Overview
In 2018, the New Zealand government repealed the Domestic Violence Act 1995 and replaced it with the Family Violence Act 2018 (FVA).
This legislation provides the foundation of a system of law in New Zealand that is designed to support victims, as well as to provide an effective punitive mechanism against perpetrators. The FVA was introduced after a series of high-profile cases concerning victims of domestic violence and child abuse in conjunction with a government-commissioned report, which acknowledged that women in New Zealand experienced some of the highest rates of intimate partner-related deaths internationally.[1] This legislative scheme aims to provide a comprehensive and systemic approach to combatting domestic violence in New Zealand.
This legislation governs the admissibility of evidence, but it also provides specific protections for evidence in sexual cases.
This legislation enables the family violence sector to have a more consistent response to victims and toward perpetrators of family violence. This legislation provides a set of principles to guide decision-making and to coordinate the consistent, appropriate and timely response of 10 government agencies to issues of family violence. The FVA also provides for imposing protection orders against perpetrators of family violence for the protection of victims.
Domestic Violence — Victims' Protection Act 2018
This legislation provides legal protections for persons affected by domestic violence in the workplace (i.e., allowing 10 days of paid domestic violence leave, providing short-term flexible working arrangements and prohibiting adverse treatment).
This legislation criminalizes stalking and harassment, and it aims to provide greater protection to victims of these acts.
This part criminalizes sexual offenses.
Section 195 of the Crimes Act 1961 and Children's Act 2014
This section and this legislation criminalizes the neglect of and cruelty toward children, and it mandates government intervention into preventing the neglect and cruelty of children to improve their well-being.
Section 204A of the Crimes Act 1961
This section makes it a criminal offense to excise, infibulate or mutilate the "whole or part of the female genitalia of any person."
Sections 188-204 of the Crimes Act 1961
These sections criminalize physical violence, assaults and injuries to the person.
This act enshrines the principle that the child's welfare and best interests are the first and paramount consideration in all decisions under the FVA.
Harmful Digital Communications Act 2015
This legislation criminalizes sharing or threatening to share nude or nearly nude photos of another person.
Surrey v. Surrey [2010] 2 NZLR 581
This case created a legal presumption that, once an applicant for a protection order has proved the existence of past violence and a reasonable subjective fear of future violence, a protection order is necessary.
Martin v. Ryan [1990] 2 NZFLR 209
Ex parte protection orders (protection orders brought by one party without the other party being notified) are justified when the below requirements are met:
- There is a clear case on the merits.
- There will be irreparable injury if the application proceeds on notice.
- There will be no delay caused by the applicant.
- The effect of an order will only be brief and provisional.
- Strong grounds exist in the circumstances to override conventional requirements of natural justice.
Hartley v. The Queen [2014] NZCA 162
This case interpreted Section 44 of the Evidence Act 2006 as protection for victims of sexual violence in legal proceedings, which is intended to prevent the reprehensible and inappropriate blackening of the characters of, particularly, women complainants by directly or indirectly "tarring" them in the eyes of the jury.
This case determined that the previous sexual history of a victim is irrelevant and it has no bearing on consent.
This case determined that where a defendant pleads self-defense to a charge of assault, the fact-finder's assessment of the alleged perpetrator's truthfulness may be influenced by their prior convictions of violent offenses.
KSB v. Accident Compensation Corporation [2012] NZCA 82
This case determined that the nondisclosure of an HIV-positive status prior to unprotected sexual intercourse vitiates or impairs a victim's consent, turning consensual sexual activity into the serious criminal offense of sexual violation. This case was pivotal as one of the first to extend the legal concept of a "mistake" to vitiating consent in sexual violence cases.
Christian v. R [2017] NZSC 145
This case determined that consent to sexual intercourse must be full, voluntary, free and informed to be real, genuine or true legal consent.
