In 2016, police officers responded to 118,000 incidents involving family violence. However, we know that about 76 percent of family violence incidents are not even reported to the Police.¹ These are not necessarily one-off incidents, because family violence is cyclical with significant re-victimisation and high levels of recidivism.

In New Zealand, the family violence homicide rate per capita is more than twice that of Australia, Canada, or the United Kingdom. Between 2000 and 2010, New Zealand women reported the highest lifetime prevalence of physical violence and sexual violence by their intimate partner amongst 14 and 12 developed countries, respectively.²

Children are present at two-thirds of all family violence incidents attended by police officers. In New Zealand, children who experience family violence are twice as likely to be victims of sexual violence, and four times more likely to commit sexual violence against a partner. They are three times more likely to attempt suicide, and 57 percent leave school without a qualification.

Reducing New Zealand’s rates of family violence requires a comprehensive approach that prioritises early intervention and prevention. This bill is part of a wider work programme of the Ministerial Group on Family Violence and Sexual Violence, which is focusing on improving and coordinating family violence services to help all those affected by family violence in a timely and meaningful way.³

The bill has three main features:

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  Establishing a framework to support a cross-government response to family violence, including increasing people’s ability to access risk and needs assessments and services, providing for codes of practice, and new information-sharing provisions.

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  Making changes to improve the accessibility and effectiveness of civil orders (including police safety orders (PSOs) and protection orders).

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  Improving the criminal justice response by creating three new criminal offences and providing for more accurate recording of family violence offending in the criminal justice system.

Under the bill as introduced, new section 9 would allow a person under the age of 18 years to apply for a protection order, either in their own name or through a representative. This provision aims to simplify the current age-based distinctions in the Act. At present, children under 16 years old must apply through a representative, while those aged 16 years and over may apply by themselves or through a representative, and children aged 17 years and over must apply by themselves.

We agree with the suggestion that new section 9 should be amended to allow children aged 16 years and over to choose whether to make an application in their own name or through a representative. We recommend amending clauses 12 and 14 (sections 7 and 9) accordingly.

New section 9A concerns the views of a child on whose behalf an application for a protection order has been made by a representative. If the child expresses a view on the proceedings, the court must take it into account. We note that it is still the court’s discretion to determine the weight to be placed on that person’s views.

Court processes can be intimidating for anyone, especially a child. To help children better express their views, we recommend including a general provision to enable a judge to interview a child at any stage in the process if the judge thinks it is necessary or desirable. This would not affect the rules of the court on ascertaining the child’s wishes at any hearing of the application. To do this, we recommend inserting clause 45A to insert new section 81A in the Act.

In the bill as introduced, new section 10 would prevent the court from making a protection order against a child unless the court is satisfied that the order is justified by special circumstances. As the law stands, a protection order may only be made against a person under the age of 17 years if they are married, in a civil union, or in a de facto relationship. New section 10 is intended to maintain the status quo, allowing orders to be made against 16 and 17 year olds in special circumstances, but without the requirement that they must be in a relationship.

We are concerned that the wording of section 10 in the bill as introduced suggests that protection orders can be made against anyone under 18 years old. This is not the intention. We recommend amending section 10 to provide that a protection order may only be made against a child aged 16 or 17 years, and only if there are special circumstances.

We recommend a further amendment to assist the court in determining where there are special circumstances. We propose that the court:

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  must consider whether a notification should be made to the Ministry for Vulnerable Children, Oranga Tamariki (the ministry)

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  may request a social worker’s report

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  may make a referral to the ministry for a family group conference to be held

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  may appoint a lawyer where the child against whom the application is made is unrepresented.

We propose that, when the court considers applications for protection orders by or against children under new section 9 or 10, it should have the ability to obtain advice from the chief executive of the ministry or a social worker about any involvement the department has had with the parties.

We recommend inserting section 10AAA to enable the registrar to refer an application to the chief executive and request that they provide brief written advice. On receipt of such a request, the chief executive or a social worker must provide the advice, which then must be referred by the registrar to the judge who is considering the application.

