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Seeking Protection Orders: Women’s Experiences

New Zealand research indicates that applying for a protection order is often one of the most frightening experiences in an abused woman’s life.92 Rather than obtaining protection orders as

“weapons” to use against men for parenting order purposes93 what we know from our research is that women are often re-victimised again and again before they reach out for help. Not one of our case study interviewees, for instance, left their abusers the first time abuse occurred. This chapter examines our women’s experiences of learning about protection orders and their decisions whether or not to apply for them. It discusses in detail the experiences of the four women in our study whose applications for protection orders were put on notice. Moreover, we look at the variety of pressure tactics that some of the women were subjected to by their abusers after protection orders were granted to withdraw these orders. Finally, we look at women’s experiences of defended hearings and the circumstances in which they obtained (or did not) final protection orders.

Throughout this chapter, and again in Chapter 10, we will focus on our women’s lived experiences of Family Court processes and discuss how these processes might be changed if safety and natural justice issues for applicants were primary concerns. Given that domestic violence represents the most serious threat to New Zealand women’s fundamental rights and freedoms as defined by the New Zealand Bill of Rights Act 1990, this chapter and Chapter 9 focus on how effectively the various approaches to domestic violence currently being utilised by our Family Court carry out these safety and natural justice requirements.

It is important to note that during the ten years following the implementation of the Domestic Violence Act 1995, the number of family violence incidents recorded by the police has doubled (from 31,654 in 1996 to 63,685 in 2005), with a corresponding increase in the number of arrests for family violence offences (from 9,311 to 18,305.)94 Murders involving domestic violence represent more than half of the murders in New Zealand, and, startlingly, 19 children were orphaned in New Zealand as a result of domestic violence over the 2005–06 Christmas period.95 However, the number of applications for protection orders made over the last few years has

92 See, for example, Lesorgen, L. (2001). The experience of protection orders (Research report presented in partial fulfilment of the requirements for the degree of Master of Social Work (Applied)), Massey University, Auckland, and Hand, J., Elizabeth, V., Rauwhero, H., Selby, S., Burton, M., Falanitule, L., & Martin, B. (2002). Free from abuse: What women say and what can be done. Auckland: Auckland Healthcare Services, at pp. 152-161.

93 In Doogue, J. (2004). The Domestic Violence Act 1995 and s 16B of the Guardianship Act 1968: the effect on children’s relationships with their non-custodial parent. Butterworths Family Law Journal, 4(10), 243-248, Judge Jan Doogue argues: “There is no doubt in my mind as a Judge who has been sitting since before Sir Ronald’s report was written and the subsequent law reforms were made that there are a good number of cases where delay means that women are the arbiters of access that men have to their children and that in some cases the Temporary Protection Order is in fact used as a weapon against the father.” 94 Police family violence figures double over the last 10 years. New Zealand Family Violence Clearing House News Archive. Retrieved 19 December 2006 from http://www.nzfvc.org.nz/NewsItem.aspx?id=67.

94 Police family violence figures double over the last 10 years. New Zealand Family Violence Clearing House News Archive.

Retrieved 19 December 2006 from http://www.nzfvc.org.nz/NewsItem.aspx?id=67.

95 Boshier, P. (2006). The Domestic Violence Act ten years on. Speech at Te Unga Waka Marae, Epsom, 27 March.

Retrieved 19 December 2006 from http://www.justice.govt.nz/family/publications/speeches-papers/default.asp?inline=domestic-violence-act-ten-years-on-march-2006.asp.

Figure 1: Summary of women’s applications for protection orders

Applied Granted temporary order Granted permanent order

Comments

Māori Women (Chapter 2)

Crystal 9 9 9

Halle 9 8 9 Application put on notice but permanent order granted

Katrina 9 9 9

Lyla 99 99 99 Different respondents

Marama 9 9 9

Maria 8 - -

Roimata 9 9 9

Te Rina 9 9 9

Subtotal (n=8) 7 6 7

Pākehā Women (Chapter 3)

Amanda 9 9 8 Withdraws application after notice to oppose.

Caitlyn 8 - -

Claire 9 9 9 Permanent order after defended hearing. Later discharged.

Elizabeth 9 9 9

Hilda 9 9 9 Permanent order made after defended hearing.

Jess 9 9 9 Respondent evaded service for three months.

Louise 9 9 9 Respondent withdrew opposition.

