Family and Whānau Violence Legislation Bill - Amendment paper No 116
Family and Whānau Violence Legislation Bill - Amendment paper No 116
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Family and Whānau Violence Legislation Bill - Amendment paper No 116
No 116
House of Representatives
Supplementary Order Paper
Thursday, 13 September 2018
Family and Whānau Violence Legislation Bill
Proposed amendments for the consideration of the Committee of the whole House
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Explanatory note
This Supplementary Order Paper sets out amendments to the Family and Whānau Violence Legislation Bill.
Most ensure that the Bill, instead of amending extensively the Domestic Violence Act 1995, replaces it entirely with a more accessible modern Family Violence Act. New Part 1 will become the new Act.
The new Act includes, however, the following substantive changes:
the principles are altered so that decision makers should, whenever appropriate, recognise that family violence is often behaviour that appears to be minor or trivial when viewed in isolation, but forms part of a pattern of behaviour that causes cumulative harm (emphasis added, new clauses 4(b), 9(3), 10(2), and 82):
the principles are altered so that decision makers should, whenever appropriate, recognise that family violence often is or includes coercive or controlling behaviour (new clauses 4(c) and 9(3)):
the definition of family violence is amended to recognise explicitly (to increase public awareness) that violence includes dowry-related violence (new clause 9(4) and (5)):
the definition of family relationship is amended to make it clear, by way of example, that a close personal relationship may exist between a carer and a recipient of care (new clause 14(2) and (5)):
the information sharing subpart is given a main purpose (to encourage family violence agencies and social services practitioners to collaborate to identify, stop, prevent, and otherwise respond to family violence) (new clause 18(1)):
a Police safety order’s maximum duration is extended from 5 days to 10 days (new clauses 26(c), 35(2), and 46(1)):
the District Court jurisdiction for dealing with a breach of a Police Safety Order is altered from civil jurisdiction to criminal jurisdiction (new clauses 46 and 48 to 50):
responsibility for approving approved organisations is shifted from the Minister of Justice to the Secretary for Justice (new clauses 71, 72, and 249(b)(ii)):
duties for assessors and providers to ascertain, and take into account, victims’ views, unless it is unsafe or otherwise inappropriate to do so (new clauses 195 and 202).
Clause 2 is also amended so that the Bill will come into force on 1 July 2019 (except for the amendments to the Bail Act 2000, Crimes Act 1961, and Evidence Act 2006, which will come into force on 3 December 2018).
Departmental disclosure statement
The Ministry of Justice is required to prepare a disclosure statement to assist with the scrutiny of this Supplementary Order Paper. It provides access to information about any material policy changes to the Bill and identifies any new significant or unusual legislative features of the Bill as amended.
A copy of the statement can be found at http://legislation.govt.nz/disclosure.aspx?type=sop&subtype=government&year=2018&no=116&
Regulatory impact statement
The Ministry of Justice produced a regulatory impact statement on 12 April 2018 to help inform the new policy decisions taken by the Government relating to the contents of this SOP.
A copy of this regulatory impact statement can be found at—
The Honourable Andrew Little, in Committee, to propose the amendments shown in the following document.
Hon Andrew Little
Family and Whānau Violence Legislation Bill
Government Bill
247—2
Contents
The Parliament of New Zealand enacts as follows:
1 Title
This Act is the Family and Whānau Violence Legislation Act 2017.
2 Commencement
(1)
This Act comes into force on 1 July 20181 July 2019.
(2)
However, the following provisions come into force on a date or dates set by Order in Council3 December 2018:
(a)
Part 1 and Schedules 1 and 2 (amendments to Domestic Violence Act 1995):
(b)
subpart 2 of Part 2 (amendments to Care of Children Act 2004):
(c)
subpart 4 of Part 2 (amendments to Criminal Procedure Act 2011):
(a)
subpart 1 of Part 2 (amendments to Bail Act 2000):
(b)
subpart 3 of Part 2 (amendments to Crimes Act 1961):
(d)
subpart 5 of Part 2 (amendments to Evidence Act 2006).
(3)
One or more orders may be made setting different dates for different provisions.
(4)
Any part of the Act that is not already in force on 1 July 2020 comes into force then.
Part 1 Amendments to Domestic Violence Act 1995Family Violence
3 Principal Act
This Part amends the Domestic Violence Act 1995 (the principal Act).
Title
4 Name of principal Act changed
As from the commencement of this section,—
(a)
the Domestic Violence Act 1995 is called the Family and Whānau Violence Act 1995:
(b)
every reference in any enactment (other than an enactment amended or replaced by this Part), and in any document, to the Domestic Violence Act 1995 must, unless the context otherwise requires, be read as a reference to the Family and Whānau Violence Act 1995.
5 Long Title repealed
Repeal the Long Title.
6 Section 1 amended (Short Title and commencement)
(1)
In the heading to section 1, delete “Short”.
(2)
In section 1(1), replace “may be cited as the Domestic Violence Act 1995” with “is the Family and Whānau Violence Act 1995”.
Preliminary provisions (Part 1)
7 New sections 1A to 1C inserted
Before section 2, insert:
1A Purpose of this Act
(1)
The purpose of this Act is to stop and prevent family violence by—
(a)
recognising that family violence, in all its forms, is unacceptable; and
(b)
stopping and preventing perpetrators from inflicting family violence; and
(c)
keeping victims, including children, safe from family violence.
(2)
A court that, or a person who, exercises a power conferred by or under this Act (for example, the District Court exercising a power conferred by or under Part 6A) must be guided in the exercise of that power by the purpose of this Act.
1B Principles
The following principles are to guide the achievement of the purpose of this Act:
(a)
family violence, in all its forms, is unacceptable:
(b)
decision makers should, whenever appropriate, recognise that family violence is often a pattern of behaviour that causes cumulative harm:
(c)
decision makers should, whenever appropriate, recognise that children are particularly vulnerable to family violence, including seeing or hearing violence against others:
(d)
decision makers should, whenever appropriate, recognise that children are at particular risk of lasting harm to their current and future wellbeing:
(da)
decision makers should, whenever appropriate, recognise that people with disabilities, and other people (for example, due to their age or health condition, or to any other cause), may also be particularly vulnerable to family violence:
(db)
decision makers should, whenever appropriate, recognise that early intervention helps to stop and prevent family violence:
(e)
perpetrators who inflict family violence should face effective responses to, and sanctions for, family violence:
(f)
perpetrators of family violence should have access to, and in some cases be required to engage with, services to help them stop and prevent their family violence:
(g)
victims of family violence should have access to services to help secure their safety from family violence:
(h)
arrangements that support the ongoing safety and wellbeing of a victim of family violence should whenever practicable be sustained (for example, employment, education, housing, or community involvement):
(i)
responses to family violence should be culturally appropriate and, in particular, responses involving Māori should reflect tikanga:
(j)
decision makers should consider the views of victims of family violence, and respect those views unless a good reason exists in the particular circumstances for not doing so (for example, because doing so would or may compromise victims’ safety):
(k)
decision makers should collaborate, whenever appropriate, to identify and respond to family violence:
(l)
access to the court should be as speedy, inexpensive, and simple as is consistent with justice.
1C Overview of this Act
(1)
This Part contains the purpose of this Act, principles to guide the achievement of that purpose, definitions, and other preliminary provisions.
(2)
Part 2 (Protection orders) contains provisions about—
(a)
who may apply for, and the making of, protection orders against a respondent who has inflicted, or is inflicting, family violence; and
(b)
the scope, and standard or special conditions, of protection orders; and
(c)
the making of interim orders about care for, or contact with, a child of the applicant’s family; and
(d)
the duration, variation, and discharge of protection orders; and
(e)
the enforcement of protection orders (or related property orders), for example, by prosecution for a criminal offence.
(3)
Part 2A (Programmes and prescribed services) provides for—
(a)
approval of assessors and service providers; and
(b)
authorities to be notified of safety concerns of assessors or service providers; and
(c)
safety programmes for protected persons (if requested by those persons); and
(d)
mandatory non-violence programmes, and discretionary prescribed services, for respondents; and
(e)
confidentiality of information; and
(f)
enforcement and powers when a matter is (for example, because of safety concerns or non-compliance) referred back to the court.
(4)
Part 3 (Orders relating to property) contains provisions about applications for, and powers to make,—
(a)
an occupation order (which is an order granting to the applicant the right to personally occupy a specified dwellinghouse); and
(b)
a tenancy order (which is an order vesting in the applicant the tenancy of a specified dwellinghouse); and
(c)
an ancillary furniture order (which is an order, ancillary to an occupation order or a tenancy order in respect of a dwellinghouse, granting to the applicant the possession and use of all or any of the furniture, household appliances, and household effects in that dwellinghouse); and
(d)
a furniture order (which is an order granting to the applicant the possession and use of all or any of the furniture, household appliances, and household effects in the dwellinghouse in which the parties live or have lived).
(5)
Part 4 (Procedure) contains provisions about temporary orders, general procedural matters (for example, appointment of lawyers to assist the court or to represent a child, and explaining orders to respondents), and appeals.
(6)
Part 5 is about enforcement of New Zealand protection orders overseas, and enforcement in New Zealand of foreign protection orders.
(7)
Part 6 is about non-publication on public registers of information relating to a protected person (as defined in section 2).
(8)
Part 6A (Police safety orders) contains provisions about a qualified constable issuing against a person (person A) an order—
(a)
to help make another person (person B) safe from family violence; and
(b)
requiring person A to vacate any land or building occupied by person B (or any child residing with person B), to comply with conditions about violence and no-contact, and (if directed to do so) to arrange and attend a risk and needs assessment; and
(c)
continuing in force for the period (not exceeding 5 days) specified in it; and
(d)
that, if person A has failed or refused to comply with it, can be extended or renewed, or replaced with a temporary protection order.
(9)
Part 6B (Information requests, use, and disclosure, and service delivery codes of practice)—
(a)
enables family violence agencies and social services practitioners to request, use, or disclose personal information for purposes related to family violence; and
(b)
requires family violence agencies and social services practitioners, in certain circumstances, to consider disclosing personal information for those purposes; and
(c)
provides for codes of practice to guide the delivery of services provided, to stop or prevent family violence, to victims or perpetrators of family violence.
(10)
Part 7 contains miscellaneous provisions, for example, about publication of reports of proceedings, and rules and regulations.
(11)
Sections 123A to 123H (Protection orders) of the Sentencing Act 2002 apply if an offender is convicted of a family violence offence (as defined in section 123A of that Act) and no protection order made under this Act is in force against the offender for the protection of the victim of the offence, and enable the court, as well as imposing a sentence or making any other order, to make a protection order against the offender if—
(a)
the court is satisfied that the making of the order is necessary for the protection of the victim of the offence; and
(b)
the victim of the offence does not object to the making of the order.
(12)
This section is only a guide to the general scheme and effect of this Act (and of those sections of the Sentencing Act 2002).
8 Section 2 amended (Interpretation)
(1)
In section 2, insert in their appropriate alphabetical order:
approved organisation means an organisation approved under section 12B
chief executive means the chief executive of the department
constable has the meaning given in section 4 of the Policing Act 2008
department means the department for the time being responsible for the administration of the Oranga Tamariki Act 1989
digital communication has the same meaning as in section 4 of the Harmful Digital Communications Act 2015
family relationship means one of the relationships set out in section 4(1)
family violence has the meaning set out in section 3
government organisation means—
(a)
a department specified in Schedule 1 of the State Sector Act 1988; or
(b)
a Crown entity (as defined in section 7 of the Crown Entities Act 2004)
ill-treat, in relation to an animal, has the same meaning as in section 2(1) of the Animal Welfare Act 1999
inflict family violence, in relation to any person, means to engage in behaviour that amounts to family violence against that person
perpetrator, of family violence,—
(a)
means a person who has inflicted, or is inflicting, family violence (even if no offence involving the violence was, is, or is to be, admitted or prosecuted); but
(b)
in Part 6B, has the meaning given in section 124U
prescribed non-standard service means a service that—
(a)
is, or is to be, provided to a respondent by a service provider (as defined in section 51A); and
(b)
has the objective of stopping or preventing family violence, or helping the respondent to stop inflicting family violence; and
(c)
is a type of non-standard service specified in regulations made under section 127(aaa)
prescribed service means a service that is—
(a)
a prescribed non-standard service; or
(b)
a prescribed standard service
prescribed standard service means a service that—
(a)
is, or is to be, provided to a respondent by a service provider (as defined in section 51A); and
(b)
has the objective of stopping or preventing family violence, or helping the respondent to stop inflicting family violence; and
(c)
is a type of standard service specified in regulations made under section 127(aaa)
property order means an order made under Part 3
social worker means a person employed under Part 5 of the State Sector Act 1988 in the department as a social worker
tikanga means customary values and practices
(2)
In section 2, repeal the definitions of domestic relationship and domestic violence.
(3)
In section 2, replace the definitions of child, child of the applicant’s family, contact, court, family member, partner, and representative with:
child means a person who is under the age of 18 years
child of the applicant’s family, for an applicant and at any time, means a child who at that time ordinarily or periodically resides with the applicant, whether or not—
(a)
the child is a child of the applicant, the respondent, or both; and
(b)
for a protection order, the child resided ordinarily or periodically with the applicant at, or was born only after, the time when that order was made
contact, by a respondent or other person, and with a child or protected person, means any form of 1 or both of the following:
(a)
direct (that is, face-to-face) interaction:
(b)
indirect interaction (including, without limitation, by telephone, letters or other writing, or email, or by communication on or via an Internet site or other digital communication, or in any other way)
court—
(a)
means the Family Court; and includes a Family Court Judge; or
(b)
if another court has jurisdiction in the proceedings, means that court
family member, in relation to a person, means—
(a)
any other person who is or has been related to the person by blood or by or through marriage, a civil union, or a de facto relationship, or by adoption:
(b)
any other person who is a member of the person’s whānau or other culturally recognised family group
partner, in the phrase “spouse or partner” and in related contexts, means, in relation to a person (P),—
(a)
P’s civil union partner; or
(b)
P’s de facto partner; or
(c)
if P is a biological parent of a person, another biological parent of that person
representative,—
(a)
in relation to a child, means a litigation guardian or next friend appointed under or recognised by rules of court, or an approved organisation authorised by section 12C, to take proceedings under this Act on behalf of that child:
(b)
in relation to a person lacking capacity to whom section 11 applies, means a litigation guardian appointed under or recognised by rules of court, or an approved organisation authorised by section 12C, to take proceedings under this Act on behalf of that person:
(c)
in relation to a person to whom section 12 applies, means a litigation guardian appointed under that section, or an approved organisation authorised by section 12C, to take proceedings under this Act on behalf of that person
(6)
In section 2, repeal the definition of use domestic violence.
9 Section 3 replaced (Meaning of domestic violence)
Replace section 3 with:
3 Meaning of family violence
(1)
In this Act, family violence, in relation to a person, means violence inflicted—
(a)
against that person; and
(b)
by any other person with whom that person is, or has been, in a family relationship.
(2)
In this section, violence means all or any of the following:
(a)
physical abuse:
(b)
sexual abuse:
(c)
psychological abuse.
(3)
Violence against a person includes a pattern of behaviour (done, for example, to isolate from family members or friends) that is made up of a number of acts that are all or any of physical abuse, sexual abuse, and psychological abuse, and that may have 1 or both of the following features:
(a)
it is coercive or controlling (because it is done against the person to coerce or control, or with the effect of coercing or controlling, the person):
(b)
it causes the person, or may cause the person, cumulative harm.
(4)
Subsection (2) is not limited by subsection (3), and must be taken to include references to, and so must be read with, sections 3A and 3B.
3A Abuse for purposes of section 3(2)
(1)
A single act may amount to abuse.
(2)
A number of acts that form part of a pattern of behaviour (even if all or any of those acts, when viewed in isolation, may appear to be minor or trivial) may amount to abuse.
(3)
This section does not limit section 3(2).
3B Psychological abuse for purposes of section 3(2)(c)
(1)
Psychological abuse includes—
(a)
threats of physical abuse, of sexual abuse, or of abuse of a kind stated in paragraphs (b) to (f):
(b)
intimidation or harassment (for example, all or any of the following behaviour that is intimidation or harassment:
(i)
watching, loitering near, or preventing or hindering access to or from, a person’s place of residence, business, or employment, or educational institution, or any other place that the person visits often:
(ii)
following the person about or stopping or accosting a person in any place:
(iii)
if a person is present on or in any land or building, entering or remaining on or in that land or building in circumstances that constitute a trespass):
(c)
damage to property:
(d)
ill-treatment of 1 or both of the following:
(i)
household pets:
(ii)
other animals whose welfare affects significantly, or is likely to affect significantly, a person’s well-being:
(e)
financial or economic abuse (for example, unreasonably denying or limiting access to financial resources, or preventing or restricting employment opportunities or access to education):
(ea)
in relation to a person unable, by reason of age, disability, health condition, or any other cause, to withdraw from the care or charge of another person, hindering or removing (or threatening to hinder or remove) access to any aid or device, medication, or other support, that affects, or is likely to affect, the person’s quality of life:
(f)
in relation to a child, abuse stated in subsection (2).
(2)
A person psychologically abuses a child if that person—
(a)
causes or allows the child to see or hear the physical, sexual, or psychological abuse of a person with whom the child has a family relationship; or
(b)
puts the child, or allows the child to be put, at real risk of seeing or hearing that abuse occurring.
(3)
However, the person who suffers the abuse in subsection (2)(a) and (b) is not regarded, under subsection (2), as having (as the case may be)—
(a)
caused or allowed the child to see or hear that abuse; or
(b)
put the child, or allowed the child to be put, at risk of seeing or hearing that abuse.
(4)
Psychological abuse may be or include behaviour that does not involve actual or threatened physical or sexual abuse.
(5)
This section does not limit section 3(2)(c).
10 Section 4 amended (Meaning of domestic relationship)
(1)
In the heading to section 4, replace “domestic relationship” with “family relationship”.
(2)
In section 4(1), replace “domestic relationship” with “family relationship”.
11 Sections 5 and 6 replaced
Replace sections 5 and 6 with:
5A Status of examples
An example provided in this Act of the operation of a provision of an enactment—
(a)
does not limit the provision; and
(b)
may extend the operation of the provision.
Compare: Acts Interpretation Act 1901 s 15AD (Aust); 2012 No 120 s 5A; 2014 No 58 s 5(2)
5B Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.
6 Act binds the Crown
This Act binds the Crown.
Protection orders (Part 2)
12 Section 7 amended (Application for protection order)
(1)
In section 7(1), replace “domestic relationship” with “family relationship”.
(2)
Replace section 7(2) with:
(2)
Where the person who is eligible to apply for a protection order is a child, the child may under section 9(2) make the application only—
(a)
by a representative (for example, an approved organisation that is authorised by section 12C to take proceedings under this Act on behalf of the child); or
(ab)
if aged 16 years old or over (in which case section 9(2)(ab) authorises the child to take proceedings without a representative); or
(b)
if authorised under rules of court to do so without a representative.
(3)
In section 7(3), after “a person”, insert “lacking capacity”.
(4)
In section 7(4),—
(a)
replace “years or older” with “years old or over”; and
(b)
replace “section 12(1)(b)” with “section 12(1)(c)”.
13 Section 8 amended (Contents of application)
(1)
In section 8(a), replace “domestic relationship” with “family relationship”.
(2)
In section 8(b), replace “domestic violence” with “family violence”.
14 Sections 9 to 12 replaced
Replace sections 9 to 12 with:
9 Applications by children
(1)
A child may, in accordance with this section, make an application for a protection order.
(2)
A child may make the application only—
(a)
by a representative (for example, an approved organisation that is authorised by section 12C to take proceedings under this Act on behalf of the child); or
(ab)
if aged 16 years old or over (in which case this paragraph authorises the child to take proceedings without a representative); or
(b)
if authorised under rules of court to do so without a representative.
(3)
This section does not limit or affect the making or operation of rules of court (for example, rules made under section 16A(1) of the Family Courts Act 1980) that—
(a)
prevent an incapacitated child from taking part in, or from taking a step in, all or any specified proceedings under this Act without a litigation guardian:
(b)
provide for a representative to make all or any specified applications under this Act on behalf of a child prevented by physical incapacity, fear of harm, or another sufficient cause from applying personally.
9A Views of child on whose behalf application made by representative
(1)
This section applies if an application for a protection order is made, on behalf of a child, by a representative, under section 9(2)(a).
(2)
The child may be heard in the proceedings, even though they arose from the application made by the representative, and despite section 9(2)(a).
(3)
Where the child expresses views on any matters related to the proceedings, the court must take account of those views.
10 Applications against children
(1)
The court must not make a protection order against a child unless satisfied that the child is aged 16 years old or over and that the order is justified by special circumstances.
(2)
The court must not make a direction under section 17 (protection from respondent’s associates) that a protection order apply against a child unless satisfied that the child is aged 16 years old or over and that the direction is justified by special circumstances.
(3)
In determining under this section whether a protection order, or direction under section 17, is justified by special circumstances, the court—
(a)
must consider whether to report concerns about the well-being of the child under section 15 of the Oranga Tamariki Act 1989; and
(b)
may, if the child is not represented by a lawyer in respect of the proceedings related to the order or direction, appoint a lawyer under section 81(1)(ba) to act for the child in respect of those proceedings; and
(c)
may under section 10AAB (report from chief executive or social worker) direct the Registrar to supply to the chief executive a copy of the application for the protection order; and
(d)
may refer the matter to a care and protection co-ordinator under section 19 of the Oranga Tamariki Act 1989.
10AAA Advice from chief executive or social worker
(1)
This section applies to an application under section 9 or 10 for a protection order.
(2)
For the purpose of expediting consideration of the application, a Registrar, on the Registrar’s own initiative, may—
(a)
refer the application to the chief executive; and
(b)
request the chief executive to provide brief written advice on the nature and extent of any involvement that the department has had with the parties.
(3)
On receipt of a request to provide such brief written advice, the chief executive or a social worker must provide the advice.
(4)
The Registrar must refer advice received (from the chief executive or a social worker) to the Judge who is considering the application.
Compare: 2004 No 90 s 131A
10AAB Report from chief executive or social worker
(1)
This section applies to an application under section 9 or 10 for a protection order (other than a temporary order).
(2)
The court may direct the Registrar to supply to the chief executive a copy of the application.
(3)
The Registrar must, if directed by the court to do so, supply to the chief executive a copy of the application.
(4)
If the Registrar supplies the chief executive with a copy of the application, the chief executive or a social worker—
(a)
must report on the application; and
(b)
may appear on the application personally or by a lawyer.
Compare: 2004 No 90 s 132
10A Meaning of person lacking capacity
For the purposes of section 11, person lacking capacity means a person who is aged 18 years old or over and who—
(a)
lacks, wholly or partly, the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare; or
(b)
has the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare, but wholly lacks the capacity to communicate decisions in respect of such matters.
11 Applications on behalf of people lacking capacity
(1)
This subsection applies if a person lacking capacity (P) is eligible to apply for a protection order and—
(a)
no one has power, under an appointment made under the Protection of Personal and Property Rights Act 1988, to make such an application on P’s behalf; or
(b)
a person has power, under such an appointment, to make such an application, but the person so appointed has refused or failed to do so.
(2)
If subsection (1) applies, the protection order must be applied for, on P’s behalf, and in accordance with rules of court, by a representative (for example, an approved organisation that is authorised by section 12C to take proceedings under this Act on behalf of P).
(3)
No representative may be appointed under rules of court to make an application for a protection order on behalf of a person lacking capacity (P) unless, before making the appointment, the court or, as the case requires, the Registrar is satisfied—
(a)
that the representative is not, and is not acting for, an approved organisation (which can be authorised to act as a representative under this section only under section 12C); and
(b)
that reasonable steps have been taken to ascertain P’s views in relation to the appointment; and
(c)
if P’s views have been able to be ascertained,—
(i)
that P does not object to the appointment; or
(ii)
that P’s objection is not freely made.
(4)
A representative who under this section makes an application for a protection order on behalf of a person lacking capacity (P) must—
(a)
take reasonable steps to ascertain P’s views in relation to the matter; and
(b)
take reasonable steps to ascertain P’s welfare guardian’s views in relation to the matter, if P has a welfare guardian appointed under the Protection of Personal and Property Rights Act 1988 and no good reason exists not to ascertain those views; and
(c)
include in the application any views ascertained under paragraphs (a) and (b); and
(d)
take reasonable steps to inform P’s welfare guardian of the progress of the application (for example, of any order made on it), if P has a welfare guardian appointed under the Protection of Personal and Property Rights Act 1988, and no good reason exists not to do so.
(5)
However, subsections (3) and (4) do not require reasonable steps to be, or to have been, taken to ascertain P’s views in relation to an appointment or a matter if P wholly lacks the capacity to communicate decisions in respect of matters relating to P’s personal care and welfare.
(6)
In determining the application, the court must take into account any views ascertained under subsection (4)(a) and (b).
12 Applications on behalf of people prevented by physical incapacity, fear of harm, or another sufficient cause from applying personally
(1)
This section applies if a person aged 18 years old or over (P)—
(a)
is not a person lacking capacity to whom section 11 applies; and
(b)
is eligible to apply for a protection order; and
(c)
is prevented by physical incapacity, fear of harm, or another sufficient cause from making the application personally.
(2)
An application (made with or without notice) for a protection order may be made on behalf of P by a representative (for example, an approved organisation authorised by section 12C to take proceedings under this Act on behalf of P).
(3)
The court or a Registrar may, on an application made under this subsection for the purpose, appoint a person as a representative of P for the purpose of making and prosecuting, on behalf of P, an application (made with or without notice) for a protection order, if the person—
(a)
is not, and is not acting for, an approved organisation (which can be authorised to act as a representative under this section only under section 12C); and
(b)
is 18 years old or over; and
(c)
is not incapacitated (as defined in subsection (5)).
(4)
If an application for the appointment of a representative is made under subsection (2), the court or Registrar must make the appointment sought if satisfied—
(a)
that reasonable steps have been taken to ascertain P’s views in relation to the appointment; and
(b)
where the views of P have been able to be ascertained,—
(i)
that P does not object to the appointment; or
(ii)
that P’s objection is not freely made; and
(c)
that it is in P’s best interests to make the appointment; and
(d)
that the proposed appointee—
(i)
consents in writing to the appointment; and
(ii)
is not incapacitated; and
(e)
that there is unlikely to be any conflict between the interests of the proposed appointee and P’s interests; and
(f)
that the proposed appointee has filed in the court an undertaking to be responsible for any costs awarded against P in the proceedings.
(5)
In this section, a person is incapacitated if, by reason of physical, intellectual, or mental impairment, whether temporary or permanent, the person is—
(a)
not capable of understanding the issues on which the person’s decision would be required as a representative of a litigant conducting proceedings; or
(b)
otherwise unable to perform the duties of such a representative.
12A Views of person on whose behalf application made under section 12 by representative
(1)
This section applies if an application for a protection order is made under section 12, on behalf of a person (P), by a representative.
(2)
P may be heard in the proceedings, even though they arose from the application made by the representative.
(3)
Where P expresses views on any matters related to the application, the court must take account of those views.
12B Approved organisations
(1)
An organisation approved under this section may be authorised by section 12C to take proceedings—
(a)
under section 9 on behalf of a child (including that section as applied by section 22(6), 48, or 92); or
(b)
under section 11 on behalf of a person lacking capacity (including that section as applied by section 22(6), 48, 73(2), or 92); or
(c)
under section 12 on behalf of a person prevented by physical incapacity, fear of harm, or another sufficient cause from applying personally (including that section as applied by section 22(6), 48, 73(2), or 92).
(2)
An organisation may be approved under this section by the Minister of Justice—
(a)
on an application made for the purpose by the organisation; or
(b)
on the Minister’s own motion, and with the organisation’s written consent.
(3)
An organisation seeking an approval under this section by way of an application, or an own-motion approval under this section, must follow the applicable process (if any) prescribed by regulations made under section 127(a)(i).
(4)
The Minister may, at any time, amend, suspend, or cancel an approval under this section.
(5)
In deciding whether to grant, amend, suspend, or cancel an approval under this section, the Minister must apply the criteria (if any) prescribed for the purposes of this section by regulations made under section 127(a)(ii).
(6)
An approval, or an amendment, suspension, or cancellation of an approval, under this section must be by written notice copied to the organisation.
(7)
The Secretary must publish promptly on an Internet site maintained by or on behalf of the Ministry of Justice an up-to-date list of approved organisations.
12C Applications by approved organisation authorised to act as representative
(1)
An approved organisation that complies with subsection (2) is authorised by this section to make and prosecute under section 9, 11, or 12, on behalf of a child or person (P), an application (made with or without notice) for an order.
(2)
To comply with this subsection, the organisation must, without making an application to be appointed or to act as a representative for P, complete and file in the court an application form for the order, and that shows or includes—
(a)
that reasonable steps have been taken to ascertain P’s views in relation to the organisation acting as a representative for P; and
(b)
where the views of P have been able to be ascertained,—
(i)
that P does not object to the organisation acting as a representative for P; or
(ii)
that P’s objection is not freely made; and
(c)
that it is in P’s best interests for the organisation to act as a representative for P; and
(d)
that there is unlikely to be any conflict between the interests of the organisation and P’s interests; and
(e)
an undertaking to be responsible for any costs awarded against P in the proceedings.
(3)
However, subsection (2) does not require reasonable steps to be, or to have been, taken to ascertain P’s views in relation to the organisation acting as a representative for P if P wholly lacks the capacity to communicate decisions in respect of matters relating to P’s personal care and welfare.
14A Section 13 amended (Application without notice for protection order)
(1)
Replace section 13(4)(e) with:
(e)
if a direction is made under section 51E, in respect of the respondent, notify the court, in accordance with section 51F, that the respondent objects to the direction.
(2)
Replace section 13(5)(e) with:
(e)
if a direction is made under section 51E, in respect of the associated respondent, notify the court, in accordance with section 51F, that the associated respondent objects to the direction.
15 Section 14 amended (Power to make protection order)
(1)
In section 14(1)(a), replace “is using, or has used, domestic violence” with “has inflicted, or is inflicting, family violence”.
(2)
In section 14(2) and (4), replace “domestic violence” with “family violence”.
16 Section 15 amended (Existence of other proceedings not to preclude granting of protection order)
In section 15, replace “minor” with “child”.
17 Section 16 amended (Protection of persons other than applicant)
(1)
In section 16(1B), replace “17 years” with “18 years”.
(2)
Replace section 16(2), (3), and (4) with:
(2)
In or after making a protection order, the court may (subject to subsections (2A) and (3)) direct that the order also apply for the benefit of either or both of the following:
(a)
a particular child of the applicant who, because the child does not ordinarily or periodically reside with the applicant, is not a child of the applicant’s family (as defined in section 2):
(b)
any particular person with whom the applicant has a family relationship, and who is not a child of the kind specified in paragraph (a).
(2A)
No direction may be made under subsection (2)(a) (in respect of a child of the applicant who is not a child of the applicant’s family) unless the court is satisfied that the making of the direction is necessary for the protection of the child.
(3)
No direction may be made under subsection (2)(b) (in respect of a person who is not a child of the kind specified in subsection (2)(a)) unless the court is satisfied that—
(a)
the respondent is engaging, or has engaged, in behaviour that, if the respondent and the person were or, as the case may be, had been in a family relationship, would amount to family violence against the person; and
(b)
the respondent’s behaviour towards the person is due, in whole or in part, to the applicant’s family relationship with the person; and
(c)
the making of a direction under this section is necessary for the protection of the person; and
(d)
where practicable, the person consents to the direction being made.
(4)
Section 14(2) to (5) applies, with the necessary modifications, to an application for a direction under subsection (2)(a) or (b) of this section.
(3)
In section 16(5)(a), replace “17 years” with “18 years”.
(4)
In section 16(6), after “(1B),”, insert “(2), (2A), (3),”.
18 Section 17 amended (Protection from respondent’s associates)
In section 17(1) and (2)(a), replace “domestic violence” with “family violence”.
19 Sections 19 and 20 replaced
Replace sections 19 and 20 with:
19 Standard conditions: no family violence, no contact, no having others breach order
A protection order has, as standard conditions, that the respondent must not—
(a)
engage in behaviour that amounts to any form of family violence against the protected person (see sections 3, 3A, and 3B):
(b)
make any contact with the protected person that is not contact authorised under or by section 20 or 20B (which describe the condition in this paragraph as the standard no-contact condition):
(c)
encourage a person to engage in behaviour against, or to make contact with, a protected person, if the behaviour or contact, if engaged in or made by the respondent, would be prohibited by the protection order.
20 Standard no-contact condition: exceptions with consent
Protected person can suspend or reinstate condition by giving or cancelling consent to contact
(1)
The protected person may suspend the standard no-contact condition by giving consent to contact.
(2)
The protected person may reinstate the standard no-contact condition by cancelling consent to contact.
Contact to which protected person can give or cancel consent
(3)
Contact to which the protected person may give or cancel consent under subsection (1) or (2) may be or include all or any of the following:
(a)
contact made when the respondent and protected person are, with the protected person’s consent, living in the same dwellinghouse:
(b)
contact made—
(i)
if the protected person is present on or in any land or building; and
(ii)
by or after the respondent entering or remaining on or in that land or building:
(c)
contact made when the respondent is a prisoner and receives the protected person as a private visitor under section 73(1) of the Corrections Act 2004 and any regulations made under that Act that regulate the visiting of prisons:
(d)
contact made by telephone, letters or other writing, or email, or by communication on or via an Internet site, or by other digital communication.
(4)
No consent under this section can authorise contact inconsistent with—
(a)
an order for supervised contact in relation to a child:
(b)
no-contact conditions imposed by a direction under section 168A of the Criminal Procedure Act 2011.
Giving of consent must be in required form, but cancelling may take any form
(5)
No consent to contact is valid unless in writing or in a digital communication (for example, in a text message, email, letter, or standard form).
(6)
However, a cancelling of consent to contact may take any form (for example, words spoken face to face, or by telephone).
No limit on number of times condition can be suspended and reinstated
(7)
The standard no-contact condition may any number of times—
(a)
be suspended under subsection (1); and
(b)
be reinstated under subsection (2).
20A Standard no-contact condition: references to consent
(1)
This section applies if a protection order has a special condition imposed under section 27(3) that specifies that a person (other than the respondent or the associated respondent) is entitled to consent, on the protected person’s behalf, in relation to contact with the protected person.
(2)
References in section 20 to the giving or cancelling of the consent of a protected person include, as the case requires,—
(a)
the giving of the consent of the specified person:
(b)
the cancelling of consent by the specified person.
20B 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; or
(b)
permitted under any order or written agreement relating to the role of providing day-to-day care for, or contact with, or custody of,—
(i)
any child (within the meaning of section 8 of the Care of Children Act 2004); or
(ii)
any child or young person (within the meaning of section 2 of the Oranga Tamariki Act 1989); or
(c)
permitted under any special condition of the protection order; or
(d)
necessary for the purposes of attending a family group conference (within the meaning of section 2 of the Oranga Tamariki Act 1989); or
(e)
necessary to attend any proceeding (of any kind) in or before any court or person acting judicially, or to attend any other matter that is associated with such a proceeding and that is a matter that the parties to the proceeding jointly attend (for example, a restorative justice conference, or a settlement conference convened under section 46Q of the Care of Children Act 2004).
(2)
The contact authorised by subsection (1) may be contact made—
(a)
if the protected person is present on or in any land or building; and
(b)
by or after the respondent entering or remaining on or in that land or building.
(3)
Subsection (2) does not limit subsection (1).
20C Standard conditions: associated respondents
(1)
This section applies if, under a direction made under section 17, a protection order applies against an associated respondent.
(2)
Sections 19 to 20B apply, with the necessary modifications, in respect of the associated respondent.
20A Section 22 amended (Court may dispense with, modify, discharge, or re-impose standard condition relating to weapons)
In section 22(6), replace “Sections 9, 11, and 12,” with “Sections 9, 9A, 11, 12, and 12A,”.
21 Section 23 amended (Further provisions relating to powers conferred by section 22)
In section 23(1), (3)(a) and (b), and (4)(a) and (b)(ii), replace “domestic violence” with “family violence” in each place.
22 Section 27 amended (Court may impose special conditions)
(1)
Replace section 27(1) with:
(1)
In or after making a protection order, the court may impose any conditions that are reasonably necessary, in the opinion of the court, for either or both of the following purposes:
(a)
to protect the protected person from further family violence by the respondent, or the associated respondent, or both:
(b)
to address the inflicting of family violence against protected people who are particularly vulnerable (for example, due to age, disability, or health condition).
(2)
In section 27(3), replace “19(2), 20,” with “19(b), 20, 20A,”.
23 Section 28 replaced (Further provisions relating to certain special conditions)
Replace section 28 with:
28 Special conditions inconsistent with contact: exceptions with consent
(1)
This section applies to a special condition of a protection order if the special condition requires the respondent not to make contact with the protected person.
(2)
Sections 20, 20A, 20B, and 20C apply to the special condition as if it were the standard no-contact condition specified in section 19(b).
24 Section 28B amended (Interim orders in respect of child of applicant’s family)
(1)
In section 28B(1)(a) and (2), replace “Family Court” with “court”.
(2)
After section 28B(3), insert:
(3A)
Before the court makes an order under subsection (2), the Registrar should ensure the court has copies of, or information about all terms of, all existing relevant orders (if any) made under the Care of Children Act 2004.
(3B)
An interim order made under subsection (2) should make clear how it relates to (how it operates with, overrides, or replaces all, or any parts, of) all existing relevant orders (if any) made under the Care of Children Act 2004.
(4)
An interim order made under subsection (2) must be taken to be an interim parenting order made under section 48(1) of the Care of Children Act 2004 (so that, for example,—
(a)
section 49A of that Act applies to it; and
(b)
it may be varied or discharged under section 56 of that Act).
25 Section 28C repealed (Duration of interim order)
Repeal section 28C.
26 Section 28D replaced (Application for parenting order under Care of Children Act 2004 must be made)
Replace section 28D with:
28D Proceedings about interim order in respect of child of applicant’s family: legal aid
(1)
This section applies to proceedings under the Care of Children Act 2004 if—
(a)
section 28B of this Act applies, under section 28B(1) of this Act, because an application has been made to the court for a protection order, and there is a child of the applicant’s family; and
(b)
the court makes under section 28B(2) of this Act, and in respect of the child concerned, an interim order; and
(c)
section 28B(4) of this Act requires that interim order to be taken to be an interim parenting order made under section 48(1) of the Care of Children Act 2004; and
(d)
the proceedings under the Care of Children Act 2004 relate to that interim order being varied, or discharged, or replaced with a further interim parenting order or with a final parenting order.
(2)
For the purposes of section 19(1) of the Legal Services Act 2011 (which contains special provisions about conditions on grants of legal aid to persons involved in proceedings under this Act), proceedings to which this section applies are a kind of proceedings that relate to, or arise out of, an application for a protection order under Part 2 of the Family and Whānau Violence Act 1995.
26A Section 46 amended (Power to vary protection order)
(1)
Replace section 46(1)(c) and (d) with:
(c)
by varying or discharging a direction made under section 51E:
(d)
by making a direction under section 51E.
(2)
Replace section 46(2)(c) and (d) with:
(c)
by varying or discharging a direction made under section 51E:
(d)
by making a direction under section 51E.
27 Section 47 amended (Power to discharge protection order)
1
After section 47(1), insert:
(1A)
However, the court must not discharge the order unless satisfied that the order is no longer necessary for the protection of any protected person.
(1B)
In determining whether to discharge a protection order, the court must have regard to the following matters to the extent that they are relevant in the particular case:
(a)
the length of the period since the order was made:
(b)
the behaviour that led to the making of the order (including its nature, its seriousness, and how often violence occurred):
(c)
whether, and if so how, the respondent acknowledges the respondent’s past behaviour that led to the making of the order:
(d)
whether the respondent to the order complied with required attendance at or engagement with, and achieved objectives of, any assessment or programme or prescribed services:
(e)
any relevant safety concerns that an assessor or a service provider has notified or advised under section 51C or 51Q:
(f)
any family violence or breaches of the order since it was made:
(g)
the necessity for contact and the likelihood (if the order is discharged) of future contact:
(h)
the risk of future family violence:
(i)
whether areas of concern that led to the order are no longer evident:
(j)
any protected person’s ascertained views on the application (whether it is made by, or on behalf of, the applicant or the respondent).
(1C)
Subsection (1B) does not limit the matters to which the court may have regard in determining whether to discharge a protection order.
28 Section 48 replaced (Variation or discharge on behalf of protected person)
Replace section 48 with:
48 Variation or discharge on behalf of protected person
(1)
This section applies in relation to—
(a)
any application on behalf of a protected person for the variation or discharge of a protection order under this Act; and
(b)
the defending on behalf of a protected person of any such application made by the respondent or the associated respondent.
(2)
Sections 9, 9A, 11, 12, and 12A apply to those matters, so far as applicable and with the necessary modifications, as they apply in relation to the making of an application for a protection order.
29 Section 49 amended (Offence to breach protection order)
(1A)
In the heading to section 49, after “protection order”, insert “(or related property order)”.
(1)
Replace section 49(1) with:
(1)
A person commits an offence if the person breaches a protection order by—
(a)
doing any act in contravention of the protection order; or
(b)
failing to comply with any condition of the protection order; or
(c)
contravening, or failing to comply with any term and condition of, a related occupation order (for example, by failing to leave the dwellinghouse to which the order relates); or
(d)
contravening a related tenancy order (for example, by failing to leave the dwellinghouse to which the order relates); or
(e)
contravening, or failing to comply with any term and condition of, a related ancillary furniture order (for example, by preventing possession and use of all or any items to which the order relates); or
(f)
contravening, or failing to comply with any term and condition of, a related furniture order (for example, by preventing possession and use of all or any items to which the order relates).
(2)
Replace section 49(4) with:
(4)
A failure to comply with a direction made under section 51E is not a breach of a protection order under subsection (1)(b).
30 Section 50 replaced (Power to arrest for breach of protection order)
Replace section 50 with:
50 Power to arrest for breach of protection order (or related property order)
Where a protection order is in force, any constable may arrest, without warrant, any person who the constable has good cause to suspect has—
(a)
contravened the protection order; or
(b)
failed to comply with any condition of the protection order; or
(c)
contravened, or failed to comply with a term and condition of, a related occupation order; or
(d)
contravened a related tenancy order; or
(e)
contravened, or failed to comply with a term and condition of, a related ancillary furniture order; or
(f)
contravened, or failed to comply with a term and condition of, a related furniture order.
Programmes (Part 2A)
31 Part 2A replaced
Replace Part 2A with:
Part 2A Programmes and prescribed services
Interpretation
51A Interpretation
In this Part, unless the context otherwise requires,—
approval means an approval under section 51B, and that has not been suspended or cancelled, of 1 of the following kinds:
(a)
an approval of an assessor:
(b)
an approval of a service provider
assessment, in relation to a respondent, means an assessment of the respondent undertaken by an assessor to determine—
(a)
the extent to which the respondent poses a safety risk to any person or the public; and
(b)
if the assessment is an assessment for a non-violence programme, what, if any, non-violence programme is the most appropriate for the respondent to attend; and
(c)
if the assessment is an assessment for prescribed services, what, if any, prescribed services may be appropriate for and may benefit the respondent
assessor means a person or an organisation that has been granted an approval to undertake assessments (for non-violence programmes, prescribed services, or both)
non-violence programme means a programme that—
(a)
is provided by a service provider; and
(b)
is provided to a respondent; and
(c)
has the primary objective of stopping or preventing family violence on the part of the respondent
prescribed non-standard service has the meaning given to it by section 2
prescribed service has the meaning given to it by section 2
prescribed standard service has the meaning given to it by section 2
programmes means—
(a)
safety programmes; and
(b)
non-violence programmes
respondent means the person against whom an application has been made for an order under this Act, and includes an associated respondent
safety programme means a programme that—
(a)
is provided by a service provider; and
(b)
is provided to a protected person; and
(c)
has the primary objective of promoting (whether by education, information, support, or otherwise) the protection of the protected person from family violence
service provider means a person or an organisation that has been granted an approval to provide programmes, prescribed services, or both.
Approval of assessors and service providers
51B Assessors and service providers
(1)
The Secretary may decide to grant, amend, suspend, or cancel—
(a)
an approval of a person or an organisation (for example, a government organisation) as an assessor (for non-violence programmes, prescribed services, or both):
(b)
an approval of a person or an organisation (for example, a government organisation) as a service provider.
(2)
A person or an organisation may be approved under subsection (1) by the Secretary—
(a)
on an application made for the purpose by the person or organisation; or
(b)
on the Secretary’s own motion, and with the person’s or organisation’s written consent.
(3)
A person or an organisation seeking an approval under subsection (1) by way of an application, or an own-motion approval under subsection (1), must follow the applicable process (if any) prescribed by regulations made under section 127(a)(i).
(4)
A person or an organisation may (subject to, and to the prescribed criteria referred to in, subsection (5)) seek, be granted, or hold, both—
(a)
an approval as an assessor (for non-violence programmes, prescribed services, or both); and
(b)
an approval as a service provider.
(5)
In deciding whether to grant, amend, suspend, or cancel an approval under subsection (1), the Secretary must apply the criteria (if any) prescribed for the purposes of this section by regulations made under section 127(a)(ii).
(6)
An approval, or an amendment, suspension, or cancellation of an approval, under this section must be by written notice copied to the person or organisation.
(7)
The Secretary must publish promptly on an Internet site maintained by or on behalf of the Ministry of Justice—
(a)
an up-to-date list of assessors approved under this section:
(b)
an up-to-date list of service providers approved under this section.
Notification of safety concerns
51C Assessor or service provider to notify safety concerns
(1)
This section applies if,—
(a)
a service provider has, during or after the provision by the provider to a protected person of a safety programme, concerns about the safety of a protected person (whether or not a protected person attending, or who attended, the safety programme); or
(b)
an assessor has, during or after the undertaking by the assessor of an assessment of the respondent, concerns about the safety of a protected person; or
(c)
a service provider has, during or after the provision by the provider to a respondent of a non-violence programme or a prescribed service, concerns about the safety of a protected person.
(2)
In subsection (1), concerns about the safety of a protected person means concerns about a risk (to the safety of the protected person) that—
(a)
is imminent, escalating, or grave; and
(b)
adds to the concerns that supported the making of the protection order.
(3)
The assessor or service provider must, without delay, notify the following authorities of those concerns:
(a)
the Registrar:
(b)
the District Commander at the appropriate Police District Headquarters:
(c)
if there is a perceived risk to any child, the chief executive.
(4)
On receiving a notification under subsection (3)(a), the Registrar must—
(a)
arrange for the protected person to be advised of the assessor’s or service provider’s concerns; and
(b)
comply with section 51U (Registrar’s response to notice of safety concerns or non-compliance).
Safety programmes
51D Safety programmes for protected persons
(1)
If the court makes a protection order,—
(a)
the applicant, or the applicant’s representative, may request the Registrar to authorise the provision of a safety programme to all or any of the following persons:
(i)
the applicant:
(ii)
a child of the applicant’s family:
(iii)
a specified person; and
(b)
a child of the applicant’s family may request the Registrar to authorise the provision of a safety programme to that child if no request has been made under paragraph (a)(ii); and
(c)
a specified person (other than a child) may request the Registrar to authorise the provision of a safety programme to that specified person if no request has been made under paragraph (a)(iii).
(2)
If, at the time the protection order is made, the applicant has not made a request under this section, and the applicant is not legally represented, the Judge or the Registrar must inform the applicant of the applicant’s right to make such a request.
(3)
One or more requests may be made under all or any of subsection (1)(a), (b), and (c), in respect of the same person or different people, at any time while the protection order remains in force.
