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Communtity Law Manual | Family violence & elder abuse | How to get a protection order

Applying for a protection order: Long-term protection against family violence

How to get a protection order

Different types of applications: Urgent and non-urgent

Urgent applications (“Without notice” applications)

Family Violence Act 2018, s 75

If you need protection urgently, you can apply for a protection order to be made “without notice” (sometimes also called an “ex parte” application). This means the judge will consider your application and decide whether to grant a temporary protection order without getting the other person’s (the respondent’s) side of the story. The respondent won’t be told that you’ve applied for the temporary order until after the order’s been granted.

Most protection orders are made in this way – that is, after a crisis event or situation. In 2018 there were less than 200 applications made “on notice”, and there were more than 4,000 “without notice” (urgent) applications.

To get the temporary order you’ll need to show that any delay would or might cause undue hardship or a risk of harm for you or your children.

If a temporary protection order is granted, usually this will be within 24 hours, but sometimes it can take a few days.

Family Violence Act 2018, s 76

The respondent will get a chance to be heard by the Family Court before the judge decides whether to make a permanent protection order (see “Challenging a protection order” in this chapter). If they don’t challenge the temporary protection order, it automatically becomes permanent after three months.

Non-urgent applications (“On notice” applications)

Family Violence Act 2018, ss 60, 147–149

If your application for a protection order isn’t urgent, you’ll need to make it “on notice” to the respondent, which means a judge can’t make the order until after the other person has been served with (given personally) a copy of your application.

Note: Only a small minority of protection orders are applied for “on notice” – less than 5 percent. Usually they’re urgent and so they’re made “without notice” (meaning the other person isn’t told about the application)

If you apply without notice for a temporary protection order, but the judge decides that delaying the process won’t mean undue hardship or a risk of harm for you or your children, your application will become an “on notice” one, and the respondent will be notified.

If the respondent is served but does nothing in response, you can then ask for a permanent protection order to be made. However, if the respondent is served and decides to oppose the application and asks for a court hearing (a “defended hearing”), you and the respondent will both need to appear at the hearing, along with any witnesses.

The hearing of the application will be set down for a date that must be “as soon as practicable”. This timeframe varies from court to court depending on each court’s caseload, but it should be within six weeks.

Proving that you need the order

What proof will I need to provide with my application?

Usually the only evidence you’ll need to provide along with your application is an affidavit (a sworn written statement from you) setting out the history of the family violence. Occasionally doctors’ reports or family violence call-out records from the police may be available and can be included, but they’re not essential.

The affidavit will need to state:

  • that there has been a family relationship
  • the history of the family violence
  • why the protection order is necessary, and
  • if you’re applying without notice (like the vast majority of applications), why the delay that would be caused by applying on notice would, or might, mean undue hardship or a risk of harm to you or your children.

Providing evidence at a court hearing

Family Violence Act 2018, ss 79, 171

If the other person files a defence in response to your application for a protection order, the case will go to a Family Court hearing in front of a judge (called a “defended hearing”). You’ll have to provide evidence to the court about the family violence.

The judge will decide whether, “on the balance of probabilities” (that is, it’s more likely than not to be true), the other person is using or has used family violence against you or your children and that an order is needed to protect you or your children or both (for what is defined as family violence, see “Types of relationships covered by family violence laws” in this chapter).

The judge’s decision whether or not to make a protection order

Is a protection order necessary?

Family Violence Act 2018, ss 79, 82, 83

As well as being satisfied that there has been family violence, the Family Court judge must also be satisfied that a protection order is necessary to protect you or your children or both.

In cases where some or all of the behaviour seems to be minor or trivial when looked at as isolated incidents, or the behaviour seems unlikely to happen again, the judge must consider whether it’s part of a pattern of behaviour that you need to be protected from.

The judge must also look at how you or your children see the behaviour, and at the effect of that behaviour on you or your child.

What happens if the judge grants a protection order?

Family Violence Act 2018, s 174

If the judge grants a protection order, a copy will be given to you and the respondent.

When the order is given to the respondent this is called “serving” the order on them, or “service”. A copy of the order is delivered to them by hand by a court bailiff, a private process server or the police. The court must also send a copy of the order to the local police station.

When does the protection order take effect?

Family Violence Act 2018, ss 112, 113; Cases: High Court, Akld, AP 88/90, 17 Jul 1990 – [1994] NZFLR 149 (HC)

The protection order is in force as soon as the judge makes it. Once the order has been made, the other person can be arrested if they don’t obey the order and its conditions, even if the order hasn’t yet been served on them (given to them).

Generally, however, the person can’t be convicted in court of breaching the order if the order hadn’t been served on them, although in some cases it will be enough if the person knew about the order anyway.

What can I do if the judge doesn’t make a protection order?

Family Violence Act 2018, s 177; High Court Rules 2016 (LI 2016/225)

If the judge decides not to make a protection order, you can challenge that decision by appealing to the High Court within 20 working days after the decision, or you can decide to apply again.

Lawyers and legal aid

Will I need a lawyer to get a protection order?

Applying for a protection order can be a challenging process. Although it’s possible to apply for a protection order on your own, it’s usually a good idea to use a lawyer.

There’s no fee for applying for a protection order in the Family Court, but if you use a lawyer, you’ll need to pay their fees. If you’re on a benefit or a very low income, you may qualify for legal aid.

Legal aid is a government-funded scheme that gives people with limited financial resources access to a lawyer. Applications under the Family Violence Act are covered by civil / family legal aid (see the chapter “Legal aid”).

Note: If you’re granted civil / family legal aid for an application for a protection order you probably won’t have to repay this (see the chapter “Legal aid”). If your case involves other Family Court proceedings at the same time (for example, if you’ve applied for a parenting order under the Care of Children Act or for relationship property to be divided), you may need to repay the legal aid you’re granted for those other Family Court proceedings.

Getting a protection order without a lawyer

You can visit the Family Court and get the forms and documents necessary for applying for a protection order without a lawyer; however, the process can be difficult.

If you do decide to apply without a lawyer, the Family Court staff or your local family violence support service or Community Law Centre can give you more information and may be able to help support you when you apply.

There are also a number of resources available that can help guide you through the application process (see “Other resources” at the end of this chapter).

Note: If the other person opposes your application, or if the judge refuses an application without notice for a temporary protection order and directs that your application will go ahead on notice, it can be difficult to continue without a lawyer. It’s therefore a good idea to have a lawyer to represent you from the outset of the process.

Cost of applying

Will I have to pay to apply for a protection order?

No. There’s no fee required when you apply for a protection order.

However, if you’re also applying for a parenting order, you’ll have to pay an application fee for the parenting order when you file your application for the two orders.

Family Violence Act 2018, ss 105, 106

If you have children and you apply for a protection order, the Family Court can make a temporary order about who has day-to-day care of the child, even if you haven’t applied for a parenting order. In that case you’ll be required to apply for a parenting order as soon as practicable. (See the chapter “Parents, guardians and caregivers”.)

Keeping your address secret from the other person

How can I stop the other person finding out my new address?

Family Violence Act 2018, s 231; Family Court Rules 2002, rules 310, 311

If you want to keep your new address secret from the respondent, you’ll need to complete a special form. The Family Court will make sure your new address is not on the court file or other documents. You can also ask the court to make sure that your personal details on other public documents are kept secret – such as car registration documents.

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