UPDATES IN DOMESTIC VIOLENCE LEGISLATION
The new Family Violence Act 2018 took effect on 1 July 2019. This Act replaces the old Domestic Violence Act 1995 and came about because of a government initiative to address New Zealand’s high rate of family violence. The Act recognises that family violence is a significant problem in New Zealand and aims to focus more on the needs of victims of family violence and work to break the cycle of family violence.
Some key changes include:
1. Certain behaviours are now classified as abuse e.g. abuse of pets and dowry abuse. Dowry abuse is violence or abuse carried out to obtain gifts, money or property in relation to a marriage. This is now classified as a form of family violence regardless of its purpose.
It is now considered to be family violence where a person withdraws care or support from someone in need of that care or support because of their disability, age or health. In addition, the definition of “close personal relationship” – the types of family relationships covered by the Act – now specifically includes the carer/caregiver relationship, even if the parties are not actually related. This change is to recognise that people in need of care are often vulnerable because of their isolation, disability and lack of mobility. There is now protection for both carers and caregivers.
2. Children – there is extended recognition of the effects of violence upon children under the Act. Children under the age of 16 years can now apply for a Protection Order themselves or for an Occupation Order or Furniture Order. It is now expected that Judges will interview children in domestic violence proceedings.
3. Other changes to Occupation and Furniture Orders include that the violence no longer needs to be physical or sexual in order to obtain these Orders. It is now possible to seek an Occupation Order or Furniture Order solely on the basis of psychological abuse. In addition breaches of Occupation and Furniture Orders are now considered to be a breach of the Protection Order and a criminal offence.
4. Police Safety Orders – Police Safety Orders (“PSOs”) are temporary orders issued by the Police at family violence scenes. The Orders require a person to leave the property and not contact the people protected by the PSO for five days. The purpose is to ensure safety of the victims and give them time to consider further arrangements e.g. Protection Order / moving to a new property. PSOs have now been extended from five days to ten days in order to give victims of Family Violence more time to make arrangements.
5. Discharge of Protection Orders – it is now more difficult to discharge Protection Orders than it has been in the past. It is now up to a Judge, not the Applicant, to make the decision as to whether the Protection Order should be discharged. The Judge needs to consider issues such as the seriousness and frequency of the abuse, how long ago it occurred, what steps the Respondent has taken in relation to his or her behaviour and the views of the Applicant. The Court may require evidence from the Applicant in relation to these matters.
6. Consent to contact – in the past Applicants who had obtained Protection Orders could agree to contract from the Respondent. Now that consent needs to be in writing and the withdrawal of consent also needs to be in writing. Writing can include text message. It is important to note that it is not possible to consent to contact that would breach any conditions of supervised contact in place in respect of a child.
7. Information sharing – certain agencies are now allowed to ask each other for information such as early childhood centres, school Boards of Trustees, government departments such as the New Zealand Police, Oranga Tamariki, and Housing New Zealand along with Family Violence agencies. The Act includes indemnities for these agencies in respect of breaching privacy.
8. Employment – there are a number of changes to the Employment Relations Act. Most significantly employees affected by domestic violence are now entitled to 10 days paid domestic violence leave per annum. They can also request flexible working arrangements. These changes are to recognise that victims of family violence will often need time off work to see their lawyer, attend doctors’ appointments, care for children and go to Court. Also employers are now required to refer their employees to support services for support in these cases. It is now a ground for a personal grievance if an employee can show he or she has been treated adversely because the employer considers the employee to be a person affected by domestic violence.
9. Criminal changes – There are new criminal offences including:
(a) Forced marriages or civil unions;
(b) Strangulation or suffocation;
(c) Assault on a person in a family relationship – this new offence will allow criminal records to clearly identify the offender’s history of family violence.
(d) There are also amendments to bail conditions to ensure that it will now protect the victim and the family of the victim.
For further information in relation to the changes to the Family Violence Act in New Zealand please contact a member of Taylor Shaw’s family law team – Tania Cook & Amanda Butler.