We think that, when a court considers applications for protection orders by or against children under new section 9 or 10, it should be able to require the chief executive or social worker to report on the application.

We recommend inserting section 10AAB to allow the court to direct the registrar to give the chief executive a copy of the application. The chief executive would then be required to report to the court, and may appear personally or be represented by a lawyer.

Reports from the chief executive or a social worker are available to the court under sections 131A and 132 of the Care of Children Act (COCA). They are usually obtained when the court is alerted to concerns about care and protection during proceedings. We consider that they will be relevant to the court when considering applications for protection orders under section 9 or 10.

New section 11 would allow protection orders to be applied for on behalf of people who lack capacity. Section 11(4) refers to “ascertaining” the views of the person who lacks capacity. We accept that ascertaining a person’s views is not the same as taking them into account when making a decision.

To make it clear that the person’s views must be taken into account, we recommend inserting new section 11(6) to require the court to take into account any views ascertained under section 11(4). We note that it is still the court’s discretion to determine the weight to be placed on that person’s views.

New section 12A states that if an application for a protection order is made by a representative on behalf of another person, that person may be heard in the proceedings. We recommend amending new section 12A to include an obligation that the court take that person’s views into account. Again, we note that it is still the court’s discretion to determine the weight to be placed on that person’s views.

Clause 24 would amend section 28B to clarify that an interim order made under section 28B(2) should be treated the same as an interim parenting order made under section 48(1) of the COCA.⁴ At present, interim orders expire after 12 months, which could leave a gap in protection if an application for a final order has not been made.

To ensure that the presiding judge is aware of any current orders under the COCA, we recommend amending clause 24 to provide that the court registrar should give the court information about any existing orders. We note that it is standard practice for registry staff to routinely provide information to a judge, and we consider it desirable that it be reflected in the legislation.

We further recommend amending clause 24 to provide that an order under section 28B should be clear how it relates to (that is, how it operates with, overrides, or replaces all, or any parts, of) any other existing relevant orders made under the COCA. This clarification would occur, for example, if the interim and other existing orders are inconsistent, and would prevent confusion about which order should prevail.

We acknowledge the submission from the Judges of the District and Family Courts suggesting that the relevant rules in the Family Court Rules 2002 be reviewed in consultation with the judiciary. We understand that these rules will be reviewed in the implementation stage, and the judiciary will be consulted on any proposed changes.

New section 48 would re-enact current section 48, redrafting it in line with current legislative drafting practice. Section 48 applies to applications to vary or discharge a protection order on behalf of a protected person. Section 48(2) states that sections 9, 11, and 12 apply, but does not mention new sections 9A or 12A, which contain some content from current sections 9 and 12.

We recommend amending new section 48(2) to include reference to new sections 9A and 12A. This would make it clear that the court must have regard to the views of the child or person on whose behalf an application is made.

When a respondent has completed a non-violence programme or prescribed service, new section 51Q would require the service provider to give the court registrar a completion report. The report would state whether the respondent has met the objectives of the programme or service, and advise of any concerns about the safety of a protected person.

We recommend inserting section 51Q(3) and (4). New section 51Q(3) would allow the court to release a copy of the completion report to either the respondent, or the lawyer for a child who applied for a protection order under section 9, or both, on any terms and conditions the court considers necessary or desirable to protect the safety of a protected person. New section 51Q(4) sets out examples of what these terms and conditions might include.

New section 51R is intended to remove the legal barriers to programme providers sharing relevant information about the assessment and management of risk with other family violence agencies. As introduced, it would not allow this information to be admitted as evidence in any court or before any person acting judicially. However, that prohibition (in new section 51R(2)) on the information being used as evidence would not stop the information from being disclosed for all or any of the purposes set out in section 51R(3).

We note concerns that this would prevent the disclosure of this information to the court even with the authority of the person to whom the information relates. We consider that people should be able to authorise the disclosure of information about them to the court.

We recommend amending new section 51R(3) to allow this information to be admitted as evidence, with the authority of the person concerned. We further recommend amending new section 51R(4) to clarify that this section would not limit sharing or disclosing court information under the relevant court rules or the Privacy Act 1993.