(4)
If a request is made to a Registrar under subsection (1)(a), (b), or (c), the Registrar—
(a)
must arrange for the matter to be referred to a service provider without delay, if the request is the first one made by or on behalf of the applicant, child of the applicant’s family, or specified person; and
(b)
may do so, if the request is a later one made by or on behalf of the applicant, child of the applicant’s family, or specified person.
(5)
Every lawyer acting for an applicant for a protection order must—
(a)
ensure that the applicant is aware of the applicant’s right to make a request under this section; and
(b)
if the applicant wishes to exercise that right, take any further steps the lawyer considers necessary to enable the applicant to do so.
Non-violence programmes and prescribed services
51E Directions for assessments, non-violence programme, and prescribed standard services
Court making protection order must make direction for non-violence programme
(1)
On making a protection order, the court must direct the respondent to—
(a)
undertake an assessment for a non-violence programme; and
(b)
attend a non-violence programme, provided by a service provider, that an assessor determines is an appropriate non-violence programme for the respondent to attend.
(2)
However, the court need not make a direction under subsection (1) if the court considers that there is a good reason for not making a direction.
Court making protection order may make direction for prescribed services
(3)
On making a protection order, the court may direct the respondent to—
(a)
undertake an assessment for prescribed services; and
(b)
engage with any prescribed standard service, provided by a service provider, that an assessor determines may be appropriate for and may benefit the respondent.
51F Objection process if direction made on application without notice
(1)
This section applies if the court makes a direction under section 51E on an application made without notice.
(2)
If this section applies,—
(a)
the direction does not take effect until 10 working days after a copy of the direction is served on the respondent; and
(b)
the respondent may, within those 10 working days, notify the court that the respondent objects to the direction.
(3)
If the respondent, under subsection (2)(b), notifies the court that the respondent objects to the direction,—
(a)
the Registrar must, if the respondent wishes to be heard, assign a hearing date, which must be—
(i)
as soon as practicable; and
(ii)
unless there are special circumstances, in no case later than 42 days after receipt of the notice of objection; and
(b)
the direction is suspended from the date on which the court receives the notice of objection until the court, after considering the respondent’s objection, confirms (whether with or without variation) or discharges the direction.
(4)
Nothing in this section or section 51G gives the court power to review any order or decision other than the direction to which the notice relates, but nothing in this section limits section 76 or 79.
51G Court may confirm or discharge direction after considering objection
(1)
After considering an objection, made under section 51F, to a direction, the court may—
(a)
confirm the direction; or
(b)
vary the direction; or
(c)
discharge the direction.
(2)
If the court under subsection (1) confirms or varies a direction and the respondent is before the court, the Judge must warn the respondent that non-compliance with the direction is an offence punishable by imprisonment.
(3)
Failure to give the warning required by subsection (2) does not affect the validity of the direction confirmed or varied.
51H Referral of respondent to assessor
(1)
After the court has made a direction under section 51E, the Registrar must, without delay,—
(a)
arrange for the respondent to be referred to an assessor who has been granted an approval to undertake an assessment of the kind required by the direction; and
(b)
notify the assessor of the direction made under section 51E.
(2)
This section is subject to section 51F (objection process if direction made on application without notice).
51I Assessor meets with respondent, undertakes assessment, and makes determinations
Undertaking assessment and making determinations
(1)
As soon as possible after receiving a notification under section 51H, the assessor must arrange to meet with the respondent to—
(a)
undertake an assessment of the respondent; and
(b)
determine, if the direction in the notification is that the respondent undertake an assessment for a non-violence programme, whether there is an appropriate non-violence programme, provided by a service provider, for the respondent to attend; and
(c)
determine, if the direction in the notification is that the respondent undertake an assessment for prescribed services, whether (and, if so, which of) the types of services specified in regulations made under section 127(aaa) (if any), provided by a service provider, may be appropriate for and may benefit the respondent.
When assessments or determinations need not be undertaken or made
(2)
However, the assessor need not undertake or complete an assessment, or make a determination, under subsection (1), if the assessor considers that there is a good reason for not doing so.
(3)
On making a decision under subsection (2) not to undertake or complete an assessment, or not to make a determination, under subsection (1), the assessor must notify, and send a copy of the decision to, the Registrar.
(4)
On receiving notification of, and a copy of, the assessor’s decision under subsection (2), the Registrar must bring the matter to the attention of a Judge (see section 51S).
Order of, and delaying, respondent’s attendance or engagement
(5)
Subsection (6) applies to an assessor who makes all or any of the following (unless the assessor also determines under subsection (1)(c) that a prescribed non-standard service, provided by a service provider, may be appropriate for and may benefit the respondent, in which case section 51L applies):
(a)
a determination under subsection (1)(b) that there is an appropriate non-violence programme, provided by a service provider, for the respondent to attend:
(b)
a determination under subsection (1)(c) that a prescribed standard service, provided by a service provider, may be appropriate for and may benefit the respondent.
(6)
The assessor must, in making the 1 or more determinations, decide (jointly with any other assessor referred under section 51H a direction made under section 51E on the making of the protection order) what order the respondent must attend a non-violence programme or engage with a prescribed standard service, and whether the respondent’s attendance at the programme, or engagement with the prescribed standard service, or both, should be delayed to enable other matters to be addressed first.
(7)
On making a decision under subsection (6) that the respondent’s attendance at the programme, or engagement with the prescribed standard service, or both, should be delayed to enable other matters to be addressed first, the assessor must notify the Registrar, and the Registrar must bring the matter to the attention of a Judge (see section 51S).
51J When assessor must refer respondent back to court
(1)
This section applies if, after undertaking an assessment of the respondent, the assessor makes 1 or both of the following:
(a)
a determination under section 51I(1)(b) that there is not an appropriate non-violence programme, provided by a service provider, for the respondent to attend:
(b)
a determination under section 51I(1)(c) that there is not a prescribed standard service, provided by a service provider, that may be appropriate for and may benefit the respondent.
(2)
The assessor must, without delay, notify, and copy the 1 or more determinations to, the respondent and the Registrar.
(3)
After receiving a notification under subsection (2), the Registrar must—
(a)
arrange for the protected person to be notified of the 1 or more determinations; and
(b)
bring the matter to the attention of a Judge (see section 51S).
51K When assessor must refer respondent to service provider
(1)
This section applies if, after undertaking an assessment of the respondent, the assessor makes 1 or both of the following:
(a)
a determination under section 51I(1)(b) that there is an appropriate non-violence programme, provided by a service provider, for the respondent to attend:
(b)
a determination under section 51I(1)(c) that a prescribed standard service, provided by a service provider, may be appropriate for and may benefit the respondent.
(2)
The assessor must, without delay,—
(a)
notify, and copy the 1 or more determinations to, the respondent, and otherwise arrange for the respondent to be referred to the service provider; and
(b)
notify the service provider of the relevant direction or directions made under section 51E and of the 1 or more determinations; and
(c)
notify, and copy the 1 or more determinations to, the Registrar.
51L Court may direct respondent to engage with prescribed non-standard service
(1)
This section applies if the assessor determines under section 51I(1)(c) that a prescribed non-standard service, provided by a service provider, may be appropriate for and may benefit the respondent.
(2)
The assessor must promptly notify the Registrar, and send the Registrar—
(a)
the result of the assessment of the respondent undertaken by the assessor; and
(b)
all information related to the assessor’s determination under section 51I(1)(c) that the assessor considers may help a Judge to determine whether to make a direction under subsection (4).
(3)
After receiving a notification under subsection (2), the Registrar must bring the matter to the attention of a Judge.
(4)
When a matter is brought to the attention of a Judge under subsection (3), the Judge may, if the Judge thinks fit, by written direction copied promptly to the respondent, to the assessor, and to the service provider, require the respondent to engage with the prescribed non-standard service as provided by a service provider.
(5)
The Judge, in making the direction, may decide in what order the respondent must attend a non-violence programme or engage with the prescribed non-standard service (or with any prescribed standard services with which the respondent is required to engage), and whether the respondent’s attendance at the programme, or engagement with all or any prescribed services, or both, should be delayed to enable other matters to be addressed first, and may make any other order or direction that may be made under section 51S.
51M Referral to different service provider
(1)
This section applies if the service provider—
(a)
is notified of, or copied, under section 51K or 51L, a direction about a programme or prescribed service and a respondent; but
(b)
is not able to provide that programme or service to the respondent.
(2)
The service provider must—
(a)
notify the assessor referred to in section 51K or 51L; and
(b)
send to that assessor the following information:
(i)
the result of the assessment of the respondent undertaken by the assessor; and
(ii)
any information that is held by the service provider and that relates to the assessment by the assessor of, or to the provision of the programme or service by the service provider to, the respondent.
(3)
After receiving a notification under subsection (2)(a) and the information referred to in subsection (2)(b), the assessor must—
(a)
notify or copy under section 51K or 51L(4) (which apply with the necessary modifications) the direction about the programme or prescribed service and the respondent to a service provider that is able to provide that programme or service to the respondent, and notify the Registrar of the respondent’s referral under this paragraph to a different service provider; or
(b)
notify the Registrar.
(4)
After receiving a notification under subsection (3)(b), the Registrar must bring the matter to the attention of a Judge (see section 51S).
51N Referral back to court if programme or service to be delayed or inappropriate
(1)
This section applies if the service provider, after being notified of, or copied, under section 51K or 51L, a direction about a non-violence programme or prescribed service and a respondent, determines that—
(a)
the respondent’s attendance at the programme, or engagement with the service, or both, should be delayed to enable other matters to be addressed first; or
(b)
it would not be appropriate for the respondent to attend the programme, engage with the service, or both.
(2)
The service provider must notify the Registrar, and the Registrar must bring the matter to the attention of a Judge (see section 51S).
51O Terms of attendance at or engagement with non-violence programme or prescribed service
(1)
Before providing a non-violence programme to a respondent (in line with the direction made under section 51E(1)(b) and the determination made under section 51I(1)(b)), the service provider must settle in writing with the respondent the terms of attendance, which must include—
(a)
the number of programme sessions that the respondent must attend; and
(b)
details and arrangements about the programme venue, sessions, and times.
(2)
Before providing a prescribed service to a respondent directed under section 51E(3)(b) or 51L to engage with the service, the service provider must settle in writing with the respondent the terms of the respondent’s engagement with the service.
(3)
The service provider must provide to the Registrar a copy of the terms of attendance or (as the case requires) the terms of engagement that the service provider has settled with the respondent.
(4)
If a service provider is not able to settle with a respondent the terms of attendance or (as the case requires) the terms of engagement, the service provider must notify the Registrar.
(5)
On receipt of a notice under subsection (4), the Registrar must—
(a)
settle the terms of attendance or (as the case requires) the terms of engagement with the respondent and the service provider; or
(b)
bring the matter to the attention of a Judge (see section 51S).
51P Referral back to court if continued provision no longer appropriate or practicable or affected significantly by non-compliance
(1)
This section applies if, at any time during the provision of a non-violence programme, the service provider considers that—
(a)
it is no longer appropriate or practicable for the service provider to provide the programme to the respondent; or
(b)
the respondent is not participating fully in the programme, and that this is significantly affecting the respondent’s ability to benefit fully from the programme.
(2)
This section also applies if, at any time during the provision of a prescribed service, the service provider considers that—
(a)
it is no longer appropriate or practicable for the service provider to provide the service to the respondent; or
(b)
the respondent is not engaging fully with the service, and that this is significantly affecting the respondent’s ability to benefit fully from the service.
(3)
The service provider must—
(a)
notify the Registrar; and
(b)
send to the Registrar all information that is held by the service provider and that relates to the provision of the non-violence programme or (as the case requires) to the provision of the prescribed service to the respondent.
(4)
After receiving a notification under subsection (3)(a) of a determination (about continued provision of the programme or the prescribed service) under subsection (1)(a) or (2)(a) and the information referred to in subsection (3)(b), the Registrar must—
(a)
make a new referral under section 51M to a different service provider; or
(b)
bring the matter to the attention of a Judge (see section 51S).
(5)
A service provider who makes a determination (about the respondent’s non-compliance) under subsection (1)(b) or (2)(b) is required by section 51T to give written notice to the Registrar of that determination (and sections 51U, 51V, 51W, and 51X apply accordingly).
51Q Report and notice of completion and outcome of programme or service
(1)
When a respondent has completed a non-violence programme or has completed engagement with a prescribed service, the service provider must, without delay, provide to the Registrar a report that—
(a)
states whether, in the opinion of the service provider, the respondent has met the objectives of the non-violence programme or of the engagement with the prescribed service; and
(b)
advises of any concerns that the service provider has about the safety of any protected person (as those concerns are defined in section 51C(2)).
(2)
On receiving a report under subsection (1), the Registrar must—
(a)
comply with section 51U if—
(i)
the report advises that the respondent has failed to meet the objectives of the programme or of the engagement with the prescribed service; or
(ii)
the report advises of any concerns that the service provider has about the safety of any protected person; and
(b)
arrange for the protected person to be notified—
(i)
that the respondent has completed a non-violence programme or engagement with a prescribed service; and
(iii)
of any concerns that the service provider has about the safety of the protected person, and that are advised in the report provided under subsection (1).
(3)
The court may release a report under subsection (1) to either or both of the following people on any terms and conditions the court considers necessary or desirable to protect the safety of a protected person:
(a)
a respondent:
(b)
a lawyer acting for a child who made under section 9 the application for the protection order.
(4)
Those terms and conditions may include (without limitation) the timing of the release, whether all, or only a part, of the report is released, and whether a copy of the report or part, or only an explanation of its effect, is released.
Confidentiality of information
51R Information being admitted as evidence or used without court’s authorisation
(1)
This section applies to information (for example, a statement or an admission) received—
(a)
by an assessor or a service provider; and
(b)
for the purposes of, or in the course of, undertaking an assessment, or providing a programme or prescribed service.
(2)
The information must not be admitted as evidence—
(a)
in any court; or
(b)
before any person acting judicially.
(3)
However, subsection (2) does not prohibit the information from being disclosed for the purposes of all or any of the following:
(a)
giving a notification (for example, to a Registrar) under this Act:
(b)
making a referral (for example, to a service provider) under this Act:
(c)
proceedings under section 51U or 51V (which are proceedings in response to notice of safety concerns or about the respondent’s non-compliance with a direction):
(d)
investigating or prosecuting an offence against section 51X:
(e)
investigating or prosecuting an offence committed, or alleged to have been committed, during the provision of a programme, a prescribed service, or both:
(f)
an inquiry that may be or is opened, ordered, or conducted into a death (including any related inquest that may be or is held) under the Coroners Act 2006:
(g)
any disclosure of the information that is authorised by the individual to whom the information relates (even if that individual is not the person who provided the information to the assessor or the service provider).
(4)
This section does not affect or limit court information being able to be accessed by, disclosed to, or shared with, an assessor or a service provider only as authorised by or under—
(a)
section 236 or 237 of the District Court Act 2016; or
(b)
section 173 or 174 of the Senior Courts Act 2016; or
(c)
regulations made under section 127(c) of this Act; or
(d)
any other enactment.
(5)
This section does not affect or limit any collection, use, or disclosure of the information authorised or required by or under the Privacy Act 1993 or any other enactment.
Enforcement and powers when matter referred back to court
51S Powers if matter brought to attention of Judge
(1)
This section applies if the Registrar brings a matter to the attention of a Judge under—
(a)
section 51I(4) (which applies if an assessor decides under section 51I(2) not to undertake or complete an assessment, or not to make a determination, under section 51I(1)); or
(b)
section 51I(7) (which applies if an assessor decides under section 51I(6) that the respondent’s attendance at a non-violence programme, or engagement with a prescribed standard service, or both, should be delayed); or
(c)
section 51J(3) (when assessor must refer respondent back to court); or
(d)
section 51M(4) (referral to different service provider); or
(e)
section 51N(2) (referral back to court if programme or service to be delayed or inappropriate); or
(f)
section 51O(5)(b) (terms of attendance at or engagement with non-violence programme or prescribed service); or
(g)
section 51P(4)(b) (which applies if the service provider considers that is no longer appropriate or practicable for the service provider to provide a non-violence programme or prescribed service to the respondent).
(2)
The Judge may make any order or direction (for example, under section 51E, 51L, 51M, or 51Q) the Judge thinks fit in the circumstances.
(3)
The Judge may under subsection (2) do all or any of the following:
(a)
make a direction under section 51E(3)(a) and (b) (that the respondent undertake an assessment for prescribed services, and engage with any prescribed standard service, provided by a service provider, that an assessor determines may be appropriate for and may benefit the respondent):
(b)
suspend, vary or replace, or discharge the direction (to attend a non-violence programme or engage with a prescribed standard service) made under section 51E(1)(b) or (3)(b):
(c)
suspend, vary or replace, or discharge a direction (to engage with a prescribed non-standard service) made under section 51L:
(d)
make a direction (to engage with a prescribed non-standard service) under section 51L in respect of the respondent:
(e)
make under section 51M a referral to a different service provider that is able to provide a non-violence programme or prescribed service to the respondent:
(f)
settle the terms of attendance or (as the case requires) the terms of engagement with the respondent and the service provider under section 51O:
(g)
make, or vary or discharge terms or conditions of, a parenting order (interim or final) under the Care of Children Act 2004 relating to or affecting the respondent (in which case the provisions of that Act apply with all necessary modifications).
(4)
Subsection (3) does not limit subsection (2).
51T Notice of non-compliance with direction
(1)
This section applies if, after the court makes a direction under section 51E or 51L, 1 or more of the following events happen:
(a)
the respondent fails to undertake an assessment with the assessor to whom notice of the direction has been given under section 51H:
(b)
the respondent fails to attend a non-violence programme in accordance with a direction made under section 51E(1)(b) and with the terms of attendance settled under section 51O:
(c)
the respondent fails to engage with a prescribed service in accordance with a direction made under section 51E(3)(b) or 51L and with the terms of engagement settled under section 51O:
(d)
during the provision of a non-violence programme, the service provider determines under section 51P(1)(b) that the respondent is not participating fully in the programme and that this is significantly affecting the respondent’s ability to benefit fully from the programme:
(e)
during the provision of a prescribed service, the service provider determines under section 51P(2)(b) that the respondent is not engaging fully with the service and that this is significantly affecting the respondent’s ability to benefit fully from the service.
(2)
The assessor or service provider concerned must give written notice to the Registrar of the 1 or more events that have happened.
(3)
Notice under subsection (2) of an event must be given before the end of the seventh day after the day that the event happened.
51U Registrar’s response to notice of safety concerns or non-compliance
(1)
This section applies if the Registrar receives any of the following:
(a)
a notification under section 51C(3)(a) of an assessor’s or a service provider’s concerns about the safety of a protected person:
(b)
a notice under section 51T of a respondent’s non-compliance with a direction (for example, a direction made under section 51E(3)(b) or 51L that requires the respondent to engage with a prescribed service):
(c)
a non-violence programme completion or prescribed service engagement completion report under section 51Q(1)—
(i)
that advises that the respondent has failed to meet the objectives of the programme or of the engagement with the prescribed service; or
(ii)
that advises of concerns that the service provider has about the safety of any protected person.
(2)
The Registrar must, without delay,—
(a)
exercise the powers under section 82, as if the Registrar were the court referred to in that section, to call the respondent before the court; or
(b)
bring the matter to the attention of a Judge so that the Judge may consider whether to exercise the power conferred by section 51V in relation to the respondent.
(3)
If the Registrar exercises the powers under section 82 in the manner allowed by subsection (2)(a), then, subject to any regulations made under this Act, section 82 applies, so far as applicable and with the necessary modifications, as if the respondent were a witness in proceedings.
51V Judge may call respondent before court
(1)
This section applies if, under section 51U(2)(b), a Registrar brings a matter to the attention of a Judge.
(2)
The Judge may exercise the powers under section 82 to call the respondent before the court.
(3)
If the Judge exercises those powers, section 82 applies, so far as applicable and with all necessary modifications, as if the respondent were a witness in proceedings.
51W Respondent called before court
(1)
If a respondent appears before the court under section 51U(2)(a) or 51V(2), the court may, after hearing from the respondent, do all or any of the following:
(a)
admonish the respondent:
(b)
confirm, vary or replace, or discharge the direction (under section 51E or 51L), or change the terms of attendance at or engagement with the programme or prescribed service under section 51O:
(c)
make a replacement direction (under section 51E or 51L) that requires the respondent to attend or engage with a further, or different, assessment, programme, or prescribed service:
(d)
make, or vary or discharge terms or conditions of, a parenting order (interim or final) under the Care of Children Act 2004 relating to or affecting the respondent (in which case the provisions of that Act apply with all necessary modifications):
(e)
make any order or direction the court thinks fit in the circumstances.
(2)
If the court confirms or varies a direction under subsection (1), the Judge must warn the respondent that non-compliance with the direction is an offence punishable by imprisonment.
(3)
Failure to give the warning required by subsection (2) does not affect the validity of the direction confirmed or varied.
51X Offence to fail to comply with direction
A respondent who fails, without reasonable excuse, to comply with a direction made under section 51E or 51L commits an offence and is liable on conviction to—
(a)
a fine not exceeding $5,000; or
(b)
a term of imprisonment not exceeding 6 months.
Orders relating to property (Part 3)
32 Section 52 replaced (Application for occupation order)
Replace section 52 with:
52 Application for occupation order
(1)
A person who makes an application for a protection order may, at any of the following times, also apply for an occupation order:
(a)
when making the application for the protection order; or
(b)
before the application for the protection order is determined; or
(c)
while the protection order applied for, if it is made, is in force.
(2)
Where the person who is eligible to apply for an occupation order is a child, the child may make the application only in accordance with section 71(2).
(3)
An occupation order grants the applicant the right to live in a dwellinghouse owned by either party to the proceedings, or in which either party to the proceedings has a legal interest (for example, a tenancy), at the time the occupation order is made.
(4)
However, no occupation order may be made in respect of any dwellinghouse unless either party to the proceedings owned it, or either party to the proceedings had a legal interest (for example, a tenancy) in it, at a time when the family relationship in respect of which the protection order is sought or was made existed.
Compare: 1982 No 120 s 19
33 Section 53 amended (Power to make occupation order)
(1)
Replace section 53(1) and (2) with:
(1)
On or after making a protection order and on an application for an occupation order, the court may make an order granting to the applicant the right to personally occupy a specified dwellinghouse.
(1A)
Subsection (1) is subject to subsection (2) and to section 74, but applies despite anything in the Property (Relationships) Act 1976.
(2)
The court may make an order under subsection (1) only if it is satisfied that the order—
(a)
is reasonably necessary for 1 or both of the following purposes:
(i)
to meet the accommodation needs of the applicant, a child of the applicant’s family, or both:
(ii)
to enable the applicant to continue existing childcare, education, training, or employment arrangements for that person, a child of the applicant’s family, or both; or
(b)
is in the best interests of a child of the applicant’s family.
(2A)
Subsection (2) does not limit the matters to which the court may have regard in determining whether to make the order.
(2)
In section 53(4), replace “all persons” with “any other persons”.
34 Section 54 amended (Effect of occupation order)
Replace section 54(2) with:
(2)
Contravening, or failing to comply with any term and condition of, an occupation order (for example, by failing to leave the dwellinghouse to which the order relates) is—
(a)
a breach of the related protection order; and
(b)
an offence against section 49.
35 Section 56 amended (Application for tenancy order)
Replace section 56(1) with:
(1)
A person who makes an application for a protection order may, at any of the following times, also apply for a tenancy order:
(a)
when making the application for the protection order; or
(b)
before the application for the protection order is determined; or
(c)
while the protection order applied for, if it is made, is in force.
(1A)
Where the person who is eligible to apply for a tenancy order is a child, the child may make the application only in accordance with section 71(2).
(1B)
A tenancy order vests in the applicant the tenancy of any dwellinghouse of which either party to the proceedings is the sole tenant, or a tenant holding jointly, or in common, with the applicant, at the time the tenancy order is made.
(1C)
However, no tenancy order may be made in respect of the tenancy of any dwellinghouse unless either party to the proceedings was the sole tenant, or a tenant holding jointly, or in common, with the applicant, at a time when the family relationship in respect of which the protection order is sought or was made existed.
36 Section 57 amended (Power to make tenancy order)
(1)
Replace section 57(1) and (2) with:
(1)
On or after making a protection order and on an application for a tenancy order, the court may make an order vesting in the applicant the tenancy of a specified dwellinghouse.
(1A)
Subsection (1) is subject to subsection (2) and to section 74, but applies despite anything in the Property (Relationships) Act 1976.
(2)
The court may make an order under subsection (1) only if it is satisfied that the order—
(a)
is reasonably necessary for 1 or both of the following purposes:
(i)
to meet the accommodation needs of the applicant, a child of the applicant, or both:
(ii)
to enable the applicant to continue existing childcare, education, training, or employment arrangements for that person, a child of the applicant, or both; or
(b)
is in the best interests of a child of the applicant’s family.
(2A)
Subsection (2) does not limit the matters to which the court may have regard in determining whether to make the order.
(2)
In section 57(3), replace “all persons” with “any other persons”.
37 Section 58 amended (Effect of tenancy order)
Replace section 58(2) with:
(2)
Contravening a tenancy order (for example, by failing to leave the dwellinghouse to which the order relates) is—
(a)
a breach of the related protection order; and
(b)
an offence against section 49.
38 Section 60 amended (Application without notice for occupation order or tenancy order)
(1)
Replace section 60(1) with:
(1)
An occupation order or a tenancy order may be made under section 53 or 57 on an application without notice if the court is satisfied that the delay that would be caused by proceeding on notice would or might expose the applicant or a child of the applicant’s family to family violence.
(2)
Repeal section 60(3).
39 Section 61 amended (Procedure for occupation orders and tenancy orders)
(1)
Replace section 61(1)(a) with:
(a)
it has jurisdiction to make a tenancy order (in particular because, as required by section 57(1) or 60(1), a protection order has been made, or it will at the same time make a protection order); and
(2)
Replace section 61(2)(a) with:
(a)
it has jurisdiction to make an occupation order (in particular because, as required by section 53(1) or 60(1), a protection order has been made, or it will at the same time make a protection order); and
39A Section 62 amended (Application for ancillary furniture order)
After section 62(1), insert:
(1A)
Where the person who is eligible to apply for an ancillary furniture order is a child, the child may make the application only in accordance with section 71(2).
40 Section 64 amended (Effect of ancillary furniture order)
Replace section 64(2) with:
(2)
Contravening, or failing to comply with any term and condition of, an ancillary furniture order (for example, by preventing possession and use of all or any items to which the order relates) is—
(a)
a breach of the related protection order; and
(b)
an offence against section 49.
41 Section 66 amended (Application for furniture order)
(1)
In section 66, delete “aged 16 years or over”.
(2)
In section 66(b)(i), replace “domestic relationship” with “family relationship”.
(3)
In section 66, insert as subsection (2):
(2)
Where the person who is eligible to apply for a furniture order is a child, the child may make the application only in accordance with section 71(2).
42 Section 67 amended (Power to make furniture order)
(1)
Replace section 67(1) with:
(1)
On or after making a protection order, the court may also make an order granting to the applicant the possession and use of all or any of the furniture, household appliances, and household effects in the dwellinghouse in which the parties live or have lived.
(1A)
Subsection (1) is subject to subsections (2) and (6) and to section 74, but applies despite anything in the Property (Relationships) Act 1976.
(2)
After section 67(5), insert:
(5A)
Terms and conditions imposed under subsection (5) may, without limitation, require or relate to all or any of the following:
(a)
access to the dwellinghouse in which the parties live or have lived:
(b)
the timing of collection of the items to which the order relates:
(c)
the manner of collection of those items:
(d)
the absence from that dwellinghouse, at the time or times of collection of those items, of a specified person or specified people.
43 Section 68 amended (Effect of furniture order)
Replace section 68(2) with:
(2)
Contravening, or failing to comply with any term and condition of, a furniture order (for example, by preventing possession and use of all or any items to which the order relates) is—
(a)
a breach of the related protection order; and
(b)
an offence against section 49.
43A Section 70 amended (Application without notice for ancillary furniture order or furniture order)
(1)
Replace section 70(1) with:
(1)
An order under section 63 or 67 may be made on an application without notice if the court is satisfied that the delay that would be caused by proceeding on notice would or might expose the applicant or a child of the applicant’s family to family violence.
(2)
Repeal section 70(3) and (4).
44 Sections 71 to 73 replaced
Replace sections 71 to 73 with:
71 Applications for property orders by children
(1)
A child may, in accordance with this section, make an application for a property order.
(2)
A child may make the application only—
(a)
by a representative (for example, an approved organisation that is authorised by section 12C to take proceedings under this Act on behalf of the child); or
(ab)
if aged 16 years old or over (in which case this paragraph authorises the child to take proceedings without a representative); or
(b)
if authorised under rules of court to do so without a representative.
(3)
This section does not limit or affect the making or operation of rules of court (for example, rules made under section 16A(1) of the Family Courts Act 1980) that—
(a)
prevent an incapacitated child from taking part in, or from taking a step in, all or any specified proceedings under this Act without a litigation guardian:
(b)
provide for a representative to make all or any specified applications under this Act on behalf of a child prevented by physical incapacity, fear of harm, or another sufficient cause from applying personally.
71A Views of child on whose behalf application made by representative
(1)
This section applies if an application for a property order is made, on behalf of a child, by a representative, under section 71(2)(a).
(2)
The child may be heard in the proceedings, even though they arose from the application made by the representative, and despite section 71(2)(a).
(3)
Where the child expresses views on any matters related to the proceedings, the court must take account of those views.
72 Applications for property orders against children
The court must not make a property order against a child unless satisfied that the child is aged 16 years old or over and that the order is justified by special circumstances.
73 Applications for property orders on behalf of people other than children
(1)
This section applies to an application made under this Part by a person who is not a child.
(2)
Sections 11, 12, and 12A (applications on behalf of a person lacking capacity or prevented from applying personally) apply to the application, so far as applicable and with the necessary modifications, as if it were an application under Part 2 for a protection order.
Procedure (Part 4)
44A Section 79A amended (Review of contact arrangements)
In section 79A(1), replace “the Family Court” with “the court”.
45 Section 81 amended (Court may appoint lawyer)
(1)
In section 81(1)(b)(i), replace “section 9(2)” with “section 9(2)(a)”.
(1A)
After section 81(1)(b), insert:
(ba)
to represent a child (unless the child is, in the proceedings concerned, already represented by a lawyer)—
(i)
in any proceedings on an application made under section 10(1) or (2) for a protection order, or a direction under section 17 that a protection order apply, against the child; or
(ii)
in any proceedings relating to or arising out of a protection order or a direction made, under this Act, on any such application; or
(2)
In section 81(1)(c), replace “any other person (being a person to whom section 11 applies)” with “a person lacking capacity to whom section 11 applies”.
(3)
In section 81(2), replace “subsection (1)(c)” with “subsection (1)(ba) or (c)”.
(4)
In section 81(2A), replace “subsection (1)(a) or (b)” with “subsection (1)(a), (b), or (ba)”.
45A New section 81A inserted (How Judge ascertains child’s views (other than at hearing))
After section 81, insert:
81A How Judge ascertains child’s views (other than at hearing)
(1)
If the court is required, or considers it necessary or desirable, to ascertain a child’s views (other than at any hearing of any application), a Judge may interview the child to ascertain those views.
(2)
This section does not affect rules of court on the court ascertaining a child’s views at any hearing of any application.
46 Section 83 amended (Conduct of proceedings)
In section 83(2), replace “whanau” with “whānau”.
47 Section 88 amended (Copies of orders to be sent to Police)
(1)
In the heading to section 88, after “Copies of orders to be sent”, insert “, and risk factor information may be sent,”.
(2)
After section 88(3), insert:
(4)
When making a copy of an order available to a District Commander under subsection (1), the Registrar must at the same time also make available to that District Commander, in a way specified in subsection (3), information supplied—
(a)
to the Registrar, by or on behalf of the applicant for the order; and
(b)
to help the Police assess risks, or needs, arising from family violence.
(5)
Risk factor information made available under this section may be disclosed by the Police under section 124V, or under any other enactment that authorises or requires the Police to disclose that information.
48 Section 90 amended (Police to consider exercise of powers under Arms Act 1983)
In section 90(4), replace “section 60A of the Arms Act 1983 (which relates to the seizure of a firearm in cases of domestic violence)” with “section 18 (warrantless searches associated with arms, including in cases of family violence) of the Search and Surveillance Act 2012”.
48A Section 91 amended (Appeals to High Court)
After section 91(1AA), insert:
(1AB)
Subsection (1AA) does not apply to a decision to make or refuse to make a protection order under section 123B of the Sentencing Act 2002 (see section 123H of that Act, which ensures that an appeal against a decision of that kind is an appeal against the sentence imposed for an offence).
49 Section 92 amended (Application of provisions relating to minors, etc)
(1)
In the heading to section 92, replace “minors” with “children”.
(2)
In section 92, replace “Sections 9, 11, and 12,” with “Sections 9, 9A, 11, 12, and 12A”.
Enforcement of protection orders overseas and foreign protection orders (Part 5)
50 Sections 96 and 97 replaced
Replace sections 96 and 97 and the cross-headings above sections 96 and 97 with:
Enforcement of New Zealand orders overseas
96 Enforcement of New Zealand orders overseas
(1)
The Registrar may request the appropriate court or authority in a foreign country to make arrangements for the enforcement in that country of a protection order made by a New Zealand court.
(2)
Subsection (1) is subject to subsections (3) and (4).
(3)
A person who wishes a request to be sent to a foreign country under subsection (1) must make a request in writing to the Registrar of the court in which the protection order was made.
(4)
The Registrar must send to the foreign country under subsection (1) a request made under subsection (3) if, on receiving the request, the Registrar is satisfied that—
(a)
the request is made by or on behalf of a protected person; and
(b)
the request relates to a protection order made by a New Zealand court; and
(c)
orders of that nature may be enforced in the foreign country to which the request relates.
(5)
Nothing in this section prevents—
(a)
a protected person from applying to a court or other appropriate authority in a foreign country for enforcement, in that country, of a protection order; or
(b)
the variation or discharge, under this Act, of a protection order that is enforced in a foreign country.
(6)
In this section and section 96A, enforcement includes registration and enforcement, and enforced has a corresponding meaning.
Compare: 1968 No 63 ss 22L–22LA; 1979 No 52 s 2; 1991 No 19 s 34
96A Information necessary to process request or secure enforcement of order
(1)
This section applies if the Registrar receives a request under section 96(3) for the enforcement of a protection order in a foreign country.
(2)
The Registrar may require the person by whom, or on whose behalf, the request is made to supply to the Registrar any information or evidence (including certified copies of the order) necessary or desirable for either or both of the following purposes:
(a)
to enable the Registrar to determine whether or not the request satisfies the requirements of section 96(4); and
(b)
to secure enforcement of the order in the foreign country.
(3)
After imposing a requirement under subsection (2) for a request made under section 96, the Registrar may refuse to take any action, or further action, in relation to the request, until the requirement is met.
Compare: 1968 No 63 ss 22L–22LA; 1979 No 52 s 2; 1991 No 19 s 34
Making requests and making documents available
96B Ways requests may be made and documents may be made available
For the purposes of sections 96, 96A, and 97, a request may be made to the Registrar, the Registrar may send the request to the foreign country, and copies, evidence, or information may be sent to the Registrar, and received and sent by the Registrar, in any of the following ways (none of which also requires a later hard copy):
(a)
sending a copy by means of electronic transmission (whether by way of facsimile transmission, electronic mail, or other similar means of communication):
(b)
making a copy available in any other manner appropriate in the circumstances.
Enforcement of foreign protection orders
97 Registration of foreign protection orders
(1)
The Registrar of a court must register in the court a foreign protection order if the Registrar receives, for the purposes of registration, the following documents:
(a)
a certified copy of the order; and
(b)
a certificate that—
(i)
is signed by an officer of a court in the foreign country in which the order was made; and
(ii)
contains a statement that the order is, at the date of the certificate, enforceable in the foreign country.
(2)
The registration is done by filing in the court a certified copy of the order.
Compare: 1968 No 63 s 22A; 1979 No 52 s 2
51 Section 106 amended (Evidence of orders made in foreign country)
In section 106, replace “domestic violence” with “family violence”.
Non-publication of information relating to protected person on public registers (Part 6)
52 Cross-heading above section 122 amended
In the cross-heading above section 122, replace “Codes” with “Public register codes”.
53 Section 122 amended (Codes of practice)
In the heading to section 122, replace “practice” with “practice: public registers”.
54 Section 123 amended (Application of certain provisions of Privacy Act 1993)
In section 123, replace “under this Act” with “under this Part” in each place.
Police safety orders (Part 6A)
55 Section 124A amended (Interpretation)
In section 124A, insert in its appropriate alphabetical order:
bound person, in relation to an order, means the person against whom the order is issued
56 Section 124B amended (Qualified constable may issue Police safety order)
(1)
Replace section 124B(1) with:
(1)
A qualified constable may issue an order against a person (person A) who is, or has been, in a family relationship with another person (person B) if the constable has reasonable grounds to believe, having regard to the matters specified in subsection (2), that the issue of an order is necessary to help make person B safe from family violence.
(2)
In section 124B(2)(a)(i) and (ii), replace “has used, or is using, domestic violence” with “has inflicted, or is inflicting, family violence”.
(3)
In section 124B(2)(a)(ii), replace “domestic relationship” with “family relationship”.
(4)
In section 124B(2)(b), replace “will use, or again use, domestic violence” with “will inflict, or again inflict, family violence”.
57 Section 124D replaced (Police safety order not to be issued against child)
Replace section 124D with:
124D Police safety order against child
A qualified constable must not issue an order against a child unless satisfied that the child is aged 16 years old or over and that the order is justified by special circumstances.
58 Section 124E amended (Effect of Police safety order)
Replace section 124E(1) and (2) with:
Duty to surrender weapons and firearms licence and vacate occupied land or building
(1)
A bound person must immediately—
(a)
surrender to a constable—
(i)
any weapon in the bound person’s possession or control; and
(ii)
any firearms licence held by the bound person:
(b)
vacate any land or building occupied by a person at risk, whether or not the person at risk has a legal or equitable interest in the land or building.
No family violence, no contact, no having others breach order
(2)
It is a condition of every order that the bound person must not—
(a)
engage in behaviour that amounts to any form of family violence against a person at risk (see sections 3, 3A, and 3B):
(b)
make any contact with a person at risk that is not contact authorised by subsection (2A) (which describes the condition in this paragraph as an order’s no-contact condition):
(c)
encourage a person to engage in behaviour against, or to make contact with, a person at risk, if the behaviour or contact, if engaged in or made by the bound person, would be prohibited by the order.
Contact that is authorised, and not in breach of order’s no-contact condition
(2A)
Contact by the person bound with a person at risk is authorised, and not in breach of an order’s no-contact condition, if the contact is—
(a)
reasonably necessary in any emergency; or
(c)
permitted under any special condition of any relevant protection order; or
(d)
necessary for the purposes of attending a family group conference (within the meaning of section 2 of the Oranga Tamariki Act 1989); or
(e)
necessary to attend any proceeding (of any kind) in or before any court or person acting judicially, or to attend any other matter that is associated with such a proceeding and that is a matter that the parties to the proceeding jointly attend (for example, a restorative justice conference, or a settlement conference convened under section 46Q of the Care of Children Act 2004).
Meaning of person at risk
59 Section 124F amended (Suspension of firearms licence on issue of Police safety order)
In section 124F(a) and (b), replace “person against whom the order is issued” with “bound person”.
60 Section 124G amended (Suspension of parenting orders, etc)
In section 124G(1)(d), replace “person against whom the order is issued” with “bound person”.
61 Section 124H amended (Prompt service of Police safety order required)
In section 124H(1), replace “person against whom the order is issued” with “bound person”.
62 New section 124HA inserted (Police safety orders: risk and needs assessment of bound person)
After section 124H, insert:
124HA Police safety orders: risk and needs assessment of bound person
(1)
An assessor carries out an assessment under this section to identify—
(a)
any risk assessed by the assessor that the bound person is likely, after the expiry of a Police safety order, to continue inflicting family violence; and
(b)
any steps that the assessor considers the bound person should take to help that person accept responsibility for, and stop, that person’s inflicting of family violence.
(2)
A constable (even if not a qualified constable) or Police employee may, while a Police safety order is in force, issue to the bound person a written direction to—
(a)
arrange, before the end of the tenth working day after the direction is served on the bound person, for an assessment on the bound person to be carried out promptly by an assessor; and
(b)
attend the assessment at the arranged time and place.
(3)
The constable or Police employee must, as soon as practicable after issuing the direction to the bound person, ensure that a copy of the direction is served on the bound person.
(4)
The direction lapses if—
(a)
the order to which it relates lapses (because that order has not been served within 48 hours from the time of issue) under section 124H(2); or
(b)
at or after the time that the direction is issued, a protection order is made against the bound person.
(5)
A person’s refusal or failure, without reasonable excuse, to comply with the direction after it has been served on the person, and if it has not lapsed, is taken for the purposes of section 124L to be a refusal or failure by the person to comply with an order served on the person.
(6)
In this section, assessor means a person or an organisation that has been granted an approval (to carry out assessments under this section)—
(a)
under section 124HB; and
(b)
that has not been suspended or cancelled.
63 New section 124HB inserted (Approvals of assessors for section 124HA)
Before section 124J, insert:
124HB Approvals of assessors for section 124HA
(1)
A person or an organisation approved to do so under this section may carry out assessments under section 124HA.
(2)
A person or an organisation (for example, a government organisation) may be approved under this section by the Secretary—
(a)
on an application made for the purpose by the person or organisation; or
(b)
on the Secretary’s own motion, and with the person’s or organisation’s written consent.
(3)
A person or an organisation seeking an approval under this section by way of an application, or an own-motion approval under this section, must follow the applicable process (if any) prescribed by regulations made under section 127(a)(i).
(4)
The Secretary may, at any time, amend, suspend, or cancel an approval under this section.
(5)
In deciding whether to grant, amend, suspend, or cancel an approval under this section, the Secretary must apply the criteria (if any) prescribed for the purposes of this section by regulations made under section 127(a)(ii).
(6)
An approval, or an amendment, suspension, or cancellation of an approval, under this section must be by written notice copied to the person or organisation.
(7)
The Secretary must publish promptly on an Internet site maintained by or on behalf of the Ministry of Justice an up-to-date list of assessors approved under this section.
64 Section 124J amended (Police safety order to be explained)
(1)
In the heading to section 124J, after “Police safety order”, insert “, and direction to arrange and attend risk and needs assessment,”.
(2)
In section 124J(1), replace “person against whom the order is issued” with “bound person” in each place.
(3)
After section 124J(2), insert:
(3)
A constable or Police employee who, while a Police safety order is in force, issues to the bound person a direction under section 124HA must, if and to the extent that it is reasonably practicable to do so in the circumstances, either at the time of issue or service of the direction, explain to the bound person—
(a)
the purpose and effect of the direction; and
(b)
the consequences that may follow if the bound person fails or refuses to comply with the direction.
(4)
A constable or Police employee who issues a direction under section 124HA related to a Police safety order must also, either before or after issue and service of the direction, explain to the person for whose safety the order is issued the matters set out in subsection (3)(a) and (b).
65 Section 124K amended (Duration of Police safety order)
In section 124K(1), replace “person against whom the order is issued” with “bound person”.
66 Section 124L amended (Contravention of Police safety order)
In section 124L(2), after “a constable”, insert “who believes on reasonable grounds that the person has refused or failed to comply with the order or a condition of the order”.
67 New section 124NA inserted (Nature of proceedings and standard of proof under section 124N or 124O)
After section 124N, insert:
124NA Nature of proceedings and standard of proof under section 124N or 124O
(1AAA)
The jurisdiction conferred on the District Court or a Registrar under section 124N or 124O is civil jurisdiction of the District Court.
(1AAB)
Rules of court may be made under section 126(1)(a) of this Act, or under section 228(1)(b) of the District Court Act 2016, regulating the practice and procedure of the District Court in proceedings under section 124N or 124O.
(1AAC)
Subsection (1AAB) does not limit the generality of section 126(1)(a) or (b) of this Act or of section 228(1)(b) of the District Court Act 2016.
(1)
Every question of fact arising in any proceeding under section 124N or 124O must (in accordance with, but without limiting, section 85) be decided on the balance of probabilities.
(2)
Subsection (1)—
(a)
does not affect the application to the proceeding of section 12A of the Family Court Act 1980 (which applies under section 12A(3)(da) of that Act, and under which the court hearing the proceeding may receive any evidence, whether or not admissible under the Evidence Act 2006, that the court considers may assist it to determine the proceeding); and
(b)
applies despite any contrary law (for example, every enactment or other law in the decision in Mark v Police [2013] NZHC 1041).
68 Section 124O amended (Issue of warrant to arrest person who contravenes Police safety order or fails to attend adjourned proceedings)
Replace section 124O(1) with:
(1)
Subsection (2) applies if—
(a)
the bound person refuses or fails to comply with a Police safety order, or any condition of the order; or
(b)
the District Court is satisfied that the bound person has refused or failed to comply with a Police safety order, and the bound person does not attend personally at the time and place to which proceedings have been adjourned under section 124N(1)(c)(i).
New Part 6B inserted
69 New Part 6B inserted
After Part 6A, insert:
Part 6B Information requests, use, and disclosure, and service delivery codes of practice
Purpose and interpretation
124T Purpose of this Part
The purpose of this Part is to—
(a)
enable family violence agencies and social services practitioners to request, use, or disclose personal information for purposes related to family violence; and
(b)
require family violence agencies and social services practitioners, in certain circumstances, to consider disclosing personal information for those purposes; and
(c)
provide for codes of practice to guide the delivery of services provided, to stop or prevent family violence, to victims or perpetrators of family violence.
124U Interpretation
In this Part, unless the context otherwise requires,—
DHB means an organisation established as a DHB (that is to say, as a district health board) by or under section 19 of the New Zealand Public Health and Disability Act 2000
family violence agency means any of the following:
(a)
a specified government agency (as defined in this section):
(b)
any non-governmental organisation that is funded wholly or in part by government, and that exercises powers, performs functions, or provides services, for 1 or both of the following purposes:
(i)
to protect, or otherwise help, victims of family violence:
(ii)
to help people to stop their inflicting of family violence:
(c)
any school board:
(d)
any licensed early childhood service
family violence risk or need assessment means an assessment of risk, or of need, arising from family violence
held includes deemed for the purposes of the Official Information Act 1982 to be held (see, for example, section 2(4) and (5) of that Act)
licensed early childhood service has the same meaning as in section 309 of the Education Act 1989
perpetrator, of family violence, means either of the following:
(a)
a person who has inflicted, or may have inflicted, family violence (even if no offence involving the violence was, is, or is to be, admitted or prosecuted):
(b)
a person who is inflicting, or may be inflicting, family violence (even if no offence involving the violence is, or is to be, admitted or prosecuted)
personal information has the same meaning as in section 2 of the Privacy Act 1993
school board means a board or body that is, or 1 or more managers who are,—
(a)
a board as defined in section 60, and for the purposes of Part 7 (control and management of State schools), of the Education Act 1989; or
(b)
a sponsor of a partnership school kura hourua (as those terms are defined in section 2 of that Act); or
(c)
the manager or managers of a private school that is registered under section 35A of that Act
social services practitioner means an individual who is providing education, health, or other social services as all or any of the following:
(a)
a holder of a teacher’s practising certificate, or a limited authority to teach, under the Education Act 1989:
(b)
a person who is, or is deemed to be, registered with an authority as a practitioner of a particular health profession under the Health Practitioners Competence Assurance Act 2003:
(c)
a registered social worker (as defined in section 4 of the Social Workers Registration Act 2003)
specified government agency means any of the following:
(a)
Accident Compensation Corporation:
(b)
Department of Corrections:
(c)
Ministry of Education:
(d)
Ministry of Health:
(e)
any DHB:
(f)
Housing New Zealand Corporation:
(g)
every registered community housing provider (as defined in section 2(1) of the Housing Restructuring and Tenancy Matters Act 1992):
(h)
the part of the Ministry of Business, Innovation, and Employment referred to as Immigration New Zealand:
(i)
Ministry of Justice:
(j)
New Zealand Police:
(ja)
Ministry for Vulnerable Children, Oranga Tamariki:
(k)
Ministry of Social Development:
(l)
any government agency established in substitution for, or set up to take over any relevant function of, the departments and agencies listed in paragraphs (a) to (k)
victim, of family violence, means a person who—
(a)
has experienced, is experiencing, or may experience, family violence; or
(b)
is, has been, or may be, affected by family violence.