Marjorie 8 - -

Patricia 9 9 9

Patti 9 9 9

Rachel 9 9 9

Sarah 9 9 9

Trudy 9 9 9

Subtotal (n=13) 11 11 10

Applied Granted temporary order Granted permanent order

Comments

Pasifika Women (Chapter 4)

Alofa 8 - -

Mele (Lily) 8 - -

Priya 9 9 9 Lawyer’s delays means it takes one month to get order.

Rasela 8 - -

Rowena 9 9 8 Application dismissed in defended hearing.

Tessa 9 9 9

Tiare 8 - -

Titiana 8 - -

Sub total (n=8) 3 3 2

Other Ethnic Minority Women (Chapter 5)

Alice 9 9 ? Respondent opposed final order. Pending.

Amira 9 8 8

Amy 9 9 8 Application dismissed in defended hearing.

Annie 9 9 9

Eve 9 9 8 Withdrew application when respondent opposed it.

Laura 8 - -

Lee-Mei 9 8 - Withdrew application on lawyer’s advice.

Lin-Bao 8 - -

Nusrat 8 - -

Pinky 9 9 9 Had order discharged.

Sonal 9 9 9

Sripai 99 88 8? Same respondent. Second application pending.

Tina 98 9 8 Had order discharged. Decided against second application.

Zaleha 9 9 9

Sub total (n=14) 11 8 4-6 Total (n=43) 32 28 23-25

steadily decreased. Specifically, the number of applications has decreased from 6,970 in 1998/99 to 4,560 in 2004/05. The number of temporary orders made has correspondingly declined from 5,247 in 1998/99 to 3,107 in 2004/05, with a similar decline in the number of final orders made (4,322 to 2,601).96

The decrease in the numbers of applications and orders, when viewed against increases in other indices of domestic violence, raises concerns about women’s access to justice under the operation of the Domestic Violence Act 1995. As we mentioned in Chapter 1, some of these concerns were canvassed in a report published by the National Collective of Independent Women’s Refuges in 2004.97 That report pointed to evidence suggesting women were losing faith in protection orders and that the bar for granting temporary orders without notice had been raised.98

Overview of Women’s Applications for Protection Orders

Figure 1 provides an overview of the case studies in terms of the applications made and the outcomes of those applications.

We do not know the extent to which the experiences of the women in our case studies are representative of those of the population of women who apply for protection orders, but the overall pattern reflected in Figure 1 quite closely matches national statistics in several respects.

Firstly, all the applications reported in the case studies were made without notice. Nationally, 87% of applications for protection orders during the 2004/05 year were made without notice.99 Secondly, 28 of the 32 women (that is, 88%) who made applications for protection orders were granted temporary orders. This is slightly more than the national figure of 78% for the 2004/05 year.100

Thirdly, of the four women who had applications put on notice, only one had had a permanent order granted when we interviewed her, two had had their applications declined, and two were still awaiting a determination. This too is broadly similar to national patterns. As we note in Appendix 1, fewer than 30% of applications put on notice result in a permanent order being made.

While for the most part the case studies overall are reflective of national trends in these respects, there are some interesting differences between the four streams. Firstly, it seems noteworthy that while the majority of Māori, Pākehā and other ethnic minority women applied for protection orders (7 of 8, 11 of 13 and 11 of 14 respectively), fewer than half the Pasifika women did so (3

96 Ibid.

97 Hann, S. (2004). The implementation of the Domestic Violence Act 1995. Wellington:

National Collective of Independent Women’s Refuges. Retrieved 7 June 2006 from http://www.nzfvc.org.nz/PublicationDetails.aspx?publication=12835.

98 Our analysis of statistics relating to applications and orders made suggests that the bar has indeed been raised. See Appendix 1.

99 Boshier, P. (2006). The Domestic Violence Act ten years on. Speech at Te Unga Waka Marae, Epsom, 27 March.

Retrieved 19 December 2006 from http://www.justice.govt.nz/family/publications/speeches-papers/default.asp?inline=domestic-violence-act-ten-years-on-march-2006.asp.

100 Ibid.

of 8).101 As we discuss below, Pasifika women seem to face particular barriers to making applications for protection orders.