New section 51S sets out what powers a judge would have where a registrar brings a matter to their attention under various sections in Part 2A. Section 51S(3)(g) would enable a judge to make, vary, or discharge the terms or conditions of a parenting order under the COCA relating to the respondent.

We note that, because the judge would be exercising powers under the COCA, the paramountcy principle in section 4(1)(b) of the COCA would automatically apply. However, we consider it desirable to make this clear. We therefore recommend amending section 51S(3)(g) to state that the provisions of the COCA apply.

New section 51W sets out the court’s powers after hearing from a respondent. It includes the option for the court to admonish the respondent. We note that the effectiveness of an admonition can be questioned, but we consider it a suitable response when combined with any or all of the other options available to the court.

New section 51W(1)(g) would allow the court to make, vary, or discharge the terms or conditions of a parenting order under the COCA. As discussed above, we consider it desirable to make clear that the provisions of the COCA would apply. We recommend amending section 51W(1)(g) accordingly.

Section 60 relates to applications without notice for occupation orders or tenancy orders. In the bill as introduced, section 60 would be amended by removing section 60(3). This would align it with new sections 53 and 57, which relate to the court’s power to make occupation orders and tenancy orders. At present, the tests distinguish between applications made with or without notice. An application without notice is limited to situations where the respondent has used physical or sexual abuse against the applicant. An application with notice includes the use of psychological abuse.

It has been pointed out that, as introduced, the bill would still only enable without-notice applications to be made if the respondent had used physical or sexual abuse against the respondent, and not solely psychological abuse.

We note that the bill’s intent in amending section 60 is to remove this distinction. We believe the same test should be applied for applications with or without notice, and it should include psychological violence. We recommend amending section 60(1) accordingly.

Sections 62 to 70 of the Act deal with orders granting an applicant the possession and use of furniture and household appliances and effects. We recommend amending section 64, which relates to ancillary furniture orders, and section 68, which relates to furniture orders, to state that failure to comply with any term or condition of either order would amount to a breach of the related protection order. This would be an offence against section 49.

We recommend inserting clause 43A to specify that an order under section 63 or 67 may be made on application without notice if the court is satisfied that a delay caused by proceeding on notice could expose the applicant, or their child, to family violence.

Section 71 empowers a child to make an application for a property order. We recommend inserting section 71(2)(ab) to make it clear that a child may apply for a property order without a representative if they are 16 years old or over.

Under section 71, a representative may make an application for a property order on behalf of a child. We recommend inserting new section 71A to state that the child may be heard during the proceedings, and to require the court to take their views into account.

We recommend amending section 72 to make it clear that the court must not make a property order against a child unless the child is 16 years old or over and the order is justified by special circumstances.

A PSO is issued when the Police have reasonable grounds to believe that family violence has occurred, or may occur.

We recommend amending section 124D to state that a qualified constable must not issue an order against a child unless they are satisfied that child is aged 16 years or older.

Clause 58 would amend section 124E to update and simplify the Act’s provisions relating to the effect of PSOs. It includes examples of permissible contact. The aim is to provide for contact in special circumstances, such as an emergency or a family group conference.

However, we note that this amendment would create inconsistency with section 124G, which applies when a parenting order is suspended. This is unintended. Further, we note that the examples of contact are unnecessary because contact is defined in the interpretation section of the principal Act.

We recommend removing section 124E(2A)(b) so that section 124G would determine the forms of contact permitted while PSOs are in place. Section 124G suspends a parenting order or an agreement giving to the person bound by the PSO the day-to-day care of, or contact with, a protected child.

As introduced, clause 67 states that the balance of probabilities is the standard of proof to apply when determining whether to make a direction or order in response to a person’s refusal or failure to comply with a PSO.

We heard evidence that clarifying the standard of proof to apply does not resolve ambiguity in court procedure for breaches of PSOs. We agree.