Information requests, use, and disclosure
124V Agencies and practitioners may request, use, and disclose information
(1)
A family violence agency or social services practitioner may request personal information about a victim or perpetrator of family violence from any, or from another, family violence agency or social services practitioner, to use or disclose for all or any of the following purposes:
(a)
to make, or contribute to, a family violence risk or need assessment:
(b)
to make, or contribute to the making or carrying out of, a decision or plan that is related to, or that arises from or responds to, family violence:
(c)
to help ensure that a victim is protected from family violence.
(2)
The rest of this section applies to a family violence agency that, or social services practitioner who, holds personal information about a victim or perpetrator of family violence (the holder agency or practitioner).
(3)
The holder agency or practitioner may use the personal information for all or any of the purposes in subsection (1)(a) to (c).
(4)
The holder agency or practitioner may disclose the personal information to any, or to another, family violence agency or social services practitioner (the recipient agency or practitioner)—
(a)
if the holder agency or practitioner believes on reasonable grounds that the disclosure will or may help the recipient agency or practitioner to use the personal information for all or any of the purposes specified in subsection (1)(a) to (c); and
(b)
after, or without, receiving from the recipient agency or practitioner a request to disclose personal information to the recipient agency or practitioner for use for all or any of those purposes.
(5)
In making a decision whether or not to disclose information under this section (which authorises, but does not require, a decision that information be made available), the holder agency or practitioner must have regard to the principle that helping to ensure that a victim is protected from family violence should usually take precedence over both—
(a)
any applicable confidentiality of the information; and
(b)
any applicable limit under information privacy principle 11 in section 6 of the Privacy Act 1993 on disclosure of the information.
(6)
When requesting, using, or disclosing information under this section, an agency or practitioner must comply with any applicable code issued under section 124Y.
124VA Relationship with other enactments
(1)
Section 124V does not affect or limit court information being able to be accessed by, disclosed to, or shared with, a family violence agency or social services practitioner only as authorised by or under—
(a)
section 236 or 237 of the District Court Act 2016; or
(b)
section 173 or 174 of the Senior Courts Act 2016; or
(c)
regulations made under section 127(c) of this Act; or
(d)
any other enactment.
(2)
Section 124V does not affect or limit any collection, use, or disclosure of the information authorised or required by or under the Privacy Act 1993 or any other enactment.
(3)
Disclosure under section 124V does not limit the right, under a privilege or right referred to in section 53(5), 54, 56, 57, 58, 59, 60, or 68 of the Evidence Act 2006, to refuse to disclose any communication or information sought by a requirement to provide information.
124W Duty to consider information disclosure
(1)
This section applies to a family violence agency that, or social services practitioner who, holds personal information about a victim or perpetrator of family violence (the holder agency or practitioner).
(2)
The holder agency or practitioner must consider disclosing that information under section 124V to any, or to another, family violence agency or social services practitioner (the recipient agency or practitioner) if the holder agency or practitioner—
(a)
believes on reasonable grounds that disclosure to the recipient agency or practitioner will or may help ensure that a victim is protected from family violence; or
(b)
receives from the recipient agency or practitioner a request to disclose personal information of that kind or description to the recipient agency or practitioner for use for all or any of the purposes specified in section 124V(1)(a) to (c).
124X Protection of agency or practitioner disclosing information under section 124V
(1)
This section applies to the disclosure by an agency or a practitioner, and in any manner, of information under section 124V.
(2)
No civil, criminal, or disciplinary proceedings lie against the agency or practitioner in respect of that disclosure, or the manner of that disclosure, by the agency or practitioner of that information.
(3)
However, subsection (2) does not apply if that information was disclosed in bad faith.
Compare: 1989 No 24 s 16; 1996 No 9 s 17; 2009 No 35 s 44
Service delivery codes of practice
124Y Codes of practice: service delivery
(1)
The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister of Justice, issue codes of practice to guide delivery of services provided—
(a)
to victims or perpetrators of family violence, or both; and
(b)
to stop or prevent family violence.
(2)
A code of practice may contain provisions on all or any of the following:
(a)
assessment and management of risk related to family violence:
(b)
workforce competencies:
(c)
information requests, use, and disclosure under this Part:
(d)
outcomes of assessments, programmes, or prescribed services.
(3)
Subsection (2) does not limit subsection (1).
(4)
A code of practice must not be inconsistent with this Act, public register codes of practice issued under Part 6, or regulations or rules of court made under or for the purposes of this Act.
(4A)
The Minister may recommend the issuing, amendment, replacement, or revocation of code of practice provisions on information requests, use, or disclosure only after the Minister has consulted on the matter the Privacy Commissioner.
(5)
In this section, delivery of services includes the delivery of services for the purposes of, or incidental to, the exercise of a power conferred by or under this Act.
Miscellaneous provisions (Part 7)
69A Section 126 amended (Rules of court)
(1)
In section 126(1)(a), before “this Act”, insert “Part 6A (Police safety orders) of”.
(2)
In section 126(1)(b), before “this Act”, insert “Part 6A of”.
(3)
In section 126(2)(h), replace “the Secretary” with “a Registrar”.
70 Section 127 amended (Regulations)
(1AA)
In section 127, after “by Order in Council”, insert “made on the recommendation of the Minister of Justice”.
(1)
Replace section 127(a) and (b) with:
(aaa)
specifying types of non-standard services (for the purposes of the definition in section 2 of prescribed non-standard service), types of standard services (for the purposes of the definition in section 2 of prescribed standard service), or both:
(a)
prescribing for the purposes of all or any of sections 12B, 51B, and 124HB,—
(i)
the process to be followed by a person or an organisation seeking an approval by way of an application (see section 12B(2)(a), 51B(2)(a), or 124HB(2)(a)), the process to be followed for an own-motion approval (see section 12B(2)(b), 51B(2)(b), or 124HB(2)(b)), or both; and
(ii)
the criteria that the Minister of Justice or (as the case requires) the Secretary must apply when deciding whether to grant, amend, suspend, or cancel an approval (for example, criteria for when a person or an organisation may under section 51B(4) be granted or hold both an approval to undertake assessments for, and an approval to provide, prescribed services):
(b)
prescribing the amount of fees and expenses, or a method for calculating the amount of fees and expenses, payable for all or any of the following:
(i)
the provision by assessors of assessments under Part 2A:
(ii)
the provision by service providers of programmes, prescribed services, or both under Part 2A:
(c)
authorising disclosure to, or sharing with, an assessor or a service provider (as those terms are defined in section 51A)—
(i)
of court information subject to section 236 or 237 of the District Court Act 2016 or section 173 or 174 the Senior Courts Act 2016; and
(ii)
for the purposes of all or stated provisions of this Act; and
(iii)
by the court concerned or under its authority or direction:
(1A)
In section 127(g), replace “section 51O or 51P” with “section 51U or 51V”.
(2)
After section 127(g), insert:
(ga)
prescribing the amount of fees and expenses, or a method for calculating the amount of fees and expenses, payable for the provision by assessors of assessments under section 124HA:
70A New section 127A inserted (Consultation required for some regulations under section 127)
After section 127, insert:
127A Consultation required for some regulations under section 127
Before recommending regulations be made under section 127(a) or (c), the Minister of Justice must first consult,—
(a)
so far as the regulations relate to section 12B or 51B, the Principal Family Court Judge:
(b)
so far as the regulations relate to section 124HB, the Chief District Court Judge:
(c)
so far as the regulations relate to court information subject to section 236 or 237 of the District Court Act 2016, the Chief District Court Judge:
(d)
so far as the regulations relate to court information subject to section 173 or 174 of the Senior Courts Act 2016, the Chief Justice.
Schedules and updating or consequential amendments
71 New Schedule 1 inserted
Insert the Schedule 1 set out in Schedule 1 of this Act as the first schedule to appear after the last section of the principal Act.
71A Amendments to update expression
In the following provisions, replace “pursuant to” with “under” in each place:
(1)
section 2, definition of applicant, paragraph (b):
(2)
section 2, definition of associated respondent:
(3)
section 2, definition of dwellinghouse, paragraph (a):
(4)
section 2, definition of protected person, paragraph (c):
(5)
section 2, definition of registered foreign protection order:
(6)
section 2, definition of special condition:
(7)
section 2, definition of specified person:
(8)
section 2, definition of tenant, paragraph (b):
(9)
section 13(4)(b), (c), and (d), (5), and (5)(b), (c), and (d):
(10)
section 17(3) and (4):
(11)
section 21(4) and (5):
(12)
section 22(1)(b):
(13)
section 23(5) and (6)(a) and (b):
(14)
section 24(1)(b), (2), (2)(b), and (3):
(15)
section 25(1), (1)(a)(i), (b), and (c), (1)(d)(i), and (2):
(16)
section 26(2)(a) and (b):
(17)
section 45(1)(b) and (c) and (2):
(18)
section 46(3)(a) and (b):
(19)
section 47(2)(a) and (b), (3), and (4)(a) and (b):
(20)
section 55(1)(a) and (b):
(21)
section 58(3)(b)(i) and (ii):
(22)
section 60(2A) and (5)(b) and (c):
(23)
section 65(1)(a) and (c):
(24)
section 69(1)(a) and (c):
(25)
section 70(2A) and (6)(b) and (c):
(26)
section 74(2):
(27)
section 77(1A), (2), (3), and (4):
(28)
section 78(4):
(29)
section 79(2) and (3)(a):
(30)
section 80(1), (2), (3), and (5):
(31)
section 80A(1):
(32)
section 82(3)(b)(iii):
(33)
section 83(1)(d) and (e) and (4):
(34)
section 90(3):
(35)
section 98 and 98(b):
(36)
section 99:
(37)
section 100(1):
(38)
section 101(2)(a):
(39)
section 102:
(40)
section 110(2)(b):
(41)
section 111:
(42)
section 114(1), (2)(d)(ii), (2), (3)(b)(ii), and (5):
(43)
section 118(1), (2), (3), and (4):
(44)
section 119:
(45)
section 120:
(46)
section 121(2):
(47)
section 122(2)(a).
72 Other enactments amended consequentially
(1)
Amend the Acts listed in Part 1 of Schedule 2 as indicated in that Part.
(2)
Amend the legislative instruments listed in Part 2 of Schedule 2 as indicated in that Part.
Subpart 1—Preliminary provisions
3 Purpose of this Part
Purpose
(1)
The purpose of this Part is to stop and prevent family violence by—
(a)
recognising that family violence, in all its forms, is unacceptable; and
(b)
stopping and preventing perpetrators from inflicting family violence; and
(c)
keeping victims, including children, safe from family violence.
Duty to be guided by purpose
(2)
A court that, or a person who, exercises a power conferred by or under this Part must be guided in the exercise of the power by that purpose.
Examples of duty
(3)
For example, a family violence agency or social services practitioner exercising a power conferred by or under subpart 2 (information sharing) must be guided in the exercise of the power by that purpose.
(4)
For example, the District Court exercising a power conferred by or under subpart 3 (Police safety orders) must be guided in the exercise of the power by that purpose.
4 Principles
The following principles are to guide the achievement of the purpose of this Part:
(a)
family violence, in all its forms, is unacceptable:
(b)
decision makers should, whenever appropriate, recognise that family violence is often behaviour that appears to be minor or trivial when viewed in isolation, but forms part of a pattern of behaviour that causes cumulative harm:
(c)
decision makers should, whenever appropriate, recognise that family violence often is or includes coercive or controlling behaviour:
(d)
decision makers should, whenever appropriate, recognise that children are particularly vulnerable to family violence, including seeing or hearing violence against others:
(e)
decision makers should, whenever appropriate, recognise that children are at particular risk of lasting harm to their current and future well-being:
(f)
decision makers should, whenever appropriate, recognise that other factors (for example, all or any of disability, health condition, and old age) may mean that people are particularly vulnerable to family violence:
(g)
decision makers should, whenever appropriate, recognise that early intervention helps to stop and prevent family violence:
(h)
perpetrators of family violence should face effective responses to, and sanctions for, family violence:
(i)
perpetrators of family violence should have access to, and in some cases be required to engage with, services to help them stop and prevent their family violence:
(j)
victims of family violence should have access to services to help secure their safety from family violence:
(k)
arrangements that support the ongoing safety and well-being of a victim of family violence should whenever practicable be sustained (for example, employment, education, housing, or community involvement):
(l)
responses to family violence should be culturally appropriate and, in particular, responses involving Māori should reflect tikanga Māori (Māori customary values and practices):
(m)
decision makers should consider the views of victims of family violence, and respect those views unless a good reason exists in the particular circumstances for not doing so (for example, because doing so would or may compromise victims’ safety):
(n)
decision makers should collaborate, whenever appropriate, to identify, stop, prevent, and otherwise respond to family violence:
(o)
access to the court should be as speedy, inexpensive, and simple as is consistent with justice.
5 Guide to this Part
(1)
Subpart 1 is about preliminary provisions and contains the purpose of this Part, principles to guide the achievement of that purpose, definitions, and other preliminary provisions.
(2)
Subpart 2 is about information sharing and contains provisions enabling information sharing, by and with stated people, for purposes related to family violence (see section 18).
(3)
Subpart 3 is about Police safety orders and contains provisions on the issuing, serving, duration, effect, and contravention of Police safety orders (see section 26).
(4)
Subpart 4 is about protection orders and contains provisions on applications for, and the scope, conditions, duration, variation, discharge, and enforcement of, protection orders (see section 59).
(5)
Subpart 5 is about property orders and contains provisions on applications for, and the effect, conditions, duration, variation, discharge, and enforcement of, property orders (see section 114).
(6)
Subpart 6 is about procedure and contains provisions on temporary orders, general procedural matters, and appeals (see section 146).
(7)
Subpart 7 is about programmes and prescribed services and contains provisions on safety programmes for protected people, mandatory non-violence programmes and discretionary prescribed services for respondents, and enforcement and powers when a matter is referred back to the court (see section 183).
(8)
Subpart 8 is about overseas protection orders and contains provisions on enforcement of New Zealand protection orders overseas and enforcement in New Zealand of foreign protection orders (see section 215).
(9)
Subpart 9 is about public registers not publishing identifying information relating to a protected person (see section 229).
(10)
Subpart 10 contains other provisions (for example, about regulations, rules, and codes of practice) (see section 248).
6 Guide to related sentencing provisions
(1)
Sections 123A to 123H (protection orders) of the Sentencing Act 2002 apply if—
(a)
an offender is convicted of a family violence offence (as defined in section 123A of that Act); and
(b)
no protection order made under this Part is in force against the offender for the protection of the victim of the offence.
(2)
Those related sentencing provisions enable the court, as well as imposing a sentence or making any other order, to make a protection order against the offender if—
(a)
the court is satisfied that the making of the order is necessary for the protection of the victim of the offence; and
(b)
the victim of the offence does not object to the making of the order.
7 Status of guides
Guides in this Part to provisions are only a guide to the general scheme and effect of those provisions.
8 Interpretation
In this Part, unless the context otherwise requires,—
abuse means abuse within the meaning of section 10
ancillary furniture order means an order, or a temporary order, made under section 128
applicant means—
(a)
a person who applies for an order under this Part on their own behalf:
(b)
the person on whose behalf an application for an order is made under section 62, 67, 69, 140(2)(a) or (3)(b), or 143
application without notice means an application made without notice to the person or people against whom the application is made
approved organisation means an organisation approved under section 71
associated respondent means a person against whom a protection order applies because of a direction made under section 89
chief executive means the chief executive of the department for the time being responsible for the administration of the Oranga Tamariki Act 1989
child means a person who is under the age of 18 years
child of the applicant’s family, for an applicant and at a time, means a child who at that time ordinarily or periodically resides with the applicant, whether or not—
(a)
the child is a child of the applicant, the respondent, or both:
(b)
for a protection order, the child—
(i)
resided ordinarily or periodically with the applicant at the time when the order was made; or
(ii)
was born only after the time when the order was made
constable has the meaning given to it by section 4 of the Policing Act 2008
contact, by a respondent or other person, and with a child or protected person, means 1 or both of the following:
(a)
any form of direct interaction (that is, face to face interaction):
(b)
any form of indirect interaction, including, without limitation,—
(i)
by telephone, letters or other writing, or email; or
(ii)
by communication on or via an Internet site; or
(iii)
by other digital communication
common biological parent, for a person (P) who is a biological parent of a child, means another person who is also a biological parent of that child
country includes any State, territory, province, or other part of a country
court—
(a)
means the Family Court; and includes a Family Court Judge; or
(b)
if another court has jurisdiction in the proceedings, means that court
day-to-day care has the meaning given to it by section 8 of the Care of Children Act 2004
digital communication has the same meaning as in section 4 of the Harmful Digital Communications Act 2015
dwellinghouse includes—
(a)
any flat or town house, whether or not occupied under a licence to occupy within the meaning of section 121A of the Land Transfer Act 1952:
(b)
any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land
encourage includes to incite, counsel, or procure
family member, in relation to a person, means—
(a)
any other person who is or has been related to the person—
(i)
by blood; or
(ii)
by or through marriage, a civil union, or a de facto relationship; or
(iii)
by adoption:
(b)
any other person who is a member of the person’s whānau or other culturally recognised family group
family relationship means one of the relationships set out in section 12
family violence has the meaning set out in section 9
firearms licence means a firearms licence issued under section 24 of the Arms Act 1983
foreign protection order—
(a)
means an order made by a court in a prescribed foreign country, being—
(i)
an order to protect a person from behaviour by the person against whom the order is made, where, if the behaviour occurred in New Zealand, it would be behaviour in respect of which a protection order could be made under this Part; or
(ii)
an order that varies, discharges, or is made in substitution for such an order; but
(b)
does not include—
(i)
an order made without notice; or
(ii)
an order of an interim nature; or
(iii)
an order made by a court in a prescribed foreign country that varies, discharges, or is made in substitution for a New Zealand order that is registered or is otherwise enforceable in that country
furniture order means an order, or a temporary order, made under section 134
government organisation means—
(a)
a department specified in Schedule 1 of the State Sector Act 1988; or
(b)
a Crown entity (as defined in section 7 of the Crown Entities Act 2004)
ill-treat, in relation to an animal, has the same meaning as in section 2(1) of the Animal Welfare Act 1999
inflict family violence, in relation to any person, means to engage in behaviour that amounts to family violence against that person
lawyer has the meaning given to it by section 6 of the Lawyers and Conveyancers Act 2006
occupation order means an order, or a temporary order, made under section 116
parenting order has the meaning given to it by section 8 of the Care of Children Act 2004
partner, in the phrase “spouse or partner”
and in related contexts, means, in relation to a person (P),—
(a)
P’s civil union partner; or
(b)
P’s de facto partner; or
(c)
P’s common biological parent (as defined in this section)
perpetrator, of family violence,—
(a)
means a person who has inflicted, or is inflicting, family violence (even if no offence involving the violence was, is, or is to be, admitted or prosecuted); but
(b)
in subpart 2, has the meaning given in section 19
person lacking capacity, for the purposes of section 67, means a person who is aged 18 years old or over and who—
(a)
lacks, wholly or partly, the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to the person’s personal care and welfare; or
(b)
has the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to the person’s personal care and welfare, but wholly lacks the capacity to communicate decisions in respect of such matters
prescribed foreign country means—
(a)
Australia (including any state or territory of Australia); or
(b)
any other country outside New Zealand that is declared, by Order in Council made under section 227, to be a prescribed foreign country
prescribed non-standard service means a service that—
(a)
is, or is to be, provided to a respondent by a service provider (as defined in section 184); and
(b)
has the objective of stopping or preventing family violence, or helping the respondent to stop inflicting family violence; and
(c)
is a type of non-standard service specified in regulations made under section 249(a)
prescribed service means a service that is—
(a)
a prescribed non-standard service; or
(b)
a prescribed standard service
prescribed standard service means a service that—
(a)
is, or is to be, provided to a respondent by a service provider (as defined in section 184); and
(b)
has the objective of stopping or preventing family violence, or helping the respondent to stop inflicting family violence; and
(c)
is a type of standard service specified in regulations made under section 249(a)
property, in relation to a person, means property that—
(a)
the person owns; or
(b)
the person does not own but that—
(i)
the person uses or enjoys; or
(ii)
is available for the person’s use or enjoyment; or
(iii)
is in the person’s care or custody; or
(iv)
is at the person’s dwellinghouse
property order means an order made under subpart 5
protected person, in relation to a protection order, means—
(a)
the person for whose protection the order is made:
(b)
any child of that person’s family:
(c)
any person for whose benefit the order applies under a direction made under section 87
protection order means an order, or a temporary order, made under section 79
registered foreign protection order means a foreign protection order that is registered in a court under section 219
Registrar means the Registrar, or a Deputy Registrar, of a court
representative,—
(a)
in relation to a child, means a litigation guardian or next friend appointed under or recognised by rules of court, or an approved organisation authorised by section 74, to take proceedings under this Part on behalf of that child:
(b)
in relation to a person lacking capacity to whom section 67 applies, means a litigation guardian appointed under or recognised by rules of court, or an approved organisation authorised by section 74, to take proceedings under this Part on behalf of that person:
(c)
in relation to a person to whom section 69 applies, means a litigation guardian appointed under that section, or an approved organisation authorised by section 74, to take proceedings under this Part on behalf of that person
respondent means the person against whom an application has been made for an order under this Part; and includes a person (other than an associated respondent) against whom an order is made under this Part
Secretary means the chief executive of the Ministry of Justice
special condition, in relation to a protection order, means any condition of the order imposed under section 103
specified person means a person for whose benefit a protection order applies under a direction made under section 87
standard condition about weapons means the standard condition contained in section 98
temporary order means an order of limited duration that is made on an application without notice
tenancy order means an order, or a temporary order, made under section 122
tenant, in relation to any dwellinghouse, includes any person—
(a)
whose tenancy of that dwellinghouse has expired or been determined; and
(b)
who is for the time being deemed, under any enactment or rule of law, to continue to be the tenant of the dwellinghouse
weapon means any firearm, airgun, pistol, restricted weapon, ammunition, or explosive, as those terms are defined in the Arms Act 1983.
Compare: 1995 No 86 s 2
9 Meaning of family violence
(1)
In this Part, family violence, in relation to a person, means violence inflicted—
(a)
against that person; and
(b)
by any other person with whom that person is, or has been, in a family relationship.
(2)
In this section, violence means all or any of the following:
(a)
physical abuse:
(b)
sexual abuse:
(c)
psychological abuse.
(3)
Violence against a person includes a pattern of behaviour (done, for example, to isolate from family members or friends) that is made up of a number of acts that are all or any of physical abuse, sexual abuse, and psychological abuse, and that may have 1 or both of the following features:
(a)
it is coercive or controlling (because it is done against the person to coerce or control, or with the effect of coercing or controlling, the person):
(b)
it causes the person, or may cause the person, cumulative harm.
(4)
Violence against a person may be dowry-related violence (that is, violence that arises solely or in part from concerns about whether, how, or how much any gifts, goods, money, other property, or other benefits are—
(a)
given to or for a party to a marriage or proposed marriage; and
(b)
received by or for the other party to the marriage or proposed marriage).
(5)
Subsection (2) is not limited by subsections (3) and (4) and must be taken to include references to, and so must be read with, sections 10 and 11.
Compare: 1995 No 86 s 3(1), (2)
10 Meaning of abuse
(1)
A single act may amount to abuse.
(2)
A number of acts that form part of a pattern of behaviour (even if all or any of those acts, when viewed in isolation, may appear to be minor or trivial) may amount to abuse.
(3)
This section does not limit section 9(2).
Compare: 1995 No 86 s 3(4)
11 Meaning of psychological abuse
(1)
Psychological abuse includes—
(a)
threats of physical abuse, of sexual abuse, or of abuse of a kind stated in paragraphs (b) to (f):
(b)
intimidation or harassment (for example, all or any of the following behaviour that is intimidation or harassment:
(i)
watching, loitering near, or preventing or hindering access to or from a person’s place of residence, business, or employment, or educational institution, or any other place that the person visits often:
(ii)
following the person about or stopping or accosting a person in any place:
(iii)
if a person is present on or in any land or building, entering or remaining on or in that land or building in circumstances that constitute a trespass):
(c)
damage to property:
(d)
ill-treatment of 1 or both of the following:
(i)
household pets:
(ii)
other animals whose welfare affects significantly, or is likely to affect significantly, a person’s well-being:
(e)
financial or economic abuse (for example, unreasonably denying or limiting access to financial resources, or preventing or restricting employment opportunities or access to education):
(f)
in relation to a person unable, by reason of age, disability, health condition, or any other cause, to withdraw from the care or charge of another person, hindering or removing (or threatening to hinder or remove) access to any aid or device, medication, or other support that affects, or is likely to affect, the person’s quality of life:
(g)
in relation to a child, abuse stated in subsection (2).
(2)
A person psychologically abuses a child if that person—
(a)
causes or allows the child to see or hear the physical, sexual, or psychological abuse of a person with whom the child has a family relationship; or
(b)
puts the child, or allows the child to be put, at real risk of seeing or hearing that abuse occurring.
(3)
However, the person who suffers the abuse in subsection (2)(a) and (b) is not regarded, under subsection (2), as having (as the case may be)—
(a)
caused or allowed the child to see or hear that abuse; or
(b)
put the child, or allowed the child to be put, at risk of seeing or hearing that abuse.
(4)
Psychological abuse may be or include behaviour that does not involve actual or threatened physical or sexual abuse.
(5)
This section does not limit section 9(2)(c).
Compare: 1995 No 86 s 3(3), (5)
12 Meaning of family relationship: general
For the purposes of this Part, a person (A) is in a family relationship with another person (B) if A—
(a)
is a spouse or partner of B; or
(b)
is a family member of B; or
(c)
ordinarily shares a household with B (see also section 13); or
(d)
has a close personal relationship with B (see also section 14).
Compare: 1995 No 86 s 4(1)
13 Meaning of family relationship: sharing household
For the purposes of section 12(c), a person (A) is not regarded as sharing a household with another person (B) by reason only of the fact that—
(a)
A has, with B,—
(i)
a landlord-tenant relationship; or
(ii)
an employer-employee relationship; or
(iii)
an employee-employee relationship; and
(b)
A and B occupy a common dwellinghouse (whether or not other people also occupy that dwellinghouse).
Compare: 1995 No 86 s 4(2)
14 Meaning of family relationship: close personal relationship
(1)
A person (A) is not regarded as having a close personal relationship with another person (B) under section 12(d) by reason only of the fact that A has, with B,—
(a)
an employer-employee relationship; or
(b)
an employee-employee relationship.
(2)
A person (A) is not prevented from having a close personal relationship with another person (B) under section 12(d) by reason only of the fact that A has, with B, a recipient of care-carer relationship.
(3)
In determining whether a person (A) has a close personal relationship with another person (B) under section 12(d), the court must have regard to—
(a)
the nature and intensity of the relationship, and in particular—
(i)
the amount of time A and B spend together:
(ii)
the place or places where that time is ordinarily spent:
(iii)
the manner in which that time is ordinarily spent:
(b)
the duration of the relationship.
(4)
Despite subsection (3)(a), it is not necessary for a person (A) to have a sexual relationship with another person (B) in order for A to have a close personal relationship with B.
(5)
Subsections (2), (3), and (4) do not limit the matters to which a court may have regard in determining, under section 12(d), whether a person has a close personal relationship with another person.
Compare: 1995 No 86 s 4(3), (4)
15 Status of examples
An example provided in this Part of the operation of a provision of an enactment—
(a)
does not limit the provision; and
(b)
may extend the operation of the provision.
Compare: 2012 No 120 s 5A; 2014 No 58 s 5(2); Acts Interpretation Act 1901 s 15AD (Aust)
16 Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.
17 Part binds the Crown
This Part binds the Crown.
Compare: 1995 No 86 s 6
Subpart 2—Information sharing
Purpose and interpretation
18 Purpose of this subpart
(1)
The purpose of this subpart is to encourage family violence agencies and social services practitioners to collaborate to identify, stop, prevent, and otherwise respond to family violence.
(2)
To help achieve that purpose, this subpart—
(a)
enables family violence agencies and social services practitioners to request, use, or disclose personal information for purposes related to family violence; and
(b)
requires family violence agencies and social services practitioners, in certain circumstances, to consider disclosing personal information for those purposes.
19 Interpretation
In this subpart, unless the context otherwise requires,—
family violence agency means any of the following:
(a)
a specified government agency (as defined in this section):
(b)
any non-governmental organisation that is funded wholly or in part by government, and that exercises powers, performs functions, or provides services, for 1 or both of the following purposes:
(i)
to protect, or otherwise help, victims of family violence:
(ii)
to help people to stop their inflicting of family violence:
(c)
any school board:
(d)
any licensed early childhood service
family violence risk or need assessment means an assessment of risk, or of need, arising from family violence
held includes deemed for the purposes of the Official Information Act 1982 to be held (see, for example, section 2(4) and (5) of that Act)
holder agency or practitioner means any family violence agency that, or social services practitioner who, holds personal information about a victim or perpetrator of family violence
licensed early childhood service has the same meaning as in section 309 of the Education Act 1989
perpetrator, of family violence, means either of the following:
(a)
a person who has inflicted, or may have inflicted, family violence (even if no offence involving the violence was, is, or is to be, admitted or prosecuted):
(b)
a person who is inflicting, or may be inflicting, family violence (even if no offence involving the violence is, or is to be, admitted or prosecuted)
personal information has the same meaning as in section 2 of the Privacy Act 1993
recipient agency or practitioner, for a holder agency or practitioner and personal information, means any, or any other, family violence agency or social services practitioner to whom the information is to be disclosed by the holder agency or practitioner
school board means a board or body that is, or 1 or more managers who are,—
(a)
a board as defined in section 60, and for the purposes of Part 7 (control and management of State schools), of the Education Act 1989; or
(b)
a sponsor of a partnership school kura hourua (as those terms are defined in section 2 of that Act); or
(c)
the manager or managers of a private school that is registered under section 35A of that Act
social services practitioner means an individual who is providing education, health, or other social services as all or any of the following:
(a)
a holder of a teacher’s practising certificate, or a limited authority to teach, under the Education Act 1989:
(b)
a person who is, or is deemed to be, registered with an authority as a practitioner of a particular health profession under the Health Practitioners Competence Assurance Act 2003:
(c)
a registered social worker (as defined in section 4 of the Social Workers Registration Act 2003)
specified government agency means any of the following:
(a)
Accident Compensation Corporation:
(b)
Department of Corrections:
(c)
Ministry of Education:
(d)
Ministry of Health:
(e)
any DHB (that is, an organisation established as a district health board by or under section 19 of the New Zealand Public Health and Disability Act 2000):
(f)
Housing New Zealand Corporation:
(g)
every registered community housing provider (as defined in section 2(1) of the Housing Restructuring and Tenancy Matters Act 1992):
(h)
the part of the Ministry of Business, Innovation, and Employment referred to as Immigration New Zealand:
(i)
Ministry of Justice:
(j)
New Zealand Police:
(k)
Oranga Tamariki—Ministry for Children:
(l)
Ministry of Social Development:
(m)
any government agency established in substitution for, or set up to take over any relevant function of, the departments and agencies listed in paragraphs (a) to (l)
victim, of family violence, means a person who—
(a)
has experienced, is experiencing, or may experience family violence (even if no offence involving the violence was, is, or is to be admitted or prosecuted); or
(b)
is, has been, or may be affected by family violence (even if no offence involving the violence was, is, or is to be admitted or prosecuted).
Information requests, use, and disclosure
20 Authorisations for agencies and practitioners
Information requests
(1)
A family violence agency or social services practitioner may request personal information about a victim or perpetrator of family violence from any, or from another, family violence agency or social services practitioner, to use or disclose for all or any of the following purposes:
(a)
to make, or contribute to, a family violence risk or need assessment:
(b)
to make, or contribute to the making or carrying out of, a decision or plan that is related to, or that arises from or responds to, family violence:
(c)
to help ensure that a victim is protected from family violence.
Information use and disclosure
(2)
The rest of this section applies to a holder agency or practitioner.
(3)
The holder agency or practitioner may use the personal information for all or any of the purposes in subsection (1)(a) to (c).
(4)
The holder agency or practitioner may disclose the personal information to a recipient agency or practitioner—
(a)
if the holder agency or practitioner believes on reasonable grounds that the disclosure will or may help the recipient agency or practitioner to use the personal information for all or any of the purposes specified in subsection (1)(a) to (c); and
(b)
after, or without, receiving from the recipient agency or practitioner a request to disclose personal information to the recipient agency or practitioner for use for all or any of those purposes.
21 Principle guiding decisions whether to disclose
(1)
This section applies to a holder agency or practitioner that, or who, is deciding whether or not to disclose information under section 20 (which authorises, but does not require, a decision that information be made available).
(2)
The holder agency or practitioner must have regard to the principle that helping to ensure that a victim is protected from family violence should usually take precedence over both—
(a)
any applicable duty to keep the information confidential; and
(b)
any applicable limit under information privacy principle 11 in section 6 of the Privacy Act 1993 on disclosure of the information.
22 Duty to comply with service delivery code of practice
(1)
This section applies to an agency or practitioner requesting, using, or disclosing information under section 20.
(2)
The agency or practitioner must comply with any applicable code of practice provisions (on information requests, use, and disclosure) issued under section 254(1) and (2)(c).
23 Relationship with other enactments
(1)
Section 20 does not affect or limit court information being able to be accessed by, disclosed to, or shared with, a family violence agency or social services practitioner only as authorised by or under—
(a)
section 236 or 237 of the District Court Act 2016; or
(b)
section 173 or 174 of the Senior Courts Act 2016; or
(c)
any other enactment.
(2)
Section 20 does not affect or limit any collection, use, or disclosure of the information authorised or required by or under the Privacy Act 1993 or any other enactment.
(3)
Disclosure under section 20 does not limit the right, under a privilege or right referred to in section 53(5), 54, 56, 57, 58, 59, 60, or 68 of the Evidence Act 2006, to refuse to disclose any communication or information sought by a requirement to provide information.
24 Duty to consider information disclosure
A holder agency or practitioner must consider disclosing personal information about a victim or perpetrator of family violence under section 20 to a recipient agency or practitioner if the holder agency or practitioner—
(a)
believes on reasonable grounds that disclosure to the recipient agency or practitioner will or may help ensure that a victim is protected from family violence; or
(b)
receives from the recipient agency or practitioner a request to disclose personal information of that kind or description to the recipient agency or practitioner for use for all or any of the purposes specified in section 20(1)(a) to (c).
25 Protection of holder agency or practitioner disclosing information
(1)
This section applies to the disclosure by a holder agency or a practitioner, and in any manner, of information under section 20.
(2)
No civil, criminal, or disciplinary proceedings lie against the holder agency or practitioner in respect of that disclosure, or the manner of that disclosure, by the holder agency or practitioner of that information.
(3)
However, subsection (2) does not apply if that information was disclosed in bad faith.
Compare: 1989 No 24 s 16; 1996 No 9 s 17; 2009 No 35 s 44
Subpart 3—Police safety orders
Preliminary provisions
26 Police safety order: guide to this subpart
This subpart contains provisions about a qualified constable issuing against a person (A) an order—
(a)
to help make another person (B) safe from family violence (see section 28(1)):
(b)
requiring A to vacate any land or building occupied by B (or any child residing ordinarily or periodically with B), to comply with family violence and no-contact conditions, and (if directed to do so) to arrange and attend a risk and needs assessment (see sections 36 to 42):
(c)
continuing in force for the period (not exceeding 10 days) specified in it (see section 35):
(d)
that, if A has failed or refused to comply with it, can result in A being taken into custody, and can be extended or renewed, or replaced with a temporary protection order (see sections 43 to 54).
27 Police safety order: interpretation
In this subpart, unless the context otherwise requires,—
assessor, in section 42, means a person or an organisation that has been granted an approval—
(a)
under section 56 (to carry out assessments under section 42); and
(b)
that has not been suspended or cancelled
bound person, in relation to an order, means the person against whom the order is issued
District Court—
(a)
includes a Justice or Justices, or a Community Magistrate or Community Magistrates, presiding over the District Court; but
(b)
does not include a Registrar
person at risk, in relation to an order,—
(a)
means a person named in the order for whose safety the order is issued; and
(b)
in sections 36 to 39, includes a protected child
Police safety order or order means an order issued under section 28
protected child, in relation to an order, means a child who resides ordinarily or periodically with a person named in the order for whose safety the order is issued
qualified constable means a constable who is of or above the level of position of sergeant.
Compare: 1995 No 86 s 124A
Issuing, serving, and duration
28 Police safety order: power to issue order
(1)
A qualified constable may issue a Police safety order in the prescribed form against a person (A) who is, or has been, in a family relationship with another person (B) if the constable has reasonable grounds to believe that the issue of an order is necessary to help make B safe from family violence.
(2)
In deciding if the reasonable grounds to believe required by subsection (1) exist, the qualified constable must have regard to the matters specified in section 29.
(3)
A constable who is not a qualified constable may issue an order under this section only if the constable is specifically authorised by a qualified constable to issue that order.
Compare: 1995 No 86 s 124B
29 Police safety order: matters guiding issue and duration
(1)
In considering whether to issue an order against A, the qualified constable must have regard to the following matters:
(a)
whether, in the circumstances, the constable considers it is likely that—
(i)
A has inflicted, or is inflicting, family violence against B:
(ii)
A has inflicted, or is inflicting, family violence against any other person with whom A has a family relationship:
(b)
whether there is a likelihood that A will inflict, or again inflict, family violence against B:
(c)
the welfare of any children residing ordinarily or periodically with B:
(d)
the hardship that may be caused if the order is issued:
(e)
any other matter the constable considers relevant.
(2)
In considering the period to be specified in the order, the qualified constable must also have regard to those matters (see section 35(3)).
Compare: 1995 No 86 s 124B
30 Police safety order: issue without consent
An order may be issued without the consent of B (the person for whose safety the order is proposed to be issued).
Compare: 1995 No 86 s 124C
31 Police safety order: limit on issuing against child
A qualified constable must not issue an order against a child unless satisfied that the child is aged 16 years old or over and that the order is justified by special circumstances.
Compare: 1995 No 86 s 124D
32 Police safety order: detention for issuing and serving
(1)
A constable who is proposing to issue a Police safety order under section 28 against any person may detain that person for a period, not exceeding 2 hours, that may be necessary to enable the constable to do 1 or more of the following:
(a)
obtain authorisation under section 28(3) to issue the order:
(b)
issue the order:
(c)
serve the order.
(2)
If a person who is detained under subsection (1) fails or refuses to remain at the place where that person is detained, that person—
(a)
commits an offence and is liable on conviction to the penalty specified in subsection (4); and
(b)
may be arrested without warrant.
(3)
Subsection (2) applies in respect of a person detained under subsection (1)(a) regardless of whether an order is issued.
(4)
The maximum penalty for an offence against subsection (2)(a) is a fine not exceeding $500.
(5)
In this section, detain includes move the person to a Police station.
Compare: 1995 No 86 s 124I
33 Police safety order: duty to explain order and any related direction for risk and needs assessment
(1)
A constable who issues an order must, if and to the extent that it is reasonably practicable to do so in the circumstances, either at the time of issue or service of the order, explain to the bound person—
(a)
the purpose, duration, and effect of the order; and
(b)
the consequences that may follow if the bound person contravenes the order.
(2)
A constable who issues an order must also, either before or after issue and service of the order, explain to the person at risk the matters set out in subsection (1)(a) and (b).
(3)
A constable or Police employee who, while a Police safety order is in force, issues to the bound person a direction under section 42 must, if and to the extent that it is reasonably practicable to do so in the circumstances, either at the time of issue or service of the direction, explain to the bound person—
(a)
the purpose and effect of the direction; and
(b)
the consequences that may follow if the bound person fails or refuses to comply with the direction.
(4)
A constable or Police employee who issues a direction under section 42 related to a Police safety order must also, either before or after issue and service of the direction, explain to the person at risk the order the matters set out in subsection (3)(a) and (b).
Compare: 1995 No 86 s 124J
34 Police safety order: lapse if not served promptly on bound person
(1)
An order issued under section 28 must be served by a constable as soon as practicable on the bound person.
(2)
If an order issued under section 28 has not been served within 48 hours from the time of issue, the order lapses.
Compare: 1995 No 86 s 124H
35 Police safety order: duration
(1)
An order comes into force immediately on being served on the bound person.
(2)
An order continues in force for the period specified in the order, but that period must not exceed 10 days.
(3)
In considering the period to be specified in the order, the qualified constable must have regard to the matters set out in section 29(1).
Compare: 1995 No 86 s 124K
Effect
36 Police safety order: effect: duty to vacate land or building
A bound person must immediately vacate any land or building occupied by a person at risk, whether or not the person at risk has a legal or equitable interest in the land or building.
Compare: 1995 No 86 s 124E
37 Police safety order: effect: duty to surrender weapons
A bound person must immediately surrender to a constable—
(a)
any weapon (as defined in section 8) in the bound person’s possession or control; and
(b)
any firearms licence held by the bound person.
Compare: 1995 No 86 s 124E
38 Police safety order: effect: no family violence, no contact, no having others breach order
It is a condition of every order that the bound person must not—
(a)
engage in behaviour that amounts to any form of family violence against a person at risk (see sections 9, 10, and 11):
(b)
make any contact with a person at risk that is not contact authorised by section 39 (which describes the condition in this paragraph as an order’s no-contact condition):
(c)
encourage a person to engage in behaviour against, or to make contact with, a person at risk, if the behaviour or contact, if engaged in or made by the bound person, would be prohibited by the order.
Compare: 1995 No 86 s 124E
39 Police safety order: effect: contact that is authorised, and not in breach of order’s no-contact condition
Contact by the person bound with a person at risk is authorised, and not in breach of an order’s no-contact condition, if the contact is—
(a)
reasonably necessary in any emergency; or
(b)
permitted under any special condition of any relevant protection order; or
(c)
necessary for the purposes of attending a family group conference (within the meaning of section 2 of the Oranga Tamariki Act 1989); or
(d)
necessary to attend any proceeding (of any kind) in or before any court or person acting judicially (a legal proceeding); or
(e)
necessary to attend any other matter that is associated with a legal proceeding, and that is a matter that the parties to the proceeding jointly attend (for example, a restorative justice conference, or a settlement conference convened under section 46Q of the Care of Children Act 2004).
40 Police safety order: effect: firearms licence suspended
While an order that has been issued is in force,—
(a)
any firearms licence held by the bound person is deemed to be suspended; and
(b)
the bound person is deemed, for all purposes, not to be the holder of a firearms licence.
Compare: 1995 No 86 s 124F
41 Police safety order: effect: parenting orders suspended
(1)
This section applies if an order is issued and—
(a)
a parenting order or day-to-day care or contact agreement is in force in respect of a protected child (as defined in section 27); and
(b)
the bound person is a party to that parenting order or agreement.
(2)
While an order is in force against any person, a parenting order or an agreement affording to that person the day-to-day care of, or contact with, a protected child (as so defined) is suspended.
Compare: 1995 No 86 s 124G
42 Police safety order: effect: risk and needs assessment
(1)
An assessor carries out an assessment under this section to identify—
(a)
any risk assessed by the assessor that the bound person is likely, after the expiry of a Police safety order, to continue inflicting family violence; and
(b)
any steps that the assessor considers the bound person should take to help that person accept responsibility for, and stop, that person’s inflicting of family violence.
(2)
A constable (even if not a qualified constable) or Police employee may, while a Police safety order is in force, issue to the bound person a written direction to—
(a)
arrange, before the end of the tenth working day after the direction is served on the bound person, for an assessment on the bound person to be carried out promptly by an assessor; and
(b)
attend the assessment at the arranged time and place.
(3)
The constable or Police employee must, as soon as practicable after issuing the direction to the bound person, ensure that a copy of the direction is served on the bound person.
(4)
The direction lapses if—
(a)
the order to which it relates lapses (because that order has not been served within 48 hours from the time of issue) under section 34(2); or
(b)
at or after the time that the direction is issued, a protection order is made against the bound person.
(5)
A person’s refusal or failure, without reasonable excuse, to comply with the direction after it has been served on the person, and if it has not lapsed, is taken for the purposes of section 43 to be a refusal or failure by the person to comply with an order served on the person.
Contravention
43 Police safety order: contravention: taking person into custody
(1)
This subsection applies if a person who has been served with an order refuses or fails to comply with—
(a)
the order (see, for example, section 42(5)); or
(b)
any condition of the order.
(2)
If subsection (1) applies, a constable who believes on reasonable grounds that the person has refused or failed to comply with the order or a condition of the order may take the person into custody by—
(a)
using such force as is reasonably necessary; or
(b)
executing a warrant to arrest issued in respect of that person under section 51(1)(a) and (2).
(3)
A person who is taken into custody under subsection (2)(a) must be brought before the District Court within 24 hours.
Compare: 1995 No 86 s 124L
44 Police safety order: contravention: if person in custody cannot be brought before District Court
(1)
If a person who is taken into custody under section 43(2)(a) is not brought before the District Court within 24 hours, that person must, at or before the expiry of that period,—
(a)
be released; and
(b)
be served by a constable with a summons requiring that person to appear before the District Court at the place and time specified in the summons.
(2)
A summons served under subsection (1)(b) must be in the prescribed form.
(3)
If a person who has been served with a summons under subsection (1)(b) does not attend personally at the place and time specified in the summons, the District Court or a Registrar may issue a warrant, in the prescribed form, to—
(a)
arrest the person; and
(b)
bring the person before the court.
Compare: 1995 No 86 s 124M
45 Police safety order: contravention: applying to District Court for direction or order
(1)
This section applies if a person has been taken into custody by a constable under section 43(3).
(2)
The constable may apply to the District Court, by making a complaint in the prescribed form, for a direction or an order under section 46.
Compare: 1995 No 86 s 124L
46 Police safety order: contravention: District Court may make direction or order
(1)
If the District Court presided over by 1 or more Justices, or 1 or more Community Magistrates, is satisfied that a person has refused or failed to comply with a Police safety order, the court may,—
(a)
if the order has not expired, direct that another order, which is to continue in force for a period not exceeding 10 days specified by the court, be—
(i)
issued against the person in substitution of the earlier order for the safety of the person at risk named in the earlier order; and
(ii)
served by a constable or officer of the court as soon as practicable; or
(b)
if the order has expired, direct that another order, which is to continue in force for a period not exceeding 10 days specified by the court, be—
(i)
issued against the person for the safety of the person at risk named in the earlier order; and
(ii)
served by a constable or officer of the court as soon as practicable; or
(c)
if it considers it appropriate in the circumstances to do so,—
(i)
adjourn the proceedings to a specified time and place to enable a District Court Judge to consider whether a temporary protection order should be issued under subsection (2)(b); and
(ii)
make a direction of the kind specified in paragraph (a) or (b), as the case may require.
