exceeding 2 years:
separate out the offence of failing to attend a programme as directed, and retain the current penalty of up to 6 months' imprisonment or a fine not exceeding $5,000 for that offence:
add new offences for failure to undergo an addiction assessment and failure to attend an addiction treatment programme, as directed. The penalty for these offences is the same as the penalty for failure to attend a programme.
A consequential amendment is also made to Part 2 of Schedule 1 of the Summary Proceedings Act 1957, to ensure that the offence of contravening a protection order is an indictable offence that may be tried summarily.
Clause 27 repeals section 50(2) of the principal Act. That subsection prescribes a number of statutory criteria that an arresting officer must consider before arresting a person who they have good cause to suspect has breached a protection order. This amendment aligns section 50 with other legislation, in particular the Crimes Act 1961, which permits arrest without a warrant where there is good cause to suspect an offence has been committed, without consideration of any other criteria.
Clause 28 amends section 60 to provide that where a temporary occupation or tenancy order becomes final by operation of law 3 months after the date on which it is made, the final order comes into effect immediately. This amendment is consistent with those made to sections 70 and 77 (in clauses 29 and 32 respectively).
Clause 29 amends section 70 to provide that where a temporary ancillary furniture order or furniture order becomes final by operation of law 3 months after the date on which it is made, the final order comes into effect immediately. This amendment is consistent with those made to sections 60 and 77 (in clauses 28 and 32 respectively).
Clause 30 amends section 71 in line with the amended definition of child. The age at which a minor is required to apply for a property order on his or her own behalf, without a next friend or guardian ad litem, is raised from 17 years to 18 years. Minors aged 16 years or 17 years may choose whether to make such an application on their own behalf or through a representative.
Clause 31 amends section 72 in line with the amended definition of child. The amendment raises the age at which a property order may be applied for and made against a minor from 17 years to 18 years. (The existing exception for minors who are or have been married or in a civil union or de facto relationship remains.)
Clause 32 amends section 77 to provide that where a temporary protection order becomes final by operation of law 3 months after the date on which it is made, the final order comes into effect immediately. This amendment responds to the decisions of Police v Bragovits (District Court, Waitakere, 16 March 2000) and Police v Fox (High Court, Hamilton, 13 December 2000), to ensure there is no lacuna in the legislation in respect of when the final order can be enforced. Similar amendments are made to sections 60 and 70 (see clauses 28 and 29).
Clause 33 inserts new section 79A to provide an early opportunity to review contact issues after a temporary protection order is made. This addresses the criticism made by some respondents that a temporary protection order obtained on a without notice application unfairly denies them contact with their children in those cases where contact arrangements cannot be agreed with the applicant. New section 79A provides that when making a temporary protection order the Court may direct the Registrar to convene a review before a Family Court Judge of the contact arrangements between the respondent and a child of the applicant's family. Both the applicant and respondent are invited to attend the review. At the review the Judge may do any of the following: make an interim contact order, impose conditions relating to the manner in which the respondent is to have contact, and make any necessary directions.
Clauses 34 and 35 address the uncertainty that has arisen about whether a Judge needs to specifically discharge a temporary order when making a final order. Section 80(1)(b) is amended to remove reference to the discharge of a temporary order and new section 80A is inserted to provide that where a temporary order is replaced by a final order, or is confirmed, the temporary order is automatically discharged.
Clause 36 amends section 81 to enable the Court to appoint a lawyer for a child when—
An appointment may only be made if an application for a parenting order under the Care of Children Act 2004 is not currently before a Family Court in respect of the child (as section 7 of the Care of Children Act 2004 provides for the appointment of a lawyer for the child where the child is the subject of proceedings under that Act).
Clause 37 amends section 83 to enable a lawyer who is appointed under the Care of Children Act 2004 to act for a child to be present at the hearing of proceedings under the Domestic Violence Act 1995 where the child is a child of the applicant's family. Currently, only a lawyer who is appointed under the Domestic Violence Act 1995 to represent a child may be present at the hearing of proceedings.
Clause 38 inserts a new Part 6A (new sections 124A to 124K), which is about police-issued safety orders.
New section 124A is the interpretation section for this new Part and includes definitions for constable and qualified constable.
New section 124B sets out when a qualified constable may make a safety order, and the matters that a constable must have regard to when considering whether to make a safety order.
New section 124C provides that a safety order may be made without needing to obtain the consent of the person for whose safety the safety order is proposed to be made.
New section 124D provides that a safety order may not be made against a child.
New section 124E sets out the effect of a safety order. A person against whom a safety order is made must immediately surrender any firearm or weapon in his or her possession or control and vacate any land or building occupied by the person named in the order for whose safety the safety order is made. A condition of the safety order is that the person against whom the order is made refrain from engaging in certain behaviours, which mirrors the standard conditions of a protection order set out in section 19.