We recommend that clause 67 be amended to explicitly provide that breaches of PSOs are to be dealt with in the civil jurisdiction of the District Court. We further recommend inserting new section 124NA(1AAB) to allow rules of court to be made about dealing with breaches of PSOs.

New section 124V(1) would allow family violence agencies or social services practitioners to request personal information for specific purposes. New section 124V(5) states that, when determining whether to disclose that personal information, an agency or practitioner must have regard to the principle that victim protection should usually take precedence over confidentiality or any limit under privacy principle 11 in section 6 of the Privacy Act.

We heard concerns that section 124V(5) may create an assumption that confidentiality is mutually exclusive with victim safety. However, we consider that the phrase “should usually” indicates that, in some cases, it will not be appropriate to override a person’s confidentiality and privacy.

Section 7 of the Privacy Act ensures that, where there is conflict between the privacy principles and another piece of legislation, the other legislation prevails. There are many provisions throughout legislation where this override may apply without being explicitly stated. We acknowledge evidence from the Privacy Commissioner that including an explicit override in section 124V(5) could create legal uncertainty, because other implicit overrides may be interpreted to mean something different.

We therefore recommend amending section 124V to make it clear that the principle in section 124V(5) does not create mandatory sharing of information, but it must be considered before a decision is made about whether to disclose the information. We also recommend including new section 124VA to clarify the relationship between section 124V and other enactments, including the Privacy Act.

New section 124Y would allow codes of practice to be issued by Order in Council to guide the delivery of services to victims or perpetrators of family violence to stop or prevent family violence.

It is intended that the codes would contain operational detail for family violence agencies and social services practitioners. The Governor-General would issue the codes by Order in Council, in accordance with recommendations from the Minister of Justice.

It was suggested that this section be amended to include a requirement for the Privacy Commissioner to be consulted on draft codes of practice relating to the use or disclosure of personal information. We agree, and recommend including new section 124Y(4A) to set out this requirement.

Clause 70 would allow regulations to be made prescribing approval processes and criteria for assessors, service providers, and approved organisations.

Section 7A of the Crimes Act allows certain offences to be prosecuted when they occur outside New Zealand but are linked to New Zealand. Section 7B requires the Attorney-General’s consent for prosecutions under section 7A because they could affect New Zealand’s international relationships.

As introduced, the bill would add the new offence of coerced marriage or civil union in section 7A. However, this offence was inadvertently not included in section 7B. We therefore recommend that new section 7B be amended to include the offence of coerced marriage or civil union.

Current law does not allow the courts to impose conditions preventing defendants, who have been remanded in custody, from contacting victims. The onus is on the victim to refuse contact. This is problematic because defendants may threaten and abuse victims, resulting in charges being dropped as they withdraw their evidence.

New section 168A would allow the court to impose no-contact conditions on defendants who are charged with a family violence offence and are remanded in custody. New section 168B sets out provisions about compliance with no-contact conditions, and processes to follow if the no-contact conditions are not complied with. These provisions include the responsibilities on a manager of the prison in which the defendant is remanded in custody.

We recommend rewording section 168B(2) to state that, where a defendant is held in custody on remand, the manager of the prison should use existing powers in the Corrections Act 2004 to detect or prevent non-compliance with a no-contact condition. This would make it clear that prison managers could take practical steps like checking and monitoring phone calls and mail.

It is the policy intent that, when there is an appeal against a protection order made during sentencing for an offence (and under section 123B of the Sentencing Act), it should follow the same process as an appeal against the sentence for the offence in the criminal jurisdiction. The case law on appeals of these protection orders, which now aligns with the policy intent, has suggested that this be clarified in legislation. We agree that clarification is desirable.

Accordingly, we recommend that section 123H be added to the Sentencing Act. It would state that appeals of protection orders made under section 123B are considered to be an appeal under subpart 4 of Part 6 of the Criminal Procedure Act against the sentence imposed for an offence.

New section 123H also requires the appeal court to send a copy of the order to the Family Court if, on an appeal against the sentence, a protection order is made or varied under section 123B.