(2)
If the District Court presided over by a District Court Judge is satisfied that a person has refused or failed to comply with a Police safety order, the Judge may—
(a)
make a direction of the kind specified in subsection (1)(a) or (b); or
(b)
issue, without application from any person, but subject to section 47(2), a temporary protection order under section 79 as if—
(i)
every reference in that section to the respondent were a reference to the person who the Judge is satisfied has refused or failed to comply with the Police safety order (R); and
(ii)
every reference in that section to the applicant were a reference to the person at risk named in the Police safety order for whose safety the order was issued (S).
(3)
If the court makes a direction of the kind specified in subsection (1)(a) or (b), the court may direct that the person against whom the order is to be issued be detained in the custody of the court for a period, not exceeding 2 hours, that may be necessary to enable the order to be issued and served on that person.
Compare: 1995 No 86 s 124N(1), (2), (6)
47 Police safety order: contravention: limits on issuing of temporary protection order
(1)
A District Court Judge may issue a temporary protection order under section 46(2)(b) in the absence of R, S, or both.
(2)
A District Court Judge may only issue an order of the kind referred to in section 46(2)(b) if S—
(a)
does not object; and
(b)
has not made an application for a protection order against R that is currently pending determination by a court.
Compare: 1995 No 86 s 124N(3), (4), (5)
48 Police safety order: contravention: nature of proceedings: criminal jurisdiction
(1)
This section applies to the jurisdiction conferred on the District Court or a Registrar under section 46 or 51.
(2)
That jurisdiction is criminal jurisdiction of the District Court.
49 Police safety order: contravention: standard of proof
(1)
Every question of fact arising in any proceeding under section 46 or 51 must (in accordance with, but without limiting, section 171) be decided on the balance of probabilities.
(2)
Subsection (1) applies despite section 48 and despite any other contrary law (for example, every enactment or other law in the decision in Mark v Police [2013] NZHC 1041).
Compare: 1995 No 86 s 85
50 Police safety order: contravention: rules of court
(1)
Rules of court may be made under section 252(1)(a) of this Part, or under section 228(1)(b) of the District Court Act 2016, regulating the practice and procedure of the District Court in proceedings under section 46 or 51.
(2)
Subsection (1) does not limit the generality of section 252(1)(a) or (b) of this Part or of section 228(1)(b) of the District Court Act 2016.
51 Police safety order: contravention: warrant to arrest person who contravenes order, etc
(1)
This subsection applies if—
(a)
the bound person refuses or fails to comply with a Police safety order or any condition of the order; or
(b)
the District Court is satisfied that the bound person has refused or failed to comply with a Police safety order and the bound person does not attend personally at the time and place to which proceedings have been adjourned under section 46(1)(c)(i).
(2)
The District Court or a Registrar may, if subsection (1) applies, issue a warrant in the prescribed form.
(3)
A warrant to arrest a person under this section—
(a)
must be directed either—
(i)
specifically to a constable; or
(ii)
generally to every constable; but
(b)
may be executed by any constable.
(4)
For the purpose of executing a warrant issued under this section, the constable executing it may at any time enter on to any premises, by force if necessary, if the constable has reasonable grounds to believe that the person against whom it is issued is on those premises.
(5)
The constable executing the warrant must—
(a)
have the warrant with the constable; and
(b)
produce it on initial entry and, if requested, at any later time; and
(c)
if the constable is not in uniform, produce evidence that the constable is a constable.
(6)
A person who is arrested under this section must, as soon as possible, be brought before the District Court to enable it to exercise its jurisdiction under section 46.
Compare: 1995 No 86 s 124O
52 Police safety order: contravention: protection order to be issued and served
(1)
If the District Court makes a temporary protection order under section 46(2)(b), the Registrar of that court must—
(a)
immediately issue the order; and
(b)
if practicable, serve a copy of the order on the person against whom the order is made before that person leaves the court.
(2)
For the purpose of subsection (1), the court may direct that the person against whom the order is made be detained in the custody of the court for a period, not exceeding 2 hours, that may be necessary to enable the order to be issued and a copy served on that person.
Compare: 1995 No 86 s 124P
53 Police safety order: contravention: protection order to be sent to Family Court
(1)
Immediately after the issue of a protection order under section 46, the District Court must send a copy of the order to the Family Court nearest to the residence of the person for whose safety the Police safety order and temporary protection order were issued.
(2)
On receipt of a copy of an order under subsection (1), the Registrar of the Family Court must enter the order in the records of the Family Court.
Compare: 1995 No 86 s 124Q
54 Police safety order: contravention: protection order treated as if made by Family Court
As soon as an order has been entered in the records of the Family Court under section 53(2), the order is to be treated as if it were a temporary protection order made by that court.
Compare: 1995 No 86 s 124R
Administrative provisions
55 Police safety order: Police employees, etc, protected from proceedings
(1)
This section applies to any thing done, or omitted to be done, in good faith and with reasonable care, by the Crown or a constable, for the purpose of carrying out the provisions of this subpart.
(2)
No action or proceedings may be brought against the Crown or the constable in respect of doing, or omitting to do, that thing.
Compare: 1995 No 86 s 124S
56 Police safety orders: approvals of assessors: general
(1)
A person or an organisation approved to do so under this section may carry out assessments under section 42.
(2)
A person or an organisation (for example, a government organisation) may be approved under this section by the Secretary—
(a)
on an application made for the purpose by the person or organisation; or
(b)
on the Secretary’s own motion, and with the person’s or organisation’s written consent.
(3)
A person or an organisation seeking an approval under this section by way of an application, or an own-motion approval under this section, must follow the applicable process (if any) prescribed by regulations made under section 249(b)(i).
(4)
The Secretary may, at any time, amend, suspend, or cancel an approval under this section (see also section 57).
(5)
An approval, or an amendment, suspension, or cancellation of an approval, under this section must be by written notice copied to the person or organisation (see also section 58).
57 Police safety orders: approvals of assessors: criteria to be applied
In deciding whether to grant, amend, suspend, or cancel an approval under section 56, the Secretary must apply the criteria (if any) prescribed for the purposes of this section by regulations made under section 249(b)(ii).
58 Police safety orders: approvals of assessors: duty to publish
The Secretary must publish promptly on an Internet site maintained by or on behalf of the Ministry of Justice an up-to-date list of assessors approved under section 56.
Subpart 4—Protection orders
Preliminary provisions
59 Guide to this subpart
This subpart contains provisions about protection orders, including provisions indicating that—
(a)
a protection order can be applied for by a person who is or has been in a family relationship (an applicant) applying for the order on their own behalf (see sections 60 and 62):
(b)
a protection order can also be applied for, on behalf of an applicant, by a representative (see sections 62, 67, and 69) or an approved organisation (see section 74):
(c)
a protection order can be applied for on notice or without notice (see section 75):
(d)
the court may make a protection order if it is satisfied that the respondent has inflicted, or is inflicting, family violence against, and the order is necessary for the protection of, the applicant, or a child of the applicant’s family, or both (see section 79):
(e)
a protection order applies for the applicant for whose protection the order is made and for the benefit of any child of the applicant’s family (see sections 79 and 86):
(f)
a protection order may also apply for the protection of any other child or person the court directs (see section 87):
(g)
a protection order may also, if the court directs, apply against the respondent’s associates (see section 89):
(h)
if a protection order is made, standard conditions will apply to the order (see sections 90 and 98), and the court may also impose special conditions (see section 103):
(i)
interim orders can also be made about care for, or contact with, a child of the applicant’s family (see sections 105 and 106):
(j)
the applicant or the respondent can apply to have the order varied or discharged (see sections 107 to 111):
(k)
a breach of a protection order (or a related property order) is a criminal offence punishable on conviction by imprisonment for a term not exceeding 3 years (see section 112).
Applications: general
60 Application for protection order
(1)
A person (A) may apply to the court for a protection order against another person (B) with whom A is or has been in a family relationship.
(2)
If A is a child, the child may under section 62(2) make the application only—
(a)
by a representative (for example, an approved organisation that is authorised by section 74 to take proceedings under this Part on behalf of the child); or
(b)
if aged 16 years old or over (in which case section 62(2)(b) authorises the child to take proceedings without a representative); or
(c)
if authorised under rules of court to do so without a representative.
(3)
If A is a person lacking capacity to whom section 67 applies, the application must be made under that section by a representative.
(4)
If A is aged 16 years old or over but is unable, in the circumstances specified in section 69(1)(c), to make the application personally, an application may be made on A’s behalf by a representative appointed under section 69.
Compare: 1995 No 86 s 7
61 Application for order may seek additional directions
Any application for a protection order may seek—
(a)
a direction under section 87 that the order apply for the benefit of a particular person with whom the applicant has a family relationship:
(b)
a direction under section 89 that the order apply against a particular person, being a person whom the respondent has encouraged to engage in behaviour that, if engaged in by the respondent, would amount to family violence against the applicant, a child of the applicant’s family, or a person referred to in paragraph (a).
Compare: 1995 No 86 s 8
Applications: by or against children
62 Applications by children
(1)
A child may, under this section, make an application for a protection order.
(2)
A child may make the application only—
(a)
by a representative (for example, an approved organisation that is authorised by section 74 to take proceedings under this Part on behalf of the child); or
(b)
if aged 16 years old or over (in which case this paragraph authorises the child to take proceedings without a representative); or
(c)
if authorised under rules of court to do so without a representative.
(3)
This section does not limit or affect the making or operation of rules of court (for example, rules made under section 16A(1) of the Family Court Act 1980) that—
(a)
prevent an incapacitated child from taking part in, or from taking a step in, all or any specified proceedings under this Part without a litigation guardian:
(b)
provide for a representative to make all or any specified applications under this Part on behalf of a child prevented by physical incapacity, fear of harm, or another sufficient cause from applying personally.
Compare: 1995 No 86 s 9
63 Views of child on whose behalf application made
(1)
This section applies if an application for a protection order is made, on behalf of a child, by a representative under section 62(2)(a).
(2)
The child may be heard in the proceedings even though the proceedings arose from the application made by the representative, and despite section 62(2)(a).
(3)
If the child expresses views on any matters related to the proceedings, the court must take account of those views.
Compare: 1995 No 86 s 9(3)
64 Applications against children
(1)
The court must not make a protection order against a child unless satisfied that the child is aged 16 years old or over and that the order is justified by special circumstances.
(2)
The court must not make a direction under section 89 (protection from respondent’s associates) that a protection order apply against a child unless satisfied that the child is aged 16 years old or over and that the direction is justified by special circumstances.
(3)
In determining under this section whether a protection order, or direction under section 89, is justified by special circumstances, the court—
(a)
must consider whether to report concerns about the well-being of the child under section 15 of the Oranga Tamariki Act 1989; and
(b)
may, if the child is not represented by a lawyer in respect of the proceedings related to the order or direction, appoint a lawyer under section 166(1)(c) to act for the child in respect of those proceedings; and
(c)
may under section 66 (report from chief executive or social worker) direct the Registrar to supply a copy of the application for the protection order to the chief executive; and
(d)
may refer the matter to a care and protection co-ordinator under section 19 of the Oranga Tamariki Act 1989.
Compare: 1995 No 86 s 10
65 Advice from chief executive or social worker
(1)
This section applies to an application under section 62 or 64 for a protection order.
(2)
For the purpose of expediting consideration of the application, a Registrar, on the Registrar’s own initiative, may—
(a)
refer the application to the chief executive; and
(b)
request the chief executive to provide brief written advice on the nature and extent of any involvement that the department for the time being responsible for the administration of the Oranga Tamariki Act 1989 has had with the parties.
(3)
On receipt of a request to provide such brief written advice, the advice must be provided by—
(a)
the chief executive; or
(b)
a person employed under Part 5 of the State Sector Act 1988 in that department as a social worker.
(4)
The Registrar must refer advice received (from the chief executive or a social worker of that kind) to the Judge who is considering the application.
Compare: 2004 No 90 s 131A
66 Report from chief executive or social worker
(1)
This section applies to an application under section 62 or 64 for a protection order (other than a temporary order).
(2)
The court may direct the Registrar to supply to the chief executive a copy of the application.
(3)
The Registrar must, if directed by the court to do so, supply to the chief executive a copy of the application.
(4)
If the Registrar supplies to the chief executive a copy of the application, the chief executive, or a person employed under Part 5 of the State Sector Act 1988 in the department for the time being responsible for the administration of the Oranga Tamariki Act 1989 as a social worker,—
(a)
must report on the application; and
(b)
may appear on the application personally or by a lawyer.
Compare: 2004 No 90 s 132
Applications: on behalf of people unable to apply personally
67 Applications on behalf of people lacking capacity
(1)
This subsection applies if a person lacking capacity (P) is eligible to apply for a protection order and—
(a)
no one has power, under an appointment made under the Protection of Personal and Property Rights Act 1988, to make such an application on P’s behalf; or
(b)
a person has power, under such an appointment, to make such an application, but the person so appointed has refused or failed to do so.
(2)
If subsection (1) applies, the protection order must be applied for, on P’s behalf, and under rules of court, by a representative (for example, an approved organisation that is authorised by section 74 to take proceedings under this Part on behalf of P).
(3)
No representative may be appointed under rules of court to make an application for a protection order on behalf of a person lacking capacity (P) unless, before making the appointment, the court or, as the case requires, the Registrar is satisfied—
(a)
that the representative is not, and is not acting for, an approved organisation (which can be authorised to act as a representative under this section only under section 74); and
(b)
that reasonable steps have been taken to ascertain P’s views in relation to the appointment; and
(c)
if P’s views have been able to be ascertained,—
(i)
that P does not object to the appointment; or
(ii)
that P’s objection is not freely made.
Compare: 1995 No 86 s 11(2), (3)
68 Views of person lacking capacity
(1)
A representative who under section 67 makes an application for a protection order on behalf of a person lacking capacity (P) must—
(a)
take reasonable steps to ascertain P’s views in relation to the matter; and
(b)
take reasonable steps to ascertain P’s welfare guardian’s views in relation to the matter, if P has a welfare guardian appointed under the Protection of Personal and Property Rights Act 1988 and no good reason exists not to ascertain those views; and
(c)
include in the application any views ascertained under paragraphs (a) and (b); and
(d)
take reasonable steps to inform P’s welfare guardian of the progress of the application (for example, of any order made on it), if P has a welfare guardian appointed under the Protection of Personal and Property Rights Act 1988 and no good reason exists not to do so.
(2)
However, section 67(3)(b) and subsection (1)(a) do not require reasonable steps to be, or to have been, taken to ascertain P’s views in relation to an appointment or a matter if P wholly lacks the capacity to communicate decisions in respect of matters relating to P’s personal care and welfare.
(3)
In determining the application, the court must take into account any views ascertained under section 67(3)(b) and subsection (1)(a).
69 Applications on behalf of other people unable to apply personally
(1)
This section applies if a person aged 18 years old or over (P)—
(a)
is not a person lacking capacity to whom section 67 applies; and
(b)
is eligible to apply for a protection order; and
(c)
is prevented by physical incapacity, fear of harm, or another sufficient cause from making the application personally.
(2)
An application (made with or without notice) for a protection order may be made on behalf of P by a representative (for example, an approved organisation authorised by section 74 to take proceedings under this Part on behalf of P).
(3)
The court or a Registrar may, on an application made under this subsection for the purpose, appoint a person as a representative of P for the purpose of making and prosecuting, on behalf of P, an application (made with or without notice) for a protection order if the person—
(a)
is not, and is not acting for, an approved organisation (which can be authorised to act as a representative under this section only under section 74); and
(b)
is 18 years old or over; and
(c)
is not incapacitated (as defined in subsection (5).
(4)
If an application for the appointment of a representative is made under subsection (3), the court or Registrar must make the appointment sought if satisfied—
(a)
that reasonable steps have been taken to ascertain P’s views in relation to the appointment; and
(b)
if the views of P have been able to be ascertained,—
(i)
that P does not object to the appointment; or
(ii)
that P’s objection is not freely made; and
(c)
that it is in P’s best interests to make the appointment; and
(d)
that the proposed appointee—
(i)
consents in writing to the appointment; and
(ii)
is not incapacitated; and
(e)
that there is unlikely to be any conflict between the interests of the proposed appointee and P’s interests; and
(f)
that the proposed appointee has filed in the court an undertaking to be responsible for any costs awarded against P in the proceedings.
(5)
In this section, a person is incapacitated if, by reason of physical, intellectual, or mental impairment, whether temporary or permanent, the person is—
(a)
not capable of understanding the issues on which the person’s decision would be required as a representative of a litigant conducting proceedings; or
(b)
otherwise unable to perform the duties of such a representative.
Compare: 1995 No 86 s 12
70 Views of other person unable to apply personally
(1)
This section applies if an application for a protection order is made under section 69, on behalf of a person (P), by a representative.
(2)
P may be heard in the proceedings even though the proceedings arose from the application made by the representative.
(3)
If P expresses views on any matters related to the application, the court must take account of those views.
Applications: by representatives: approved organisations
71 Approved organisations: general
(1)
An organisation approved under this section may be authorised by section 74 to take proceedings—
(a)
under section 62 on behalf of a child (including that section as applied by section 111, 162, or 178); or
(b)
under section 67 on behalf of a person lacking capacity (including that section as applied by section 111, 143(2), 162, or 178); or
(c)
under section 69 on behalf of a person prevented by physical incapacity, fear of harm, or another sufficient cause from applying personally (including that section as applied by section 111, 143(2), 162, or 178).
(2)
An organisation may be approved under this section by the Secretary—
(a)
on an application made for the purpose by the organisation; or
(b)
on the Secretary’s own motion and with the organisation’s written consent.
(3)
An organisation seeking an approval under this section by way of an application, or an own-motion approval under this section, must follow the applicable process (if any) prescribed by regulations made under section 249(b)(i).
(4)
The Secretary may, at any time, amend, suspend, or cancel an approval under this section (see also section 72).
(5)
An approval, or an amendment, suspension, or cancellation of an approval, under this section must be by written notice copied to the organisation (see also section 73).
72 Approved organisations: criteria to be applied
In deciding whether to grant, amend, suspend, or cancel an approval under this section, the Secretary must apply the criteria (if any) prescribed for the purposes of this section by regulations made under section 249(b)(ii).
73 Approved organisations: duty to publish
The Secretary must publish promptly on an Internet site maintained by or on behalf of the Ministry of Justice an up-to-date list of approved organisations.
74 Applications by approved organisation authorised to act as representative
(1)
An approved organisation that complies with subsection (2) is authorised by this section to make under section 62, 67, or 69, on behalf of a child or person (P), an application (made with or without notice) for an order.
(2)
To comply with this subsection, the organisation must, without making an application to be appointed or to act as a representative for P, complete and file in the court an application form (for the order and) that—
(a)
shows that reasonable steps have been taken to ascertain P’s views in relation to the organisation acting as a representative for P; and
(b)
if the views of P have been able to be ascertained, shows—
(i)
that P does not object to the organisation acting as a representative for P; or
(ii)
that P’s objection is not freely made; and
(c)
shows that it is in P’s best interests for the organisation to act as a representative for P; and
(d)
shows that there is unlikely to be any conflict between the interests of the organisation and P’s interests; and
(e)
includes an undertaking to be responsible for any costs awarded against P in the proceedings.
(3)
However, subsection (2) does not require reasonable steps to be, or to have been, taken to ascertain P’s views in relation to the organisation acting as a representative for P if P wholly lacks the capacity to communicate decisions in respect of matters relating to P’s personal care and welfare.
Applications without notice
75 Application without notice: requirements
(1)
The court may make a protection order on an application without notice only if satisfied that the delay that would be caused by proceeding on notice would or might involve, for the applicant, or a child of the applicant’s family, or both, 1 or both of the following:
(a)
a risk of harm:
(b)
undue hardship.
(2)
In determining whether to make a protection order on an application without notice, the court must have regard to—
(a)
the perception of the applicant or a child of the applicant’s family, or both, of the nature and seriousness of the respondent’s behaviour; and
(b)
the effect of that behaviour on the applicant or a child of the applicant’s family, or both.
(3)
Subsection (2) does not limit the matters to which the court may have regard when determining whether to make a protection order on an application without notice.
Compare: 1995 No 86 s 13(1), (2)
76 Application without notice: order may become final
(1)
A protection order made on an application without notice is a temporary order that, unless sooner discharged, becomes final by operation of law 3 months after the date the order is made.
(2)
This section is subject to sections 147 to 155.
Compare: 1995 No 86 s 13(3)
77 Application without notice: respondent
If a protection order is made on an application without notice, the respondent may—
(a)
notify the court, under section 147, that the respondent wishes to be heard on whether a final order should be substituted for the temporary protection order:
(b)
apply under section 159 for the modification or discharge of the standard condition about weapons:
(c)
apply under section 108 for a variation or discharge of any special conditions of the protection order:
(d)
apply under section 109 for the protection order to be discharged:
(e)
if a direction is made under section 188, in respect of the associated respondent, notify the court, under section 189, that the associated respondent objects to the direction.
Compare: 1995 No 86 s 13(4)
78 Application without notice: associated respondent
If a protection order is made on an application without notice and, under section 89, the court directs that the order applies against another person, that associated respondent may—
(a)
notify the court, under section 147 (as applied by section 151), that the associated respondent wishes to be heard on whether a final order should be substituted for the temporary protection order, in so far as the order relates to the associated respondent:
(b)
apply under section 160 for the modification or discharge of the standard condition about weapons, in so far as the standard condition relates to the associated respondent:
(c)
apply under section 108 for a variation or discharge of any special condition of the protection order, in so far as the special condition relates to the associated respondent:
(d)
apply under section 109 for the protection order to be discharged, in so far as the order relates to the associated respondent:
(e)
if a direction is made under section 188, in respect of the respondent, notify the court, under section 189, that the respondent objects to the direction.
Compare: 1995 No 86 s 13(5)
Making of protection orders
79 Requirements for making of protection order
The court may make a protection order if it is satisfied that—
(a)
the respondent has inflicted, or is inflicting, family violence against the applicant, or a child of the applicant’s family, or both; and
(b)
the making of an order is necessary for the protection of the applicant, a child of the applicant’s family, or both.
Compare: 1995 No 86 s 14(1)
80 Violence by another person encouraged by respondent
(1)
This section applies if a respondent encourages another person to engage in behaviour that, if engaged in by the respondent, would be family violence against the applicant, a child of the applicant’s family, or both.
(2)
The respondent is, for the purposes of section 79(a), regarded as having engaged in that behaviour personally.
Compare: 1995 No 86 s 14(2)
81 Protection order may be based on different types of violence
An order may be made under section 79 if the need for protection under section 79(b) arises from the risk of family violence of a different type from the behaviour found to have occurred for the purposes of section 79(a).
Compare: 1995 No 86 s 14(4)
82 Duty to consider whether apparently minor or trivial behaviour forms part of pattern against which victims need protection
(1)
This section applies if some or all of the behaviour in respect of which the application is made appears to be minor or trivial when viewed in isolation, or appears unlikely to recur.
(2)
The court must nevertheless consider whether the behaviour forms part of a pattern of behaviour against which the applicant, or a child of the applicant’s family, or both, need protection.
(3)
This section does not limit section 10(2) or the matters that the court may consider in determining, for the purposes of section 79(b), whether the making of an order is necessary for the protection of the applicant, or a child of the applicant’s family, or both.
Compare: 1995 No 86 s 14(3)
83 Court must have regard to perception and effect of behaviour
(1)
When determining whether to make a protection order, the court must have regard to—
(a)
the perception of the applicant, a child of the applicant’s family, or both, of the nature and seriousness of the behaviour in respect of which the application is made; and
(b)
the effect of that behaviour on the applicant, a child of the applicant’s family, or both.
(2)
This section does not limit the matters that the court may consider when determining whether to make a protection order.
Compare: 1995 No 86 s 14(5)
84 Other proceedings do not stop making of protection order
(1)
A court must not decline to make a protection order merely because of the existence of other proceedings between or relating to the parties.
(2)
This section applies whether or not the other proceedings between or relating to the parties also relate to any other person.
(3)
The other proceedings may be or include, but are not limited to, proceedings relating to the role of providing day-to-day care for, or contact with, or custody of a child.
Compare: 1995 No 86 s 15
85 Mutual orders
If the court grants an application for a protection order, the court must not also make a protection order in favour of the respondent unless—
(a)
the respondent has made an application for a protection order; and
(b)
the court has determined that application under this Part.
Compare: 1995 No 86 s 18
Scope of protection orders
86 Protection of people other than applicant: child of applicant’s family
(1)
A protection order applies for the benefit of any child of the applicant’s family.
(2)
A protection order continues to apply for the benefit of a child of the applicant’s family until—
(a)
the child is no longer a child of the applicant’s family; or
(b)
the order sooner lapses or is discharged.
(3)
If a child of the applicant’s family has become an adult child (because that child of the applicant’s family, having attained the age of 18 years, continues to ordinarily or periodically reside with the applicant), a protection order continues to apply for the benefit of the adult child until—
(a)
the adult child ceases to ordinarily or periodically reside with the applicant; or
(b)
the order sooner lapses or is discharged.
Compare: 1995 No 86 s 16(1), (1A), (1B)
87 Protection of people other than applicant: others
(1)
In or after making a protection order, the court may (subject to subsections (2) and (3)) direct that the order also apply for the benefit of either or both of the following:
(a)
a particular child of the applicant who, because the child does not ordinarily or periodically reside with the applicant, is not a child of the applicant’s family (as defined in section 8):
(b)
any particular person with whom the applicant has a family relationship, and who is not a child of the kind specified in paragraph (a).
(2)
No direction may be made under subsection (1)(a) (in respect of a child of the applicant who is not a child of the applicant’s family) unless the court is satisfied that the making of the direction is necessary for the protection of the child.
(3)
No direction may be made under subsection (1)(b) (in respect of a person who is not a child of the kind specified in subsection (1)(a)) unless the court is satisfied that—
(a)
the respondent is engaging, or has engaged, in behaviour that, if the respondent and the person were or, as the case may be, had been in a family relationship, would amount to family violence against the person; and
(b)
the respondent’s behaviour towards the person is due, in whole or in part, to the applicant’s family relationship with the person; and
(c)
the making of a direction under this section is necessary for the protection of the person; and
(d)
if practicable, the person consents to the direction being made.
(4)
Sections 80 to 83 apply, with the necessary modifications, to an application for a direction under subsection (1)(a) or (b) of this section.
Compare: 1995 No 86 s 16(2), (3), (4)
88 Protection of people other than applicant: effect of applicant’s death
(1)
This section applies if the applicant dies at any time after a protection order is made for the protection of the applicant.
(2)
Despite the applicant’s death, the order (if it has not sooner lapsed or been discharged) continues to apply for the benefit of—
(a)
a child who at the time of the applicant’s death was a child of the applicant’s family, until that child attains the age of 18 years; and
(b)
a person in respect of whom a direction has been made under section 87(1), until the order lapses or is discharged.
Compare: 1995 No 86 s 16(5)
89 Protection from respondent’s associates
(1)
In or after making a protection order against the respondent, the court may also direct that the order apply against a person whom the respondent is encouraging, or has encouraged, to engage in behaviour against a protected person if that behaviour, if engaged in by the respondent, would amount to family violence.
(2)
However, no direction may be made under subsection (1) in respect of a person unless the court is satisfied that—
(a)
the person is engaging, or has engaged, in behaviour against a protected person, where that behaviour, if engaged in by the respondent, would amount to family violence; and
(b)
the making of a direction under this section is necessary for the protection of the protected person.
(3)
A direction may be made under subsection (1) whether the behaviour against a protected person was engaged in before or after the person became a protected person.
(4)
Sections 80 to 83 apply, with the necessary modifications, in respect of an application for a direction under subsection (1) of this section.
Compare: 1995 No 86 s 17
Standard conditions of protection orders
90 Standard conditions: no family violence, no contact, no having others breach order
A protection order has, as standard conditions, that the respondent must not—
(a)
engage in behaviour that amounts to any form of family violence against the protected person (see sections 9, 10, and 11):
(b)
make any contact with the protected person that is not contact authorised under or by section 91 or 96 (which describe the condition in this paragraph as the standard no-contact condition):
(c)
encourage a person to engage in behaviour against, or to make contact with, a protected person if the behaviour or contact, if engaged in or made by the respondent, would be prohibited by the protection order.
Compare: 1995 No 86 s 19
91 Standard no-contact condition: exceptions with consent
Protected person can suspend or reinstate condition by giving or cancelling consent to contact
(1)
The protected person may suspend the standard no-contact condition by giving consent to contact.
(2)
The protected person may reinstate the standard no-contact condition by cancelling consent to contact.
No limit on number of times condition can be suspended and reinstated
(3)
The standard no-contact condition may any number of times—
(a)
be suspended under subsection (1); and
(b)
be reinstated under subsection (2).
Contact unable to be authorised, giving of consent must be in required form
(4)
This section is subject to sections 93 and 94(1).
Compare: 1995 No 86 ss 19, 20
92 Standard no-contact condition: contact to which protected person can give or cancel consent
(1)
Contact to which the protected person may give or cancel consent under section 91(1) or (2) may be or include all or any of the following:
(a)
contact made when the respondent and protected person are, with the protected person’s consent, living in the same dwellinghouse:
(b)
contact made—
(i)
if the protected person is present on or in any land or building; and
(ii)
by the respondent entering or remaining, or after the respondent enters or remains, on or in that land or building:
(c)
contact made when the respondent is a prisoner and receives the protected person as a private visitor under section 73(1) of the Corrections Act 2004 and any regulations made under that Act that regulate the visiting of prisons:
(d)
contact made by telephone, letters or other writing, or email:
(e)
contact made by communication on or via an Internet site:
(f)
contact made by other digital communication.
(2)
This section is subject to section 93.
93 Standard no-contact condition: contact unable to be authorised
No consent under section 91 can authorise contact inconsistent with—
(a)
an order for supervised contact in relation to a child:
(b)
no-contact conditions imposed by a direction under section 168A of the Criminal Procedure Act 2011.
94 Standard no-contact condition: giving of consent must be in required form, but cancelling may take any form
(1)
No consent to contact under section 91 is valid unless in writing or in a digital communication (for example, in a text message, email, letter, or standard form).
(2)
However, a cancelling of consent to contact under section 91 may take any form (for example, words spoken face to face, or by telephone).
95 Standard no-contact condition: if special condition specifies that person is entitled to consent on behalf of protected person
(1)
This section applies if a protection order has a special condition imposed under section 103(3) that specifies that a person (other than the respondent or the associated respondent) is entitled to consent, on the protected person’s behalf, in relation to contact with the protected person.
(2)
References in sections 91 to 94 to the giving or cancelling of the consent of a protected person include, as the case requires,—
(a)
the giving of the consent of the specified person:
(b)
the cancelling of consent by the specified person.
Compare: 1995 No 86 s 20(6)
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; or
(b)
permitted under any order or written agreement relating to the role of providing day-to-day care for, or contact with, or custody of—
(i)
any child (within the meaning of section 8 of the Care of Children Act 2004); or
(ii)
any child or young person (within the meaning of section 2 of the Oranga Tamariki Act 1989); or
(c)
permitted under any special condition of the protection order; or
(d)
necessary for the purposes of attending a family group conference (within the meaning of section 2 of the Oranga Tamariki Act 1989); or
(e)
necessary to attend any proceeding (of any kind) in or before any court or person acting judicially, or to attend any other matter that is associated with such a proceeding and that is a matter that the parties to the proceeding jointly attend (for example, a restorative justice conference, or a settlement conference convened under section 46Q of the Care of Children Act 2004).
(2)
The contact authorised by subsection (1) may be contact made—
(a)
if the protected person is present on or in any land or building; and
(b)
by the respondent entering or remaining, or after the respondent enters or remains, on or in that land or building.
(3)
Subsection (2) does not limit subsection (1).
Compare: 1995 No 86 ss 19, 20
97 Standard conditions: associated respondents
(1)
This section applies if, under a direction made under section 89, a protection order applies against an associated respondent.
(2)
Sections 90 to 96 apply, with the necessary modifications, in respect of the associated respondent.
Compare: 1995 No 86 s 19(3)
Standard condition about weapons
98 Standard condition about weapons: general
(1)
It is a condition of every protection order that—
(a)
the respondent must not possess, or have under the respondent’s control, any weapon (as defined in section 8); and
(b)
the respondent must not hold a firearms licence; and
(c)
the respondent must, within or at the time in subsection (2)(a) or (b), surrender to a constable—
(i)
any weapon in the respondent’s possession or under the respondent’s control, whether or not any such weapon is lawfully in the respondent’s possession or under the respondent’s control; and
(ii)
any firearms licence held by the respondent.
(2)
The time for surrender under subsection (1)(c) is—
(a)
as soon as practicable after the service on the respondent of a copy of the protection order, but in any case no later than 24 hours after that service; or
(b)
on demand made, at any time, by any constable.
(3)
This section is subject to sections 158 to 160.
Compare: 1995 No 86 s 21(1)
99 Standard condition about weapons: protection order suspends or revokes firearms licence
(1)
On the making of a protection order,—
(a)
if the protection order is a temporary order, any firearms licence held by the respondent is deemed to be suspended (see also sections 163 to 165):
(b)
if the protection order is a final order, any firearms licence held by the respondent is deemed to be revoked (see also sections 163 to 165).
(2)
This section is subject to sections 158 to 160.
Compare: 1995 No 86 s 21(2)
100 Standard condition about weapons: surrender of weapons or licence
(1)
The respondent does not fail to comply with the standard condition contained in section 98 merely by having in the respondent’s possession, or having under the respondent’s control, any weapon or any firearms licence if,—
(a)
in the case of a weapon, the weapon was in the respondent’s possession, or under the respondent’s control, immediately before the making of the protection order; and
(b)
in the case of a weapon or a firearms licence, the weapon or licence is in the respondent’s possession, or under the respondent’s control, during the period necessary to comply with the terms of that standard condition that relate to the surrender of the weapon or licence.
(2)
See also section 164 (about retention, return, and disposal of surrendered weapons and licences).
Compare: 1995 No 86 s 21(3)
101 Standard condition about weapons: effect if condition included when protection order varied
(1)
If, under sections 158 to 160, a protection order is varied so as to include the standard condition about weapons,—
(a)
the reference in section 98(2)(a) to service of a copy of the protection order is to be read as a reference to service of a copy of the order by which the standard condition is so included:
(b)
the references in sections 99 and 100(1)(a) to the making of a protection order are to be read as references to the making of the order by which the standard condition is so included; and
(c)
the provisions of this Part apply accordingly with all necessary modifications.
(2)
This section is subject to sections 158 to 160.
Compare: 1995 No 86 s 21(4)
102 Standard condition about weapons: associated respondents
(1)
If, under a direction made under section 89, a protection order applies against an associated respondent, sections 98 to 101 apply, with all necessary modifications, in respect of the associated respondent.
(2)
This section is subject to sections 158 to 160.
Compare: 1995 No 86 s 21(5)
Special conditions of protection orders
103 Court may impose special conditions
(1)
In or after making a protection order, the court may impose any conditions that are reasonably necessary, in the court’s opinion, for 1 or both of the following purposes:
(a)
to protect the protected person from further family violence by the respondent, or the associated respondent, or both:
(b)
to address the inflicting of family violence against protected people who are particularly vulnerable (for example, due to age, disability, or health condition).
(2)
A condition imposed under subsection (1) may (without limiting subsection (1)) relate to—
(a)
the manner in which arrangements for access to a child are to be implemented:
(b)
the manner and circumstances in which the respondent or the associated respondent, or both, may make contact with the protected person.
(3)
The court may under subsection (1) (without limiting subsection (1)) impose, as a condition of a protection order, a condition specifying a person who, for the purposes of sections 90(b), 91 to 95, and 104, is entitled—
(a)
to consent on behalf of the protected person; and
(b)
to withdraw such consent.
(4)
If the court imposes a condition under this section, it may specify the period during which the condition is to have effect.
(5)
In the absence of a direction under subsection (4), and subject to section 104, a special condition has effect for the duration of the protection order, unless sooner varied or discharged.
Compare: 1995 No 86 s 27
104 Special conditions that stop contact: exceptions with consent
(1)
This section applies to a special condition of a protection order if the special condition requires the respondent not to make contact with the protected person.
(2)
Sections 90 to 97 apply to the special condition as if it were the standard no-contact condition specified in section 90(b).
Compare: 1995 No 86 s 28
Interim care and contact orders
105 Interim orders in respect of child of applicant’s family
(1)
This section applies if—
(a)
an application has been made to the court for a protection order; and
(b)
there is a child of the applicant’s family.
(2)
The court may make 1 or more of the following orders if it considers the order or orders are necessary to protect the welfare and best interests of the child concerned:
(a)
an interim order or orders about the role of providing day-to-day care for, or about contact with, a child of the applicant’s family:
(b)
any interim order or orders varying any order of the kind referred to in paragraph (a).
(3)
An order must not be made under subsection (2) in respect of a child of the applicant’s family of or over the age of 16 years unless there are special circumstances.
(4)
Before the court makes an order under subsection (2), the Registrar should ensure the court has copies of, or information about all terms of, all existing relevant orders (if any) made under the Care of Children Act 2004.
(5)
An interim order made under subsection (2) should make clear how it relates to (how it operates with, overrides, or replaces all, or any parts, of) all existing relevant orders (if any) made under the Care of Children Act 2004.
(6)
An interim order made under subsection (2) must be taken to be an interim parenting order made under section 48(1) of the Care of Children Act 2004 (so that, for example,—
(a)
section 49A of that Act applies to it; and
(b)
it may be varied or discharged under section 56 of that Act).
(7)
This section does not limit the court’s power under section 152, in making a temporary protection order, to direct a review of the arrangements for contact between the respondent and a child of the applicant’s family.
Compare: 1995 No 86 s 28B
106 Proceedings about interim order in respect of child of applicant’s family: legal aid
(1)
This section applies to proceedings under the Care of Children Act 2004 if—
(a)
section 105 of this Part applies, because an application has been made to the court for a protection order, and there is a child of the applicant’s family; and
(b)
the court makes under section 105(2) of this Part, and in respect of the child concerned, an interim order; and
(c)
section 105(4) of this Part requires that interim order to be taken to be an interim parenting order made under section 48(1) of the Care of Children Act 2004; and
(d)
the proceedings under the Care of Children Act 2004 relate to that interim order being varied, or discharged, or replaced with a further interim parenting order or with a final parenting order.
(2)
For the purposes of section 19(1) of the Legal Services Act 2011 (which contains special provisions about conditions on grants of legal aid to people involved in proceedings under this Part), proceedings to which this section applies are a kind of proceedings that relate to, or arise out of, an application for a protection order under subpart 4 of Part 1 of the Family Violence Legislation Act 2016.
Compare: 1995 No 86 s 28D
Duration, variation, and discharge of protection orders
107 Duration of protection order
(1)
A temporary protection order continues in force until—
(a)
the order becomes a final order under section 148(1); or
(b)
the order lapses under section 149(4); or
(c)
the order is discharged under section 153 or 155.
(2)
A final protection order continues in force until it is discharged under section 109.
Compare: 1995 No 86 s 45
108 Power to vary protection order
(1)
The court may, if it thinks fit, on the application of the applicant or the respondent, vary a protection order—
(a)
by varying or discharging any special condition of the protection order:
(b)
by imposing any special condition:
(c)
by varying or discharging a direction made under section 188:
(d)
by making a direction under section 188.
(2)
If a protection order applies against an associated respondent, the court may, if it thinks fit, on the application of the applicant or the associated respondent, vary the protection order, in so far as it relates to the associated respondent,—
(a)
by varying or discharging any special condition of the protection order:
(b)
by imposing any special condition:
(c)
by varying or discharging a direction made under section 188:
(d)
by making a direction under section 188.
(3)
The court may, if it thinks fit, on the application of the applicant, vary a protection order—
(a)
by directing, under section 87(1), that the protection order also apply for the benefit of a particular person:
(b)
by directing, under section 89, that the protection order apply against a particular person.
(4)
The court may, if it thinks fit, on the application of a specified person (other than a child), vary a protection order—
(a)
by varying or discharging any special condition of the protection order, in so far as the special condition relates to the specified person:
(b)
by imposing a special condition that relates to that specified person.
(5)
If an application is made under this section in respect of a temporary protection order, the Registrar must assign a hearing date, which must be—
(a)
as soon as practicable; and
(b)
unless there are special circumstances, in no case later than 42 days after the application is made.
Compare: 1995 No 86 s 46
109 Power to discharge protection order
(1)
The court may discharge a protection order if all the following apply:
(a)
the applicant or the respondent applies for the discharge:
(b)
the discharge complies with section 110:
(c)
the court thinks fit.
(2)
On an application under subsection (1), the court may discharge a protection order even though the order—
(a)
applies for the benefit of a specified person under a direction made under section 87(1); or
(b)
applies against an associated respondent under a direction made under section 89.
(3)
If a protection order to which subsection (2) relates is discharged, the order ceases to have effect for the benefit of the specified person or, as the case requires, against the associated respondent, as if that person had applied for and been granted a discharge of the order under subsection (4).
(4)
A specified person or, as the case may be, an associated respondent may apply for a protection order to be discharged in so far as the order relates to the specified person or, as the case may be, the associated respondent if the order—
(a)
applies for the benefit of the specified person under a direction made under section 87(1); or
(b)
applies against the associated respondent under a direction made under section 89.
(5)
On an application under subsection (4), the court may, if it thinks fit, discharge a protection order in so far as it relates to that specified person or, as the case may be, that associated respondent.
(6)
If an application is made under this section in respect of a temporary protection order, the Registrar must assign a hearing date, which must be—
(a)
as soon as practicable; and
(b)
unless there are special circumstances, in no case later than 42 days after the application is made.
Compare: 1995 No 86 s 47
110 Test and criteria for discharging protection order
(1)
The court must not discharge a protection order under section 109 unless satisfied that the order is no longer necessary for the protection of any protected person.
(2)
In determining whether to discharge a protection order under section 109, the court must have regard to the following matters to the extent that they are relevant in the particular case:
(a)
the length of the period since the order was made:
(b)
the behaviour that led to the making of the order (including its nature, its seriousness, and how often violence occurred):
(c)
whether, and if so how, the respondent acknowledges the respondent’s past behaviour that led to the making of the order:
(d)
whether the respondent to the order complied with required attendance at or engagement with, and achieved objectives of, any assessment or programme or prescribed services:
(e)
any relevant safety concerns that an assessor or a service provider has notified or advised under section 186 or 204:
(f)
any family violence or breaches of the order since it was made:
(g)
the necessity for contact and the likelihood (if the order is discharged) of future contact:
(h)
the risk of future family violence:
(i)
whether areas of concern that led to the order are no longer evident:
(j)
any protected person’s ascertained views on the application (whether it is made by, or on behalf of, the applicant or the respondent).
(3)
Subsection (2) does not limit the matters to which the court may have regard in determining whether to discharge a protection order under section 109.
111 Variation or discharge on behalf of protected person
(1)
This section applies in relation to—
(a)
an application on behalf of a protected person for the variation or discharge of a protection order under this Part; and
(b)
the defending on behalf of a protected person of any such application made by the respondent or the associated respondent.
(2)
Sections 62, 63, 67, 68, 69, and 70 apply to those matters, so far as applicable and with the necessary modifications, as they apply to the making of an application for a protection order.
Compare: 1995 No 86 s 48
Enforcement of protection orders
112 Offence to breach protection order (or related property order)
(1)
A person commits an offence if the person breaches a protection order by—
(a)
doing any act in contravention of the protection order; or
(b)
failing to comply with any condition of the protection order; or
(c)
contravening, or failing to comply with any term and condition of, a related occupation order (for example, by failing to leave the dwellinghouse to which the order relates); or
(d)
contravening a related tenancy order (for example, by failing to leave the dwellinghouse to which the order relates); or
(e)
contravening, or failing to comply with any term and condition of, a related ancillary furniture order (for example, by preventing possession and use of all or any items to which the order relates); or
(f)
contravening, or failing to comply with any term and condition of, a related furniture order (for example, by preventing possession and use of all or any items to which the order relates).
(2)
It is a defence in a prosecution for an offence under subsection (1) if the defendant proves that the defendant had a reasonable excuse for breaching the protection order.
(3)
Every person who is convicted of an offence against this section is liable to imprisonment for a term not exceeding 3 years.
(4)
A failure to comply with a direction made under section 188 is not a breach of a protection order under subsection (1)(b).
Compare: 1995 No 86 s 49
113 Power to arrest for breach of protection order (or related property order)
If a protection order is in force, a constable may arrest, without warrant, a person who the constable has good cause to suspect has—
(a)
contravened the protection order; or
(b)
failed to comply with any condition of the protection order; or
(c)
contravened, or failed to comply with a term and condition of, a related occupation order; or
(d)
contravened a related tenancy order; or
(e)
contravened, or failed to comply with a term and condition of, a related ancillary furniture order; or
(f)
contravened, or failed to comply with a term and condition of, a related furniture order.
Compare: 1995 No 86 s 50
Subpart 5—Property orders
Preliminary provisions
114 Guide to this subpart
This subpart contains provisions about property orders, including provisions indicating that—
(a)
an applicant may, when they apply for, or have, a protection order, apply for all or any of the following property orders:
(i)
an occupation order, giving the applicant the right to personally occupy a specified dwellinghouse (see sections 115 to 119):
(ii)
a tenancy order, vesting in the applicant the tenancy of a specified dwellinghouse (see sections 121 to 123):
(iii)
a furniture order, giving the applicant the possession and use of furniture, household appliances, and household effects in the dwellinghouse in which the parties live or have lived (see sections 133 to 137):
(b)
an applicant who applies for an occupation order or a tenancy order in respect of a dwellinghouse may also apply for an ancillary furniture order, giving the applicant the possession and use of furniture, household appliances, and household effects in the dwellinghouse (see sections 127 to 131):
(c)
the applicant or respondent can apply to have a property order varied or discharged (see sections 120, 124, 132, and 138).
Occupation orders
115 Occupation order: application for order
(1)
A person who makes an application for a protection order may, at any of the following times, also apply for an occupation order:
(a)
when making the application for the protection order; or
(b)
before the application for the protection order is determined; or
(c)
while the protection order applied for, if it is made, is in force.
(2)
If the person who is eligible to apply for an occupation order is a child, the child may make the application only under section 140(2).
(3)
An occupation order grants the applicant the right to live in a dwellinghouse owned by either party to the proceedings, or in which either party to the proceedings has a legal interest (for example, a tenancy), at the time the occupation order is made.
(4)
However, no occupation order may be made in respect of any dwellinghouse unless either party to the proceedings owned it, or either party to the proceedings had a legal interest (for example, a tenancy) in it, at a time when the family relationship in respect of which the protection order is sought or was made existed.
Compare: 1995 No 86 s 52
116 Occupation order: power to make order
(1)
On or after making a protection order and on an application for an occupation order, the court may make an order giving the applicant the right to personally occupy a specified dwellinghouse (see also sections 115(4) and 117).
(2)
Subsection (1) is subject to subsection (3) and to section 144, but applies despite anything in the Property (Relationships) Act 1976.
(3)
The court may make an order under subsection (1) only if it is satisfied that the order—
(a)
is reasonably necessary for 1 or both of the following purposes:
(i)
to meet the accommodation needs of the applicant, a child of the applicant’s family, or both:
(ii)
to enable the applicant to continue existing childcare, education, training, or employment arrangements for that person, a child of the applicant’s family, or both; or
(b)
is in the best interests of a child of the applicant’s family.
(4)
Subsection (3) does not limit the matters to which the court may have regard in determining whether to make the order.
(5)
In determining whether to make an order under this section, the court must have regard to the reasonable accommodation needs of any other people who may be affected by the order.
Compare: 1995 No 86 s 53(1), (2), (4)
117 Occupation order: living in dwellinghouse
An order may be made under section 116(1) in respect of a dwellinghouse whether or not—
(a)
the parties have ever lived in the same dwellinghouse, whether in the dwellinghouse to which the order relates or any other dwellinghouse; or
(b)
either party lives in the dwellinghouse at the time the order is made.