New section 124F provides that while a safety order continues in force against any person, the provisions of a parenting order or agreement affording that person the day-to-day care of, or contact with, a child are suspended where the child is living with the person for whose safety the safety order was made.
New section 124G requires a safety order to be issued and served on the person against whom the order is made. That person may meanwhile be detained for up to 2 hours. The order must be explained, to the extent it is reasonably practicable to do so in the circumstances, both to the person against whom the order is made and the person for whose safety the order is made.
New section 124H provides that a safety order continues in force for up to 72 hours after it has been served.
New section 124I provides that if a person against whom a safety order is made refuses or fails to comply with the order, that person may be taken into custody and brought before a District Court. The District Court may direct that the safety order continue in force for up to a further 72 hours, or direct that another safety order be issued, or make a temporary protection order.
New section 124J requires that a person taken into custody under new section 124I must be brought before a District Court within 24 hours.
New section 124K provides the Crown and police immunity from criminal and civil liability except when acting in bad faith or without reasonable care.
Clause 39 amends section 127, which sets out the regulation-making powers under the Act. The amendment will enable regulations to be made to—
determine the number of programme sessions that may be provided to a child pursuant to an application under new section 29A; and
determine the number of programme sessions that may be provided to a respondent or associated respondent who has been authorised to attend an additional programme under new section 40A; and
determine the amount of fees and expenses, including minimum and maximum amounts, payable in respect of the preparation of—
Amendments to Care of Children Act 2004
Clause 40 provides that Part 2 amends the Care of Children Act 2004.
Clause 41 amends section 5, which sets out the principles relevant to the child's welfare and best interests. Paragraph (e) states that a child's safety must be protected and, in particular, the child must be protected from all forms of violence. The words
“as defined in section 3(2) of the Domestic Violence Act 1995” are added to paragraph (e), to clarify that the reference to violence includes not only physical and sexual abuse, but also psychological abuse.
Clause 42 repeals section 54, which provides that when an application is made under the Domestic Violence Act 1995 for a protection order, the Court may make interim care and contact orders. This provision has been carried over to the Domestic Violence Act 1995 (see clause 11) and can therefore be repealed.
Clause 43 makes a technical amendment consequential on the repeal of section 54.
Clause 44 amends section 58 to define allegation of violence, protection order, and violent party, which are terms used in sections 59 and 60 (as amended by clauses 45 and 46).
Clauses 45 and 46 amend sections 59 and 60, which set out the procedure for dealing with applications for day-to-day care of, or contact with, a child when there is an allegation that one of the parties has used violence against the child or the other party to the proceedings. In such cases the Court must have regard to a number of matters and only make an order if it is satisfied that the child will be safe while the violent party provides day-to-day care for the child, or has contact with the child. If the Court is not satisfied of this, it may make an order for supervised contact between the child and the violent party.
The effect of the amendments in clauses 45 and 46, combined with the new definition of violent party, is to extend sections 59 and 60 to apply not only where an allegation of violence is made, but also where there is currently in force a protection order against one of the parties for the protection of the child or the other party.
Clause 47 amends section 77, which deals with preventing the removal of a child from New Zealand. Under section 77, an order can be made preventing the removal of a child. Currently, an order can only be made if it is believed on reasonable grounds that a person is about to take a child out of New Zealand. This is a high threshold and does not acknowledge that the risk of removal may not be immediate, but is nonetheless real and ongoing. Section 77 is amended to lower this threshold and enable an order to be made when there are reasonable grounds to believe that a person may take a child out of New Zealand. Rather than a blanket prohibition on removal, the amendment affords flexibility to enable an order to name persons with whom a child may leave New Zealand.
Clause 48 inserts new sections 77A and 77B. New section 77A provides that, unless there are special circumstances, an order made under section 77 preventing the removal of a child from New Zealand—
New clause 77B provides for an order made under section 77 to be suspended for a specified time and in relation to a specified person. An application may be made to—
a High Court Judge, District Court Judge, or a Family Court Judge; or
a Registrar of the High Court or of a District Court, if the application is made by a person who was a party to proceedings under section 77 and every other person who was a party to those proceedings consents to the suspension of the order.
Clause 49 amends section 118(3) so that new sections 77A and 77B also apply where a Judge makes an order under section 77 preventing the removal of a child in the circumstances set out in section 118.
Clause 50 inserts new section 122A to enable the discharge of an order made under section 105 that a child abducted to New Zealand be returned to a person or country specified in the order. After a section 105 order is made, parents can subsequently come to an agreement on the child's care arrangements, including that the child remain in New Zealand, and that the order not be enforced. There is currently no mechanism in the legislation for discharging a section 105 order and this was confirmed in the recent Court of Appeal decision Butler v Craig  NZCA 198. This means that a party who obtains an order under section 105 could choose to enforce it at any time until the child attains 16 years. New section 122A empowers a Judge to discharge a section 105 order on the application of a person who was a party to the proceedings under section 105 if—