The bill would not make any changes to the legal aid scheme. However, we are aware of concern that people who are ineligible for legal aid may face barriers in accessing assistance to apply for protection orders. Various solutions were suggested, such as automatic entitlement to legal aid for victims of family violence, waiving repayment of legal aid for proceedings under the COCA when concurrent with protection order proceedings, or allowing people with disabilities to request their own lawyer instead of a legal aid approved lawyer.

We considered these suggestions carefully. However, we are concerned that altering the legal aid scheme so that assistance was based on factors other than a person’s income would be inconsistent with the purposes of the scheme, which is to provide legal services to people with insufficient means. We are advised that 90 percent of people who apply for legal aid to fund a protection order application receive support.

Although we acknowledge that people with disabilities may feel more comfortable with a lawyer they already know, we do not support the suggestion to allow people with disabilities to request a lawyer who is not approved for legal aid funding. Legal aid lawyers must comply with approved criteria to ensure quality and consistency in legal aid representation.

New section 12 would allow approved organisations to be authorised to apply for a protection order on behalf of people who cannot apply for themselves. This section is intended to improve accessibility to protection orders by expanding on an existing power in the legislation which is not commonly used.⁵ We note that nothing in the bill would prevent a person from representing themselves before a court or tribunal.

We are aware of concern that this would allow non-lawyers to undertake legal work. This is not the case. The approved organisation would represent the victim in proceedings for protection order applications, and would still use a lawyer as necessary. We note that the Lawyers and Conveyancers Act 2006 prohibits non-lawyers from undertaking legal work. However, the Act does not prevent a person from representing themselves in proceedings before a court or tribunal.⁶

We do, however, acknowledge the need to balance access to protection orders with quality service provided by lawyers. Approved organisations would have to satisfy criteria set by the Minister of Justice to show they have the necessary skills and expertise. We are also advised that the Government intends to investigate further options to assist people with applying for protection orders.

The bill maintains the ability for people, including the Police, to apply for protection orders on behalf of victims unable to apply for themselves because of physical incapacity, fear, or other sufficient cause. The Police exercise this power when they determine it is appropriate to do so, generally in exceptional circumstances.

The bill also includes new provisions that would enable approved organisations to routinely apply for protection orders on behalf of people who cannot apply for themselves. This means that the approved organisations would no longer need to obtain the leave of the court before making an application. We considered whether it was necessary to explicitly state that the Police would fit within the criteria for an approved organisation.

We understand that the Police consider that the legislation is clear that they can make third-party applications, and that their current practice of only applying for protection orders in exceptional circumstances is appropriate. They believe a power to routinely apply on behalf of victims is better suited to specialist non-governmental organisations (NGOs).

We note that other jurisdictions, including Australia, allow the Police to routinely apply for protection orders on behalf of victims. However, these jurisdictions do not have an equivalent to New Zealand’s PSOs. When attending a family violence incident, a police officer may either arrest the perpetrator or issue a PSO. The bill as introduced makes an important change to allow the Police to issue a PSO when a perpetrator is arrested but charges are not filed. Because a PSO lasts for up to five days, this would allow the Police to remove the immediate threat, and give the victim time to put safety measures in place (which may include a protection order).

Applications for protection orders require more evidence than PSOs: that the respondent has used violence against the applicant, and that an order is necessary to protect them. We consider that specialist NGOs are better placed for this work, and that the Police should only do so in exceptional circumstances. We therefore do not think it is necessary to amend the bill to explicitly state that the Police would fit within the criteria for an approved organisation.

Access to protection orders was a common concern throughout submissions, particularly for elderly and disabled people. Suggestions to improve accessibility included simplifying court processes and forms, creating an Office of Public Guardian to assist disabled people in applying, and legislating timeframes for protection orders.

We agree that changing the application forms for protection orders is a simple way to improve accessibility. We understand that changes will be made by the time this bill comes into force. The effects of the changes on vulnerable people, including the disabled, will be taken into consideration when developing the policy proposals.