Compare: 1995 No 86 s 53(3)
118 Occupation order: periods and conditions
An order made under section 116(1) may be—
(a)
for any period or periods the court thinks fit; and
(b)
on any terms and conditions relating to the occupation of the dwellinghouse to which the order relates the court thinks fit.
Compare: 1995 No 86 s 53(5)
119 Occupation order: effect of order
(1)
The person in whose favour an occupation order is made is entitled, to the exclusion of the person against whom the order is made, to personally occupy—
(a)
the dwellinghouse to which the order relates; and
(b)
any related land, buildings, or improvements that are used, or ordinarily would be used, for the purposes of a household.
(2)
Contravening, or failing to comply with any term and condition of, an occupation order (for example, by failing to leave the dwellinghouse to which the order relates) is—
(a)
a breach of the related protection order; and
(b)
an offence against section 112.
Compare: 1995 No 86 s 54
120 Occupation order: power to vary or discharge
(1)
On the application of either party, or of the personal representative of either party, the court may, if it thinks fit, make an order—
(a)
extending or reducing any period specified by the court under section 118(a); or
(b)
varying or discharging any terms and conditions imposed by the court under section 118(b); or
(c)
discharging the occupation order.
(2)
If an application is made under this section in respect of a temporary occupation order, the Registrar must assign a hearing date, which must be—
(a)
as soon as practicable; and
(b)
unless there are special circumstances, in no case later than 42 days after the application is made.
Compare: 1995 No 86 s 55
Tenancy orders
121 Tenancy order: application for order
(1)
A person who makes an application for a protection order may, at any of the following times, also apply for a tenancy order:
(a)
when making the application for the protection order; or
(b)
before the application for the protection order is determined; or
(c)
while the protection order applied for, if it is made, is in force.
(2)
If the person who is eligible to apply for a tenancy order is a child, the child may make the application only under section 140(2).
(3)
A tenancy order vests in the applicant the tenancy of any dwellinghouse of which either party to the proceedings is the sole tenant, or a tenant holding jointly, or in common, with the applicant, at the time the tenancy order is made.
(4)
However, no tenancy order may be made in respect of the tenancy of any dwellinghouse unless either party to the proceedings was the sole tenant, or a tenant holding jointly, or in common, with the applicant, at a time when the family relationship in respect of which the protection order is sought or was made existed.
(5)
In this section, dwellinghouse includes—
(a)
any furniture or other household effects let with the dwellinghouse; and
(b)
any land, outbuildings, or parts of buildings included in the tenancy.
Compare: 1995 No 86 s 56
122 Tenancy order: power to make order
(1)
On or after making a protection order and on an application for a tenancy order, the court may make an order vesting in the applicant the tenancy of a specified dwellinghouse.
(2)
Subsection (1) is subject to subsection (3) and to section 144, but applies despite anything in the Property (Relationships) Act 1976.
(3)
The court may make an order under subsection (1) only if it is satisfied that the order—
(a)
is reasonably necessary for 1 or both of the following purposes:
(i)
to meet the accommodation needs of the applicant, a child of the applicant, or both:
(ii)
to enable the applicant to continue existing childcare, education, training, or employment arrangements for that person, a child of the applicant, or both; or
(b)
is in the best interests of a child of the applicant’s family.
(4)
Subsection (3) does not limit the matters to which the court may have regard in determining whether to make the order.
(5)
In determining whether to make an order under this section, the court must have regard to the reasonable accommodation needs of any other people who may be affected by the order.
Compare: 1995 No 86 s 57
123 Tenancy order: effect of order
(1)
If a tenancy order takes effect, then, unless the tenancy is sooner lawfully determined,—
(a)
the applicant becomes the tenant of the dwellinghouse upon and subject to the terms and conditions of the tenancy in force at the time the order is made; and
(b)
the other party ceases to be a tenant.
(2)
Contravening a tenancy order (for example, by failing to leave the dwellinghouse to which the order relates) is—
(a)
a breach of the related protection order; and
(b)
an offence against section 112.
(3)
Nothing in this Part or in any tenancy order—
(a)
limits or affects the operation of any enactment or rule of law for the time being applicable to—
(i)
any tenancy to which section 121 applies; or
(ii)
the dwellinghouse held under the tenancy; or
(b)
authorises the court to vary any express or implied term or condition of the tenancy except by—
(i)
vesting the tenancy under section 122; or
(ii)
revesting the tenancy under section 124.
Compare: 1995 No 86 s 58
124 Tenancy order: power to discharge and revest tenancy
(1)
On the application of a party against whom a tenancy order is made, or that party’s personal representative, the court may, if it thinks fit, make an order discharging the tenancy order and revesting the tenancy accordingly.
(2)
If an application is made under this section in respect of a temporary tenancy order, the Registrar must assign a hearing date, which must be—
(a)
as soon as practicable; and
(b)
unless there are special circumstances, in no case later than 42 days after the application is made.
(3)
If a revesting order made under subsection (1) takes effect, then, unless the tenancy is sooner lawfully determined, the person in whose favour it is made becomes the tenant of the dwellinghouse upon and subject to the terms and conditions of the tenancy in force at the time of the making of the revesting order.
Compare: 1995 No 86 s 59
General provisions relating to occupation orders and tenancy orders
125 Occupation orders and tenancy orders: applications without notice
(1)
An occupation order or a tenancy order may be made under section 116 or 122 on an application without notice if the court is satisfied that the delay that would be caused by proceeding on notice would or might expose the applicant or a child of the applicant’s family to family violence.
(2)
Any occupation order or tenancy order made on an application without notice is a temporary order that, subject to sections 147 to 155, and unless it is sooner discharged, becomes final by operation of law 3 months after the date on which it is made.
(3)
If a temporary order becomes a final order under subsection (2), the final order comes into effect immediately.
(4)
If an occupation order or a tenancy order is made on an application without notice while the applicant and the respondent are living in the same dwellinghouse, that occupation order or tenancy order expires—
(a)
on its discharge by the court; or
(b)
on the discharge of a temporary protection order made in conjunction with that occupation order or tenancy order; or
(c)
if no such protection order has been made and the court has not sooner discharged the occupation order or tenancy order, at the close of the seventh day after the date of the making of the occupation order or tenancy order.
(5)
If an occupation order or a tenancy order is made on an application without notice, the respondent may—
(a)
notify the court, under section 147, that the respondent wishes to be heard on whether a final order should be substituted for the temporary order:
(b)
in the case of an occupation order, apply under section 120 for the order to be varied or discharged:
(c)
in the case of a tenancy order, apply under section 124 for the order to be discharged and the tenancy revested.
Compare: 1995 No 86 s 60
126 Occupation orders and tenancy orders: procedure
(1)
If an application is made for an occupation order, the court may treat that application as an application for a tenancy order or an occupation order or both, and may make a tenancy order (whether or not it makes an occupation order) if satisfied that—
(a)
it has jurisdiction to make a tenancy order (in particular because, as required by section 122(1) or 125(1), a protection order has been made, or it will at the same time make a protection order); and
(b)
the making of a tenancy order is appropriate; and
(c)
section 144 has been complied with in respect of the making of a tenancy order other than a temporary order.
(2)
If an application is made for a tenancy order, the court may treat that application as an application for an occupation order or a tenancy order or both, and may make an occupation order (whether or not it makes a tenancy order) if satisfied that—
(a)
it has jurisdiction to make an occupation order (in particular because, as required by section 116(1) or 125(1), a protection order has been made, or it will at the same time make a protection order); and
(b)
the making of an occupation order is appropriate; and
(c)
section 144 has been complied with in respect of the making of an occupation order other than a temporary order.
Compare: 1995 No 86 s 61
Ancillary furniture orders
127 Ancillary furniture order: application for order
(1)
A person who makes an application for an occupation order or a tenancy order in respect of a dwellinghouse may, at a time stated in subsection (2), apply to the court for an order giving the applicant the possession and use of all or any of the furniture, household appliances, and household effects in the dwellinghouse.
(2)
The person may apply for an ancillary furniture order—
(a)
at the time of making the application for the occupation order or tenancy order, or at any time before that application is determined; or
(b)
if the court makes an occupation order or a tenancy order on that application, at any time while that order remains in force.
(3)
If the person who is eligible to apply for an ancillary furniture order is a child, the child may make the application only under section 140(2).
(4)
Nothing in subsections (1) and (2) prevents a court that makes an occupation order or a tenancy order from making, of its own motion, an ancillary furniture order in respect of all or any of the furniture, household appliances, and household effects in the dwellinghouse specified in the occupation order, or, as the case may be, the tenancy order.
Compare: 1995 No 86 s 62
128 Ancillary furniture order: power to make order
(1)
On or after making an occupation order or a tenancy order, the court may (subject to subsection (2) and to sections 130 and 144) make an order giving the applicant the use of all or any of the furniture, household appliances, and household effects in the dwellinghouse specified in the occupation order or, as the case may be, the tenancy order.
(2)
The court may make an order under subsection (1) only if satisfied—
(a)
that, before the making of the order, the applicant and the other party to the proceedings have lived in the same dwellinghouse at the same time, and that the applicant is or will be living in the dwellinghouse specified in the occupation order or, as the case may be, the tenancy order; or
(b)
that a child of the applicant’s family is or will be living in the dwellinghouse so specified.
(3)
An order made under subsection (1) may relate to furniture, household appliances, and household effects that were in the relevant dwellinghouse at the time the application for the order was made (or, in the case of an order made of the court’s own motion, at the time the application for the relevant occupation order or tenancy order was made), whether or not those items are still in the relevant dwellinghouse at the time the order under subsection (1) is made.
(4)
It is not necessary for the court to specify, in an order made under subsection (1), every item of furniture, or every household appliance or household effect, to which the order relates, as long as the items to which the order relates are readily ascertainable from the terms of the order.
Compare: 1995 No 86 s 63
129 Ancillary furniture order: terms and conditions
An order made under section 128(1) may be on any terms and conditions relating to the furniture, household appliances, and household effects to which the order relates the court thinks fit (subject to section 130).
130 Ancillary furniture order: period and expiry
An order made under section 128(1) may be for any period the court thinks fit, but—
(a)
unless the court otherwise directs, the order continues in force for 6 months from the date on which it is made; and
(b)
in any event, irrespective of the terms of the order, the order expires if the occupation order or tenancy order to which the order relates expires or is discharged.
131 Ancillary furniture order: effect of order
(1)
The person in whose favour an ancillary furniture order is made is entitled, to the exclusion of the person against whom the order is made, to the possession of the furniture, household appliances, and household effects to which the order relates for so long as the order is in force.
(2)
Contravening, or failing to comply with any term and condition of, an ancillary furniture order (for example, by preventing possession or use of all or any items to which the order relates) is—
(a)
a breach of the related protection order; and
(b)
an offence against section 112.
Compare: 1995 No 86 s 64
132 Ancillary furniture order: power to vary or discharge
(1)
On the application of either party, or of the personal representative of either party, the court may, if it thinks fit, and subject to subsection (2), make an order—
(a)
extending or reducing any period specified by the court under section 130; or
(b)
varying the furniture, household appliances, and household effects to which the order relates; or
(c)
varying or discharging any terms and conditions imposed by the court under section 129; or
(d)
discharging the ancillary furniture order.
(2)
The court must not vary an ancillary furniture order—
(a)
if the occupation order or tenancy order to which the ancillary furniture order relates is no longer in force; or
(b)
in circumstances in which the court could not make an ancillary furniture order under section 128.
(3)
If an application is made under this section in respect of a temporary ancillary furniture order, the Registrar must assign a hearing date, which must be—
(a)
as soon as practicable; and
(b)
unless there are special circumstances, in no case later than 42 days after the application is made.
Compare: 1995 No 86 s 65
Furniture orders
133 Furniture order: application for order
(1)
This subsection applies to a person if—
(a)
that person applies for a protection order; and
(b)
that person and the person against whom the application is made live in the same dwellinghouse, or have lived in the same dwellinghouse at the same time (regardless of which ground in section 12 is relied on as establishing, for the purposes of a protection order, that the parties have or have had a family relationship); but
(c)
that person does not apply for an occupation order or a tenancy order in respect of that dwellinghouse.
(2)
A person to whom subsection (1) applies may, at a time stated in subsection (3), apply to the court for an order for the possession and use of all or any of the furniture, household appliances, and household effects in that dwellinghouse.
(3)
The person may apply for a furniture order—
(a)
at the time of making the application for the protection order, or at any time before that application is determined; or
(b)
if the court makes the protection order sought, at any time while that order remains in force.
(4)
If the person who is eligible to apply for a furniture order is a child, the child may make the application only under section 140(2).
Compare: 1995 No 86 s 66
134 Furniture order: power to make order
(1)
On or after making a protection order, the court may also make an order giving the applicant the possession and use of all or any of the furniture, household appliances, and household effects in the dwellinghouse in which the parties live or have lived.
(2)
Subsection (1) is subject to subsection (2) and to sections 136 and 144, but applies despite anything in the Property (Relationships) Act 1976.
(3)
The court may make an order under subsection (1) only if satisfied that—
(a)
the applicant, a child of the applicant’s family, or both, are or were living in the dwellinghouse; and
(b)
the furniture, household appliances, and household effects are reasonably required to equip another dwellinghouse in which the applicant, or a child of the applicant’s family, or both, are or will be living.
(4)
An order made under subsection (1) may relate to furniture, household appliances, and household effects that were in the relevant dwellinghouse at the time the application for the order was made, whether or not those items are still in the relevant dwellinghouse at the time the order is made.
(5)
It is not necessary for the court to specify, in an order made under subsection (1), every item of furniture, or every household appliance or household effect, to which the order relates, as long as the items to which the order relates are readily ascertainable from the terms of the order.
Compare: 1995 No 86 s 67(1), (2), (3), (4)
135 Furniture order: terms and conditions
(1)
An order made under section 134(1) may be on any terms and conditions relating to the furniture, household appliances, and household effects to which the order relates the court thinks fit.
(2)
Those terms and conditions may, without limitation, require or relate to all or any of the following:
(a)
access to the dwellinghouse in which the parties live or have lived:
(b)
the timing of collection of the items to which the order relates:
(c)
the manner of collection of those items:
(d)
the absence from that dwellinghouse, at the time or times of collection of those items, of a specified person or specified people.
Compare: 1995 No 86 s 67(5)
136 Furniture order: period and expiry
An order made under section 134(1) may be for any period the court thinks fit, but,—
(a)
unless the court otherwise directs, the order continues in force for 6 months from the date on which it is made; and
(b)
in any event, irrespective of its terms, the order expires if the protection order to which the order relates expires or is discharged.
Compare: 1995 No 86 s 67(6)
137 Furniture order: effect of order
(1)
The person in whose favour a furniture order is made is entitled, to the exclusion of the person against whom the order is made, to the possession of the furniture, household appliances, and household effects to which the order relates for so long as it is in force.
(2)
Contravening, or failing to comply with any term and condition of, a furniture order (for example, by preventing possession and use of all or any items to which the order relates) is—
(a)
a breach of the related protection order; and
(b)
an offence against section 112.
Compare: 1995 No 86 s 68
138 Furniture order: power to vary or discharge
(1)
On the application of either party, or of the personal representative of either party, the court may, if it thinks fit, make an order—
(a)
extending or reducing any period specified by the court under section 136; or
(b)
varying the furniture, household appliances, and household effects to which the order relates; or
(c)
varying or discharging any terms and conditions imposed by the court under section 135; or
(d)
discharging the furniture order.
(2)
Nothing in this section allows a court to vary a furniture order—
(a)
if the protection order to which the furniture order relates is no longer in force; or
(b)
in circumstances in which the court could not make a furniture order under section 134.
(3)
If an application is made under this section in respect of a temporary furniture order, the Registrar must assign a hearing date, which must be—
(a)
as soon as practicable; and
(b)
unless there are special circumstances, in no case later than 42 days after the application is made.
Compare: 1995 No 86 s 69
Applications without notice for furniture orders
139 Ancillary furniture order or furniture order: applications without notice
(1)
An order under section 128 or 134 may be made on an application without notice if the court is satisfied that the delay that would be caused by proceeding on notice would or might expose the applicant or a child of the applicant’s family to family violence.
(2)
Any ancillary furniture order or furniture order made on an application without notice is a temporary order that, subject to sections 147 to 155, and unless it is sooner discharged, becomes final by operation of law 3 months after the date on which it is made.
(3)
If a temporary order becomes a final order under subsection (2), the final order comes into effect immediately.
(4)
If an ancillary furniture order or a furniture order is made on an application without notice while the applicant and the respondent are living in the same dwellinghouse, the order expires—
(a)
on its discharge by the court; or
(b)
in the case of an ancillary furniture order, on the discharge of the occupation order or the tenancy order to which the ancillary furniture order relates; or
(c)
in the case of a furniture order, on the discharge of the protection order to which the furniture order relates.
(5)
If an ancillary furniture order or a furniture order is made on an application without notice, the respondent may—
(a)
notify the court, under section 147, that the respondent wishes to be heard on whether a final order should be substituted for the temporary order:
(b)
in the case of an ancillary furniture order, apply under section 132 for the order to be varied or discharged:
(c)
in the case of a furniture order, apply under section 138 for the order to be varied or discharged.
Compare: 1995 No 86 s 70
General provisions relating to property orders
140 Applications for property orders by children
(1)
A child may, under this section, make an application for a property order.
(2)
A child may make the application only—
(a)
by a representative (for example, an approved organisation that is authorised by section 74 to take proceedings under this Part on behalf of the child); or
(b)
if aged 16 years old or older (in which case this paragraph authorises the child to take proceedings without a representative); or
(c)
if authorised under rules of court to do so without a representative.
(3)
This section does not limit or affect the making or operation of rules of court (for example, rules made under section 16A(1) of the Family Court Act 1980) that—
(a)
prevent an incapacitated child from taking part in, or from taking a step in, all or any specified proceedings under this Part without a litigation guardian:
(b)
provide for a representative to make all or any specified applications under this Part on behalf of a child prevented by physical incapacity, fear of harm, or another sufficient cause from applying personally.
Compare: 1995 No 86 s 71
141 Views of child on whose behalf application made by representative
(1)
This section applies if an application for a property order is made, on behalf of a child, by a representative under section 140(2)(a).
(2)
The child may be heard in the proceedings, even though they arose from the application made by the representative, and despite section 140(2)(a).
(3)
If the child expresses views on any matters related to the proceedings, the court must take account of those views.
142 Applications for property orders against children
The court must not make a property order against a child unless satisfied that the child is aged 16 years old or over and that the order is justified by special circumstances.
Compare: 1995 No 86 s 72
143 Applications for property orders on behalf of people other than children
(1)
This section applies to an application made under this subpart by a person who is not a child.
(2)
Sections 67, 68, 69, and 70 (applications on behalf of a person lacking capacity or prevented from applying personally) apply to the application, so far as applicable and with the necessary modifications, as if it were an application under subpart 4 for a protection order.
Compare: 1995 No 86 s 73
144 Notice to people with interest in property affected
(1)
Before any order (other than a temporary order) is made under this subpart, any notice the court directs must be given to any person having an interest in the property that would be affected by the order.
(2)
A person to whom notice is given under subsection (1) is entitled to appear and to be heard in the matter as a party to the application.
Compare: 1995 No 86 s 74
145 Protection of mortgagees, etc
(1)
The rights conferred on any person in respect of any property by any order made under this Part are subject to the rights of any person entitled to the benefit of any mortgage, security, charge, or encumbrance affecting that property if—
(a)
the mortgage, security, charge, or encumbrance was registered before the order was made; or
(b)
the rights of the person entitled to that benefit arise under an instrument (including, but not limited to, a hire purchase agreement) executed before the date of the making of the order.
(2)
Subsection (1) is subject to subsection (3).
(3)
No money payable under any such mortgage, security, charge, or encumbrance may (despite anything in any enactment or in any instrument) be called up, or becomes due, by reason only of the making of an order under this Part.
Compare: 1995 No 86 s 75
Subpart 6—Procedure
Preliminary provisions
146 Guide to this subpart
This subpart contains provisions about—
(a)
temporary orders, including provisions indicating that—
(i)
if the court makes a temporary order, the respondent can notify the court that they wish to be heard on whether the temporary order should become final (see section 147):
(ii)
a temporary order becomes final 3 months after it was made, if the respondent has been served with a copy in the specified period and the respondent has not notified the court that they wish to be heard (see sections 148 to 156):
(b)
general procedural matters, for example, appointment of lawyers to assist the court or to represent a child, and explaining orders to respondents (see sections 166 to 176):
(c)
appeals, against a decision of a court in proceedings under this Act, to the High Court or Court of Appeal (see sections 177 to 181).
Temporary orders
147 Respondent to notify intention to appear
(1)
If the court makes a temporary order under this Part, the respondent is entitled to notify the court that the respondent wishes to be heard on whether a final order should be substituted for the temporary order.
(2)
The temporary order must contain a notice to the respondent that clearly states—
(a)
the respondent’s right under subsection (1); and
(b)
that, subject to sections 150, 151, and 188, if the respondent does not take any steps in the proceedings, the temporary order becomes final under section 148 by operation of law 3 months after the date on which it is made.
(3)
If the respondent notifies the court, under subsection (1), that the respondent wishes to be heard, the Registrar must assign a hearing date, which must be—
(a)
as soon as practicable; and
(b)
unless there are special circumstances, in no case later than 42 days after the receipt of the respondent’s notice.
Compare: 1995 No 86 s 76
148 Procedure if respondent does not require hearing
(1)
A temporary order becomes final by operation of law 3 months after the date on which it is made, unless—
(a)
the respondent notifies the court under section 147(1) that the respondent wishes to be heard; or
(b)
the order is sooner discharged.
(2)
Subsection (1) is subject to—
(a)
section 149 (requirements and procedure for temporary order to become final):
(b)
section 150 (court may require hearing before order becomes final):
(c)
section 151 (application of sections 147 to 150 to other affected people):
(d)
section 188 (directions for assessments, non-violence programme, and prescribed standard services).
(3)
If a temporary order becomes a final order under subsection (1), the final order comes into effect immediately.
Compare: 1995 No 86 s 77(1), (1A)
149 Requirements and procedure for temporary order to become final
(1)
No temporary order becomes final under section 148 unless—
(a)
the respondent has been served with a copy of the order no later than the 11th day before the 3-month period specified in section 148(1) elapses; and
(b)
the respondent has not notified the court, before that period elapses, that the respondent wishes to be heard.
(2)
If, under subsection (1)(a), a temporary order does not become final, the court may from time to time extend the period within which the temporary order can be served.
(3)
No such extensions may extend that period by more than 3 months in total, and the temporary order continues in force until the expiry of any such extensions.
(4)
If the period for service is extended under subsections (2) and (3), and, at the expiry of the period or periods, the temporary order has not been served, the order lapses.
Compare: 1995 No 86 s 77(2), (3), (4)
150 Court may require hearing before order becomes final
(1)
If the court considers that there is good reason why a temporary order should not become final under section 148 without a hearing at which the applicant, the respondent, or both, are present or represented, the court may direct that there be a hearing.
(2)
A direction made under subsection (1) may—
(a)
be made on the court’s own motion; and
(b)
relate to the whole, or to specified parts, of the order made or sought; and
(c)
be made even though the respondent does not wish to be heard.
(3)
If the direction under subsection (1) relates to specified parts of the order made or sought, the remaining parts of the order may become final under section 148.
(4)
If, under subsection (1), the court directs that there be a hearing, the Registrar must assign a hearing date, which must be as soon as practicable.
(5)
If the court makes a direction under subsection (1), it may (without limiting section 169) issue a summons, under section 169(4), requiring the respondent to attend the court at a place and time specified in the summons.
Compare: 1995 No 86 s 78
151 Application of sections 147 to 150 to other affected people
(1)
Sections 147, 148, 149, and 150, so far as applicable and with the necessary modifications, apply to an associated respondent as if the person were the respondent.
(2)
If, under section 147, the associated respondent notifies the court that the associated respondent wishes to be heard, but the respondent does not do so, the temporary order becomes final under section 148 in so far as it relates to the respondent, even though a hearing is required on whether the order is to become final in respect of the associated respondent.
(3)
No occupation order, tenancy order, ancillary furniture order, or furniture order that is a temporary order becomes final unless the court is satisfied that—
(a)
notice has been given under section 144 to any person having an interest in the property affected by the order; and
(b)
the person so notified takes no steps in the proceedings.
Compare: 1995 No 86 s 79
152 Review of contact arrangements
(1)
In making a temporary protection order, the court may direct the Registrar to convene a review before a Family Court Judge of the arrangements for contact between the respondent and a child of the applicant’s family.
(2)
On receiving a direction under subsection (1), the Registrar must—
(a)
appoint a time and place for the holding of the review; and
(b)
inform the applicant and respondent of the date, time, and place of the review and invite them to attend.
(3)
Only the following people may attend the review:
(a)
the applicant:
(b)
the respondent:
(c)
a lawyer representing the applicant:
(d)
a lawyer representing the respondent:
(e)
a lawyer appointed under section 166:
(f)
any lawyer appointed under section 7(1) of the Care of Children Act 2004 to act for a child who in proceedings under this Part is a child of the applicant’s family:
(g)
any other people whom the Family Court Judge permits to be present.
(4)
If both the applicant and the respondent attend or are represented at the review, the Judge may—
(a)
make an interim order relating to contact under section 105:
(b)
impose any condition under section 103 relating to the matter set out in section 103(2)(a):
(c)
give any directions that the Judge considers necessary.
(5)
This section, so far as applicable and with the necessary modifications, applies to an associated respondent as if the person were a respondent.
(6)
This section does not limit the court’s powers under section 105 (interim orders in respect of child of applicant’s family).
Compare: 1995 No 86 s 79A
153 Procedure if hearing required: general
(1)
This section applies if a hearing is required or held (for example, because the court is notified, under section 147 or 151, that the respondent, an associated respondent, or a person to whom section 151(3) applies, wishes to be heard).
(2)
The court may at the hearing—
(a)
discharge the temporary order; or
(b)
make the temporary order a final order (with or without variation); or
(c)
on good cause being shown (and if section 154(3) allows), adjourn the hearing to a fixed time and place.
(3)
If, under subsection (2)(a), the court discharges a temporary tenancy order, the discharge of that order has effect as if the order had been discharged under section 124, and the tenancy revests accordingly.
Compare: 1995 No 86 s 80(1)(a), (b), (d), (2)
154 Procedure if hearing required: effect of, and limit on, adjournment
(1)
This section applies if a hearing is adjourned under section 153(2)(c) to a specified date.
(2)
The temporary order continues in force until that date.
(3)
At the hearing on that date, the court may adjourn the hearing under section 153(2)(c) to a further date only if special reasons exist for doing so.
Compare: 1995 No 86 s 80(1)(d), (4), (5)
155 Procedure if hearing required: if part of temporary order has already become final
(1)
This section applies if a hearing is required or held (for example, because the court is notified, under section 147 or 151, that the respondent, an associated respondent, or a person to whom section 151(3) applies, wishes to be heard).
(2)
The court may at the hearing, if section 150(3) or 151(2) applies and part of the temporary order has become final under section 148,—
(a)
confirm the temporary order to the extent that it has not already become final:
(b)
confirm the temporary order to the extent that it has not already become final, but exercise, in relation to that part of the temporary order so confirmed, any power conferred by this Part to vary or alter the terms and conditions of the order, or to impose new terms and conditions:
(c)
discharge the temporary order to the extent that it has not already become final.
(3)
If, under subsection (2), the court confirms part of a temporary order (with or without variation), that part of the temporary order becomes final, but that confirmation does not affect the order to the extent that it has already become final.
Compare: 1995 No 86 s 80(1)(c), (3)
156 Temporary order discharged when made final order
(1)
If a temporary order becomes a final order under section 153(2)(b), the temporary order is automatically discharged.
(2)
If the part of a temporary order not already a final order is confirmed under section 155(2)(a) or (b), the temporary order is automatically discharged.
Compare: 1995 No 86 s 80A
Standard condition about weapons
157 Restrictions on powers to remove, change, etc
(1)
A court may under any of sections 158 to 160 direct that the standard condition about weapons is not to be a condition of a protection order, or discharge that standard condition, only if satisfied that that standard condition is not necessary for the protection of the people for whose benefit the protection order applies from further family violence.
(2)
A court may under any of sections 158 to 160 modify the terms of the standard condition about weapons only in the following ways (subject to subsection (3)):
(a)
to permit a person to whom the standard condition applies to have in the person’s possession, or have under the person’s control, a specified weapon, or weapons of a specified class, either unconditionally or subject to any conditions the court thinks fit:
(b)
if necessary, to permit such a person to hold a firearms licence:
(c)
if the terms of the standard condition have already been modified so as to make them less onerous than the terms set out in section 98, by reinstating (whether in whole or in part) those terms as so set out.
(3)
A court may under any of sections 158 to 160 modify the terms of the standard condition about weapons in any of the ways set out in subsection (2)(a) or (b) of this section only if the court is satisfied—
(a)
that the standard condition about weapons, in the terms set out in section 98, is not necessary for the protection of the people for whose benefit the protection order applies from further family violence; and
(b)
that the standard condition about weapons, in the terms proposed, will sufficiently protect those people from further family violence.
(4)
In determining whether to exercise a power under any of sections 158 to 160,—
(a)
the need to protect those people for whose benefit the protection order applies from further family violence is the paramount consideration; and
(b)
the court must, so far as is practicable, and without limiting paragraph (a), have regard to the following matters:
(i)
whether the people for whose benefit the protection order applies consent to the exercise of the power in the manner proposed:
(ii)
the nature, seriousness, and recentness of any family violence that is relevant to the exercise of the power:
(iii)
the effect that the terms of the standard condition about weapons is having, or will have, on the people to whom the condition applies, or will apply, if the powers are not exercised in the manner proposed:
(iv)
any other matters the court considers relevant.
(5)
If the terms of the standard condition about weapons are modified under any of sections 158 to 160, the terms of that standard condition (as set out in section 98) apply subject to the terms of that modification, and the provisions of this Part apply accordingly.
(6)
A Police employee is not obliged to issue a firearms licence to a person to whom a standard condition about weapons applied or, as the case requires, applies, just because of the fact that—
(a)
that standard condition has been discharged under any of sections 158 to 160; or
(b)
the terms of that standard condition have been modified under any of sections 158 to 160.
Compare: 1995 No 86 s 23
158 Removal or change: if protection order is final or confirmed
(1)
This subsection applies if—
(a)
the court makes a final protection order on an application on notice; or
(b)
the court under section 153(2) or 155(2)—
(i)
discharges a temporary protection order and makes a final protection order in its place; or
(ii)
confirms a temporary protection order to the extent that it has not already become final.
(2)
If subsection (1) applies, the court may, subject to section 157,—
(a)
direct that the standard condition about weapons is not to be a condition of the protection order; or
(b)
modify the terms of that standard condition.
Compare: 1995 No 86 s 22(1)
159 Addition, removal, or change: on application of protection order applicant or respondent
The court may vary a protection order, on the application of the applicant or the respondent and subject to section 157,—
(a)
if the standard condition about weapons is not a condition of the protection order, by directing that the standard condition about weapons (with or without modification) is to be a condition of the protection order:
(b)
if the standard condition about weapons is a condition of the protection order (with or without modification), by—
(i)
discharging the standard condition about weapons:
(ii)
modifying the terms of that standard condition.
Compare: 1995 No 86 s 22(2)
160 Addition, removal, or change: on application if protection order applies against associated respondent
(1)
If a protection order applies against an associated respondent, the court may vary the protection order, in so far as it relates to the associated respondent, on the application of the applicant or the associated respondent, and subject to section 157,—
(a)
if the standard condition about weapons is not a condition of the protection order, by directing that the standard condition about weapons (with or without modification) is to be a condition of the protection order:
(b)
if the standard condition about weapons is a condition of the protection order (with or without modification), by—
(i)
discharging the standard condition about weapons:
(ii)
modifying the terms of that standard condition.
(2)
Under subsection (1) (and without limiting that subsection), a court may—
(a)
direct that the standard condition about weapons—
(i)
is not to be a condition of a protection order, in so far as the protection order relates to the respondent; but
(ii)
is to be a condition of a protection order (with or without modification), in so far as the protection order relates to the associated respondent:
(b)
discharge the standard condition about weapons in so far as the condition relates to the respondent, but not in so far as the condition relates to the associated respondent.
Compare: 1995 No 86 s 22(3), (4)
161 Hearing date if application about temporary protection order
If an application is made under section 159 or 160 in respect of a temporary protection order, the Registrar must assign a hearing date, which must be—
(a)
as soon as practicable; and
(b)
unless there are special circumstances, in no case later than 42 days after the application is made.
Compare: 1995 No 86 s 22(5)
162 Making or defending application on behalf of protected person
Sections 62, 63, 67, 68, 69, and 70, so far as applicable and with the necessary modifications, apply to the following as they apply to the making of an application for a protection order:
(a)
any application under section 159 or 160, on behalf of a protected person, for—
(i)
a direction that the standard condition about weapons be a condition of a protection order; or
(ii)
the modification or discharge of the standard condition about weapons; and
(b)
the defending, on behalf of a protected person, of any application under section 159 or 160 made by the respondent or the associated respondent.
Compare: 1995 No 86 s 22(6)
163 Further provisions about effect on firearms licence
(1)
A firearms licence held by the respondent or an associated respondent is deemed to be revoked if—
(a)
a temporary protection order becomes a final order under section 149(1); and
(b)
when the order becomes final, the licence is suspended under section 99.
(2)
If a person’s firearms licence is suspended under section 99,—
(a)
that person is deemed, for all purposes, not to be the holder of a firearms licence during the period of the suspension; but
(b)
at the end of that suspension, then, unless the firearms licence is revoked (whether under subsection (1) or otherwise) or ceases to be in force, that firearms licence revives.
(3)
If, under subsection (1) or section 99 of this Part, a firearms licence is revoked or deemed to be revoked, that revocation has effect as if the firearms licence had been revoked under section 27 of the Arms Act 1983.
(4)
However, nothing in subsection (3)—
(a)
limits the terms of the standard condition about weapons; or
(b)
confers on a person any right to appeal to any court, other than under section 177, against the revocation of that firearms licence.
Compare: 1995 No 86 s 24
164 Retention, return, and disposal of surrendered weapons, etc
(1)
If a person to whom the standard condition about weapons applies surrenders any weapon to a constable under section 100, the following provisions apply:
(a)
if the person’s firearms licence is suspended under section 99,—
(i)
the Police must detain the weapon for the period of the suspension, and, unless the weapon may lawfully be retained under any other enactment, must return the weapon to the person as soon as practicable after that suspension ceases to be in force (subject to subparagraph (ii), to paragraphs (b) and (c), and to sections 158 to 160):
(ii)
the person whose firearms licence is suspended may, at any time during the period of the suspension, if the weapon is owned by that person, sell or otherwise dispose of the weapon to a person approved for the purpose by a constable, and in any such case the weapon must be delivered to that other person (subject to paragraph (c)):
(b)
if the person’s firearms licence is revoked under section 99 or section 163(1) of this Part, then, subject to paragraph (c) of this subsection, subsections (2) to (4) of section 28 of the Arms Act 1983 apply, with all necessary modifications, as if the weapon were a firearm that had been delivered to a constable under section 28 of the Arms Act 1983:
(c)
if, at the time of the surrender of the weapon, the person was not lawfully entitled to possess the weapon (disregarding, for that purpose, the effect of the standard condition about weapons), the weapon is deemed to have been seized and detained under the Arms Act 1983, and sections 65 and 70 of that Act apply accordingly:
(d)
in any other case,—
(i)
the Police must detain the weapon for the period during which the standard condition about weapons remains in force, and, unless the weapon may lawfully be retained under any other enactment, must return the weapon to the person as soon as practicable after the standard condition about weapons ceases to be in force (subject to subparagraph (ii), to paragraph (c), and to sections 158 to 160):
(ii)
the person may, at any time during the period during which the standard condition about weapons remains in force, if the weapon is owned by the person, sell or otherwise dispose of the weapon to a person approved for the purpose by a constable, and in any such case the weapon must be delivered to that other person (subject to paragraph (c)).
(2)
If a person’s firearms licence is suspended under section 99, and that person surrenders that licence to a constable under that section, the Police must detain that licence for the period of the suspension and, unless the licence is revoked or ceases to be in force, or may lawfully be retained under any other enactment, must return the licence to the person as soon as practicable after that suspension ceases to be in force.
Compare: 1995 No 86 s 25
165 Arms Act 1983 not affected
(1)
Sections 98 to 102 and 158 to 164 do not limit or affect any provision of the Arms Act 1983 that authorises or permits—
(a)
the revocation of any firearms licence; or
(b)
the seizure of any weapon.
(2)
A suspension of a person’s firearms licence ceases to be in force if—
(a)
that suspension is one under section 99; and
(b)
during the period of that suspension, that firearms licence is revoked under the Arms Act 1983.
Compare: 1995 No 86 s 26
General provisions
166 Court may appoint lawyer
(1)
In any proceedings under this Part (not being criminal proceedings), the court may appoint a lawyer—
(a)
to assist the court; or
(b)
to represent a child—
(i)
in any proceedings on an application made, on behalf of that child, under section 62(2)(a), for a protection order; or
(ii)
in any proceedings relating to or arising out of a protection order made, under this Part, on any such application made on that child’s behalf; or
(c)
to represent a child (unless the child is, in the proceedings concerned, already represented by a lawyer)—
(i)
in any proceedings on an application made under sections 60 and 64(1) for a protection order, or made under sections 64(2) and 89 for a direction that a protection order apply, against the child; or
(ii)
in any proceedings relating to or arising out of a protection order or a direction made, under this Part, on any such application; or
(d)
to represent a person lacking capacity to whom section 67 applies—
(i)
in any proceedings on an application made, on behalf of that person, under section 67(2), for any order under this Part; or
(ii)
in any proceedings relating to or arising out of an order made, under this Part, on any such application made on that person’s behalf.
(2)
A lawyer appointed under subsection (1)(c) or (d) may—
(a)
call any person as a witness in the proceedings; and
(b)
cross-examine witnesses called by any party to the proceedings or by the court.
Compare: 1995 No 86 s 81(1), (2)
167 Fees and expenses of lawyer appointed by Court
(1)
The fees and expenses of a lawyer appointed under section 166(1)(a), (b), or (c) must—
(a)
be determined under regulations made under section 16D of the Family Court Act 1980 or, if no such regulations are made, by the Registrar of the court; and
(b)
be paid under that determination out of public money appropriated by Parliament for the purpose.
(2)
The fees and expenses of a lawyer appointed under section 166(1)(d) must—
(a)
be determined under regulations made under this Part or, if no such regulations are made, by the Registrar of the court; and
(b)
be paid under that determination out of public money appropriated by Parliament for the purpose.
(3)
An invoice rendered by a lawyer appointed under section 166 for fees and expenses must be given to the Registrar of the court in which the proceedings were heard, and the Registrar may decide to adjust the amount of the invoice.
(4)
If the lawyer is dissatisfied with the decision of the Registrar as to the amount of the invoice, the lawyer may, within 14 days after the date of the decision, apply to a Judge of the court to review the decision.
(5)
The Judge may, on a lawyer’s application under subsection (4), make any order varying or confirming the decision that the Judge considers fair and reasonable.
Compare: 1995 No 86 s 81(2A), (3), (4), (5)
168 How Judge ascertains child’s views (other than at hearing)
(1)
If the court is required, or considers it necessary or desirable, to ascertain a child’s views (other than at any hearing of any application), a Judge may interview the child to ascertain those views.
(2)
This section does not affect rules of court on the court ascertaining a child’s views at any hearing of any application.
169 Power of court to call witnesses
(1)
In any proceedings before a court under this Part (other than criminal proceedings), the court may, of its own motion, call as a witness any person whose evidence may, in its opinion, be of assistance to the court.
(2)
The power conferred by subsection (1) includes, without limitation, power to call as a witness—
(a)
a party to the proceedings:
(b)
the spouse or partner of a party to the proceedings:
(c)
an associated respondent:
(d)
a specified person.
(3)
If the court calls a witness under this section,—
(a)
the witness has the same privilege to refuse to answer any question as the witness would have if called by a party to the proceedings; and
(b)
the witness may be examined and re-examined—
(i)
by the court:
(ii)
by or on behalf of any party to the proceedings:
(iii)
by any lawyer appointed under section 166 in respect of the proceedings.
(4)
Sections 159 and 161 to 165 of the Criminal Procedure Act 2011, so far as applicable and with the necessary modifications, apply to every person called as a witness by the court under this section as if that person had been called by a party to the proceedings.
(5)
The expenses of any witness called by the court under this section are payable—
(a)
under the scale of witnesses’ expenses prescribed by regulations made under this Part; and
(b)
in the first instance, out of public money appropriated by Parliament for the purpose.
Compare: 1995 No 86 s 82
170 Conduct of proceedings
(1)
No person may be present during the hearing of any proceedings under this Part (other than criminal proceedings) except the following people:
(a)
officers of the court:
(b)
the parties to the proceedings:
(c)
any lawyer representing any party to the proceedings:
(d)
any lawyer appointed under section 166 in respect of the proceedings:
(e)
any lawyer appointed under section 7(1) of the Care of Children Act 2004 to act for a child who in proceedings under this Part is a child of the applicant’s family:
(f)
if, under a provision of this Part, any person is bringing or defending the proceedings on behalf of another person,—
(i)
the person so bringing or defending the proceedings:
(ii)
the person on whose behalf the proceedings are so brought or defended:
(g)
witnesses:
(h)
accredited news media reporters:
(i)
any person who is nominated by the applicant for a protection order or by a protected person under subsection (2):
(j)
any other person whom the Judge permits to be present.
(2)
For the purposes of any proceedings to which this section applies, any party to the proceedings (being an applicant for a protection order or a protected person) may nominate a reasonable number of people (being members of the party’s family, whānau, or family group, or any other person) to attend any hearing of those proceedings for the purpose of providing support to that party.
(3)
Any witness and any accredited news media reporter must leave the courtroom if asked to do so by the Judge.
(4)
No person present in the courtroom under subsection (1)(i) is entitled to be heard at the hearing, and the court may exclude any such person from the hearing at any time.
(5)
Nothing in this section limits any other power of the court—
(a)
to hear proceedings in private; or
(b)
to permit a McKenzie friend to be present; or
(c)
to exclude any person from the court.
Compare: 1995 No 86 s 83
171 Standard of proof
(1)
This section applies in any proceedings under this Part (other than criminal proceedings).
(2)
Every question of fact arising must be decided on the balance of probabilities.
Compare: 1995 No 86 s 85
172 Orders by consent
(1)
This section applies in any proceedings before a court under this Part.
(2)
The court may make any order under this Part by the consent of all of the parties to the proceedings.
(3)
This section is subject to section 85.
Compare: 1995 No 86 s 86
173 Explanation of orders
(1)
If, in any proceedings under this Part (other than criminal proceedings), the respondent or associated respondent, as the case may be, is before the court, then on making an order (other than an order discharging an order made under this Part), the Judge must explain to that person—
(a)
the effect of the order; and
(b)
the consequences that may follow if the person fails to comply with the terms of the order; and
(c)
the means by which the order can be varied or discharged.
(2)
A Registrar may give the explanation required by subsection (1).
(3)
Failure to give the explanation required by subsection (1) does not affect the validity of the order made.
(4)
If the court makes an order under this Part, the copy of the order that is given to or served on the respondent (and, if applicable, the associated respondent) must include a notice stating—
(a)
the consequences that may follow if the person fails to comply with the terms of the order; and
(b)
the means by which the order can be varied or discharged.
(5)
Failure to include in a copy of an order made under this Part the notice required by subsection (4) does not affect the validity of the order made.
Compare: 1995 No 86 s 87
174 Sending of orders, and risk factor information, to Police
(1)
On the making of a temporary order or a final order under this Part (including any order varying or discharging an order made under this Part or any order made in substitution for any such order), the Registrar of the court in which the order is made must ensure that a copy of the order is made available, without delay, to the District Commander at the appropriate Police District Headquarters.
(2)
If a copy of an order is made available to a District Commander under subsection (1), the District Commander must ensure that a copy of that order, or a copy of that copy, is made available, without delay, to the officer in charge of the Police station nearest to where the protected person or, as the case requires, each protected person, resides.
(3)
For the purposes of this section, a copy of an order, or a copy of a copy of an order, may be made available in any of the following ways:
(a)
by sending the copy by means of electronic transmission (whether by way of facsimile transmission, electronic mail, or other similar means of communication):
(b)
by entering the copy on a database maintained in electronic form, where that database may be accessed by the person or people to whom the copy is required to be made available:
(c)
by making the copy available in any manner prescribed by regulations made under this Part:
(d)
by making the copy available in any other manner appropriate in the circumstances.
(4)
If making a copy of an order available to a District Commander under subsection (1), the Registrar must at the same time also make available to that District Commander, in a way specified in subsection (3), information supplied—
(a)
to the Registrar, by or on behalf of the applicant for the order; and
(b)
to help the Police assess risks, or needs, arising from family violence.
(5)
Risk factor information made available under this section may be disclosed by the Police under section 20, or under any other enactment that authorises or requires the Police to disclose that information.
Compare: 1995 No 86 s 88
175 Information on service of certain orders to be communicated to Police
(1)
This section applies if a person (P) serves a copy of a protection order, or a copy of an order varying a protection order, on another person (R)—
(a)
who is the respondent or an associated respondent; and
(b)
to whom the standard condition about weapons applies.
(2)
P must, without delay, give notice of the following place, date, and time to the officer in charge of the Police station nearest to where the copy of the order was served:
(a)
the place where the copy of the order was so served; and
(b)
the date and time of service.
Compare: 1995 No 86 s 89
176 Police to consider exercise of powers under Arms Act 1983
(1)
This section applies if a copy of an order, or a copy of a copy of an order, is made available to the officer in charge of a Police station under section 174(2), unless—
(a)
the order discharges a protection order, and no other protection order is made in substitution for that protection order; or
(b)
the order discharges an order made under subpart 5, and no other order under that subpart is made in substitution for that order; or
(c)
the order varies an order made under subpart 5.
(2)
If this section applies, the officer in charge of the Police station must immediately establish whether or not the respondent and any associated respondent named in the order hold a firearms licence.
(3)
If this section applies, and the officer in charge of the Police station knows that the respondent or any associated respondent, or both, hold a firearms licence, then unless the firearms licence is deemed to be revoked under section 99, the officer in charge must arrange for an appropriate person to consider immediately whether the powers conferred by sections 27(1) and 27A of the Arms Act 1983 (which relate to the revocation of a firearms licence) should be exercised in that case.
(4)
Subsection (3) applies whether that knowledge of the respondent or any associated respondent, or both, holding a firearms licence arises from inquiries under subsection (2), the terms of the protection order, or in any other way.
(5)
If this section applies, the officer in charge of the Police station must, in every case, arrange for an appropriate person to consider immediately whether or not the powers conferred by section 18 (warrantless searches associated with arms, including in cases of family violence) of the Search and Surveillance Act 2012 should be exercised in that case.
Compare: 1995 No 86 s 90
Appeals
177 Appeals to High Court
(1)
This subsection applies to a decision of a court, in proceedings under this Part, to—
(a)
make or refuse to make an order; or
(b)
dismiss the proceedings; or
(c)
otherwise finally determine the proceedings.
(2)
Subsection (1) does not apply to a decision to make or refuse to make a protection order under section 123B of the Sentencing Act 2002 (see section 123H of that Act, which ensures that an appeal against a decision of that kind is an appeal against the sentence imposed for an offence).
(3)
A party to proceedings in which there is made a decision to which subsection (1) applies, or any other person prejudicially affected by the decision, may appeal to the High Court against the decision.