This case stands for the proposition that victims of domestic violence are able to successfully bring private action against a domestic violence perpetrator in court for exemplary damages. This remedy was issued in G v. G where a wife was awarded a sum of NZD 85,000 against her husband as the court sought to make an example of him, stating the following:
[…] the persistence and severity of the violence and the fact that the defendant is a member of the medical profession which is entrusted to care for the physical and mental health of the community.
Incidents of domestic violence can be addressed in different types of courts, depending on the type of offense. There are options available to criminally pursue an alleged abuser or to have a domestic violence matter heard before specialist family courts.
The Family Court of New Zealand
The Family Court of New Zealand ("Family Court") is a specialist district court service. The police and Crown prosecutor are also able to prosecute any alleged perpetrators criminally. For example, if a victim attends the Family Court to seek the imposition of a protection order against an abuser and the abuser then breaches any conditions associated with that protection order, this becomes a criminal offense. The police and Crown prosecutor will then assess the evidence to determine if there is enough to charge the individual with an offense, which will be heard in either the criminal division of the District Court of New Zealand or the High Court of New Zealand for more serious offenses.
Waitakere or Manukau Family Violence Courts
Family violence cases can also be heard in either of the specialist Waitakere or Manukau Family Violence Courts. These courts were implemented as part of the justice program as a result of judicial and community collaboration in the early 2000s, and they integrate principles of therapeutic jurisprudence and conference-based proceedings to provide a victim-centric and timely response to any family violence matters that may arise. The specialist family violence courts are intended to be able to address family violence matters in culturally sensitive ways, through a holistic and collaborative approach between the courts and community agencies.Depending on the circumstances, victims can institute a civil claim for a protection order, but the police have jurisdiction to pursue a police safety order against an alleged abuser.
Protection orders
Primarily, the main remedy a victim of domestic violence can seek is a protection order, which arises under the operation of the FVA. This mechanism is a private law response, meaning that the person responsible for initiating the proceedings under the FVA is the victim (or their suitable representative), rather than the state beginning proceedings against an abuser. Under a protection order, the court is able to impose certain conditions or restrictions on an abuser, with criminal punishment provisions for breaches of protection orders then able to be imposed on the individual.
Protection orders can additionally be made ex parte on the papers, sent through to the Family Court judge on duty, without notifying the alleged abuser. This makes the accessibility of protection orders simpler, more cost-effective and less emotionally taxing on the victim. To successfully apply for ex parte orders to be made, the judge must be satisfied of the following:
- There is a clear case on the merits.
- There will be irreparable injury if the application proceeds on notice.
- There will be no delay caused by the applicant.
- The effect of an order will only be brief and provisional.
- Strong grounds exist in the circumstances to override conventional requirements of natural justice.[2]
Police safety orders
The police are also able to impose police safety orders, whereby a qualified constable can issue an on-the-spot order, which prevents the recipient of an order from sharing any contact with the alleged victim, their children and other family members for up to five days.
Section 9 of the FVA defines "family violence" extremely broadly and it includes psychological abuse. Behavior may be psychological abuse even though it does not involve any threatened or actual sexual or physical violence against a victim. Further, under Section 10 of the FVA, a single act is able to amount to abuse, as well as a number of acts that can form a pattern of behavior, even though some of these acts, when viewed in isolation, may be minor or appear trivial. This wide definition enables victims to have a wide base from which to bring an action for protection or police safety orders against an abuser.
Safety provisions under the Care of Children Act 2004
Under the Care of Children Act 2004, various safety provisions can be invoked to advance the health and welfare of a child, brought by a victim of family violence against an alleged perpetrator. In particular, the main order that can be sought is a parenting order or an interim parenting order when a protection order has been granted. However, the chief executive of the department responsible for the Children, Young Persons and Their Families Act 1989 is able to apply to the Family Court's juvenile supervisory jurisdiction to remove decision-making powers from the parents and have the court appointed as the legal guardian of the child. These are state-driven proceedings that can be brought against a perpetrator.