Secondly, the applications by other ethnic minority women were less likely to be successful than were applications by other women. That is, all seven Māori women who made applications got a permanent order (even if Halle’s application was put on notice). All but one of the Pākehā women who made applications got a permanent order; the one exception, Amanda, got a temporary order but subsequently withdrew her application. Two of the 3 Pasifika women who applied got permanent orders. On the other hand, at the time we interviewed them, just 4 of the 11 other ethnic minority women who applied had been granted permanent orders. Moreover, of these 4, 2 have subsequently had that order discharged, leaving just 2 of the 14 participants with a protection order in place.

Barriers to Applying for Protection Orders

Deciding to make an application for a protection order is not an easy thing to do. As one of our key informants said, “It is like making a declaration of war.” The simile is only partly appropriate.

As is evident in each of our case studies, “war” had already broken out in the form of repeated assaults and/or serious psychological violence. In other respects, the simile is appropriate:

applying for a protection order was, to all intents and purposes, a declaration that the relationship was over. That is, although protection orders are available to applicants living with the respondent (in which case the “non-contact” provisions of section 19(2) are suspended102), every woman in our research who applied for a protection order did so when she separated from her partner, albeit that in several cases the separations did not last.

Thus, the first set of barriers to applying for a protection order are those economic, social and psychological factors which tend to prevent battered women from leaving their violent partners.

Financial dependency, the aptly named “feminisation of poverty”,103 ongoing fears of the abuser, the victim blaming and shame associated with being a battered woman, the community’s historical and present day experiences of police and other government agencies like Child, Youth and Family – these factors and more represent barriers to applying for protection orders. The issue of isolation, especially for immigrant women, is discussed in detail in Chapter 15. One commonality, however, that our case studies share is that all the women thought long and hard before trying to end their relationships and four (Maria, Alofa, Priya and Nusrat) were living with their partners at the time we interviewed them.

Lack of Information

For women who were considering leaving their abuser, one of the most obvious barriers to obtaining a protection order was not knowing about them. When we interviewed them, Tiare, Titiana and Nusrat seemed not to know much about protection orders; it was hardly surprising that none had applied for one. Moreover, several of the women who did apply for protection orders learned about them only after calling the police, when they were informed by either the police officers who attended (as in the case of Crystal and Claire) or by women’s advocates who

101 This is only partly accounted for by the particular circumstances of one of the Pasifika women, Rasela. Protection orders are most commonly ought against male heterosexual partners, but this was not the case for Rasela who was being abused by her parents.

102 Domestic Violence Act 1995, s. 20(1).

103 See discussions of the feminisation of poverty in Parker, W. (1999). Family violence and matrimonial property.

New Zealand Family Law Journal 151 and Z v Z (No 2) [1997] 2 NZFLR 258. See discussion of the inequities of the now s. 18A of the Property (Relationships) Act 1976 in the Parker article as well.

followed up the police call-out (as in the case of Roimata and Amy). In the case of Amanda, Pinky and Lee-Mei, the first real information they had about protection orders came from the lawyers they consulted about their relationship difficulties. Amanda, who consulted a lawyer about retaining the day-to-day care of Katie, told us that she had not initially considered applying for a protection order. As she said, “I knew they existed but I didn’t think they applied to me.”

Amanda’s experience, like that of other women (for example, Crystal and Lyla) demonstrates a distinction between knowing about protection orders and understanding them. That is, women are unlikely to apply for protection orders unless they know enough about them to recognise them as applicable to their own situation. Part of the difficulty involves seeing oneself as a

“victim”, with all the negative connotations, lack of agency, and victim blaming that such a label carries.104

The importance of proper information is highlighted by two cases of women who did not apply for protection orders. Alofa called the police when Fetu was intimidating her by destroying her property. The police told her that because he had not physically harmed her, there was nothing that they could do for her. No doubt the police were thinking narrowly in terms of a prosecution for assault105 but they could easily have advised Alofa that Fetu’s behaviour came within the definition of psychological violence under the Domestic Violence Act 1995 and that she could apply for a protection order. Similarly, Caitlyn was wrongly told that she could not obtain a protection order against Bernard because she was still living with him. Like Alofa, Caitlyn did not apply for a protection order.

A lack of information was a particularly common barrier for immigrant women. This is not surprising, but it is worth noting that immigrant and refugee women are multiply disadvantaged in this regard. That is, compared with English-speaking New Zealanders, they are less likely to know about protection orders. Secondly, compared with New Zealand–born women, they are less likely to know to whom they can go for information and advice. Thirdly, for many immigrant women, even if they do locate a source of information, language difficulties may mean that they cannot take full advantage of the information provided.