(4)
The High Court Rules 2016 and sections 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under subsection (3) as if it were an appeal under section 124 of that Act.
(5)
The court appealed from may order, on a without notice application for the purpose made by the appellant, that the appellant must not be required under section 126(1) of the District Court Act 2016 to give the Registrar of the High Court security for costs.
(6)
Subsection (5) overrides subsection (4).
(7)
The decision of the High Court on an appeal to that court under this section is final (subject to section 179).
Compare: 1995 No 86 s 91
178 Application of provisions which relate to children, etc
Sections 62, 63, 67, 68, 69, and 70 (which relate to children, etc), so far as applicable and with the necessary modifications, apply to the following as they apply to the making of an application for a protection order:
(a)
the making and prosecution of an appeal under section 177 or 179; and
(b)
the defending of any such appeal.
Compare: 1995 No 86 s 92
179 Appeals to Court of Appeal
(1)
A party to any appeal under section 177 may, with the leave of the Court of Appeal, appeal to the Court of Appeal against any determination of the High Court on a question of law arising in that appeal.
(2)
On an appeal to the Court of Appeal under this section, the Court of Appeal has the same power to adjudicate on the proceedings as the High Court had.
(3)
The decision of the Court of Appeal on an appeal to that court under this section, and on an application to it under this section for leave to appeal, is final.
Compare: 1995 No 86 s 93
180 Appeals to be heard as soon as practicable
Every appeal under section 177 or 179 must be heard as soon as practicable after the appeal is lodged.
Compare: 1995 No 86 s 94
181 Effect of appeal
Unless the court making the order appealed from directs otherwise,—
(a)
the operation of an order made under this Part is not suspended by an appeal under section 177 or 179; and
(b)
every order made under this Part may be enforced in the same manner in all respects as if no such appeal were pending.
Compare: 1995 No 86 s 95
Restriction on publication
182 Restriction of publication of reports of proceedings
Sections 11B to 11D of the Family Court Act 1980 apply to the publication of a report of any proceedings under this Part (other than criminal proceedings)—
(a)
in the Family Court:
(b)
in any other court, in which case references in those sections to the Family Court or court must be read as references to that other court.
Compare: 1995 No 86 s 125
Subpart 7—Programmes and prescribed services
Interpretation
Preliminary provisions
183 Guide to this subpart
This subpart contains provisions about programmes and prescribed services, including provisions indicating that—
(a)
assessors and service providers may be approved to provide non-violence programmes or prescribed services (see section 212):
(b)
an assessor or service provider must notify the Registrar and the Police of any safety concerns (see section 185):
(c)
if the court makes a protection order, the applicant, or the applicant’s representative, can request a safety programme be provided to the applicant, a child of the applicant’s family, or a specified person (see section 187):
(d)
the court, on making a protection order, must direct the respondent to undertake assessment for, and attend, a non-violence programme (see section 188):
(e)
the court, on making a protection order, may direct the respondent to undertake an assessment for prescribed services, and to engage with any prescribed standard service, provided by a service provider, that an assessor has determined may be appropriate for and may benefit the respondent (see section 188):
(f)
the court may direct and require the respondent to engage with a prescribed non-standard service if the assessor has determined that the service may be appropriate for and may benefit the respondent (see section 198):
(g)
in general, information provided to an assessor or service provider must not be admitted as evidence (see section 205):
(h)
failure to comply with a direction is a criminal offence punishable on conviction by a fine not exceeding $5,000 or a term of imprisonment not exceeding 6 months (see section 211).
184 Interpretation
In this subpart, unless the context otherwise requires,—
approval means an approval under section 212, and that has not been suspended or cancelled, of one of the following kinds:
(a)
an approval of an assessor:
(b)
an approval of a service provider
assessment, in relation to a respondent, means an assessment of the respondent undertaken by an assessor to determine—
(a)
the extent to which the respondent poses a safety risk to any person or the public; and
(b)
if the assessment is an assessment for a non-violence programme, what, if any, non-violence programme is the most appropriate for the respondent to attend; and
(c)
if the assessment is an assessment for prescribed services, what, if any, prescribed services may be appropriate for and may benefit the respondent
assessor means a person or an organisation that has been granted an approval to undertake assessments (for non-violence programmes, prescribed services, or both)
non-violence programme means a programme that—
(a)
is provided by a service provider; and
(b)
is provided to a respondent; and
(c)
has the primary objective of stopping or preventing family violence on the part of the respondent
prescribed non-standard service has the meaning given to it by section 8
prescribed service has the meaning given to it by section 8
prescribed standard service has the meaning given to it by section 8
programmes means—
(a)
safety programmes; and
(b)
non-violence programmes
respondent means the person against whom an application has been made for an order under this Part, and includes an associated respondent
safety programme means a programme that—
(a)
is provided by a service provider; and
(b)
is provided to a protected person; and
(c)
has the primary objective of promoting (whether by education, information, support, or otherwise) the protection of the protected person from family violence
service provider means a person or an organisation that has been granted an approval to provide programmes, prescribed services, or both.
Compare: 1995 No 86 s 51A
Notification of safety concerns
185 Safety concerns
Concerns about safety of protected person
(1)
In this section, concerns about the safety of a protected person means concerns about a risk (to the safety of the protected person) that—
(a)
is imminent, escalating, or grave; and
(b)
adds to the concerns that supported the making of the protection order.
Safety programme provided for protected person
(2)
Section 186 applies if a service provider has, during or after the provision by the provider to a protected person of a safety programme, concerns about the safety of a protected person (whether or not a protected person attending, or who attended, the safety programme).
Assessment undertaken of respondent
(3)
Section 186 applies if an assessor has, during or after the undertaking by the assessor of an assessment of the respondent, concerns about the safety of a protected person.
Non-violence programme or prescribed service provided to respondent
(4)
Section 186 applies if a service provider has, during or after the provision by the provider to a respondent of a non-violence programme or a prescribed service, concerns about the safety of a protected person.
186 Assessor or service provider to notify safety concerns
(1)
The assessor or service provider mentioned in section 185(2), (3), or (4) must, without delay, notify the following authorities of the concerns mentioned in that subsection:
(a)
the Registrar:
(b)
the District Commander at the appropriate Police District Headquarters:
(c)
if there is a perceived risk to any child, the chief executive.
(2)
On receiving a notification under subsection (1)(a), the Registrar must—
(a)
arrange for the protected person to be advised of the assessor’s or service provider’s concerns; and
(b)
comply with section 208 (Registrar’s response to notice of safety concerns or non-compliance).
Safety programmes
187 Safety programmes for protected people
(1)
If the court makes a protection order,—
(a)
the applicant, or the applicant’s representative, may request the Registrar to authorise the provision of a safety programme to all or any of the following people:
(i)
the applicant:
(ii)
a child of the applicant’s family:
(iii)
a specified person; and
(b)
a child of the applicant’s family may request the Registrar to authorise the provision of a safety programme to that child if no request has been made under paragraph (a)(ii); and
(c)
a specified person (other than a child) may request the Registrar to authorise the provision of a safety programme to that specified person if no request has been made under paragraph (a)(iii).
(2)
If, at the time the protection order is made, the applicant has not made a request under this section, and the applicant is not legally represented, the Judge or the Registrar must inform the applicant of the applicant’s right to make such a request.
(3)
One or more requests may be made under all or any of subsection (1)(a), (b), and (c), in respect of the same person or different people, at any time while the protection order remains in force.
(4)
If a request is made to a Registrar under subsection (1)(a), (b), or (c), the Registrar—
(a)
must arrange for the matter to be referred to a service provider without delay, if the request is the first one made by or on behalf of the applicant, child of the applicant’s family, or specified person; and
(b)
may do so, if the request is a later one made by or on behalf of the applicant, child of the applicant’s family, or specified person.
(5)
Every lawyer acting for an applicant for a protection order must—
(a)
ensure that the applicant is aware of the applicant’s right to make a request under this section; and
(b)
if the applicant wishes to exercise that right, take any further steps the lawyer considers necessary to enable the applicant to do so.
Compare: 1995 No 86 s 51C
Non-violence programmes and prescribed services
188 Directions for assessments, non-violence programme, and prescribed standard services
Court making protection order must make direction for non-violence programme
(1)
On making a protection order, the court must direct the respondent to—
(a)
undertake an assessment for a non-violence programme; and
(b)
attend a non-violence programme, provided by a service provider, that an assessor determines is an appropriate non-violence programme for the respondent to attend.
(2)
However, the court need not make a direction under subsection (1) if the court considers that there is a good reason for not making a direction.
Court making protection order may make direction for prescribed services
(3)
On making a protection order, the court may direct the respondent to—
(a)
undertake an assessment for prescribed services; and
(b)
engage with any prescribed standard service, provided by a service provider, that an assessor determines may be appropriate for and may benefit the respondent.
Compare: 1995 No 86 s 51D
189 Objection process if direction made on application without notice
(1)
This section applies if the court makes a direction under section 188 on an application made without notice.
(2)
If this section applies,—
(a)
the direction does not take effect until 10 working days after a copy of the direction is served on the respondent; and
(b)
the respondent may, within those 10 working days, notify the court that the respondent objects to the direction.
(3)
If the respondent, under subsection (2)(b), notifies the court that the respondent objects to the direction,—
(a)
the Registrar must, if the respondent wishes to be heard, assign a hearing date, which must be—
(i)
as soon as practicable; and
(ii)
unless there are special circumstances, in no case later than 42 days after receipt of the notice of objection; and
(b)
the direction is suspended from the date on which the court receives the notice of objection until the court, after considering the respondent’s objection, confirms (with or without variation) or discharges the direction.
(4)
Nothing in this section or section 190 gives the court power to review any order or decision other than the direction to which the notice relates, but nothing in this section limits section 147 or 151.
Compare: 1995 No 86 s 51E
190 Court may confirm or discharge direction after considering objection
(1)
After considering an objection, made under section 189, to a direction, the court may—
(a)
confirm the direction; or
(b)
vary the direction; or
(c)
discharge the direction.
(2)
If the court under subsection (1) confirms or varies a direction and the respondent is before the court, the Judge must warn the respondent that non-compliance with the direction is an offence punishable by imprisonment.
(3)
Failure to give the warning required by subsection (2) does not affect the validity of the direction confirmed or varied.
Compare: 1995 No 86 s 51F
191 Referral of respondent to assessor
(1)
After the court has made a direction under section 188, the Registrar must, without delay,—
(a)
arrange for the respondent to be referred to an assessor who has been granted an approval to undertake an assessment of the kind required by the direction; and
(b)
notify the assessor of the direction made under section 188.
(2)
This section is subject to section 189 (objection process if direction made on application without notice).
Compare: 1995 No 86 s 51G
192 Assessor meets with respondent, undertakes assessment, and makes determinations
As soon as possible after receiving a notification under section 191, the assessor must arrange to meet with the respondent to—
(a)
undertake an assessment of the respondent; and
(b)
determine, if the direction in the notification is that the respondent undertake an assessment for a non-violence programme, whether there is an appropriate non-violence programme, provided by a service provider, for the respondent to attend; and
(c)
determine, if the direction in the notification is that the respondent undertake an assessment for prescribed services, whether (and, if so, which of) the types of services specified in regulations made under section 249(a) (if any), provided by a service provider, may be appropriate for and may benefit the respondent.
Compare: 1995 No 86 s 51H
193 When assessments or determinations need not be undertaken or made
(1)
However, the assessor need not undertake or complete an assessment, or make a determination, under section 192, if the assessor considers that there is a good reason for not doing so.
(2)
On making a decision under subsection (1) not to undertake or complete an assessment, or not to make a determination, under section 192, the assessor must notify, and send a copy of the decision to, the Registrar.
(3)
On receiving notification of, and a copy of, the assessor’s decision under subsection (1), the Registrar must bring the matter to the attention of a Judge (see section 206).
Compare: 1995 No 86 s 51H
194 Order of, and delaying respondent’s attendance or engagement
(1)
Subsection (2) applies to an assessor who makes all or any of the following (unless the assessor also determines under section 192(c) that a prescribed non-standard service, provided by a service provider, may be appropriate for and may benefit the respondent, in which case section 198 applies):
(a)
a determination under section 192(b) that there is an appropriate non-violence programme, provided by a service provider, for the respondent to attend:
(b)
a determination under section 192(c) that a prescribed standard service, provided by a service provider, may be appropriate for and may benefit the respondent.
(2)
The assessor must, in making the 1 or more determinations, decide (jointly with any other assessor referred under section 191 a direction made under section 188 on the making of the protection order) in what order the respondent must attend a non-violence programme or engage with a prescribed standard service, and whether the respondent’s attendance at the programme, or engagement with the prescribed standard service, or both, should be delayed to enable other matters to be addressed first.
(3)
On making a decision under subsection (2) that the respondent’s attendance at the programme, or engagement with the prescribed standard service, or both, should be delayed to enable other matters to be addressed first, the assessor must notify the Registrar, and the Registrar must bring the matter to the attention of a Judge (see section 206).
Compare: 1995 No 86 s 51H
195 Assessor to ascertain, etc, victims’ views
In undertaking an assessment, or making a determination, under section 192, the assessor must, unless the assessor considers it unsafe or otherwise inappropriate to do so,—
(a)
take all reasonable steps to ascertain any views on the matter of the following:
(i)
the applicant:
(ii)
a child of the applicant’s family:
(iii)
a specified person; and
(b)
take into account any views ascertained under paragraph (a).
196 When assessor must refer respondent back to court
(1)
This section applies if, after undertaking an assessment of the respondent, the assessor makes 1 or both of the following:
(a)
a determination under section 192(b) that there is not an appropriate non-violence programme, provided by a service provider, for the respondent to attend:
(b)
a determination under section 192(c) that there is not a prescribed standard service, provided by a service provider, that may be appropriate for and may benefit the respondent.
(2)
The assessor must, without delay, notify, and copy the 1 or more determinations to, the respondent and the Registrar.
(3)
After receiving a notification under subsection (2), the Registrar must—
(a)
arrange for the protected person to be notified of the 1 or more determinations; and
(b)
bring the matter to the attention of a Judge (see section 206).
197 When assessor must refer respondent to service provider
(1)
This section applies if, after undertaking an assessment of the respondent, the assessor makes 1 or both of the following:
(a)
a determination under section 192(b) that there is an appropriate non-violence programme, provided by a service provider, for the respondent to attend:
(b)
a determination under section 192(c) that a prescribed standard service, provided by a service provider, may be appropriate for and may benefit the respondent.
(2)
The assessor must, without delay,—
(a)
notify, and copy the 1 or more determinations to, the respondent and otherwise arrange for the respondent to be referred to the service provider; and
(b)
notify the service provider of the relevant direction or directions made under section 188 and of the 1 or more determinations; and
(c)
notify, and copy the 1 or more determinations to, the Registrar.
198 Court may direct respondent to engage with prescribed non-standard service
(1)
This section applies if the assessor determines under section 192(c) that a prescribed non-standard service, provided by a service provider, may be appropriate for and may benefit the respondent.
(2)
The assessor must promptly notify the Registrar, and send the Registrar—
(a)
the result of the assessment of the respondent undertaken by the assessor; and
(b)
all information related to the assessor’s determination under section 192(c) that the assessor considers may help a Judge to determine whether to make a direction under subsection (4).
(3)
After receiving a notification under subsection (2), the Registrar must bring the matter to the attention of a Judge.
(4)
When a matter is brought to the attention of a Judge under subsection (3), the Judge may, if the Judge thinks fit, by written direction copied promptly to the respondent, to the assessor, and to the service provider, require the respondent to engage with the prescribed non-standard service as provided by a service provider.
(5)
The Judge, in making the direction, may decide in what order the respondent must attend a non-violence programme or engage with the prescribed non-standard service (or with any prescribed standard services with which the respondent is required to engage), and whether the respondent’s attendance at the programme, or engagement with all or any prescribed services, or both, should be delayed to enable other matters to be addressed first, and may make any other order or direction that may be made under section 206.
199 Referral to different service provider
(1)
This section applies if the service provider—
(a)
is notified of, or copied, under section 197 or 198, a direction about a programme or prescribed service and a respondent; but
(b)
is not able to provide that programme or service to the respondent.
(2)
The service provider must—
(a)
notify the assessor referred to in section 197 or 198; and
(b)
send to that assessor the following information:
(i)
the result of the assessment of the respondent undertaken by the assessor; and
(ii)
any information that is held by the service provider and that relates to the assessment by the assessor of, or to the provision of the programme or service by the service provider to, the respondent.
(3)
After receiving a notification under subsection (2)(a) and the information referred to in subsection (2)(b), the assessor must—
(a)
notify or copy under section 197 or 198(4) (which apply with the necessary modifications) the direction about the programme or prescribed service and the respondent to a service provider that is able to provide that programme or service to the respondent, and notify the Registrar of the respondent’s referral under this paragraph to a different service provider; or
(b)
notify the Registrar.
(4)
After receiving a notification under subsection (3)(b), the Registrar must bring the matter to the attention of a Judge (see section 206).
Compare: 1995 No 86 s 51J
200 Referral back to court if programme or service to be delayed or inappropriate
(1)
This section applies if the service provider, after being notified of, or copied, under section 197 or 198, a direction about a non-violence programme or prescribed service and a respondent, determines that—
(a)
the respondent’s attendance at the programme, or engagement with the service, or both, should be delayed to enable other matters to be addressed first; or
(b)
it would not be appropriate for the respondent to attend the programme, engage with the service, or both.
(2)
The service provider must notify the Registrar, and the Registrar must bring the matter to the attention of a Judge (see section 206).
Compare: 1995 No 86 s 51K
201 Terms of attendance at or engagement with non-violence programme or prescribed service
(1)
Before providing a non-violence programme to a respondent (in line with the direction made under section 188(1)(b) and the determination made under section 192(b)), the service provider must settle in writing with the respondent the terms of attendance, which must include—
(a)
the number of programme sessions that the respondent must attend; and
(b)
details and arrangements about the programme venue, sessions, and times.
(2)
Before providing a prescribed service to a respondent directed under section 188(3)(b) or 198 to engage with the service, the service provider must settle in writing with the respondent the terms of the respondent’s engagement with the service.
(3)
The service provider must provide to the Registrar a copy of the terms of attendance or (as the case requires) the terms of engagement that the service provider has settled with the respondent.
(4)
If a service provider is not able to settle with a respondent the terms of attendance or (as the case requires) the terms of engagement, the service provider must notify the Registrar.
(5)
On receipt of a notice under subsection (4), the Registrar must—
(a)
settle the terms of attendance or (as the case requires) the terms of engagement with the respondent and the service provider; or
(b)
bring the matter to the attention of a Judge (see section 206).
202 Service provider to ascertain, etc, victims’ views
In complying with section 201(1) or (2), the service provider must, unless the service provider considers it unsafe or otherwise inappropriate to do so,—
(a)
take all reasonable steps to ascertain any views on the matter of the following:
(i)
the applicant:
(ii)
a child of the applicant’s family:
(iii)
a specified person; and
(b)
take into account any views ascertained under paragraph (a).
203 Referral back to court if continued provision no longer appropriate or practicable or affected significantly by non-compliance
(1)
This section applies if, at any time during the provision of a non-violence programme, the service provider considers that—
(a)
it is no longer appropriate or practicable for the service provider to provide the programme to the respondent; or
(b)
the respondent is not participating fully in the programme, and that this is significantly affecting the respondent’s ability to benefit fully from the programme.
(2)
This section also applies if, at any time during the provision of a prescribed service, the service provider considers that—
(a)
it is no longer appropriate or practicable for the service provider to provide the service to the respondent; or
(b)
the respondent is not engaging fully with the service, and that this is significantly affecting the respondent’s ability to benefit fully from the service.
(3)
The service provider must—
(a)
notify the Registrar; and
(b)
send to the Registrar all information that is held by the service provider and that relates to the provision of the non-violence programme or (as the case requires) to the provision of the prescribed service to the respondent.
(4)
After receiving a notification under subsection (3)(a) of a determination (about continued provision of the programme or the prescribed service) under subsection (1)(a) or (2)(a) and the information referred to in subsection (3)(b), the Registrar must—
(a)
make a new referral under section 199 to a different service provider; or
(b)
bring the matter to the attention of a Judge (see section 206).
(5)
A service provider who makes a determination (about the respondent’s non-compliance) under subsection (1)(b) or (2)(b) is required by section 207 to give written notice to the Registrar of that determination (and sections 208, 209, 210, and 211 apply accordingly).
204 Report and notice of completion and outcome of programme or service
(1)
When a respondent has completed a non-violence programme or has completed engagement with a prescribed service, the service provider must, without delay, provide to the Registrar a report that—
(a)
states whether, in the opinion of the service provider, the respondent has met the objectives of the non-violence programme or of the engagement with the prescribed service; and
(b)
advises of any concerns that the service provider has about the safety of any protected person (as those concerns are defined in section 185(1)).
(2)
On receiving a report under subsection (1), the Registrar must—
(a)
comply with section 208 if—
(i)
the report advises that the respondent has failed to meet the objectives of the programme or of the engagement with the prescribed service; or
(ii)
the report advises of any concerns that the service provider has about the safety of any protected person; and
(b)
arrange for the protected person to be notified—
(i)
that the respondent has completed a non-violence programme or engagement with a prescribed service; and
(ii)
of any concerns that the service provider has about the safety of the protected person, and that are advised in the report provided under subsection (1).
(3)
The court may release a report under subsection (1) to either or both of the following people on any terms and conditions the court considers necessary or desirable to protect the safety of a protected person:
(a)
a respondent:
(b)
a lawyer acting for a child who made under section 62(2) the application for the protection order.
(4)
Those terms and conditions may include (without limitation) the timing of the release, whether all, or only a part, of the report is released, and whether a copy of the report or part, or only an explanation of its effect, is released.
Compare: 1995 No 86 s 51I
Confidentiality of information
205 Information being admitted as evidence or used without court’s authorisation
(1)
This section applies to information (for example, a statement or an admission) received—
(a)
by an assessor or a service provider; and
(b)
for the purposes of, or in the course of, undertaking an assessment, or providing a programme or prescribed service.
(2)
The information must not be admitted as evidence—
(a)
in any court; or
(b)
before any person acting judicially.
(3)
However, subsection (2) does not prohibit the information from being disclosed for the purposes of all or any of the following:
(a)
giving a notification (for example, to a Registrar) under this Part:
(b)
making a referral (for example, to a service provider) under this Part:
(c)
proceedings under section 208 or 209 (which are proceedings in response to notice of safety concerns or about the respondent’s non-compliance with a direction):
(d)
investigating or prosecuting an offence against section 211:
(e)
investigating or prosecuting an offence committed, or alleged to have been committed, during the provision of a programme, a prescribed service, or both:
(f)
an inquiry that may be or is opened, ordered, or conducted into a death (including any related inquest that may be or is held) under the Coroners Act 2006:
(g)
any disclosure of the information that is authorised by the individual to whom the information relates (even if that individual is not the person who provided the information to the assessor or the service provider).
(4)
This section does not affect or limit court information being able to be accessed by, disclosed to, or shared with, an assessor or a service provider only as authorised by or under—
(a)
section 236 or 237 of the District Court Act 2016; or
(b)
section 173 or 174 of the Senior Courts Act 2016; or
(c)
regulations made under section 249(d) of this Part; or
(d)
any other enactment.
(5)
This section does not affect or limit any collection, use, or disclosure of the information authorised or required by or under the Privacy Act 1993 or any other enactment.
Compare: 1995 No 86 s 51S
Enforcement and powers when matter referred back to court
206 Powers if matter brought to attention of Judge
(1)
This section applies if the Registrar brings a matter to the attention of a Judge under—
(a)
section 193(3) (which applies if an assessor decides under section 193(1) not to undertake or complete an assessment, or not to make a determination, under section 192); or
(b)
section 194(3) (which applies if an assessor decides under section 194(2) that the respondent’s attendance at a non-violence programme, or engagement with a prescribed standard service, or both, should be delayed); or
(c)
section 196(3) (when assessor must refer respondent back to court); or
(d)
section 199(4) (referral to a different service provider); or
(e)
section 200(2) (referral back to court if programme or service to be delayed or inappropriate); or
(f)
section 201(5)(b) (terms of attendance at or engagement with non-violence programme or prescribed service); or
(g)
section 203(4)(b) (which applies if the service provider considers that is no longer appropriate or practicable for the service provider to provide a non-violence programme or prescribed service to the respondent).
(2)
The Judge may make any order or direction the Judge thinks fit in the circumstances.
(3)
The Judge may under subsection (2) do all or any of the following:
(a)
make a direction under section 188(3)(a) and (b) (that the respondent undertake an assessment for prescribed services, and engage with any prescribed standard service, provided by a service provider, that an assessor determines may be appropriate for and may benefit the respondent):
(b)
suspend, vary or replace, or discharge the direction (to attend a non-violence programme or engage with a prescribed standard service) made under section 188(1)(b) or (3)(b):
(c)
suspend, vary or replace, or discharge a direction (to engage with a prescribed non-standard service) made under section 198:
(d)
make a direction (to engage with a prescribed non-standard service) under section 198 in respect of the respondent:
(e)
make under section 199 a referral to a different service provider that is able to provide a non-violence programme or prescribed service to the respondent:
(f)
settle the terms of attendance or (as the case requires) the terms of engagement with the respondent and the service provider under section 201:
(g)
make an order or direction under section 204(3) releasing a report under section 204(1) to either or both of the people specified in section 204(3)(a) and (b) on any terms and conditions the court considers necessary or desirable to protect the safety of a protected person:
(h)
make, or vary or discharge terms or conditions of, a parenting order (interim or final) under the Care of Children Act 2004 relating to or affecting the respondent (in which case the provisions of that Act apply with all necessary modifications).
(4)
Subsection (3) does not limit subsection (2).
207 Notice of non-compliance with direction
(1)
This section applies if, after the court makes a direction under section 188 or 198, 1 or more of the following events happen:
(a)
the respondent fails to undertake an assessment with the assessor to whom notice of the direction has been given under section 191:
(b)
the respondent fails to attend a non-violence programme in accordance with a direction made under section 188(1)(b) and with the terms of attendance settled under section 201:
(c)
the respondent fails to engage with a prescribed service in accordance with a direction made under section 188(3)(b) or 198 and with the terms of engagement settled under section 201:
(d)
during the provision of a non-violence programme, the service provider determines under section 203(1)(b) that the respondent is not participating fully in the programme and that this is significantly affecting the respondent’s ability to benefit fully from the programme:
(e)
during the provision of a prescribed service, the service provider determines under section 203(2)(b) that the respondent is not engaging fully with the service and that this is significantly affecting the respondent’s ability to benefit fully from the service.
(2)
The assessor or service provider concerned must give written notice to the Registrar of the 1 or more events that have happened.
(3)
Notice under subsection (2) of an event must be given before the end of the seventh day after the day that the event happened.
Compare: 1995 No 86 s 51N
208 Registrar’s response to notice of safety concerns or non-compliance
(1)
This section applies if the Registrar receives any of the following:
(a)
a notification under section 186(1)(a) of an assessor’s or a service provider’s concerns about the safety of a protected person:
(b)
a notice under section 207 of a respondent’s non-compliance with a direction (for example, a direction made under section 188(3)(b) or 198 that requires the respondent to engage with a prescribed service):
(c)
a non-violence programme completion or prescribed service engagement completion report under section 204(1))—
(i)
that advises that the respondent has failed to meet the objectives of the programme or of the engagement with the prescribed service; or
(ii)
that advises of concerns that the service provider has about the safety of any protected person.
(2)
The Registrar must, without delay,—
(a)
exercise the powers under section 169, as if the Registrar were the court referred to in that section, to call the respondent before the court; or
(b)
bring the matter to the attention of a Judge so that the Judge may consider whether to exercise the power conferred by section 209 in relation to the respondent.
(3)
If the Registrar exercises the powers under section 169 in the manner allowed by subsection (2)(a), then, subject to any regulations made under this Part, section 169 applies, so far as applicable and with the necessary modifications, as if the respondent were a witness in proceedings.
Compare: 1995 No 86 s 51O
209 Judge may call respondent before court
(1)
This section applies if, under section 208(2)(b), a Registrar brings a matter to the attention of a Judge.
(2)
The Judge may exercise the powers under section 169 to call the respondent before the court.
(3)
If the Judge exercises those powers, section 169 applies, so far as applicable and with all necessary modifications, as if the respondent were a witness in proceedings.
Compare: 1995 No 86 s 51P
210 Respondent called before court
(1)
If a respondent appears before the court under section 208(2)(a) or 209(2), the court may, after hearing from the respondent, do all or any of the following:
(a)
admonish the respondent:
(b)
confirm, vary or replace, or discharge the direction (under section 188 or 198), or change the terms of attendance at or engagement with the programme or prescribed service under section 201:
(c)
make a replacement direction (under section 188 or 198) that requires the respondent to attend or engage with a further, or different, assessment, programme, or prescribed service:
(d)
make, or vary or discharge terms or conditions of, a parenting order (interim or final) under the Care of Children Act 2004 relating to or affecting the respondent (in which case the provisions of that Act apply with all necessary modifications):
(e)
make any order or direction the court thinks fit in the circumstances.
(2)
If the court confirms or varies a direction under subsection (1), the Judge must warn the respondent that non-compliance with the direction is an offence punishable by imprisonment.
(3)
Failure to give the warning required by subsection (2) does not affect the validity of the direction confirmed or varied.
Compare: 1995 No 86 s 51Q
211 Offence to fail to comply with direction
A respondent who fails, without reasonable excuse, to comply with a direction made under section 188 or 198 commits an offence and is liable on conviction to—
(a)
a fine not exceeding $5,000; or
(b)
a term of imprisonment not exceeding 6 months.
Compare: 1995 No 86 s 51T
Approval of assessors and service providers
212 Assessors and service providers: approval: general
(1)
The Secretary may decide to grant, amend, suspend, or cancel—
(a)
an approval of a person or an organisation (for example, a government organisation) as an assessor (for non-violence programmes, prescribed services, or both):
(b)
an approval of a person or an organisation (for example, a government organisation) as a service provider.
(2)
A person or an organisation may be approved under subsection (1) by the Secretary—
(a)
on an application made for the purpose by the person or organisation; or
(b)
on the Secretary’s own motion, and with the person’s or organisation’s written consent.
(3)
A person or an organisation seeking an approval under subsection (1) by way of an application, or an own-motion approval under subsection (1), must follow the applicable process (if any) prescribed by regulations made under section 249(b)(i).
(4)
A person or an organisation may (subject to, and to the prescribed criteria referred to in, section 213) seek, be granted, or hold both—
(a)
an approval as an assessor (for non-violence programmes, prescribed services, or both); and
(b)
an approval as a service provider.
(5)
An approval, or an amendment, suspension, or cancellation of an approval, under this section must be by written notice copied to the person or organisation (see also section 214).
Compare: 1995 No 86 s 51B
213 Assessors and service providers: approval: criteria
In deciding whether to grant, amend, suspend, or cancel an approval under section 212(1), the Secretary must apply the criteria (if any) prescribed for the purposes of section 212 by regulations made under section 249(b)(ii).
214 Assessors and service providers: approval: duty to publish
The Secretary must publish promptly on an Internet site maintained by or on behalf of the Ministry of Justice—
(a)
an up-to-date list of assessors approved under section 212:
(b)
an up-to-date list of service providers approved under section 212.
Subpart 8—Overseas protection orders
Preliminary provisions
215 Guide to this subpart
This subpart contains provisions about overseas protection orders, including provisions indicating that—
(a)
the Registrar may request the appropriate court or authority in a foreign country to make arrangements for the enforcement in that country of a protection order made by a New Zealand court (see section 216):
(b)
a foreign protection order can be registered in a New Zealand court, and have effect and be enforced, as if it were a protection order made under this Part (see sections 219 and 221).
Enforcement of New Zealand orders overseas
216 Enforcement of New Zealand orders overseas
(1)
The Registrar may request the appropriate court or authority in a foreign country to make arrangements for the enforcement in that country of a protection order made by a New Zealand court.
(2)
Subsection (1) is subject to subsections (3) and (4).
(3)
A person who wishes a request to be sent to a foreign country under subsection (1) must make a request in writing to the Registrar of the court in which the protection order was made.
(4)
The Registrar must send to the foreign country under subsection (1) a request made under subsection (3) if, on receiving the request, the Registrar is satisfied that—
(a)
the request is made by or on behalf of a protected person; and
(b)
the request relates to a protection order made by a New Zealand court; and
(c)
orders of that nature may be enforced in the foreign country to which the request relates.
(5)
Nothing in this section prevents—
(a)
a protected person from applying to a court or other appropriate authority in a foreign country for enforcement, in that country, of a protection order; or
(b)
the variation or discharge, under this Part, of a protection order that is enforced in a foreign country.
(6)
In this section and section 217, enforcement includes registration and enforcement.
Compare: 1995 No 86 s 96
217 Information necessary to process request or secure enforcement of order
(1)
This section applies if the Registrar receives a request under section 216(3) for the enforcement of a protection order in a foreign country.
(2)
The Registrar may require the person by whom, or on whose behalf, the request is made to supply to the Registrar any information or evidence (including certified copies of the order) necessary or desirable for either or both of the following purposes:
(a)
to enable the Registrar to determine whether or not the request satisfies the requirements of section 216(4):
(b)
to secure enforcement of the order in the foreign country.
(3)
After imposing a requirement under subsection (2) for a request made under section 216, the Registrar may refuse to take any action, or further action, in relation to the request, until the requirement is met.
Compare: 1995 No 86 s 96
Making requests and making documents available
218 Ways requests may be made and documents may be made available
For the purposes of sections 216, 217, and 219, a request may be made to the Registrar, the Registrar may send the request to the foreign country, and copies, evidence, or information may be sent to the Registrar, and received and sent by the Registrar, in any of the following ways (none of which also requires a later hard copy):
(a)
sending a copy by means of electronic transmission (whether by way of facsimile transmission, electronic mail, or other similar means of communication):
(b)
making a copy available in any other manner appropriate in the circumstances.
Enforcement of foreign protection orders
219 Registration of foreign protection orders
(1)
The Registrar of a court must register in the court a foreign protection order if the Registrar receives, for the purposes of registration, the following documents:
(a)
a certified copy of the order; and
(b)
a certificate that—
(i)
is signed by an officer of a court in the foreign country in which the order was made; and
(ii)
contains a statement that the order is, at the date of the certificate, enforceable in the foreign country.
(2)
The registration is done by filing in the court a certified copy of the order.
Compare: 1995 No 86 s 97
220 Copies of registered foreign protection orders to be sent to Police
If a foreign protection order is registered under section 219, sections 174 to 176 apply in relation to that order, and in relation to any variation of that order under section 221, as if the foreign protection order were a protection order made under this Part.
Compare: 1995 No 86 s 98
221 Effect of registration
A foreign protection order, upon registration under section 219, and subject to section 223, has effect, and may be enforced, and in the terms in which it has effect in New Zealand may be varied, as if it were a protection order made under this Part on the date of registration.
Compare: 1995 No 86 s 99
222 Variation of registered foreign protection order
(1)
If, under section 221, a court makes an order varying a foreign protection order, the Registrar of the court—
(a)
must, in the prescribed manner, notify the court or the appropriate authority in the country in which the order was made of the variation; and
(b)
unless the Registrar is the Registrar of the court in which the foreign protection order is registered, must forward to the Registrar of that court a copy of the order varying the foreign protection order.
(2)
The Registrar of the court in which the foreign protection order is registered, on receiving notice of the variation of that order, must note the court records accordingly.
Compare: 1995 No 86 s 100
223 Registered foreign protection orders not to be enforced in certain circumstances
(1)
A court must not enforce or vary under this Part a foreign protection order if satisfied that the order—
(a)
was not, at the time of its registration in New Zealand, enforceable in the country in which it was made; or
(b)
has, since its registration in New Zealand, ceased to be enforceable in the country in which it was made.
(2)
The Registrar of the court in which a foreign protection order is registered must cancel the registration of the order and must, in the prescribed manner, notify the court or the appropriate authority in the country in which the order was made of the cancellation, if that Registrar is satisfied—
(a)
that a New Zealand court has refused, under subsection (1), to enforce or vary the order under this Part; or
(b)
that the order is not enforceable in the country in which it was made; or
(c)
that registration of the order in New Zealand is no longer necessary.
(3)
For the purposes of this section, a foreign protection order is not unenforceable in the country in which it was made solely by reason of the fact that the person to whom the order relates, or any other person affected by the order, is no longer in that country.
Compare: 1995 No 86 s 101
224 Evidence taken overseas
If, under section 221, an application is heard in a court, the evidence of any person beyond New Zealand may be taken under the rules of the High Court covering the examination of witnesses beyond New Zealand, and those rules, as far as they are applicable and with all necessary modifications, apply.
Compare: 1995 No 86 s 102
225 Proof of documents
(1)
For the purposes of this subpart,—
(a)
any document purporting to be signed by any Judge or officer of a court in any prescribed foreign country is, in the absence of evidence to the contrary, deemed to have been so signed without proof of the signature or judicial or official character of the person appearing to have signed it; and
(b)
the officer of a court by whom a document purports to be signed is, in the absence of evidence to the contrary, deemed to have been the proper officer of the court to sign the document.
(2)
Any document purporting to be signed, certified, or verified by any of the people mentioned in subsection (1) is admissible in evidence in proceedings under this subpart if it appears to be relevant to those proceedings.
Compare: 1995 No 86 s 103
226 Depositions to be evidence
Depositions taken for the purposes of this subpart in a court in any prescribed foreign country may be received in evidence in any proceedings under this subpart.
Compare: 1995 No 86 s 104
227 Prescribed foreign countries
(1)
The Governor-General may, by Order in Council, declare any country outside New Zealand to be a prescribed foreign country for the purposes of this Part.
(2)
Any Order in Council made under subsection (1) may specify the courts of the foreign country in relation to which the order is to have effect, or may otherwise modify the application of that order to that other country.
(3)
Any Order in Council made under subsection (1) may be revoked or varied by a later Order in Council of that kind.
Compare: 1995 No 86 s 105
228 Evidence of orders made in foreign country
Nothing in this subpart precludes a court from receiving evidence of an order made in a foreign country (whether or not that country is a prescribed foreign country) with respect to the protection of any person from family violence.
Compare: 1995 No 86 s 106
Subpart 9—Public registers not publishing identifying information related to protected person
Preliminary provisions
229 Guide to this subpart
This subpart provides for—
(a)
a protected person to apply for a direction that identifying information on a public register not be publicly available (see section 231):
(b)
an agency to determine the application and notify the applicant of the decision (see sections 232 to 234):
(c)
the effect and duration of a direction (see sections 235 to 242):
(d)
related matters (including disclosure with consent, and investigation of complaints) (see sections 243 to 247).
Interpretation
230 Interpretation
In this subpart, unless the context otherwise requires,—
code of practice or code means a code of practice issued under section 255
direction means a direction made under section 232
Privacy Commissioner means the Privacy Commissioner appointed under the Privacy Act 1993
public register has the same meaning as in section 58 of the Privacy Act 1993
relevant information, for a person, means information that discloses, or is likely to disclose, that person’s whereabouts.
Compare: 1995 No 86 s 107
Applications for directions
231 Protected person may apply for direction that identifying information on public register not be publicly available
(1)
If a protection order is in force, a protected person may at any time apply to the agency responsible for administering a public register for a direction that information to which this section applies must not be made available to the public.
(2)
This section applies to any relevant information that—
(a)
relates to that protected person, a protected person who is a child of the applicant’s family, or both; and
(b)
is, or is about to be, included on that public register.
(3)
Every application under subsection (1) must—
(a)
be made in the prescribed manner (if any); and
(b)
be made in the prescribed form (if any); and
(c)
so far as practicable, specify with due particularity the relevant information in respect of which the direction is sought, so that the agency may locate that information.
(4)
An agency to which an application is made under subsection (1) must, without delay, and in no case after the expiry of the prescribed period after receiving the application,—
(a)
decide, under section 232, whether the application is to be granted or declined; and
(b)
notify the applicant of its decision under section 233.
Compare: 1995 No 86 s 108
232 Agency to determine application
If an application is made under section 231(1) to an agency, the agency may make the direction sought if the agency is satisfied that—
(a)
a protection order is in force in respect of the applicant; and
(b)
making the direction would not unduly compromise the public register to which the application relates.
Compare: 1995 No 86 s 109
233 Agency to notify applicant of decision
(1)
If an agency makes a decision in respect of an application made under section 231(1), the agency must give written notice of its decision to the applicant.
(2)
If the application is declined, the notice under subsection (1) must—
(a)
specify the reasons for the decision; and
(b)
notify the applicant of that person’s right to complain to the Privacy Commissioner under section 245, including the time within which that complaint must be made.
(3)
If an agency makes a direction in relation to a protection order, the agency must also give written notice of that direction to the Registrar of the court that made that protection order.
Compare: 1995 No 86 s 110
234 Information not to be disclosed pending determination of application or complaint
If an application is made, under section 231(1), to an agency, then unless the application is sooner withdrawn, section 235 applies, as if the direction sought by the applicant had been made, from the expiry of the prescribed period after the date on which the application is received by the agency—
(a)
until the expiry of the prescribed period after notice of the agency’s decision on that application is communicated to the applicant; and
(b)
if, before the expiry of the period referred to in paragraph (a), the Privacy Commissioner extends the period within which a complaint relating to that decision may be made under section 245, until the expiry of that period as so extended; and
(c)
if a complaint relating to that decision is made under section 245, until the complaint is finally dealt with or is withdrawn, whichever occurs first.
Compare: 1995 No 86 s 111
Effect of direction
235 Effect of direction
(1)
If an agency makes a direction in respect of a public register and any relevant information, and while that direction remains in force, subsections (2) to (4) apply.
(2)
The relevant information must not be included in any of the following that is made available to the public after the direction is made:
(a)
any copy (including a printout) of the whole or any part of the public register; or
(b)
any index to the register; or
(c)
any extract from, or certificate as to information recorded on, the register.
(3)
The relevant information must not be made available for inspection by members of the public (other than the person to whom the relevant information relates) who wish to inspect the register or any index to the register.
(4)
An application made, by or in relation to the person to whom the relevant information relates, for the inclusion of any information on the public register, to the extent that the application contains relevant information relating to that person, must not be made available for inspection by members of the public (other than the person to whom the relevant information relates).
(5)
However, the relevant information is, for all other purposes, deemed to be included on the public register.
(6)
Subsections (2) to (4) apply despite any other enactment, but subject to section 243 and any regulations made under this Part.
(7)
In subsections (2) to (4), relevant information means only any relevant information relating to the person to whom the direction relates that the agency concerned is reasonably able to identify, having regard to the information provided by the applicant for the direction in the applicant’s application under section 231(1).
Compare: 1995 No 86 s 112
236 Direction not applicable to relevant information later included in register
(1)
If a direction applies in relation to a public register and relevant information, then—
(a)
section 235(2) and (3) applies only in relation to relevant information included, or about to be included, on that public register when the direction is made; and
(b)
section 235(4) applies only in relation to an application of the kind referred to in that paragraph, if the application has been made before the date on which the direction is made.
(2)
One or more directions relating to the same public register may be in force, at the same time, in relation to the same person.
Compare: 1995 No 86 s 113
Duration of direction
237 Duration of direction: if protection order is final order
(1)
This section applies to a direction made in respect of a protection order if, when the direction is made, the protection order is a final order.
(2)
The direction applies expires 5 years after the date on which it is made, unless it is sooner revoked or ceases to be in force under section 239(2).
Compare: 1995 No 86 s 114(1)
238 Duration of direction: if protection order is temporary order
(1)
This section applies to a direction made in respect of a protection order if, when the direction is made, the protection order is a temporary order.
(2)
The direction applies expires at the end of 4 months after the date on which it is made, unless it is sooner revoked or it continues in force and expires under subsection (3).
(3)
Despite subsection (2), the direction continues in force, and expires at the end of 5 years after the date on which it is made, unless it is sooner revoked or ceases to be in force under section 239(2), if, before the expiry of the 4-month period referred to in subsection (2),—
(a)
the applicant for the direction supplies, to the agency by which the direction is made, satisfactory evidence that the temporary protection order has become final by operation of law under section 148, or a copy of a copy of a final protection order made in substitution for the temporary protection order; or
(b)
under section 242, a Registrar notifies the agency that a final protection order has been made in substitution for the temporary protection order.
Compare: 1995 No 86 s 114(2)
239 Duration of direction: if protection order is discharged
(1)
This section applies if a direction made by an agency is in force in respect of a final protection order and—
(a)
the person on whose application the direction was made notifies that agency that the protection order has been discharged; or
(b)
under section 242, a Registrar notifies the agency that the protection order has been discharged.
(2)
The direction ceases to be in force on the expiry of the prescribed period after the date on which the agency receives that notification.
Compare: 1995 No 86 s 114(3)
240 Duration of direction: if person applies to revoke direction
If, on the application of a person, an agency makes a direction, that agency must, on the application of that person, revoke that direction.
Compare: 1995 No 86 s 114(4)
241 Further directions in respect of same relevant information
The fact that a direction expires or is revoked or ceases to be in force under this section does not prevent the making of another direction in respect of the same relevant information.
Compare: 1995 No 86 s 114(5)
242 Registrar to notify agency of making or discharge of protection order
(1)
This section applies if, under section 233(3), an agency notifies a Registrar of a court that a direction has been made in relation to a protection order and,—
(a)
in the case of a temporary protection order, on the making of a final protection order in substitution for that temporary order; or
(b)
on the discharge of that protection order (whether a temporary order or a final order).
(2)
The Registrar of the court that made that substitute order or, as the case requires, discharged the order must, without delay, notify that fact to the agency.
Compare: 1995 No 86 s 115
Disclosure of relevant information with consent
243 Disclosure of relevant information with consent of protected person
(1)
This section applies to any information the disclosure or making available of which would otherwise be prohibited by section 234 or 235 if the person to whom the information relates—
(a)
is requested, in writing, to authorise the agency concerned to disclose or make available some or all of that information; and
(b)
gives such authority.
(2)
The information to which this section applies may be disclosed or made available (despite sections 234 and 235, but subject to subsection (3)), but only under, and to the extent permitted by, that authority.
(3)
Nothing in this section authorises any information to which this section applies to be disclosed or made available in circumstances in which that information could not, apart from this section, be lawfully disclosed or made available.
Compare: 1995 No 86 s 116
Other enactments not affected
244 Other enactments not affected
Nothing in this subpart limits or affects—
(a)
section 115 of the Electoral Act 1993; or
(b)
section 239(2) of the Land Transport Act 1998.
Compare: 1995 No 86 s 117
Complaints to Privacy Commissioner
245 Complaints to Privacy Commissioner
(1)
If a person makes an application to an agency under section 231(1), and that agency declines to make the direction sought by the applicant, the applicant may make a complaint to the Privacy Commissioner, and the Privacy Commissioner may investigate that complaint.
(2)
If, in relation to an application made, under section 231(1), to an agency, the agency fails, within the time limit fixed by section 231(4), to comply with section 231(4)(a) or (b), then,—
(a)
for the purposes of subsection (1), that failure is deemed to be a decision declining to make the direction sought by the applicant; and
(b)
for the purposes of subsection (3), that failure is deemed to be a decision notice of which was communicated to the applicant on the expiry of the prescribed period after the agency received the application.
(3)
Every complaint made to the Privacy Commissioner under subsection (1) must be made within the prescribed period after notice of the decision is communicated to the complainant, or within such further period as the Privacy Commissioner may allow on application made either before or after the expiration of the prescribed period.
(4)
If, under subsection (3), the Privacy Commissioner extends the period within which a complaint may be made under this section in relation to an agency’s decision, the Privacy Commissioner must immediately notify that agency of that extension and of the period of the extension.
