Principal Family Court Judge Jacquelyn Moran responds to a commentary by University of Auckland law school Associate Professor Carrie Leonetti on the Family Court's approach to cases involving non-physical forms of violence.
In her article on May 10, How a broken system for protection orders fails victims of domestic violence, Carrie Leonetti claims the Family Court fails to recognise the risk of non-physical forms of violence and often insists perpetrators are notified before granting protection. As the Principal Family Court Judge I respond to those claims.
I wish to ensure that information published about the operation of the Court, and particularly in an area of law that so profoundly affects many vulnerable people, is accurate and that public confidence in the Court is not compromised.
I turn now to analyse the basis of the author’s contentions.
Recognition of non-physical forms of violence
First, it is stated that: "despite decades of inquiries, training, and legislative reforms, the Family Court still fails to recognise the risk of non-physical forms of violence such as threats, stalking, surveillance, harassment, intimidation and control…” And that while the Family Violence Act 2018 enables the Court to issue a Temporary Protection Order on a without notice basis if the applicant faces "a risk of harm", it does not do so.
In support of that contention the author says: "According to the Ministry of Justice website the Family Court will only issue these orders if applicants face a risk of "serious injury". There is significant difference between "risk of harm" and "serious injury". By requiring "serious injury" risk, the Court is rewriting the Act to reduce protection for victims."
This is, quite simply, incorrect. In determining whether the statutory criteria are met for a Temporary Protection Order to be made on a without notice basis, judges apply the law and attribute the meaning of family violence prescribed in section 9 of the Family Violence Act 2018. Section 9 (2) defines violence as physical abuse, sexual abuse and/or psychological abuse. Psychological abuse is further defined in section 11 to specifically include conduct such as threats, stalking, harassment, intimidation, and other controlling behaviours.
Leonetti refers to the Ministry of Justice website requirement for an applicant to show "serious injury" before applying without notice for a protection order and says that: "By requiring "serious injury" risk, the Court is rewriting the Act to reduce protection for victims.” Here, it should be noted the Court does not require "serious injury" to be established. Family Court judges, have no responsibility for, or connection with, the Ministry of Justice website.
What the court requires is that an applicant establishes either, or both, of the grounds specifically provided for in section 75 of the Family Violence Act, namely a risk of harm or undue hardship. There are other considerations judges take into account including the perception of the applicant or a child regarding the nature and seriousness of the behaviour complained of, and the effect of that behaviour on them.
However, the Ministry of Justice website is important because it is a platform from which the public gain some guidance and information about Family Court proceedings, including applications for a Protection Order. A description of family violence is provided which includes a comprehensive definition of psychological abuse. The narrative states that a judge will make an urgent order if an applicant can show that the time needed to let the other person respond before the order is made (on notice application) could lead to: Serious injury; undue hardship; risks to your personal safety or any of your children's personal safety or both.
Those are the grounds provided for in the Family Court Rules 2002 (rule 416H) which set out when an application without notice may be made in the Family Court. However, the rule also includes the provision "If the Act specifically permits it". The Family Violence Act does. The author could properly have identified this. However, her contention that "the definition is limited to serious injury only and excludes a ground of risk of harm" is both incorrect and misleading. The website clearly includes both statutory grounds namely undue hardship and risk to personal safety i.e. risk of harm.
An applicant should therefore not be deterred from making an application if they fall into either criteria. Finally, it is noteworthy that applicants for a protection order are also made aware of the definition of violence in the Guide to Applying for a Protection Order which accompanies the application forms. The guide lists violent conduct including: physical; sexual; emotional and psychological; financial; and threats and intimidation.
The Guide makes specific mention of the types of behaviours that constitute psychological abuse and threats and intimidation, including, but not limited to, controlling behaviour, stalking or harassment.
The Family Court's 'hostility' to without notice applications
Secondly, it was argued that despite statutory authorisation for Temporary Protection Orders, the Court is unjustifiably hostile to "without-notice" applications, often insisting perpetrators are notified and able to respond before granting protection.
The author rejects the accuracy of the police website which says:
"The Court takes applications for Protection Orders very seriously. The vast majority are granted immediately… The protection order will almost always be made the same day. Often it will be made within minutes of the application reaching the Family Court.… Most of the orders made by the Family Court are made without notice. This means without the person named in the application (the respondent) being aware of it…"
It was suggested the police website outlines how the system should work – but that it doesn't. The strong contention is that the Family Court insists on notifying perpetrators before ruling on applications which drives applicants away from the system designed to protect them. Finally, it was suggested the "the default is that victims remain without protection" despite the Family Violence Act due to the "system the Family Court has implemented in practice" leaving victims to fend for themselves.
Once again, these bald assertions do not withstand analysis. According to Ministry of Justice court statistics, between 2017 and 2021, 95 percent of protection order applications were filed on a without-notice basis. In approximately 80 percent of those cases a Temporary Protection Order was made while the remaining 20 percent of applications were placed on notice. That equates to an average of 3605 Temporary Protection Orders being made on a without notice basis every year.
Significantly, 95 percent of all without notice applications for a protection order are granted within one working day, with the majority being granted on the same day as the application was made. This is due to the fact that three Family Court Judges are rostered every day to consider all urgent applications nationwide. This shows that the Family Court is both willing and able to grant orders on a without notice basis and to deal with family violence applications urgently.
There will always be a limited number of applications which, for a variety of reasons relating to the evidence filed, are placed on notice. However, applicants are not left to “fend for themselves”. They are given the opportunity to proceed on notice or to withdraw their application, but in all circumstances, they will be offered Strengthening Safety Services -a Ministry of Justice initiative available to all adult victims of family violence whose protection order hasn’t yet been granted. Strengthening Safety Services supports victims to carry out risk assessment and safety planning, and link victims to wider support services.
Additionally, Kaiārahi – Family Court Navigators – will seek to support applicants and respondents in accessing services which protect and support victims and reduce the risk of breaching orders by respondents. Kaiārahi work with participants to ensure they have information and guidance about engaging with the court as well as accessing out-of-court services. Outside the court process, victims can also access a range of government and non-government family violence support organisations, as well as free helplines, at any time, regardless of whether they have a protection order or not.
Finally, the author refers to the delay in having notice applications heard. Every effort is made to have these applications heard within statutory timeframes but where special circumstances exist delay can occur, for example, when proceedings under both the Care of Children Act and the Family Violence Act are consolidated, and the issues are complex. While the delay is inevitable, support remains available to applicants.
Conclusion
The Family Court takes proceedings under the Family Violence Act extremely seriously. The Family Court Work Programme includes initiatives directed at enhancing the experience of victims of family violence in the Court.
Initiatives are undertaken with the Ministry of Justice to address many aspects of this work. This includes improving how services support all participants in protection order proceedings, including children, simplifying and clarifying application forms, raising awareness about what it means to live with a protection order, and understanding how risk assessment can support safety throughout proceedings. The periods of heightened risk for applicants and children are also well understood by judges and those working in this field. Every endeavour is made to keep families safe.
Applications for protection orders filed on a without notice basis will continue to be determined on an urgent basis with the vast majority resulting in a Temporary Protection Order being made. New Zealanders can have confidence in the work of the Family Court in this critical area
