The Family Court still fails to recognise the risk of non-physical forms of violence and often insists perpetrators are notified before granting protection
Comment: The most dangerous time in the life of a domestic violence victim is when she decides to leave. The 6-18 months after separation pose a higher risk of lethality than when she was living with her abuser. This is why, on average, victims try to leave five times before succeeding. It is why many victims never leave.
Victims who disclose abuse risk retaliation, especially if they are not believed or protected after disclosure. The way our institutions respond in these crucial months, primarily police and the Family Court, can be the difference between life or death, success or failure, and safety or more violence.
One important response comes in the form of protection orders - court orders that prevent perpetrators from committing further abuse. Unfortunately, our protection order system can fail victims in two ways.
First, 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, even though, statistically, these forms of abuse have a stronger correlation with homicide than most forms of physical violence.
Second, despite statutory authorisation for temporary protection orders, the court is unjustifiably hostile to these “without-notice” applications, often insisting perpetrators are notified and able to respond before granting protection.
Prompt, temporary protection
The Family Violence Act 2018 authorises the court to issue temporary orders, without notice to respondents (“ex parte”), if applicants face “a risk of harm”. It instructs that family violence often appears trivial when viewed in isolation but forms part of a pattern of behaviour that causes cumulative harm and that it includes coercive or controlling behaviour.
However, 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.
The court has terrible caseloads resulting in lengthy delays. If the court issued temporary, without-notice protection orders, victims would be protected until the hearing. When the court refuses to do this, victims have no interim protection. They are probably in more danger because now perpetrators know they applied for protection. A 2007 report commissioned by the Ministry of Women concluded that requiring victims of violence to give notice to perpetrators of applications for protection orders was “inherently dangerous” and a significant barrier to their safety.
The ministry website warns: “Judges need a very good reason to make an urgent Order without hearing from both sides first. Urgent applications should really only be made in an emergency situation.”
This language could deter victims from seeking temporary protection in all but the rarest circumstances. Protection should not be an extraordinary remedy used only sparingly. By definition, a protection order can only be issued if someone has inflicted family violence. The victim’s reasonable belief violence will recur should be all that is necessary for temporary protection.
The NZ Police website advises: “The Court takes applications for Protection Orders very seriously. The vast majority are granted immediately.” Under the heading “How long does it take to get an Order?” it claims: “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.” Under the heading “Will the respondent be present?”, Police claim: “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. Sometimes the Judge will direct that the respondent receives notice of the application. Where this happens, the Judge will normally give the person a short time (say 24 hours or a few days at most) to file a written defence.”
This is how the system should work - but it isn’t. The court does not “almost always” issue protection orders immediately, and hearings do not occur within “a few days at most”. Before the pandemic, it took three to four months for an on-notice application to be heard. Now, it can take more than a year.
The situation has become so dire that domestic violence agencies warn victims to think twice about trying to get a protection order. Shine includes this information on its website: “Unfortunately a number of women have told us and the Backbone Collective about situations that sounded quite serious where they applied for a without notice (ex parte) order, but the judge put the order on notice and notified the respondent before telling the applicant that this was going to happen, so this is a real risk.” This is tragic, dangerous, and unacceptable.
Default position
A protection order has serious consequences for the restrained person. It can affect their residency, freedoms of movement and expression, and contact with their children. Of course, they should have a right to respond to allegations of violence. The question is not whether a person who has allegedly been violent deserves a chance to refute the allegations. The question is when - before or after a victim must notify him they are asking for protection, before or after he files his response, and before or after the court schedules a hearing.
More than half of victims whose without-notice applications the court converts to on-notice withdraw them rather than risk retaliation by their abusers. The court’s insistence on notifying perpetrators before ruling on applications drives them away from the system designed to protect them. And the court’s unwillingness to grant without-notice protection for victims is often defended with the assertion there was a history of applicants abusing the old ex parte system and it was “too easy” for women to get orders. It is hard to assess the credibility of these claims, made without supporting data, without knowing the nature of the alleged abuses or their frequency.
Even if there were abuses, unless they were rampant and extreme, they cannot justify punishing legitimate victims in need of protection. And if abuse of the old system was that applicants took advantage of the lack of an opponent by lying, there are remedies that do not require discouraging applicants from seeking protection - for example, prosecution for perjury. As the New Zealand Psychological Society notes: “New Zealand does not have a problem with women using protection orders for ‘tactical advantage.’ New Zealand has a problem with an epidemic of domestic violence, which the legal system has been ineffective in addressing or reducing over decades.”
There is always going to be a period between when victims apply for protection and the court can hold a hearing around their allegations. The question is what should happen in the meantime. In New Zealand, the default is that victims remain without protection, are placed in more danger, until the hearing. This does not appear to be the system Parliament intended to authorise in the Family Violence Act, but it is the system the Family Court has implemented in practice. It leaves victims to fend for themselves in the most dangerous months after they leave their perpetrators, and ensures their perpetrators realise they are trying to get away.