We note that the Ministry of Justice has published an introduction to the Care of Children Act 2004 in 14 languages and made these versions available on the internet.106 However, its guides to the Domestic Violence Act 1995, protection orders and protected persons programmes are available in English only. We recommend:

THAT the Ministry of Justice ensures information about the Domestic Violence Act 1995 and protection orders, including how to apply for them and how to have them enforced, is translated into the various languages common in New Zealand, makes that information available on its website and disseminates that information widely through community networks. (#20)107

Lack of Faith in Protection Orders

The stories of the 11 women who did not apply for a protection order reveal other barriers to accessing orders. Chief among these was a belief that a protection order would not improve their

104 See, for example, Mahoney, M. (1991). Legal images of battered women: Redefining the issue of separation.

Michigan Law Review, 90(1), 1.

105 Although, as we argue in Chapter 12, Fetu could well have been charged for a threatening act (Crimes Act 1961, s. 308).

106 These are available at http://www.justice.govt.nz/family/publications/pamphlets/default.asp.

107 The number in parentheses following a recommendation refers to its number in the list of recommendations in the Executive Summary.

situations. For example, previous experiences of the police by Maria, Alofa, Lily and Tiare, shaped their negative views of protection orders. Each had called the police when they had been assaulted, and each found the police response to have been inadequate. Maria called the police just once and was told what a great man her partner was and that she must have done something to trigger the assault. Although she left her partner that night, the response of the police meant that she had little faith in official intervention.

Similarly, Alofa was not convinced by the advocates who suggested that she apply for a protection order because her earlier experience of calling the police left her feeling that they would not be effective in enforcing a protection order. Both Tiare and Lily (Mele’s mother) had also found the police to be ineffective, despite calling them several times, and, in Lily’s case, already having a non-molestation order. Tiare’s experiences of the police were, moreover, confirmed when her son began to beat her; he was never arrested either. While we discuss the performance of the police in more detail in Chapter 12, here it is important to emphasise the crucial role of police in shaping battered women’s views of the efficacy of protection orders.

Without effective police interventions, they are literally just pieces of paper.

While beliefs about the ineffectiveness of protection orders seemed to be particularly important, most women who did not apply for an order faced multiple barriers.108 No one single factor was ever decisive. Rather, women weighed up their options in the light of changing circumstances.

The complexity of decision making is illustrated by Te Rina and Patricia. Each of whom eventually obtained a protection order despite having serious misgivings about its effectiveness.

Te Rina, who lived in a part of town known as “the Bronx”, knew from the experience of her neighbour that she could not count on a timely response by the police to enforce her order.

Despite advice from a lawyer, Patricia had decided that it “Seemed safer to be where I was … than to leave and [face] a greater chance of getting hurt.” Only George’s threat to kill their daughter made Patricia re-evaluate her situation.

Rasela never applied for a protection order despite support and knowledge about protection orders. She thought that obtaining a protection order:

… would motivate my father, just make him more angry and make him want to look for me more. Applying is probably another way of him finding out where I am. The protection order couldn’t help me. How was a piece of paper going to help me? How is it going to stop my father from dragging me on a plane? He does not care about a piece of paper … It would make me more afraid than actually make me feel protected.

Because of her fears of his reactions, Rasela was sure she did not want a protection order served on her father. Indeed because she felt that she was letting down her support person by not applying for an order, Rasela had to lie to her. She told her that she felt safe, though she did not, but she knew not taking out the order was the safest thing for her to do.

I know my father and I know my mother and that would guarantee it, they would see it was as an insult; they would need to punish me for doing that. My parents when they set their minds, they are going to do it. They don’t care about a piece of paper or your legal system. Our ways have [a] much bigger effect than any piece of paper can have on them.

108 For a discussion of the intersectionality of race and gender, see Crenshaw, K. (1994). Mapping the margins:

Intersectionality, identity politics, and violence against women of color. In M. A. Fineman and R. Mykitiuk (Eds.), The public nature of private violence. New York: Routledge. Also, Wurtzburg, S. (2003). Domestic violence and Polynesian families: Providing appropriate interventions. In K. McMaster & A. Wells (Eds.), