Family violence information disclosure scheme
The police have introduced a disclosure scheme that allows the public to request information related to another individual's violence history. This policy allows for any concerned third party, whether a friend or family member, to request information from the police about an individual's violence history. The police maintain discretion to disclose such information on a case-by-case basis in accordance with the exemptions to general privacy principles that originate from the Official Information Act 1982 and Privacy Act 2020.[84]
Police safety orders
The police may issue a police safety order when attending a family violence incident, which will protect the victim and their family for up to 10 days. During this time, the protected person and the person bound by the police safety order are encouraged to seek help. The victim's consent is not necessary to issue the police safety order.[85] A breach of the police safety order by the family violence offender gives the police the power to take the offender into custody and bring them before the court.
Breaching a protection order
Where a protection order has been issued by the court and has subsequently been breached, the offender will be arrested and they will remain in police custody for at least 24 hours before being released on bail.[86] If an alleged offender is charged with a family violence offense, when deciding whether to grant bail, the court or police will consider the need to protect the victim and any people in a family relationship with the victim.[87] The maximum penalty for breaching a protection order is three years of imprisonment.[88] If the respondent fails to attend a nonviolence program as required, the maximum penalty is six months in prison or a fine of NZD 5,000.[89]
Surrendering weapons
Once an individual has been served with notice of a protection order, they are required to hand over any firearms licenses and any weapons held. In case the protection order is made final, the individual's firearms licenses will be canceled.[90]
Criminal offenses
The police have the power to lay criminal offenses against family violence offenders. Such offenses include the following:
The applicant may engage a law firm for assistance in filling out the application form and drafting the affidavit.[99]
No, the standard of proof for ex parte orders is on the balance of probabilities.[103]
Yes. If the accused assaults an alleged victim and this was done as a form of self-defense, then the accused will be able to rely on this as a form of affirmative offense.[104]
Willful intent is not required for the court to issue a protection order. The court will issue a protection order as long as the following conditions are satisfied:
- The respondent has inflicted or is inflicting family violence against the applicant or a child of the applicant's family, or both.
- Making an order is necessary for the protection of the applicant, a child of the applicant's family or both.[105]
Perjury — an assertion made in judicial proceedings that is known to be false and made with the intention to mislead — is a crime punishable under Section 108 of the Crimes Act 1961. However, it is rare for a person to be convicted of perjury as a result of Family Court proceedings.[106]
Consent discussed generally within New Zealand law[107]
Consent is required when two or more people agree to take part in sexual activity. Consent must be given freely each time without pressure or coercion from another person.
"Consent" is defined by the courts of New Zealand as follows:
True consent freely given by a person who is in a position to make a rational decision. There is no presumption of law that a person is incapable of consenting to sexual connection because of age. Lack of protest or physical resistance does not, of itself, amount to consent. There are some circumstances where allowing sexual activity does not amount to consent, including:
- the application of force to the complainant or the threat or fear of such application of force; or
- the complainant's intellectual or mental development is such that they cannot consent or refuse to consent to the activity; or
- the complainant is mistaken about or incapable of comprehending the nature and quality of the act of sexual activity.
Consent as defined under the Crimes Act 1961
The Crimes Act 1961 does not provide a specific definition of consent. However, Section 128A of the Crimes Act 1961 sets out the circumstances where a person does not consent to sexual activity.
Section 128A of the Crimes Act 1961 states the following:
- A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.
- A person does not consent to sexual activity if he or she allows the activity because of the following:
- force applied to him or her or some other person
- the threat (express or implied) of the application of force to him or her or some other person
- the fear of the application of force to him or her or some other person
- A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.
- A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
- A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.
- One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.
- A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.
Yes, normal defenses for criminal acts are available such as self-defense and insanity.
Witnesses who are asked to give evidence in court must swear to tell the truth and answer any questions the judge says they must answer.[108] Witnesses who are over 12 years old must take an oath (on the holy book of their religion) or affirmation (of the truth) before giving evidence.[109] If a witness is under 12 years old, the judge must inform them of the importance of telling the truth and not telling lies. After being given that information, the witness who is under 12 years old must make a promise to tell the truth before giving evidence.[110]
A child witness is entitled to one person (with the permission of the judge, more than one person) to support them when they are giving evidence.[115] There are also alternative ways a child witness may give evidence, as follows:[116]
- by a video recording made before the hearing of the proceedings
- while in the courtroom but unable to see the defendant or some other specified person
- from an appropriate place outside the courtroom (either in New Zealand or elsewhere)
Both parties may apply to the court to have the child witness give evidence in the ordinary way or in an alternative way to what is stated above.[117]
Yes, under Section 169 of the FVA, the court has the power to call a "specified person" as a witness who may be a child.[118] Child witnesses are entitled to special measures as discussed above.
Domestic violence adversely affects children's well-being. Those who have witnessed it firsthand are more susceptible to developing anxiety, depression and aggressive behaviors like fighting, bullying and lying.[119] However, the effects can also differ depending on a child's age. Young children, such as those in preschool, may show signs of terror, such as hiding or stuttering, exhibit separation anxiety, and resort to behaviors such as whining, increased crying or even bed-wetting.[120] School-aged children may distance themselves from other people and school activities, and may blame themselves for any offending.[121] Teenagers are likely to act out in negative ways. This may include skipping school, fighting with others and turning to alcohol consumption.[122]
As victims of domestic violence, the court process often has an adverse effect on children. For example, children who appear scared of the offender while they are giving evidence are less likely to be able to answer the questions put to them.[123] Other issues that a child victim may have to confront are fear of the offender's retaliation and fear of not being believed.[124] This can cause considerable distress to children.As domestic violence can often comprise different offenses, the penalties and sentencing laws applicable vary depending on the actual offense committed. The fact that this is the offender's first time may be a mitigating factor that is considered during sentencing if the perpetrator is found guilty. Other mitigating factors include cooperating with the police, pleading guilty and expressing remorse.[125] The Sentencing Act 2002 identifies factors that judges must take into account. While first-time offending may be considered under the offender's "personal circumstances,"[126] this is balanced with other considerations, such as the following: [127]
- the gravity of offending
- the blameworthiness of the offender
- the maximum penalty prescribed for the offense
- the desirability of the consistency of sentences for similar offending
- whether any restorative justice agreements or terms have been reached
Yes.
Assault of a family member: Section 194A of the Crimes Act 1961 criminalists the assault of a family member and imposes a maximum of two years of imprisonment. A family member is anyone with whom the aggressor is in a family relationship. This penalty is more excessive than that for common assault, which is a maximum of one year of imprisonment.[128]
Strangling or suffocating someone: Section 189A of the Crimes Act 1961 makes it a serious crime to assault someone by strangling or choking them around the throat or neck, or by suffocating them through blocking off air to their mouth or nose. This attracts a penalty of up to seven years of imprisonment.[129]
Sections 59(k) and 112 of the FVA make it a criminal offense to breach a protection order (or a related property order). A breach is punishable on conviction by imprisonment for a term not exceeding three years.[130]
The FVA
- Section 32 on police safety orders: A constable who is issuing a police safety order under Section 28 of the FVA against any person may detain that person for a period of up to two hours if necessary for the constable to issue and serve the order. If the detained person refuses to remain in the location in which they are detained, they will have committed an offense and they may be penalized by a fine of NZD 500.
- Part 4, Section 59(k) and Section 112 on protection orders: It a criminal offense to breach a protection order (or related property order). A breach is punishable on conviction by imprisonment for a term not exceeding three years.[131]
- Part 7, Section 183(h) and Section 211 on programs and prescribed services: The failure to comply with a direction is a criminal offense punishable on conviction by a fine not exceeding NZD 5,000 or a term of imprisonment not exceeding six months.