Compare: 1995 No 86 s 118
246 Investigation of complaint
On completing any investigation conducted under section 245(1), the Privacy Commissioner must report the Commissioner’s findings to the chief administrative officer of the agency whose actions were the subject matter of the investigation, and any report may include a recommendation that the agency make the direction sought by the complainant.
Compare: 1995 No 86 s 119
247 Application of certain provisions of Privacy Act 1993
(1)
The provisions specified in subsection (2) apply, so far as applicable and with all necessary modifications, to—
(a)
the making of a complaint under section 245; and
(b)
any investigation conducted by the Privacy Commissioner under section 245 or 246.
(2)
The provisions referred to in subsection (1) are sections 68, 70, 71, 73, 75, and 80, and Parts 9 and 12, of the Privacy Act 1993.
Compare: 1995 No 86 s 120
Subpart 10—Other provisions
Preliminary provisions
248 Guide to this subpart
This subpart provides for—
(a)
regulations, rules, and codes of practice (see sections 249 to 257):
(b)
the repeal of the Domestic Violence Act 1995, and related consequential amendments (see sections 258 and 259).
Regulations
249 Regulations: general
The Governor-General may, by Order in Council made on the recommendation of the Minister of Justice, make regulations for all or any of the following purposes:
(a)
specifying types of non-standard services (for the purposes of the definition in section 8 of prescribed non-standard service), types of standard services (for the purposes of the definition in section 8 of prescribed standard service), or both:
(b)
prescribing for the purposes of all or any of sections 56, 71, and 212—
(i)
the process to be followed by a person or an organisation seeking an approval by way of an application (see section 56(2)(a), 71(2)(a), or 212(2)(a)), the process to be followed for an own-motion approval (see section 56(2)(b), 71(2)(b), or 212(2)(b)), or both; and
(ii)
the criteria that the Secretary must apply when deciding whether to grant, suspend, or cancel an approval (for example, criteria for when a person or an organisation may under section 212(4) be granted or hold both an approval to undertake assessments for, and an approval to provide, prescribed services):
(c)
prescribing the amount of fees and expenses, or a method for calculating the amount of fees and expenses, payable for all or any of the following:
(i)
the provision by assessors of assessments under subpart 7:
(ii)
the provision by service providers of programmes, prescribed services, or both under subpart 7:
(d)
authorising disclosure to, or sharing with, an assessor or a service provider (as defined in section 184)—
(i)
of court information subject to section 236 or 237 of the District Court Act 2016 or section 173 or 174 the Senior Courts Act 2016; and
(ii)
for the purposes of all or stated provisions of this Part; and
(iii)
by the court concerned or under its authority or direction:
(e)
making provision for the determination of the amount of fees and expenses, including minimum and maximum amounts, payable in respect of professional services provided by lawyers appointed under section 166(1)(d), which fees and expenses may differ according to the complexity of the proceedings and the time spent, and according to whether or not professional services are to be provided in a specified number of proceedings during a specified period:
(f)
prescribing the fees, travelling allowances, and expenses payable to people called by the court under section 169 and prescribing the circumstances in which, and the extent (if any) to which, those fees, travelling allowances, and expenses are payable (in whole or in part) to people to whom that section applies because of section 208 or 209:
(g)
prescribing the amount of fees and expenses, or a method for calculating the amount of fees and expenses, payable for the provision by assessors of assessments under section 42:
(h)
providing for any other matters contemplated by this Part, necessary for its administration, or necessary for giving it full effect.
Compare: 1995 No 86 s 127
250 Regulations: public registers
(1)
Regulations may be made under section 249 (without limitation) for all or any of the following purposes:
(a)
prescribing the manner in which applications under section 231(1) must be made:
(b)
prescribing any forms necessary for the purposes of subpart 9, or authorising any specified person or people to prescribe or approve forms, and requiring the use of those forms:
(c)
prescribing the periods required to be prescribed for the purposes of sections 231(4), 234, 239(2), and 245:
(d)
prescribing circumstances in which, and conditions on which, relevant information may be made available to the public even though a direction is in force in respect of that relevant information, while still ensuring, to the greatest possible extent, the protection of the person to whom the relevant information relates:
(e)
prescribing the manner in which any notice required by subpart 9 to be given by or to any person is to be so given.
(2)
Regulations made for all or any of the purposes specified in subsection (1) may (without limiting section 249 or subsection (1))—
(a)
make different provision for different agencies and different public registers:
(b)
be made to apply generally in respect of all public registers, or in respect of any specified public register or of public registers of any specified class or classes.
251 Regulations: consultation requirements
Before recommending regulations be made under section 249(b) or (d), the Minister of Justice must first consult,—
(a)
so far as the regulations relate to section 71 or 212, the Principal Family Court Judge:
(b)
so far as the regulations relate to section 56, the Chief District Court Judge:
(c)
so far as the regulations relate to court information subject to section 236 or 237 of the District Court Act 2016, the Chief District Court Judge:
(d)
so far as the regulations relate to court information subject to section 173 or 174 of the Senior Courts Act 2016, the Chief Justice.
Rules
252 Rules of court: District Court: Police safety orders
(1)
The Governor-General may, by Order in Council, make rules—
(a)
regulating the practice and procedure of the District Court in proceedings under subpart 3 (Police safety orders) of this Part:
(b)
providing for any other matters contemplated by subpart 3 of this Part, necessary for its administration, or necessary for giving it full effect.
(2)
Subsection (1) confers a power in addition to all other powers conferred by the District Court Act 2016.
Compare: 1995 No 86 s 126(1)
253 Rules of court: Family Court
(1)
Rules may be made under section 16A of the Family Court Act 1980 relating to the practice and procedure of the Family Court in proceedings under this Part.
(2)
Rules made under subsection (1) or section 16A of the Family Court Act 1980 may (without limitation)—
(a)
prescribe the procedure for the service of notices and other documents for the purposes of this Part, and provide for substituted service, and for service to be dispensed with, in such circumstances as are specified in the rules:
(b)
prescribe any forms necessary for the purposes of this Part, or authorise any specified person or people to prescribe or approve forms, and require the use of those forms:
(c)
prescribe circumstances in which applications under this Part may be made without notice, and circumstances in which applications under this Part must be made on notice:
(d)
make any provision necessary or desirable in relation to representatives, including (without limitation),—
(i)
providing for the appointment, retirement, and removal of representatives:
(ii)
prescribing the circumstances in which a representative is or is not responsible for costs, and providing for the recovery, by a representative, of costs paid or incurred by the representative while acting as such:
(iii)
providing for the conduct of proceedings brought, on a person’s behalf, by a representative:
(e)
prescribe the procedure consequent on a temporary order, or part of a temporary order, becoming final under section 148, which procedure may include (without limitation) the issue by a Registrar of a certificate, order, or other document confirming that the temporary order has become final (in whole or in part), and setting out the terms and conditions of the final order:
(f)
provide that Registrars may exercise specified powers of the court or a Judge:
(g)
prescribe the manner in which a Registrar is to give notice, to a court or appropriate authority of a foreign country, of the variation or cancellation of registration of a foreign protection order:
(h)
make such provision as is necessary or desirable in order to facilitate communications between a Registrar and courts or appropriate authorities in foreign countries for the purposes of subpart 8:
(i)
provide for information about proceedings under this Part to be transferred between courts (whether the District Court, the Family Court, the High Court, the Court of Appeal, or the Supreme Court), including (without limitation) between different courts, or between different divisions of the same court, or between courts exercising civil jurisdiction and courts exercising criminal jurisdiction, or between courts exercising appellate jurisdiction and courts exercising original jurisdiction:
(j)
apply, with or without modification, provisions of the District Court Rules 2014.
Compare: 1995 No 86 s 126(1A), (2)
Codes of practice: service delivery
254 Codes of practice: service delivery
(1)
The Minister of Justice may, by notice in the Gazette, issue codes of practice to guide, and make consistent, delivery of services provided—
(a)
to victims or perpetrators of family violence, or both; and
(b)
to stop or prevent family violence.
(2)
A code of practice may contain provisions on all or any of the following:
(a)
assessment and management of risk related to family violence:
(b)
workforce competencies:
(c)
information requests, use, and disclosure under subpart 2 (see also subsection (4)):
(d)
outcomes of assessments, programmes, or prescribed services.
(3)
Subsection (2) does not limit subsection (1).
(4)
Code of practice provisions mentioned in subsection (2)(c) (on information requests, use, and disclosure) must, under section 22, be complied with by an agency or practitioner requesting, using, or disclosing information under section 20.
(5)
A code of practice must not be inconsistent with this Part, public register codes of practice issued under section 255, or regulations or rules of court made under or for the purposes of this Part.
(6)
The Minister may issue, amend, replace, or revoke code of practice provisions on information requests, use, or disclosure only after the Minister has consulted on the matter the Privacy Commissioner.
(7)
In this section, delivery of services includes the delivery of services for the purposes of, or incidental to, the exercise of a power conferred by or under this Part, and perpetrator and victim have the same meanings as in section 19.
Codes of practice: public registers
255 Codes of practice: public registers
(1)
The Privacy Commissioner may issue a code of practice.
(2)
A code of practice may,—
(a)
to the extent that no regulations made under section 250 apply,—
(i)
prescribe the manner in which applications under section 231(1) must be made:
(ii)
prescribe forms of applications for the purposes of section 231(1):
(iii)
prescribe, for the purposes of section 231(1), information that must be provided by applicants for the purpose of enabling the location of relevant information:
(b)
prescribe how section 232(b) is to be applied:
(c)
prescribe how section 235 is to apply, or is to be complied with:
(d)
prescribe how section 236 is to apply:
(e)
provide for the review of the code by the Privacy Commissioner:
(f)
provide for the expiry of the code.
(3)
A code of practice may apply in relation to any 1 or more of the following:
(a)
any specified public register or class or classes of public register:
(b)
any specified agency or specified class or classes of agency:
(c)
any specified relevant information or class or classes of relevant information.
Compare: 1995 No 86 s 122
256 Application of certain provisions of Privacy Act 1993
Sections 47 to 52 of the Privacy Act 1993 apply, so far as applicable and with all necessary modifications, to the issuing of a code of practice under section 255, and to a code of practice issued under section 255, as if the issuing were done, or, as the case may be, the code were issued, under that Act.
Compare: 1995 No 86 s 123
257 Effect of code
(1)
A code of practice that is in force has effect according to its tenor.
(2)
Subsection (1) is subject to subsection (3).
(3)
A code of practice that is inconsistent with any provision of this Part or of any regulations made under this Part, is, to the extent of the inconsistency, of no effect.
Compare: 1995 No 86 s 124
Repeal
258 Domestic Violence Act 1995 repealed
The Domestic Violence Act 1995 (1995 No 86) is repealed.
Consequential amendments
259 Other enactments amended consequentially
(1)
Amend the Acts listed in Part 1 of Schedule 2 as indicated in that Part.
(2)
Amend the legislative instruments listed in Part 2 of Schedule 2 as indicated in that Part.
Part 2 Amendments to other enactments
Subpart 1—Amendments to Bail Act 2000
73260 Principal Act
This subpart amends the Bail Act 2000 (the principal Act).
74261 Section 3 amended (Interpretation)
In section 3, insert in their appropriate alphabetical order:
family relationship has the same meaning as in section 4 of the Family and Whānau Violence Act 1995section 12 of Part 1 of the Family Violence Legislation Act 2017
family violence offence means an offence—
(a)
against any enactment (including the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017); and
(b)
involving family violence (as defined in section 3 of that Actsection 9 of that Part)
protected person, in relation to a protection order, has the same meaning as in section 2 of the Family and Whānau Violence Act 1995section 8 of Part 1 of the Family Violence Legislation Act 2017
75 262 New section 3AA inserted (References to Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017)
(1)
After section 3, insert:
3AA References to Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017
A reference in this Act to the whole or a provision of the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017 is, until the commencement of the relevant amendment in the Family and Whānau Violence Legislation Act 20171 July 2019, a reference to the whole or the corresponding provision of the Domestic Violence Act 1995.
(2)
Repeal section 3AA on 1 July 20202019.
76 263 Section 7 amended (Rules as to granting bail)
Replace section 7(2) with:
(2)
A defendant is bailable as of right who is charged with an offence for which the maximum punishment is less than 3 years’ imprisonment, unless the offence is one against—
(a)
section 194 of the Crimes Act 1961 (which relates to assault on a child, or by a male on a female); or
(b)
section 194A of the Crimes Act 1961 (which relates to assault on a person with whom the defendant is, or has been, in a family relationship).
77 264 Section 8 amended (Consideration of just cause for continued detention)
(1)
Before section 8(4), insert:
(3A)
In deciding, in relation to a defendant charged with a family violence offence, whether or not to grant bail to the defendant or to allow the defendant to go at large, the court’s primary consideration is the need to protect—
(a)
the victim of the alleged offence; and
(b)
any particular person or people in a family relationship with the victim.
(3B)
Subsection (3A) is subject to subsection (3C).
(3C)
In deciding, in relation to a defendant charged with an offence against section 49 of the Family and Whānau Violence Act 1995section 112 of Part 1 of the Family Violence Legislation Act 2017, whether or not to grant bail to the defendant or allow the defendant to go at large, the court’s paramount consideration is the need to protect every person who, in relation to the protection order, is a protected person.
(2)
Repeal section 8(5).
78 265 Section 21 amended (Police employee may grant bail)
Replace section 21(3) with:
(2A)
In determining whether it is prudent to grant Police bail to a defendant charged with a family violence offence, the Police employee must make the primary consideration the need to protect—
(a)
the victim of the alleged offence; and
(b)
any particular person or people in a family relationship with the victim.
(2B)
Subsection (2A) is subject to subsection (3).
(3)
In determining whether it is prudent to grant Police bail to a defendant charged with an offence against section 49 of the Family and Whānau Violence Act 1995section 112 of Part 1 of the Family Violence Legislation Act 2017, the Police employee must make the paramount consideration the need to protect every person who, in relation to the protection order, is a protected person.
79 266 Section 22 replaced (Conditions of Police bail granted to defendant charged with domestic violence offence)
Replace section 22 with:
22 Conditions of Police bail granted to defendant charged with family violence offence
A Police employee who grants Police bail to a defendant charged with a family violence offence may impose as a condition of the bail (in addition to the condition or conditions imposed under section 21B) any condition that the employee considers reasonably necessary to protect—
(a)
the victim of the alleged offence; and
(b)
any particular person residing, or in a family relationship, with the victim.
80 267 Section 23 amended (Bail and breach of protection order)
(1)
In section 23(1), replace “section 50 of the Domestic Violence Act 1995 and charged with an offence against section 49 of that Act”
with “
.section 50 of the Family and Whānau Violence Act 1995 and charged with an offence against section 49 of that Actsection 113 of Part 1 of the Family Violence Legislation Act 2017 and charged with an offence against section 112 of that Part”
(2)
In section 23(4), replace “section 49 of the Domestic Violence Act 1995”
with “
.section 49 of the Family and Whānau Violence Act 1995section 112 of Part 1 of the Family Violence Legislation Act 2017”
81 268 New section 30AAA inserted (Conditions of bail granted to defendant charged with family violence offence)
After section 30AA, insert:
30AAA Conditions of bail granted to defendant charged with family violence offence
A judicial officer or Registrar who grants bail to a defendant charged with a family violence offence may impose as a condition of the bail (in addition to the condition or conditions imposed under section 30) any condition that the judicial officer or Registrar considers reasonably necessary to protect—
(a)
the victim of the alleged offence; and
(b)
any particular person residing, or in a family relationship, with the victim.
82 269 Section 31 amended (Release of defendant granted bail)
In section 31(1), after “section 30”
, insert “or 30AAA”
.
Subpart 2—Amendments to Care of Children Act 2004
83 270 Principal Act
This subpart amends the Care of Children Act 2004 (the principal Act).
84 271 Section 5 amended (Principles relating to child’s welfare and best interests)
In section 5(a), replace “section 3(2) to (5) of the Domestic Violence Act 1995”
with “
.sections 3(2), 3A, and 3B of the Family and Whānau Violence Act 1995sections 9(2), 10, and 11 of Part 1 of the Family Violence Legislation Act 2017”
85 272 Section 5A replaced (Domestic violence to be taken into account)
Replace section 5A with:
5A Family violence to be taken into account
(1)
This section applies if—
(a)
an application is made to the court for—
(i)
a guardianship order under section 19 or 27; or
(ii)
a direction under section 46R in relation to a guardianship dispute; or
(iii)
a parenting order under section 48 (whether an interim parenting order or a final parenting order); or
(iv)
a variation of a parenting order, under section 56; and
(b)
1 or both of the following kinds of orders made under section 14 of the Family and Whānau Violence Act 1995section 79 of Part 1 of the Family Violence Legislation Act 2017 is or are, or at any time has or have been, in force against 1 or more parties to the application:
(i)
a temporary protection order:
(ii)
a final protection order.
(2)
In taking into account the principle in section 5(a), the court must have regard in particular to the following matters:
(a)
whether a temporary protection order, or final protection order, is still in force:
(b)
the circumstances in which that order was made:
(c)
any written reasons, given by the Judge who made that order, for that Judge’s decision to make that order.
(3)
In taking into account the principle in section 5(a), the court must, if practicable, have regard in particular to—
(a)
all relevant convictions (if any), of 1 or more parties to the application, for an offence against section 49 of the Family and Whānau Violence Act 1995section 112 of Part 1 of the Family Violence Legislation Act 2017 (breaching a protection order or related property order), or for any other family violence offence:
(b)
all relevant safety concerns (if any) that an assessor or a service provider has notified or advised under section 51C or 51Q of the Family and Whānau Violence Act 1995section 185 or 204 of Part 1 of the Family Violence Legislation Act 2017.
(4)
In this section, family violence offence means an offence—
(a)
against any enactment (including the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017); and
(b)
involving family violence (as defined in section 3 of that Actsection 9 of that Part).
86 273 Section 22 amended (Restrictions on making appointments under section 23)
In section 22(1)(d) and (2)(d), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
87 274 Section 23 amended (Appointment of eligible spouse or partner of parent as additional guardian)
(1)
In section 23(2)(c), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
(2)
In section 23(2)(d)(i), replace “violence (that is, physical abuse or sexual abuse),”
with “family violence (as defined in
.section 3 of the Family and Whānau Violence Act 1995section 9 of Part 1 of the Family Violence Legislation Act 2017),”
88 275 Section 46E amended (Family dispute resolution mandatory before commencement of proceedings)
In section 46E(4)(f)(ii), replace “domestic violence”
with “family violence”
.
89 276 Section 51 amended (Court must consider protective conditions in certain cases)
In section 51(1)(b), replace “physically or sexually abused”
with “inflicted family violence (as defined in
.section 3 of the Family and Whānau Violence Act 1995section 9 of Part 1 of the Family Violence Legislation Act 2017) against”
90 277 New section 57A and cross-heading inserted
After section 57, insert:
Incidental temporary protection orders
57A Power to make incidental temporary protection order
(1)
This section applies if—
(a)
an application has been made to the court for any of the following in respect of a child:
(i)
a guardianship order under section 19 or 27:
(ii)
a direction under section 46R in relation to a guardianship dispute:
(iii)
a parenting order under section 48 (whether an interim parenting order or a final parenting order):
(iv)
a variation of a parenting order, under section 56; and
(b)
no application has been made to the court for, but the court is satisfied that had an application been made to it for the purpose the court would have made, a protection order (whether a temporary protection order or a final protection order) made under the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017 in respect of all or any of—
(i)
the child, or a parent or any other person who has the role of providing day-to-day care for, or who may have contact with, the child; and
(ii)
a party to the application (in paragraph (a)) for the order or direction under this Act.
(2)
The court may make a temporary protection order under section 14 of the Family and Whānau Violence Act 1995section 79 of Part 1 of the Family Violence Legislation Act 2017 if satisfied that any orders or directions made under this Act will not, by themselves, provide enough protection for all or any of the people specified in subsection (1)(b).
(3)
Section 13(3) to (5) of the Family and Whānau Violence Act 1995 appliesSections 76 to 78 of Part 1 of the Family Violence Legislation Act 2017 apply to a temporary protection order made under this section as if the order were one made on an application without notice, and with all other necessary modifications.
Subpart 3—Amendments to Crimes Act 1961
Amendments to principal Act
91 278 Principal Act
This subpart amends the Crimes Act 1961 (the principal Act).
92 279 Section 7A amended (Extraterritorial jurisdiction in respect of certain offences with transnational aspects)
In section 7A(1), after “section 117,”
, insert “section 207A,”
.
92A280 Section 7B amended (Attorney-General’s consent required where jurisdiction claimed under section 7A)
In section 7B(1), after “section 117,”
, insert “section 207A,”
.
93 281 New section 189A inserted (Strangulation or suffocation)
After section 189, insert:
189A Strangulation or suffocation
Everyone is liable to imprisonment for a term not exceeding 7 years who intentionally or recklessly impedes another person’s normal breathing, blood circulation, or both, by doing (manually, or using any aid) all or any of the following:
(a)
blocking that other person’s nose, mouth, or both:
(b)
applying pressure on, or to, that other person’s throat, neck, or both.
94 282 New section 194A inserted (Assault on person in family relationship)
(1)
After section 194, insert:
194A Assault on person in family relationship
(1)
Everyone is liable to imprisonment for a term not exceeding 2 years who—
(a)
assaults another person; and
(b)
is, or has been, in a family relationship with that other person.
(2)
In subsection (1), family relationship has the same meaning as in section 4 of the Family and Whānau Violence Act 1995section 12 of Part 1 of the Family Violence Legislation Act 2017.
(3)
The reference in subsection (2) to the meaning of family relationship in section 4 of the Family and Whānau Violence Act 1995section 12 of Part 1 of the Family Violence Legislation Act 2017 is, until the commencement of section 9 of the Family and Whānau Violence Legislation Act 20171 July 2019, a reference to the meaning of domestic relationship in section 4 of the Domestic Violence Act 1995.
(2)
Repeal section 194A(3) on the commencement of section 9 of the Family and Whānau Violence Legislation Act 20171 July 2019.
95 283 Cross-heading above section 205 amended
In the cross-heading above section 205, replace “feigned marriage”
, with “and feigned or coerced marriage or civil union”
.
96 284 Section 207 amended (Feigned marriage or feigned civil union)
In the heading to section 207, replace “feigned civil union”
with “civil union”
.
97 285 New section 207A inserted (Coerced marriage or civil union)
After section 207, insert:
207A Coerced marriage or civil union
(1)
Everyone is liable to imprisonment for a term not exceeding 5 years who, with intent to cause another person to enter into a marriage or civil union, uses coercion (for example, intimidation, threats, or violence) against that other person.
(2)
Subsection (1) applies even if the marriage or civil union—
(a)
is not governed by New Zealand law:
(b)
is an arrangement or a relationship (however described, and even if not legally binding) in the form of a marriage or civil union:
(c)
is not solemnised or otherwise completed:
(d)
is, or if solemnised or otherwise completed would be, void or not legally binding (for example, for lack of consent, absence of formality, or non-compliance with a legal requirement).
98 286 Section 208 replaced (Abduction for purposes of marriage or sexual connection)
Replace section 208 with:
208 Abduction for purposes of marriage or civil union or sexual connection
Every one is liable to imprisonment for a term not exceeding 14 years who unlawfully takes away or detains a person (P) without P’s consent or with P’s consent obtained by fraud or duress,—
(a)
with intent to go through a form of marriage or civil union with P; or
(b)
with intent to have sexual connection with P; or
(c)
with intent to cause P to go through a form of marriage or civil union, or to have sexual connection, with some other person.
Compare: 1908 No 32 s 226
Consequential amendments to Aviation Crimes Act 1972
287 Principal Act
Section 288 amends the Aviation Crimes Act 1972.
288 Section 2 amended (Interpretation)
(1)
In section 2(1), definition of act of violence, paragraph (a), after “194,”
, insert “194A,”
.
(2)
In section 2(1), definition of act of violence, paragraph (b), after “189,”
, insert “189A,”
.
Consequential amendments to Births, Deaths, Marriages, and Relationships Registration Act 1995
99 289 Principal Act
Sections 100290 and 101291 amend the Births, Deaths, Marriages, and Relationships Registration Act 1995.
100 290 Section 60 replaced (Convictions for bigamy to be recorded)
Replace section 60 with:
60 Convictions for bigamy, and for coerced marriage, to be recorded
(1)
This section applies if a person who is a party to a marriage is convicted of bigamy or coerced marriage because the marriage is a bigamous or coerced marriage.
(2)
The Registrar of the court in which the conviction was entered must immediately send to the Registrar-General a certificate of the conviction specifying—
(a)
the names of the parties to the bigamous or coerced marriage; and
(b)
the date and place of the bigamous or coerced marriage; and
(c)
the date of the conviction.
(3)
Subsection (4) applies if—
(a)
information relating to the bigamous or coerced marriage has been recorded under this Act or a former Act; and
(b)
information relating to the bigamous or coerced marriage is sent to the Registrar-General under subsection (2).
(4)
The Registrar-General must record, as part of the information relating to the bigamous or coerced marriage, the information sent under subsection (2).
101 291 Section 62F replaced (Convictions for bigamy to be recorded)
Replace section 62F with:
62F Convictions for bigamy, and for coerced civil union, to be recorded
(1)
This section applies if a person who is a party to a civil union is convicted of bigamy or coerced civil union because the civil union is a bigamous or coerced civil union.
(2)
The Registrar of the court in which the conviction was entered must immediately send to the Registrar-General a certificate of the conviction specifying—
(a)
the names of the parties to the bigamous or coerced civil union; and
(b)
the date and place of the bigamous or coerced civil union; and
(c)
the date of the conviction.
(3)
Subsection (4) applies if—
(a)
information relating to the bigamous or coerced civil union has been recorded under this Act or a former Act; and
(b)
information relating to the bigamous or coerced civil union is sent to the Registrar-General under subsection (2).
(4)
The Registrar-General must record, as part of the information relating to the bigamous or coerced civil union, the information sent under subsection (2).
Consequential amendments to Births, Deaths, Marriages, and Relationships Registration (Prescribed Information) Regulations 1995
102 292 Principal regulations
Sections 103293 and 104294 amend the Births, Deaths, Marriages, and Relationships Registration (Prescribed Information) Regulations 1995.
103 293 Regulation 8 amended (Marriage certificates)
In regulation 8(a)(x), after “bigamy”
, insert “or coerced marriage”
.
104 294 Regulation 8A amended (Civil union certificates)
In regulation 8A(a)(xi), after “bigamy”
, insert “or coerced civil union”
.
Consequential amendments to Criminal Records (Clean Slate) Act 2004
105 295 Principal Act
Section 106296 amends the Criminal Records (Clean Slate) Act 2004.
106 296 Section 4 amended (Interpretation)
(1)
In section 4, definition of criminal record, replace “criminal record means,— ”
with “criminal record,— ”
.
(2)
In section 4, definition of criminal record, paragraph (a), before “any—,”
insert “means”
.
(3)
In section 4, definition of criminal record, paragraph (b)(i), before “any
insert official public record”“means”
.
(4)
In section 4, definition of criminal record, paragraph (b)(ii), after “bigamy”
, insert “or coerced marriage or civil union”
.
Consequential amendments to Maritime Crimes Act 1999
297 Principal Act
Section 298 amends the Maritime Crimes Act 1999.
298 Section 2 amended (Interpretation)
(1)
In section 2, definition of act of violence, paragraph (a), after “194,”
, insert “194A,”
.
(2)
In section 2, definition of act of violence, paragraph (b), after “189,”
, insert “189A,”
.
Subpart 4—Criminal Procedure Act 2011
Amendments to principal Act
107 299 Principal Act
This subpart amends the Criminal Procedure Act 2011 (the principal Act).
108 300 New section 16A inserted (Specifying that offence charged is, or that conviction entered is for, family violence offence)
(1)
After section 16, insert:
16A Specifying that offence charged is, or that conviction entered is for, family violence offence
(1)
The charging document may specify that the offence charged is a family violence offence.
(2)
The court may, at any time after a charging document is filed and before the delivery of the verdict or decision of the court, amend the document to add, confirm, or remove a specification that the offence charged is a family violence offence.
(3)
The power in subsection (2)—
(a)
is exercisable on the court’s own motion or on the application of the defendant or the prosecutor:
(b)
is exercisable by the Registrar, if both the defendant and the prosecutor agree:
(c)
does not limit the powers in section 133.
(4)
If the defendant is convicted (even if the charging document does not specify that the offence charged is a family violence offence), the court may enter in the permanent court record of the proceeding a specification that the conviction is for a family violence offence.
(5)
In this section, family violence offence means an offence—
(a)
against any enactment (including the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017); and
(b)
involving family violence (as defined in section 3 of that Actsection 9 of that Part).
(6)
A reference in this section to the whole or a provision of the Family and Whānau Violence Act 1995 is, until the commencement of the relevant amendment in the Family and Whānau Violence Legislation Act 2017, a reference to the whole or the corresponding provision of the Domestic Violence Act 1995.
(2)
Repeal section 16A(6) on 1 July 2020.
109 301 New sections 168A and 168B inserted
(1)
After section 168, insert:
168A No-contact conditions if family violence offence defendant remanded in custody
(1)
This section applies to a defendant—
(a)
who is charged with an offence that is (even if the charging document does not under section 16A specify that the offence is) a family violence offence; and
(b)
who is, or is to be, remanded in custody under section 168(1)(c) (dealing with a defendant on an adjournment).
(2)
A judicial officer may give a direction imposing on the defendant 1 or more conditions requiring the defendant, while remanded in custody under section 168(1)(c), to have no contact (except as the judicial officer specifies) with the victim of the offence, any other person specified by the judicial officer, or both.
(3)
The power in subsection (2) is exercisable—
(a)
on the judicial officer’s own motion or on the application of the defendant or the prosecutor:
(b)
by the Registrar, if the prosecutor agrees.
(4)
In this section and section 168B,—
contact, by a defendant with a person, means contact or communication that is—
(a)
direct (that is, face-to-face), or indirect (regardless of the means of contact or communication used); and
(b)
initiated, or brought about, by the defendant; and
(c)
with the person
family violence offence means an offence—
(a)
against any enactment (including the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017); and
(b)
involving family violence (as defined in section 3 of that Actsection 9 of that Part).
(5)
A reference in this section to the whole or a provision of the Family and Whānau Violence Act 1995 is, until the commencement of the relevant amendment in the Family and Whānau Violence Legislation Act 2017, a reference to the whole or the corresponding provision of the Domestic Violence Act 1995.
168B Provisions about compliance with no-contact conditions
(1)
A direction given under section 168A must be copied to the defendant and to the manager of the prison in which the defendant is held in custody on remand, and overrides any entitlement of the defendant under enactments in, or made under, the Corrections Act 2004 (for example, under the following sections of that Act:
(a)
section 73 (entitlement to private visitors):
(b)
section 76 (prisoners may send and receive mail):
(c)
section 77 (outgoing telephone calls)).
(2)
The manager of the prison in which the defendant is held in custody on remand, or any other person, may use relevant powers of that manager or person under sections 103A to 110C (about opening and reading of mail and withholding of correspondence) of the Corrections Act 2004, or under sections 111 to 122 (about monitoring of telephone calls) of that Act, to detect and prevent non-compliance by the defendant with conditions imposed by the direction.
(3)
After becoming aware of a breach of those conditions, the manager of the prison in which the defendant is held in custody on remand, or the Police, must take all reasonable steps to notify it promptly to the Registrar.
(4)
The Registrar, on being notified, must bring the matter to the attention of a judicial officer, who may reconsider the conditions of remand and any exceptions specified under section 168A(2), and must direct the Registrar that the nature of the condition and the breach be entered in the permanent court record.
(5)
Despite subsection (4), the judicial officer may decide not to direct that those matters be entered in the permanent court record if satisfied that—
(a)
the defendant had a reasonable excuse for the breach; or
(b)
the breach is so minor in nature that it should not be recorded and able to be considered in a later application for bail made by that defendant.
(6)
A breach entered under this section in the permanent court record may be considered in a later application for bail made by that defendant over his or her lifetime (whether or not the defendant is charged with a family violence offence).
(7)
A direction given under this section by a judicial officer that the breach of the condition be entered in the permanent court record may be appealed against by the defendant under sections 51 and 52 of the Bail Act 2000 (which apply with all necessary modifications).
(2)
Repeal section 168A(5) on 1 July 2020.
110 302 Section 170 replaced (Defendant in custody may be brought up before expiry of period of adjournment)
Replace section 170 with:
170 Defendant in custody may be brought up before expiry of period of adjournment
(1)
This section applies to a defendant who has been remanded in custody on any charge, even if the period for which the defendant was remanded in custody has not expired.
(2)
The defendant may at any time be brought before—
(a)
a judicial officer, for the consideration or giving of a direction under section 168A (no-contact conditions if family violence offence defendant remanded in custody):
(b)
a court, to be dealt with on that charge.
Compare: 1957 No 87 s 59
111 303 Section 386 amended (Rules)
After section 386(2)(v), insert:
(va)
if a protection order is made under section 123B of the Sentencing Act 2002 on sentencing or otherwise dealing with an offender for a family violence offence, authorise disclosure to, or sharing with, an assessor or a service provider (as those terms are defined in section 51A of the Family and Whānau Violence Act 1995section 184 of Part 1 of the Family Violence Legislation Act 2017)—
(i)
of specified court documents relating to the offender, every protected person for the order, or both; and
(ii)
for the purposes of all or stated provisions of that Act; and
(iii)
by the court concerned or under its authority or direction:
112 304 Section 387 amended (Regulations)
In section 387(1)(h), replace “Domestic Violence Act 1995,”
with “Care of Children Act 2004, the
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017,”
Consequential amendments to Corrections Act 2004
113 305 Principal Act
Sections 114306 to 117A310 amend the Corrections Act 2004.
114 306 Section 73 amended (Entitlement to private visitors)
In section 73(2), after “prisoners”
, insert “, and to directions given under section 168A (no-contact conditions if family violence offence defendant remanded in custody) of the Criminal Procedure Act 2011”
.
115 307 Section 76 amended (Prisoners may send and receive mail)
In section 76(2)(a), after “sections 105 and 108”
, insert “of this Act, and directions given under section 168A (no-contact conditions if family violence offence defendant remanded in custody) of the Criminal Procedure Act 2011”
.
116 308 Section 77 amended (Outgoing telephone calls)
After section 77(4), insert:
(4A)
The entitlement in subsection (3) is overridden by directions given under section 168A (no-contact conditions if family violence offence defendant remanded in custody) of the Criminal Procedure Act 2011.
117 309 Section 108 amended (Withholding mail)
In section 108(1)(d)(vi), after “any court”
, insert “(for example, a direction given under section 168A (no-contact conditions if family violence offence defendant remanded in custody) of the Criminal Procedure Act 2011)”
.
117A310 Section 112 amended (Purposes of monitoring prisoners’ calls)
After section 112(1)(c), insert:
(ca)
detect and prevent non-compliance with directions given under section 168A (no-contact conditions if family violence offence defendant remanded in custody) of the Criminal Procedure Act 2011; and
Subpart 5—Amendments to Evidence Act 2006
118 311 Principal Act
This subpart amends the Evidence Act 2006 (the principal Act).
119 312 Section 4 amended (Interpretation)
(1)
In section 4(1), repeal the definition of domestic violence.
(2)
In section 4(1), insert in their appropriate alphabetical order:
family violence has the same meaning as in section 3 of the Family and Whānau Violence Act 1995section 9 of Part 1 of the Family Violence Legislation Act 2017
family violence case—
(a)
means a criminal proceeding in which a person is charged with, or is waiting to be sentenced or otherwise dealt with for, a family violence offence; but
(b)
does not include a sexual case
family violence offence means an offence—
(a)
against any enactment (including the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017); and
(b)
involving family violence (as defined in section 3 of that Actsection 9 of that Part)
police employee has the same meaning as in section 4 of the Policing Act 2008
(3)
After section 4(2), insert:
(3)
A reference in subsection (1) to the whole or a provision of Part 1 of the Family Violence Legislation Act 2017 is, until 1 July 2019, a reference to the whole or the corresponding provision of the Domestic Violence Act 1995.
(4)
Repeal section 4(3) on 1 July 2019.
120 313 Section 95 amended (Restrictions on cross-examination by parties in person)
In section 95(1), replace “domestic violence”
with “family violence”
in each place.
121 314 Section 102 amended (Application)
In section 102, before paragraph (a), insert:
(aa)
section 106A (which relates to family violence complainants):
122 315 Section 103 amended (Directions about alternative ways of giving evidence)
Repeal section 103(5).
123 316 Section 106 amended (Video record evidence)
After section 106(9), insert:
(10)
In this section, a reference to a person being given a video record includes a reference to the person being given access to the video record, for example, being given access to an electronic copy of the video record through an Internet site.
124 317 New sections 106A and 106B and cross-heading inserted
After section 106, insert:
Giving of evidence by family violence complainants
106A Giving of evidence by family violence complainants
(1)
This section applies to a complainant who is not a child and who is to give or is giving evidence in a family violence case (a family violence complainant).
(2)
A family violence complainant is entitled to give his or her evidence in chief by a video record made before the hearing.
(3)
The video record must be one recorded—
(a)
by a police employee; and
(b)
no later than 2 weeks after the incident in which it is alleged a family violence offence occurred.
(4)
If a video record is to be or has been used as the complainant’s evidence in chief, a Judge must give a direction under section 103 about how the complainant will give the other parts of his or her evidence, including any further evidence in chief.
(5)
To avoid doubt, section 106 applies to a video record offered as the complainant’s evidence in chief under this section.
(6)
If the prosecution intends to use a video record as a complainant’s evidence in chief, the prosecution must provide the defendant and the court with a written notice stating that intention to do so.
(7)
Unless a Judge permits otherwise, the notice must be given no later than when a case management memorandum (for a Judge-alone trial) or a trial callover memorandum (for a jury trial) is filed under the Criminal Procedure Act 2011.
106B Application by defendant for family violence complainant to give evidence in ordinary way or different alternative way
(1)
Despite section 106A, a defendant may apply to a Judge for a direction that a family violence complainant give evidence or any part of his or her evidence in the ordinary way under section 83 or in a different alternative way under section 105.
(2)
Unless a Judge permits otherwise, the application must be made no later than when a case management memorandum (for a Judge-alone trial) or a trial callover memorandum (for a jury trial) is filed under the Criminal Procedure Act 2011.
(3)
Before giving a direction under this section, the Judge—
(a)
must give each party an opportunity to be heard in chambers; and
(b)
may call for and receive a report, from any person considered by the Judge to be qualified to advise, on the effect on the complainant of giving evidence in the ordinary way or any alternative way.
(4)
When considering whether to give a direction under this section, the Judge must have regard to—
(a)
whether the interests of justice require a departure from the usual procedure under section 106A in the particular case; and
(b)
the matters in section 103(3) and (4).
Subpart 6—Amendments to Sentencing Act 2002
125 318 Principal Act
This subpart amends the Sentencing Act 2002 (the principal Act).
126 New section 4A inserted (References to Family and Whānau Violence Act 1995)
(1)
After section 4, insert:
4A References to Family and Whānau Violence Act 1995
A reference in this Act to the whole or a provision of the Family and Whānau Violence Act 1995 is, until the commencement of the relevant amendment in the Family and Whānau Violence Legislation Act 2017, a reference to the whole or the corresponding provision of the Domestic Violence Act 1995.
(2)
Repeal section 4A on 1 July 2020.
127 319 Section 9 amended (Aggravating and mitigating factors)
After section 9(1)(c), insert:
(ca)
that the offence was a family violence offence (as defined in section 123A) committed—
(i)
while the offender was subject to a protection order (as defined in section 2 of the Family and Whānau Violence Act 1995section 8 of Part 1 of the Family Violence Legislation Act 2017, or that was made under section 123B of this Act); and
(ii)
against a person who, in relation to the protection order, was a protected person (as so defined):
128 320 Section 123A replaced (Interpretation of terms used in this section and sections 123B to 123H)
Replace section 123A with:
123A Interpretation of terms used in this section and sections 123B to 123H
In this section and sections 123B to 123H, unless the context otherwise requires,—
child has the meaning given to it by section 2 of the Family and Whānau Violence Act 1995section 8 of Part 1 of the Family Violence Legislation Act 2017
family relationship has the meaning given to it by section 4 of the Family and Whānau Violence Act 1995section 12 of Part 1 of the Family Violence Legislation Act 2017
family violence offence means an offence—
(a)
against any enactment (including the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017); and
(b)
involving family violence (as defined in section 3 of that Actsection 9 of that Part)
family violence proceedings means proceedings in the Family Court under the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017 that relate wholly or partly to an application for a protection order
victim of the offence means the person against whom the offence was committed by the offender.
129 321 Section 123B amended (Protection order)
(1)
In section 123B(1)(a), replace “domestic violence offence”
with “family violence offence”
.
(2)
In section 123B(1)(b), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
(3)
In section 123B(4), replace “domestic violence proceedings”
with “family violence proceedings”
.
(4)
In section 123B(5), replace “domestic violence proceedings”
with “family violence proceedings”
.
130 322 Section 123C replaced (Provisions applying to protection order made under section 123B)
Replace section 123C with:
123C Provisions applying to protection order made under section 123B
(1)
A protection order made under section 123B is subject to the following provisions of the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017, and those provisions apply (so far as applicable, and subject to the modifications in subsection (2)) to that order as if it were a final protection order made under the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017:
(a)
section 16(1):
(b)
section 19:
(c)
sections 20 to 20B:
(d)
section 21 (except subsections (2)(a), (4), and (5)):
(e)
section 24(3):
(f)
section 25(1) (except paragraph (a)):
(g)
section 26(1):
(h)
section 27:
(i)
section 28 (except for section 20C as applied by section 28(2)):
(j)
Part 2A.
(a)
section 86(1):
(b)
sections 90 to 96:
(c)
sections 98 to 100 (except section 99(1)(a)):
(d)
section 103:
(e)
section 104 (except for section 97 as applied by section 104(2)):
(f)
section 163(3):
(g)
section 164(1) (except paragraph (a)):
(h)
section 165(1):
(i)
subpart 7 of Part 1.
(2)
The modifications are—
(a)
every reference to a protection order or a final order must be read as a reference to an order made under section 123B:
(b)
every reference to the respondent must be read as a reference to the offender:
(c)
every reference to the applicant or protected person must be read as a reference to the victim of the offence:
(d)
the court cannot impose a condition relating to the matters set out in section 27(2) of the Family and Whānau Violence Act 1995section 103(2) of Part 1 of the Family Violence Legislation Act 2017.
123CA Disclosure of documents to assessor and service provider
(1)
This section applies to a court that makes—
(a)
a protection order under section 123B; and
(b)
a direction under section 51Esection 188 (directions for assessments, non-violence programme, and prescribed standard services) or 51L198 (about a direction to engage with a prescribed non-standard service) of the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017 (as applied by section 123C(1)(ji)).
(2)
The court, when it makes the order or direction, must consider making under this section a direction requiring disclosure or sharing—
(a)
of specified court documents relating to the offender, every protected person for the order, or both (see section 123CB); and
(b)
to or with relevant assessors and service providers (see section 123CC); and
(c)
to help those assessors and service providers perform all or any of their functions under the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017.
123CB Court documents for section 123CA
(1)
For the purposes of section 123CA, the specified court documents relating to the offender may be or include copies of the following:
(a)
the relevant charging document:
(b)
the offender’s contact details:
(c)
the offender’s criminal conviction history:
(d)
the court’s decision to make the protection order under section 123B:
(e)
a copy of that order:
(f)
any current notice of bail or bail bond document.
(2)
For the purposes of section 123CA, the specified court documents relating to every protected person for the order may be or include copies of the documents specified in subsection (1), except for the offender’s contact details.
123CC Assessors and service providers for section 123CA
For the purposes of section 123CA, the relevant assessors and service providers include any undertaking or providing all or any of the following assessments, programmes, or services:
(a)
a safety programme to a protected person (under section 51D of the Family and Whānau Violence Act 1995section 187 of Part 1 of the Family Violence Legislation Act 2017, as applied by section 123C(1)(ji)):
(b)
an assessment undertaken of the offender (under a direction made under section 51E(1)(a) or (3)(a) of the Family and Whānau Violence Act 1995section 188(1)(a) or (3)(a) of Part 1 of the Family Violence Legislation Act 2017):
(c)
a non-violence programme to the offender (under a direction made under section 51E(1)(b) of the Family and Whānau Violence Act 1995section 188(1)(b) of Part 1 of the Family Violence Legislation Act 2017):
(d)
a prescribed standard service to the offender (under a direction made under section 51E(3)(b) of the Family and Whānau Violence Act 1995section 188(3)(b) of Part 1 of the Family Violence Legislation Act 2017, as so applied):
(e)
a prescribed non-standard service to the offender (under a direction made under section 51L of the Family and Whānau Violence Act 1995section 198 of Part 1 of the Family Violence Legislation Act 2017, as so applied).
131 323 Section 123D amended (Explanation of protection order)
(1)
In section 123D(1)(a)(ii), replace “direction to attend a programme made under section 51D of the Domestic Violence Act 1995 (as applied by section 123C(1)(a))”
with “direction to attend a programme or engage with prescribed services made under
.section 51E(1)(b) or (3)(b) or 51L of the Family and Whānau Violence Act 1995section 188(1)(b) or (3)(b) of Part 1 of the Family Violence Legislation Act 2017 (as applied by section 123C(1)(ji))”
(2)
In section 123D(1)(b)(ii), after “to attend”
, insert “or engage with any prescribed services that he or she has been directed to engage with”
.
132 324 Section 123G replaced (Protection order treated as if made by Family Court)
Replace section 123G with:
123G Protection order treated as if made by Family Court
(1)
This section applies to an order entered, as soon as it has been entered, in the records of the Family Court under section 123F(2).
(2)
The order is to be treated as if it were a final protection order made by that court under the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017 (except that an appeal against the order is, under section 123H of this Act, an appeal against a sentence).
(3)
The order is, accordingly, subject to the following provisions of the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017 (see also section 123H(7) and (8)):
(a)
section 22(2)(b) and (6):
(b)
section 23:
(c)
section 45(2):
(d)
section 46(1):
(e)
section 47(1):
(f)
sections 48, 49, and 50:
(g)
Part 2A:
(h)
section 82:
(ha)
section 88:
(hb)
section 89:
(hc)
section 90:
(i)
sections 91 to 95.
(a)
section 107(2):
(b)
section 108(1):
(c)
section 109(1):
(d)
sections 111, 112, and 113:
(e)
section 157:
(f)
sections 160(1)(b) and 162:
(g)
section 169:
(h)
section 174:
(i)
section 175:
(j)
section 176:
(k)
sections 177 to 181:
(l)
subpart 7.
123H Appeal against decision to make or refuse to make protection order under section 123B is appeal against sentence
(1)
An appeal against a decision to make or refuse to make a protection order under section 123B is an appeal under subpart 4 of Part 6 of the Criminal Procedure Act 2011 against the sentence imposed for an offence (and the decision cannot be appealed against under sections 91 to 95 of the Family and Whānau Violence Act 1995sections 177 to 181 of Part 1 of the Family Violence Legislation Act 2017).
(2)
If a notice of appeal or notice of an application for leave to appeal under Part 6 of the Criminal Procedure Act 2011 is filed in a court in respect of a protection order made under section 123B, the court must send a copy to the Family Court nearest to where the victim of the offence resides.
(3)
No protection order made under section 123B is suspended just because a person files a notice of appeal or notice of an application for leave to appeal under Part 6 of the Criminal Procedure Act 2011, unless the appeal court expressly directs that the protection order be suspended (see section 343 of that Act).