Although we support the intent of any proposals to help elderly and disabled people apply for protection orders, we note that establishing an Office of Public Guardian is outside this bill’s scope. We are confident that the new protections to be introduced by the bill (for example, new section 27(1)) would assist elderly and disabled people, both by making protection orders more accessible, and by increasing their visibility in the legislation.

We consider it undesirable to include legislative timeframes for protection order applications because it could lead to orders lapsing automatically, regardless of any safety needs of protected people. Protection orders last indefinitely so that protected people do not have to reapply for protection. They may be discharged after an application by the protected person or the respondent, but only if the court is satisfied that an order is no longer necessary.

The COCA sets out what a court must consider when making orders about the care and protection of children. There is no presumption of shared parenting, because this would be inflexible and would prioritise the needs of parents over the needs of children.

Section 4 states that a child’s welfare and best interests must be the first and paramount consideration. Section 5 sets out six principles that relate to a child’s welfare and best interests, the first of which is that a child must be protected from all forms of violence. Section 5A supplements section 5 by requiring the court to take into account existing protection orders and the circumstances under which they were made.

In 2010, the Supreme Court indicated that, if relevant, section 5(a) will generally carry decisive weight in assessment because it is phrased in terms of “must” rather than “should”.⁷ If the court is not satisfied that the child will be safe with a parent, it may decline an application, or place specified conditions on a contact order.

We considered whether it was necessary to add further guidelines for the court. However, we are satisfied with the current protections and the further changes proposed by the bill.

There is frequent overlap between applications for protection orders and parenting orders. In 2016, about 43 percent of those who applied without notice for a protection order also applied for a parenting order under the COCA on the same day.

A protection order has three standard conditions: no violence, no contact, and no encouragement of others to breach the order. A protected person may consent to contact with the respondent, but cannot consent to contact that is inconsistent with supervised contact under the terms of a parenting order. If the protected person consents to live in the same house as the respondent, the non-contact condition will be suspended. It will automatically revive if the protected person withdraws their consent. The Domestic Violence Act sets out other exceptions to the non-contact condition.

We received submissions raising concerns that protection orders seem to prioritise the rights of the respondent over the protected person and the rights of children. Some suggested that protection orders should override existing parenting orders, while others suggested that judges should be able to vary the terms of a parenting order when considering an application for a protection order.

Breaches of protection orders are offences, and are dealt with through the criminal courts, while parenting orders are handled in the Family Court. In practice, an alleged breach of a protection order may take months to determine. Further, not all prosecutions result in a conviction.

We do not consider that the breach of a protection order should automatically override parenting orders. It is important that the law allow judges to make decisions that take account of the particular facts of each case. The COCA and the Domestic Violence Act require judges to weigh up different considerations when making parenting orders as opposed to protection orders.

We are aware that, if a breach of a protection order occurs, it is up to the applicant to apply for a variation of a parenting order. We acknowledge that this can be an additional burden on a victim of family violence, but we consider that the proposed new sections in the bill will provide sufficient support to an applicant in doing so.

We note that if a parenting order has already been made, section 28B allows the court, when considering an application for a protection order, to vary an order about providing day-to-day care for or contact with a child of the applicant’s family.

We discussed the bill’s relationship with the Oranga Tamariki Act 1989. The information-sharing framework in the Oranga Tamariki Act differs from this bill, which may create confusion for the professionals whose work is covered by both pieces of legislation.

Both provide for the development and approval of information-sharing codes of practice. These codes of practice will provide guidance for agencies and practitioners.

The framework in the Oranga Tamariki Act provides for mandatory sharing unless a listed exception applies. This is because children are seen as more vulnerable than adults. In contrast, this bill allows agencies to share information either when they receive an information request, or when they believe sharing will help to protect a person from family violence.

In practice, the professionals whose work is covered by both pieces of legislation will be able to share information under either framework. They should clearly state the purpose for which they are sharing the information. If an agency receives an information request, the request should clearly state which legislation applies. If the Oranga Tamariki Act applies, the request must be complied with unless an exception applies. In contrast, if this bill applies the agency must consider sharing the information, but is not required to share it.