(4)
If, on an appeal under subpart 4 of Part 6 of the Criminal Procedure Act 2011, a court suspends, varies, or discharges, or makes, a protection order made under section 123B (or the appeal is withdrawn or otherwise finally determined), the court must send a copy of the order (or a notice of the withdrawal or other final determination of the appeal) to the Family Court nearest to where the victim of the offence resides.
(5)
Subsection (4) does not prevent the appeal court (whether the appeal is a first, or a further, appeal) remitting the sentence to the court that imposed it, and directing that court to take any action, under section 251(2)(c) and (3), 257(2), or 259(5)(b) of the Criminal Procedure Act 2011.
(6)
On receipt of a copy of an order or a notice under subsection (4), the Registrar of the Family Court must enter the order or notice in the records of the Family Court.
(7)
This section does not prevent a protection order made under section 123B from being varied, discharged, or enforced under any of sections 46(1), 47(1), 48, 49, and 50 of the Family and Whānau Violence Act 1995sections 108(1), 109(1), 111, 112, and 113 of Part 1 of the Family Violence Legislation Act 2017 (as applied by section 123G(3) of this Act), or a decision made under any of those sections (as so applied) from being appealed against under sections 91 to 95 of that Actsections 177 to 181 of that Part (as so applied).
(8)
However, a court that varies or discharges under subsection (7) a protection order made under section 123B must copy the variation or discharge to the appeal court under the Criminal Procedure Act 2011 if—
(a)
the Family Court has been sent under this section a notice of appeal or notice of an application for leave to appeal under Part 6 of the Criminal Procedure Act 2011 in respect of the order; and
(b)
the records of the Family Court contain no entry under this section of a notice of the withdrawal or final determination of the appeal under the Criminal Procedure Act 2011 against the order.
Schedule 1 New Schedule 1 of Family and Whānau Violence Act 1995 inserted
s 71
Schedule 1 Transitional, savings, and related provisions
s 5B
Part 1 Provisions relating to Family and Whānau Violence Legislation Act 2017
1 Changeover defined
In this Part, changeover, for an amending enactment in Part 1 and Schedules 1 and 2 of the Family and Whānau Violence Legislation Amendment Act 2017, means the enactment’s commencement.
2 Application, request, or proceeding made or begun, but not determined or completed, before changeover
(1)
This clause applies to any application, request, or proceeding made or begun under this Act, but not determined or completed, before the changeover.
(2)
After the changeover, the application, request, or proceeding must be determined or completed under this Act as if the Family and Whānau Violence Legislation Amendment Act 2017 had not been enacted.
Example
Property order enforcement proceedings begun under section 54(2), 58(2), 64(2), or 68(2), but not determined or completed, before the changeover must, after the changeover, be completed as if section 34, 37, 40, or 43 of the Family and Whānau Violence Legislation Amendment Act 2017 had not been enacted.
(3)
However, if the determination or completion of the application, request, or proceeding includes the making of an order or a direction under this Act (other than an order or a direction made on an interlocutory application), clauses 3 and 4 apply to the order or direction as if it were made under this Act before, and were in force on, the changeover.
3 Order or direction in force on changeover
(1)
This clause applies to an order or a direction made under this Act before, and in force on, the changeover.
(2)
After the changeover, the order or direction—
(a)
is not subject to this Act as in force immediately before the changeover; but
(b)
is subject to, continues in effect under, may be varied, discharged, or enforced under, and (if an interim order) may be replaced by a final order under, this Act as amended on the changeover.
(3)
This clause—
(a)
applies as if the order or direction were made under any power in this Act as amended on the changeover that, with or without modification, replaces, or that corresponds to, the power under which the order or direction was made; and
(b)
applies even if the order or direction can no longer be made (in the same way, or at all) under this Act as amended on the changeover; and
(c)
allows the order or direction to be enforced under this Act as amended on the changeover only in respect of breaches that occur after the changeover.
4 Protection order in force on changeover
(1)
This clause applies to a protection order made under this Act before, and in force on, the changeover.
(2)
The order—
(a)
is not subject to the standard conditions and exceptions in sections 19 and 20 (as repealed on the changeover); but
(b)
is subject to the standard conditions and exceptions in sections 19 to 20B (as inserted on the changeover).
(3)
Subclause (2)(b) is subject to any contrary special conditions of the order.
(4)
A giving or withdrawal, before the changeover, of a person’s express consent to contact that creates an exception to, suspends, or revives a standard condition or special condition of the order continues in force as if it were a giving or cancelling by that person of consent under section 20 (as inserted on the changeover).
(5)
The order—
(a)
is not subject to the power to discharge in section 47 (as in force immediately before the changeover); but
(b)
is subject to the power to discharge in section 47 (as amended on the changeover).
(6)
This clause does not limit the generality of clause 3.
5 Property orders in force on changeover
(1)
This clause applies to an order made under this Act before, and in force on, the changeover, that is—
(a)
an occupation order; or
(b)
a tenancy order; or
(c)
an ancillary furniture order.
(2)
The order may be enforced under section 49 (as amended on the changeover), in respect of breaches that occur after the changeover, as if the order had been made with or after a related protection order.
(3)
This clause does not limit the generality of clause 3.
6 Approvals under section 51B of service providers
(1)
This clause applies to an approval—
(a)
of a person or an organisation as a service provider; and
(b)
granted under section 51B before the changeover; and
(c)
in force (that is, not cancelled, even if suspended) on the changeover.
(2)
After the changeover, the approval is no longer one to undertake assessments under Part 2A, but otherwise continues, and may be amended, suspended, or cancelled, as if it had been granted under section 51B (as inserted on the changeover).
(3)
However, the person or organisation is taken to have been granted, on the changeover, and under section 51B (as inserted on the changeover), an approval to undertake assessments under Part 2A for non-violence programmes, but not also assessments for prescribed services (and each deemed approval under this clause as an assessor may be amended, suspended, or cancelled under that section accordingly).
7 Notifications under section 51G to service providers
(1)
This clause applies to a person or an organisation who is a service provider and receives a notification under section 51G (as in force before the changeover) but, on the changeover, has not completed the duties under section 51H(a) and (b) (as in force before the changeover) to—
(a)
undertake an assessment of the respondent; and
(b)
determine whether there is an appropriate non-violence programme for the respondent to attend.
(2)
After the changeover,—
(a)
the notification continues to have effect as if it were a notification given under section 51H (as in force after the changeover) to the person or organisation as an assessor (as taken to have been approved under clause 6); and
(b)
the person or organisation must complete the duties under section 51I(1)(a), (b), and (c) (as in force after the changeover) accordingly; and
(c)
the rest of Part 2A (as in force after the changeover) applies accordingly.
8 Direction under section 51E(3) can be made only if prescribed services specified
No direction under section 51E(3) can be made if no type or types of services is or are specified in regulations made under section 127(aaa).
Schedule 1 Transitional, savings, and related provisions
s 16
Contents
Part 1 Provisions relating to Act as enacted
Definitions
1 Interpretation
In this Part,—
1995 Act means the Domestic Violence Act 1995
changeover means the commencement, on 1 July 2019, of Part 1 of the Family and Violence Legislation Amendment Act 2017.
Existing proceedings generally
2 Application, request, or proceeding made or begun, but not determined or completed, before changeover
(1)
This clause applies to any application, request, or proceeding made or begun under the 1995 Act, but not determined or completed, before the changeover.
(2)
After the changeover, the application, request, or proceeding must be determined or completed under the 1995 Act as if Part 1 of the Family Violence Legislation Amendment Act 2017 had not been enacted.
Example
Property order enforcement proceedings begun under section 54(2), 58(2), 64(2), or 68(2) of the 1995 Act, but not determined or completed, before the changeover must, after the changeover, be completed as if subpart 5 of Part 1 of the Family Violence Legislation Amendment Act 2017 had not been enacted.
(3)
However, if the determination or completion of the application, request, or proceeding includes the making of an order or a direction under the 1995 Act (other than an order or a direction made on an interlocutory application), clauses 3, 4, 5, and 6 apply to the order or direction as if it were made under the 1995 Act before, and were in force on, the changeover.
Existing orders and directions generally
3 Order or direction in force on changeover
(1)
This clause applies to an order or a direction made under the 1995 Act before, and in force on, the changeover (for example, an order referred to in clause 5 or 13).
(2)
After the changeover, the order or direction—
(a)
is not subject to the 1995 Act as in force immediately before the changeover; but
(b)
is subject to, continues in effect under, may be varied, discharged, or enforced under, and (if a temporary order) may be replaced by a final order under, Part 1 of the Family Violence Legislation Amendment Act 2017.
(3)
In particular, if the order is a protection order, the following apply to it whether it is made before or after 16 November 2011 , 1 July 2019, or both:
(a)
section 86 (Protection of people other than applicant: child of applicant’s family):
(b)
section 88 (Protection of people other than applicant: effect of applicant’s death).
(4)
This clause—
(a)
applies as if the order or direction were made under any power in Part 1 of the Family Violence Legislation Amendment Act 2017 that, with or without modification, replaces, or that corresponds to, the power under which the order or direction was made; and
(b)
applies even if the order or direction can no longer be made (in the same way, or at all) under that Part; and
(c)
allows the order or direction to be enforced under that Part only in respect of breaches that occur after the changeover; and
(d)
is subject to clause 5 (Existing interim care and contact orders), clause 8 (Existing safety programmes), and clause 9 (Existing non-violence programmes).
Compare: 1995 No 86 s 16(6)
Existing protection orders: standard conditions
4 Existing protection orders: standard conditions
(1)
This clause applies to a protection order made under the 1995 Act before, and in force on, the changeover.
(2)
The order—
(a)
is not subject to the standard conditions and exceptions in sections 19 and 20 of the 1995 Act (as repealed on the changeover); but
(b)
is subject to the standard conditions and exceptions in sections 90 to 96 of Part 1 of the Family Violence Legislation Amendment Act 2017.
(3)
Subclause (2)(b) is subject to any contrary special conditions of the order.
(4)
A giving or withdrawal, before the changeover, of a person’s express consent to contact that creates an exception to, suspends, or revives a standard condition or special condition of the order continues in force as if it were a giving or cancelling by that person of consent under section 91 of Part 1 of the Family Violence Legislation Amendment Act 2017.
(5)
The order—
(a)
is not subject to the power to discharge in section 47 of the 1995 Act (as in force immediately before the changeover); but
(b)
is subject to the power to discharge in section 109 of Part 1 of the Family Violence Legislation Amendment Act 2017.
(6)
This clause does not limit the generality of clause 3.
Interim care and contact orders
5 Existing interim care and contact orders
(1)
This clause applies to an interim order made under section 28B(2)(a) or (b) of the 1995 Act before, and in force on, the changeover.
(2)
After the changeover, the order—
(a)
continues as if it were made under section 105(2)(a) or (b) of Part 1 of the Family Violence Legislation Amendment Act 2017; and
(b)
may, in proceedings under the Care of Children Act 2004 that relate to that interim order, be varied, or discharged, or replaced with a further interim parenting order or with a final parenting order; but
(c)
ceases to have effect as provided in subclauses (5) and (6).
(3)
The proceedings in subclause (2)(b) include any arising from an application—
(a)
made under the Care of Children Act 2004 for a parenting order; and
(b)
required, before the changeover, under section 28D(1) of the 1995 Act; and
(c)
made, but not determined or completed, before the changeover.
(4)
Proceedings specified in subclause (3) are, after the repeal, on the changeover, of section 28D(2) of the 1995 Act, subject to section 106 of Part 1 of the Family Violence Legislation Amendment Act 2017.
(5)
The order ceases to have effect (if it has not ceased to have effect sooner) on whichever of the following occurs first:
(a)
the date that is 1 year after the day on which the order is made:
(b)
the date that the child attains the age of 16 years.
(6)
However, the order does not cease to have effect under subclause (5)(b) if, on or after making the order, the Family Court in special circumstances—
(a)
ordered otherwise, before the changeover, under section 28C(b) of the 1995 Act; or
(b)
orders otherwise, after the changeover, under this paragraph.
Existing property orders: enforcement
6 Property orders in force on changeover
(1)
This clause applies to an order made under the 1995 Act before, and in force on, the changeover, that is—
(a)
an occupation order; or
(b)
a tenancy order; or
(c)
an ancillary furniture order.
(2)
The order may be enforced under section 112 of Part 1 of the Family Violence Legislation Amendment Act 2017, in respect of breaches that occur after the changeover, as if the order had been made with or after a related protection order.
(3)
This clause does not limit the generality of clause 3.
Service providers, programmes, and prescribed services
7 Approvals under section 51B of 1995 Act of service providers
(1)
This clause applies to an approval—
(a)
of a person or an organisation as a service provider; and
(b)
granted under section 51B of the 1995 Act before the changeover; and
(c)
in force (that is, not cancelled, even if suspended) on the changeover.
(2)
After the changeover, the approval is no longer one to undertake assessments under subpart 7 of Part 1 of the Family Violence Legislation Amendment Act 2017, but otherwise continues, and may be amended, suspended, or cancelled, as if it had been granted under section 212 of that Part.
(3)
However, the person or organisation is taken to have been granted, on the changeover, and under section 212 of Part 1 of the Family Violence Legislation Amendment Act 2017, an approval to undertake assessments under subpart 7 of that Part for non-violence programmes, but not also assessments for prescribed services (and each deemed approval under this clause as an assessor may be amended, suspended, or cancelled under that section accordingly).
8 Existing safety programmes
(1)
Provision by a service provider of a programme under section 51C of the 1995 Act begun, but not completed, before the changeover, must be completed under section 187 of Part 1 of the Family Violence Legislation Amendment Act 2017.
(2)
A request made under section 51C of the 1995 Act, but not determined or completed, before the changeover, must be determined under the 1995 Act as if Part 1 of the Family Violence Legislation Amendment Act 2017 had not been enacted.
(3)
The resulting referral to a service provider, and determination by the Registrar of the number of safety programme sessions to be provided to a protected person by a service provider to whom a referral has been made, have effect as if they were a referral under section 187(4) of Part 1 of the Family Violence Legislation Amendment Act 2017.
9 Existing non-violence programmes
(1)
Provision by a service provider of a non-violence programme under the 1995 Act begun, but not completed, before the changeover, must be completed under subpart 7 of Part 1 of the Family Violence Legislation Amendment Act 2017.
(2)
For the purposes of this clause, terms of attendance under section 51L of the 1995 Act must, after the changeover, be treated as if they were terms of attendance under section 201(1) of Part 1 of the Family Violence Legislation Amendment Act 2017.
10 Notifications under section 51G of 1995 Act to service providers
(1)
This clause applies to a person or an organisation who is a service provider and receives a notification under section 51G of the 1995 Act (as in force before the changeover) but, on the changeover, has not completed the duties under section 51H(a) and (b) of the 1995 Act (as in force before the changeover) to—
(a)
undertake an assessment of the respondent; and
(b)
determine whether there is an appropriate non-violence programme for the respondent to attend.
(2)
After the changeover,—
(a)
the notification continues to have effect as if it were a notification given under section 191 of Part 1 of the Family Violence Legislation Amendment Act 2017 to the person or organisation as an assessor (as taken to have been approved under clause 7); and
(b)
the person or organisation must complete the duties under section 192(a), (b), and (c) of that Part (as in force after the changeover) accordingly; and
(c)
the rest of subpart 7 of that Part (as in force after the changeover) applies accordingly.
11 Direction under section 188(3) can be made only if prescribed services specified
No direction under section 188(3) of Part 1 of the Family Violence Legislation Amendment Act 2017 can be made if no type or types of services is or are specified in regulations made under section 249(a) of that Part.
Overseas protection orders
12 Enforcement of New Zealand orders overseas
(1)
This clause applies to a request under section 96(2) of the 1995 Act made, but not determined or completed, before the changeover.
(2)
After the changeover, the application must be determined or completed as if it were a request under section 216(3) of Part 1 of the Family Violence Legislation Amendment Act 2017.
13 Enforcement of foreign protection orders
(1)
This clause applies to registration of a foreign protection order under the 1995 Act—
(a)
if the registration is done, and is not cancelled, before the changeover; and
(b)
whether or not the registered order has been varied under the 1995 Act.
(2)
After the changeover, the registration continues and may be cancelled, and the order may be varied or further varied, under Part 1 of the Family Violence Legislation Amendment Act 2017, as if it were registered under subpart 8 of that Part.
Public registers not publishing identifying information related to protected person
14 Applications for directions incomplete on changeover
(1)
This clause applies to an application for a direction made to an agency under section 108 of the 1995 Act, but not determined or completed, before the changeover.
(2)
After the changeover, the application must be determined or completed under the 1995 Act as if Part 1 of the Family Violence Legislation Amendment Act 2017 had not been enacted.
(3)
Any resulting direction must be treated as if were made under section 232 of Part 1 of the Family Violence Legislation Amendment Act 2017.
15 Existing directions
(1)
This clause applies to a direction made by an agency under Part 6 of the 1995 Act before, and in force on, the changeover.
(2)
After the changeover, the direction continues, and may expire or be revoked or cease to be in force, as if it had been made under subpart 9 of Part 1 of the Family Violence Legislation Amendment Act 2017.
16 Existing complaints to Privacy Commissioner
(1)
This clause applies to any complaint investigation begun under section 118 of the 1995 Act, but not completed, before the changeover.
(2)
After the changeover, the complaint investigation must be completed under the 1995 Act as if Part 1 of the Family Violence Legislation Amendment Act 2017 had not been enacted.
Regulations
17 Domestic Violence (General) Regulations 1996
(1)
This clause applies to the Domestic Violence (General) Regulations 1996 as in force immediately before the changeover.
(2)
Those regulations continue in force (as amended by section 259(2)), and may be amended, revoked, or replaced, as if they had been made under section 249.
18 Domestic Violence (Public Registers) Regulations 1998
(1)
This clause applies to the Domestic Violence (Public Registers) Regulations 1998 as in force immediately before the changeover.
(2)
Those regulations continue in force (as amended by section 259(2)), and may be amended, revoked, or replaced, as if they had been made under sections 249 and 250.
Schedule 2 Consequential amendments
s 72259
Part 1Amendments to Acts
Arms Act 1983 (1983 No 44)
In the heading to section 27A, replace “Domestic violence”
with “Family violence”
.
In section 27A, replace “Without limiting the generality of sections 24 and 27, it is hereby declared that a commissioned officer of Police may, under either or both of those sections,”
with “A commissioned officer of Police may, under either or both of sections 24 and 27,”
.
In section 27A(a), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
In section 27A, insert as subsection (2):
(2)
Subsection (1) declares the effect of, and does not limit, sections 24 and 27.
Aviation Crimes Act 1972 (1972 No 137)
In section 2(1), definition of act of violence, paragraph (a), after “194,”, insert “194A,”.
In section 2(1), definition of act of violence, paragraph (b), after “189,”, insert “189A,”.
Child Support Act 1991 (1991 No 142)
In section 9(8), definition of violence, replace “section 3 of the Domestic Violence Act 1995”
with “
.section 3 of the Family and Whānau Violence Act 1995section 9 of Part 1 of the Family Violence Legislation Act 2017”
Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 (2017 No 31)
In section 17, new section 14AA(2)(b) (if it is not in force on the commencement of this item), replace “domestic violence (within the meaning of section 3 of the Domestic Violence Act 1995)”
with “family violence (within the meaning of
.section 3 of the Family and Whānau Violence Act 1995section 9 of Part 1 of the Family Violence Legislation Act 2017)”
In section 41, new section 65A(2)(b) (if it is not in force on the commencement of this item), replace “domestic relationship with that child or young person (within the meaning of section 4 of the Domestic Violence Act 1995)”
with “family relationship with that child or young person (within the meaning of
.section 4 of the Family and Whānau Violence Act 1995section 12 of Part 1 of the Family Violence Legislation Act 2017)”
In section 41, new section 66F, definition of information relevant to the safety or well-being of a child or young person, paragraph (b) (if it is not in force on the commencement of this item), replace “domestic relationship (as defined in section 2 of the Domestic Violence Act 1995)”
with “family relationship (within the meaning of
.section 4 of the Family and Whānau Violence Act 1995section 12 of Part 1 of the Family Violence Legislation Act 2017)”
District Court Act 2016 (2016 No 49)
In Schedule 1, Part B, column headed “Description”
, paragraph (2)(a), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
Electoral Act 1993 (1993 No 87)
In section 115(2)(a), replace “Domestic Violence Act 1995”
with “
Part 1 of the Family Violence Legislation Act 2017.Family and Whānau Violence Act 1995”
Employment Relations Act 2000 (2000 No 24)
In section 69AA(a), replace “domestic”
with “family”
.
In section 69AAA, definition of additional terms that need variation, paragraph (d)(ii), replace “domestic”
with “family”
.
In section 69AAA, definition of child, replace “section 2 of the Domestic Violence Act 1995”
with “section 8 of Part 1 of the Family Violence Legislation Act 2017”
.
In section 69AAA, repeal the definitions of domestic violence and person affected by domestic violence.
In section 69AAA, insert in their appropriate alphabetical order:
family violence has the meaning given to it in section 9 of Part 1 of the Family Violence Legislation Act 2017
person affected by family violence means a person who is 1 or both of the following:
(a)
a person against whom any other person inflicts, or has inflicted, family violence:
(b)
a person with whom there ordinarily or periodically resides a child against whom any other person inflicts, or has inflicted, family violence
In section 69AAA, definition of request, paragraph (b), replace “domestic”
with “family”
.
In section 69AAA, definition of working arrangements, paragraph (d), replace “domestic”
with “family”
.
In the heading to Part 6AB, replace “domestic”
with “family”
.
In section 69AB(a) and (c), replace “domestic”
in each place with “family”
.
In section 69ABA, definition of additional terms that need variation, paragraph (d)(ii), replace “domestic”
with “family”
.
In section 69ABA, definition of child, replace “section 2 of the Domestic Violence Act 1995”
with “section 8 of Part 1 of the Family Violence Legislation Act 2017”
.
In section 69ABA, repeal the definitions of domestic violence and person affected by domestic violence.
In section 69ABA, insert in their appropriate alphabetical order:
family violence has the meaning given to it in section 9 of Part 1 of the Family Violence Legislation Act 2017
person affected by family violence means a person who is 1 or both of the following:
(a)
a person against whom any other person inflicts, or has inflicted, family violence:
(b)
a person with whom there ordinarily or periodically resides a child against whom any other person inflicts, or has inflicted, family violence
In section 69ABB(1) and (2), replace “domestic”
in each place with “family”
.
In section 69ABC(d), replace “domestic”
with “family”
.
In section 69ABE(2), replace “domestic”
with “family”
.
In the heading to section 69ABEA, replace “domestic”
with “family”
.
In section 69ABEA(1), replace “domestic”
with “family”
.
In section 69J(2)(a)(i), replace “domestic”
with “family”
.
In section 103(1)(da), replace “domestic”
with “family”
.
In the heading to section 108A, replace “domestic”
with “family”
.
In section 108A(1), replace “domestic”
with “family”
.
In section 108A(1) and (2), replace “domestic”
in each place with “family”
.
In the heading to section 111, replace “domestic”
with “family”
.
In the heading to section 123(1)(d), replace “domestic”
with “family”
.
In Schedule 1AA, Part 2, cross-heading above clause 6, replace “domestic”
with “family”
.
In Schedule 1AA, Part 2, heading to clause 6, replace “domestic”
with “family”
.
In Schedule 1AA, Part 2, clause 6, replace “domestic”
with “family”
.
In Schedule 1AA, Part 2, cross-heading above clause 7, replace “domestic”
with “family”
.
In Schedule 1AA, Part 2, heading to clause 7, replace “domestic”
with “family”
.
In Schedule 1AA, Part 2, clause 7, replace “domestic”
with “family”
.
Family Court Act 1980 (1980 No 161)
In section 11D(h), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
Repeal section 12A(2)(e).
After section 12A(2)(f), insert:
(fa)
Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017:
After section 12A(3)(d), insert:
(da)
the District Court hearing a proceeding under Part 6Asubpart 3 (Police safety orders) of the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017:
Repeal section 16A(4)(f).
After section 16A(4)(h), insert:
(ha)
the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017:
Repeal section 16D(1)(a)(iv).
After section 16D(1)(a)(v), insert:
(va)
section 81(1)(b) of the Family and Whānau Violence Act 1995section 166(1)(b) of Part 1 of the Family Violence Legislation Act 2017:
(vb)
section 81(1)(ba) of the Family and Whānau Violence Act 1995section 166(1)(c) of Part 1 of the Family Violence Legislation Act 2017:
Repeal section 16D(1)(b)(iv).
After section 16D(1)(b)(v), insert:
(va)
section 81(1)(a) of the Family and Whānau Violence Act 1995section 166(1)(a) of Part 1 of the Family Violence Legislation Act 2017:
Family Dispute Resolution Act 2013 (2013 No 79)
In section 4, repeal the definition of domestic violence.
In section 4, insert in its appropriate alphabetical order:
family violence has the meaning given to it in section 3 of the Family and Whānau Violence Act 1995section 9 of Part 1 of the Family Violence Legislation Act 2017
In section 12(1)(b), replace “domestic violence”
with “family violence”
.
Harassment Act 1997 (1997 No 92)
In section 6(2)(b), replace “domestic violence legislation”
with “family violence legislation”
.
In section 9(4), replace “domestic relationship”
with “family relationship”
.
In section 9(5), replace “domestic relationship has the same meaning as it has in the Domestic Violence Act 1995”
with “family relationship has the same meaning as it has in the
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
Holidays Act 2002 (2003 No 129)
In section 3(e), replace “domestic”
in each place with “family”
.
In section 4(2)(b)(i), replace “domestic”
with “family”
.
In section 5(1), repeal the definitions of domestic violence, domestic violence leave, and person affected by domestic violence.
In section 5(1), insert in their appropriate alphabetical order:
family violence has the meaning given to it in section 9 of Part 1 of the Family Violence Legislation Act 2017
family violence leave means paid family violence leave provided under subpart 5 of Part 2
person affected by family violence has the meaning given to it by section 72B
In section 5(1), definition of in advance, paragraph (c), replace “domestic”
in each place with “family”
.
In section 5(1), definition of leave pay, replace “domestic”
with “family”
.
In section 9(1) and (2), replace “domestic”
with “family”
.
In section 9A(1), replace “domestic”
with “family”
.
In section 12(1), (3)(d), and (3A), replace “domestic”
with “family”
.
In section 14(a)(iii), replace “domestic”
with “family”
.
In section 16(2)(a)(i) and (v), replace “domestic”
with “family”
.
In the heading to section 37A, replace “domestic”
with “family”
.
In section 37A(1) and (2), replace “domestic”
in each place with “family”
.
In the heading to section 38, replace “domestic”
with “family”
.
In section 38(1)(b)(iv) and (2)(c), replace “domestic”
in each place with “family”
.
In the heading to section 39, replace “domestic”
with “family”
.
In section 39(1)(c), replace “domestic”
with “family”
.
In the heading to section 61A, replace “domestic”
with “family”
.
In section 61A(1)(c) and (2)(a), replace “domestic”
with “family”
.
In the heading to subpart 5 of Part 2, replace “Domestic”
with “Family”
.
In section 72A, replace “domestic”
in each place with “family”
.
In the heading to section 72B, replace “domestic”
with “family”
.
In section 72B(1), replace “domestic”
with “family”
.
In section 72B(1)(a) and (b), replace “domestic”
in each place with “family”
.
In section 72B(2), replace “section 2 of the Domestic Violence Act 1995”
with “section 8 of Part 1 of the Family Violence Legislation Act 2017”
.
In the cross-heading above section 72C, replace “domestic”
with “family”
.
In the heading to section 72C, replace “domestic”
with “family”
.
In section 72C and 72C(a), replace “domestic”
in each place with “family”
.
In the heading to section 72D, replace “domestic”
with “family”
.
In section 72D(1) and (3)(a) and (b), replace “domestic”
with “family”
.
In section 72D(2), replace “Domestic”
with “Family”
.
In the heading to section 72E, replace “domestic”
with “family”
.
In section 72E and 72E(a), replace “domestic”
with “family”
.
In the heading to section 72F, replace “Domestic”
with “Family”
.
In section 72F, replace “domestic”
with “family”
.
In the heading to section 72G, replace “domestic”
with “family”
.
In section 72G, replace “domestic”
in each place with “family”
.
In the heading to section 72H, replace “domestic”
with “family”
.
In section 72H(a) and (b), replace “domestic”
with “family”
.
In the cross-heading above section 72I, replace “domestic”
with “family”
.
In the heading to section 72I, replace “domestic”
with “family”
.
In section 72I(1), (3), and (4), replace “domestic”
with “family”
.
In the heading to section 72J, replace “domestic”
with “family”
.
In section 72J(1) and (2), replace “domestic”
with “family”
.
In section 74(2), replace “domestic”
with “family”
.
In section 75(2)(da), replace “domestic”
with “family”
.
In section 81(2)(g) and (h), replace “domestic”
with “family”
.
In section 83(1)(b) and (4)(b), replace “domestic”
with “family”
.
In Schedule 1AA, Part 2, cross-heading above clause 4, replace “domestic”
with “family”
.
In Schedule 1AA, Part 2, heading to clause 4, replace “domestic”
with “family”
.
In Schedule 1AA, Part 2, clause 4, replace “domestic”
with “family”
.
Human Rights Act 1993 (1993 No 82)
In section 21A(1)(a), replace “domestic”
with “family”
.
In the heading to section 62A, replace “domestic”
with “family”
.
In section 62A(1), replace “domestic”
with “family”
.
Replace section 62A(4) with:
(4)
For the purposes of this section,—
child has the meaning given to it in section 8 of Part 1 of the Family Violence Legislation Act 2017
family violence has the meaning given to it in section 9 of Part 1 of the Family Violence Legislation Act 2017
person affected by family violence means a person who is 1 or both of the following:
(a)
a person against whom any other person is inflicting, or has inflicted, family violence:
(b)
a person with whom there ordinarily or periodically resides a child against whom any other person is inflicting, or has inflicted, family violence.
In section 62A(5), replace “domestic”
in each place with “family”
.
In Schedule 1AA, Part 2, cross-heading above clause 3, replace “domestic”
with “family”
.
In Schedule 1AA, Part 2, heading to clause 3, replace “domestic”
with “family”
.
In Schedule 1AA, Part 2, clause 3, replace “domestic”
with “family”
.
Income Tax Act 2007 (2007 No 97)
In section HC 36(1)(b)(iii), replace “section 2 of the Domestic Violence Act 1995”
with “
.section 2 of the Family and Whānau Violence Act 1995section 8 of Part 1 of the Family Violence Legislation Act 2017”
Land Transfer Act 1952 (1952 No 52)
In section 156F(3), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
Land Transfer Act 2017 (2017 No 30)
In section 40(5)(a), replace “Part 6 of the Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995subpart 9 of Part 1 of the Family Violence Legislation Act 2017”
In section 82(3), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
In Schedule 2, Part 1, delete the item relating to the Domestic Violence Act 1995 (if that item is not in force on the commencement of this item).
In Schedule 2, Part 1 (if the item relating to the Domestic Violence Act 1995 is not in force on the commencement of this item), insert in its appropriate alphabetical order:
Family and Whānau Violence Act 1995 (1995 No 86)Part 1 of the Family Violence Legislation Act 2017 (2017 No 000)
In section 2section 8, definition of dwellinghouse, paragraph (a), replace “section 121A of the Land Transfer Act 1952”
with “section 122 of the Land Transfer Act 2017”
.
Legal Services Act 2011 (2011 No 4)
In section 4(1), definition of civil proceedings, paragraph (a), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
In section 4(1), definition of specified application, paragraph (f)(i), replace “a protection order under Part 2 of the Domestic Violence Act 1995, or an order relating to property under Part 3 of that Act”
with “a protection order under
.Part 2 of the Family and Whānau Violence Act 1995subpart 4 of Part 1 of the Family Violence Legislation Act 2017, or an order relating to property under Part 3 of that Actsubpart 5 of that Part”
In section 10(6)(b), replace “domestic violence”
with “family violence (as defined in
.section 3 of the Family and Whānau Violence Act 1995section 9 of Part 1 of the Family Violence Legislation Act 2017)”
In the heading to section 19, replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
In section 19(1), replace “a protection order under Part 2, or an order relating to property under Part 3, of the Domestic Violence Act 1995”
with “a protection order under
.Part 2subpart 4, or an order relating to property under Part 3subpart 5, of the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
In section 19(4), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
In Schedule 1, clause 4(6)(a), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
In Schedule 2, repeal the item relating to the Domestic Violence Act 1995.
In Schedule 2, insert in its appropriate alphabetical order:
Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017
Maritime Crimes Act 1999 (1999 No 56)
In section 2, definition of act of violence, paragraph (a), after “194,”, insert “194A,”.
In section 2, definition of act of violence, paragraph (b), after “189,”, insert “189A,”.
Oranga Tamariki Act 1989 (1989 No 24)
In section 14AA(2)(b) (if it is in force on the commencement of this item), replace “domestic violence (within the meaning of section 3 of the Domestic Violence Act 1995)”
with “family violence (within the meaning of
.section 3 of the Family and Whānau Violence Act 1995section 9 of Part 1 of the Family Violence Legislation Act 2017)”
In section 65A(2)(b) (if it is in force on the commencement of this item), replace “domestic relationship with that child or young person (within the meaning of section 4 of the Domestic Violence Act 1995)”
with “family relationship with that child or young person (within the meaning of
.section 4 of the Family and Whānau Violence Act 1995section 12 of Part 1 of the Family Violence Legislation Act 2017)”
In section 66F, definition of information relevant to the safety or well-being of a child or young person, paragraph (b) (if it is in force on the commencement of this item), replace “domestic relationship (as defined in section 2 of the Domestic Violence Act 1995)”
with “family relationship (within the meaning of
.section 4 of the Family and Whānau Violence Act 1995section 12 of Part 1 of the Family Violence Legislation Act 2017)”
In section 158, replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
In Schedule 1, clause 3A(a)(iii), replace “domestic violence”
with “family violence (as defined in
.section 3 of the Family and Whānau Violence Act 1995section 9 of the Part 1 of the Family Violence Legislation Act 2017)”
Privacy Act 1993 (1993 No 28)
In Schedule 2A, item relating to the Approved Information Sharing Agreement for Improving Public Services for Vulnerable Children dated 25 June 2015, fifth column, paragraph (l), replace “domestic violence”
with “or family violence”
.
In Schedule 5, table relating to Police records, item relating to firearms licences, third column, replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
In Schedule 5, table relating to Police records, item relating to protection orders, second column, replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
Property (Relationships) Act 1976 (1976 No 166)
After section 28D, insert:
28E Part 1 of Family Violence Legislation Act 2017 does not limit or affect powers to make orders
Part 1 of the Family Violence Legislation Act 2017 does not limit or affect the power of a court to make an order (including an order made on an application without notice) under section 27 or section 28 or section 28B or section 28C or section 33 of this Act.
Compare: 1995 No 86 s 128
Protection of Personal and Property Rights Act 1988 (1988 No 4)
In section 10(1), delete “, subject to subsection (2),”
.
In section 10(1)(i), after “the District Court”
, insert “or the Family Court”
.
After section 10(1), insert:
(1A)
Subsection (1) is subject to subsections (2) and (2B).
After section 10(2), insert:
(2A)
No order under section 10(1)(i) may be applied for by any person, or made by the court, solely for the purpose of the commencement of proceedings under the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017.
(2B)
Subsection (2A) overrides any contrary provisions of this Act.
Search and Surveillance Act 2012 (2012 No 24)
In section 18(2)(c), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
Senior Courts Act 2016 (2016 No 48)
In Schedule 2, Part B, column headed “Description”
, paragraph (2)(a), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
Social Security Act 1964 (1964 No 136)
Replace section 70A(9) with:
(9)
For the purposes of this section, violence has the same meaning as in sections 3(2), 3A, and 3B of the Family and Whānau Violence Act 1995sections 9(2), 10, and 11 of Part 1 of the Family Violence Legislation Act 2017.
Social Security Act 2018 (2018 No 000)
Replace section 193(2) with:
(2)
In subsection (1)(c), violence has the same meaning as in sections 9(2), 10, and 11 of Part 1 of the Family Violence Legislation Act 2017.
Summary Offences Act 1981 (1981 No 113)
In section 6A(3)(a), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
In section 6A(3)(b)(i), replace “domestic relationship (as defined by section 4 of that Act)”
with “family relationship (as defined by
.section 4 of that Actsection 12 of that Part)”
In section 6A(3)(b)(ii), replace “domestic relationship”
with “family relationship”
.
Victims’ Orders Against Violent Offenders Act 2014 (2014 No 45)
In section 7(2)(a), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
In section 7(4), replace “section 2 of the Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995section 8 of Part 1 of the Family Violence Legislation Act 2017”
Victims’ Rights Act 2002 (2002 No 39)
In section 4, repeal the definition of domestic violence.
In section 4, insert in its appropriate alphabetical order:
family violence has the meaning given in section 3 of the Family and Whānau Violence Act 1995section 9 of Part 1 of the Family Violence Legislation Act 2017
In section 4, definition of victim, paragraph (b)(iii), replace “domestic violence”
with “family violence”
.
Part 2Amendments to legislative instruments
Care of Children (Appointment of Additional Guardian by Parents) (Forms) Rules 2005 (SR 2005/97)
In the Schedule, form 1, paragraphs 3(1) and (2) and 4, replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
Care of Children (Counselling) Regulations 2013 (SR 2013/432)
In regulation 6(f)(i), replace “domestic violence”
with “family violence”
.
Criminal Procedure (Transfer of Information) Regulations 2013 (SR 2013/177)
In regulation 3(1), definition of associated respondent, replace “domestic violence”
with “family violence”
.
In regulation 3(1), definition of associated respondent, replace “section 2 of the Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995section 8 of Part 1 of the Family Violence Legislation Act 2017”
In regulation 3(1), revoke the definitions of domestic violence, domestic violence offence, and domestic violence proceeding.
In regulation 3(1), insert in their appropriate alphabetical order:
family violence has the same meaning as in section 3 of the Family and Whānau Violence Act 1995section 9 of Part 1 of the Family Violence Legislation Act 2017
family violence offence means an offence against any enactment (other than the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017) in any case where—
(a)
the offence is committed—
(i)
by a person against whom a protection order is in force, or in respect of whom proceedings on an application for a protection order are pending, at the time the offence is committed; and
(ii)
against any person who is a protected person (within the meaning of that Act) under that protection order, or whom that application seeks to make a protected person, as the case may be; and
(b)
the offence consists of or includes conduct that is family violence
family violence proceeding means a proceeding in the Family Court under the Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017 in which an application for a protection order—
(a)
is pending; or
(b)
has been granted
In regulation 3(1), definition of protection order, replace “section 2 of the Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995section 8 of Part 1 of the Family Violence Legislation Act 2017”
In regulation 3(1), definition of relevant court, paragraph (a), replace “an offence against section 49 of the Domestic Violence Act 1995 or a domestic violence offence”
with “an offence against
.section 49 of the Family and Whānau Violence Act 1995section 112 of Part 1 of the Family Violence Legislation Act 2017 or a family violence offence”
In regulation 3(1), definition of respondent, replace “domestic violence proceeding”
with “family violence proceeding”
.
In regulation 4(1), replace “section 49 of the Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995section 112 of Part 1 of the Family Violence Legislation Act 2017”
In the heading to regulation 5, replace “domestic violence offences”
with “family violence offences”
.
In regulation 5(1) and (2), replace “domestic violence offence”
with “family violence offence”
.
In the heading to regulation 7, replace “domestic violence proceeding”
with “family violence proceeding”
.
In regulation 7(1), replace the definition of domestic relationship with:
family relationship has the meaning given to it by section 2 of the Family and Whānau Violence Act 1995section 12 of Part 1 of the Family Violence Legislation Act 2017
In regulation 7(1), definition of violence, replace “section 3(2) of the Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995section 9(2) of Part 1 of the Family Violence Legislation Act 2017”
In regulation 7(2), (3), and (4), replace “domestic violence proceeding”
with “family violence proceeding”
.
In regulation 7(2)(a)(i) and (b)(i), replace “section 49 of the Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995section 112 of Part 1 of the Family Violence Legislation Act 2017”
In the heading to regulation 7A, replace “domestic violence proceeding”
with “family violence proceeding”
.
In regulation 7A(1) and (2), replace “domestic violence proceeding”
with “family violence proceeding”
.
In the heading to regulation 7B, replace “domestic violence proceeding”
with “family violence proceeding”
.
In regulation 7B(1) and (2), replace “domestic violence proceeding”
with “family violence proceeding”
.
Domestic Violence (General) Regulations 1996 (SR 1996/150)
In regulation 1(1), replace “Domestic Violence”
with “Family
.and Whānau Violence”
After regulation 1, insert:
1A Renaming of these regulations, and references to their previous name
(1)
These regulations are the Domestic Violence (General) Regulations 1996 as renamed by the Family and Whānau Violence Legislation Act 2017Part 1 of the Family Violence Legislation Act 2017.
(2)
After the commencement of this regulation, a reference in an enactment or in a document to the Domestic Violence (General) Regulations 1996 must, unless the context otherwise requires, be read as a reference to the Family and Whānau Violence (General) Regulations 1996.
In regulation 2(a), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
In the Schedule, form 1, replace “Sections 124A, 124B, Domestic Violence Act 1995”
with “
.Sections 124A, 124B, Family and Whānau Violence Act 1995Sections 27, 28, Part 1 of the Family Violence Legislation Act 2017”
In the Schedule, form 1, paragraph 9(b), replace “section 14 of the Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995section 79 of Part 1 of the Family Violence Legislation Act 2017”
In the Schedule, form 2, replace “Section 124O(1)(a) and (2), Domestic Violence Act 1995”
with “
.Section 124O(1)(a) and (2), Family and Whānau Violence Act 1995Section 51(1)(a) and (2), Part 1 of the Family Violence Legislation Act 2017”
In the Schedule, form 3, replace “Section 124L(3), Domestic Violence Act 1995”
with “
.Section 124L(3), Family and Whānau Violence Act 1995Section 43(3), Part 1 of the Family Violence Legislation Act 2017”
In the Schedule, form 3, paragraph 3, replace “section 124N of the Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995section 46 of Part 1 of the Family Violence Legislation Act 2017”
In the Schedule, form 4, replace “Section 124M(1)(b) and (2), Domestic Violence Act 1995”
with “
.Section 124M(1)(b) and (2), Family and Whānau Violence Act 1995Section 44(1)(b) and (2), Part 1 of the Family Violence Legislation Act 2017”
In the Schedule, form 5, replace “Section 124M(3), Domestic Violence Act 1995”
with “
.Section 124M(3), Family and Whānau Violence Act 1995Section 44(3), Part 1 of the Family Violence Legislation Act 2017”
In the Schedule, form 5, paragraph 2, replace “section 124M(2) of the Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995section 44(2) of Part 1 of the Family Violence Legislation Act 2017”
In the Schedule, form 6, replace “Section 124O(1)(b) and (2), Domestic Violence Act 1995”
with “
.Section 124O(1)(b) and (2), Family and Whānau Violence Act 1995Section 51(1)(b) and (2), Part 1 of the Family Violence Legislation Act 2017”
In the Schedule, form 7, replace “Section 124N(2)(b), Domestic Violence Act 1995”
with “
.Section 124N(2)(b), Family and Whānau Violence Act 1995Section 46(2)(b), Part 1 of the Family Violence Legislation Act 2017”
In the Schedule, form 7, under the heading “Person(s) protected by the order”
, replace “ a direction under section 16(2) of the Act”
with “ a direction under section 87(1) of Part 1 of the Family Violence Legislation Act 2017”
.
In the Schedule, form 7, heading to paragraph 1, replace “domestic violence”
with “family violence”
.
In the Schedule, form 7, under the heading “Conditions of order”
, in the note to paragraph 2, replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
In the Schedule, form 7, under the heading “Important information for respondent”
, and under the subheading “Modification or discharge of this order”
, paragraph (a), replace “domestic violence”
with “family violence”
.
In the Schedule, form 7, under the heading “Important information for protected persons”
, and under the subheading “Modification or discharge of this order”
, paragraph (a), replace “domestic violence”
with “family violence”
.
Domestic Violence (Public Registers) Regulations 1998 (SR 1998/342)
In regulation 1(1), replace “Domestic Violence”
with “Family
.and Whānau Violence”
After regulation 1, insert:
1A Renaming of these regulations, and references to their previous name
(1)
These regulations are the Domestic Violence (Public Registers) Regulations 1998 as renamed by the Family and Whānau Violence Legislation Act 2017Part 1 of the Family Violence Legislation Act 2017.
(2)
After the commencement of this regulation, a reference in an enactment or in a document to the Domestic Violence (Public Registers) Regulations 1998 must, unless the context otherwise requires, be read as a reference to the Family and Whānau Violence (Public Registers) Regulations 1998.
In regulation 2(1), definition of the Act, replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
In Schedule 2, form 1, replace “Section 110, Domestic Violence Act 1995”
with “
.Section 110, Family and Whānau Violence Act 1995Section 233, Part 1 of the Family Violence Legislation Act 2017”
In Schedule 2, form 1, replace “Part 6 of the Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995subpart 9 of Part 1 of the Family Violence Legislation Act 2017”
In Schedule 2, form 2, replace “Section 110(2), Domestic Violence Act 1995”
with “
.Section 110(2), Family and Whānau Violence Act 1995Section 233(2), Part 1 of the Family Violence Legislation Act 2017”
In Schedule 2, form 2, replace “Part 6 of the Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995subpart 9 of Part 1 of the Family Violence Legislation Act 2017”
Domestic Violence Rules 1996 (SR 1996/148)
Revoke.
Family Dispute Resolution Regulations 2013 (SR 2013/434)
In regulation 7(k)(i), replace “domestic violence”
with “family violence”
.
Hazardous Substances and New Organisms (Personnel Qualifications) Regulations 2001 (SR 2001/122)
In regulation 6B(1)(c), replace “Domestic Violence Act 1995” with “Family and Whānau Violence Act 1995”.
Health and Safety at Work (Hazardous Substances) Regulations 2017 (LI 2017/131)
In regulation 6.7(1)(c), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
In regulation 7.2(1)(c), replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
Privacy (Information Sharing Agreement for Improving Public Services for Vulnerable Children) Order 2015 (LI 2015/162)
In clause 3(1), revoke the definition of domestic violence.
In clause 3(1), insert in its appropriate alphabetical order:
family violence has the same meaning as in section 3 of the Family and Whānau Violence Act 1995section 9 of Part 1 of the Family Violence Legislation Act 2017
In clause 11(1)(l), replace “domestic violence”
with “family violence”
.
Sentencing Regulations 2002 (SR 2002/178)
In the Schedule, form 11AA, under the heading “Conditions of order”
, heading to paragraph 1, replace “domestic violence”
with “family violence”
.
In the Schedule, form 11AA, under the heading “Conditions of order”
, notes to paragraph 2, in the first note, replace “Domestic Violence Act 1995”
with “
.Family and Whānau Violence Act 1995Part 1 of the Family Violence Legislation Act 2017”
In the Schedule, form 11AA, under the heading “Important information for offender”
, and under the subheading “Modification or discharge of this order”
, in paragraph (a), replace “domestic violence”
with “family violence”
.
In the Schedule, form 11AA, under the heading “Important information for protected persons”
, and under the subheading “Modification or discharge of this order”
, in paragraph (a), replace “domestic violence”
with “family violence”
.
Social Security (Exemptions under Section 105) Regulations 1998 (SR 1998/270)
In regulation 2(1), definition of family violence, replace “domestic violence as that term is defined in section 3 of the Domestic Violence Act 1995” with “family violence as that term is defined in section 3 of the Family and Whānau Violence Act 1995section 7 of Part 1 of the Family Violence Legislation Act 2017”.
"Related Legislation
"Related Legislation
"Related Legislation
Versions
Family and Whānau Violence Legislation Bill - Amendment paper No 116
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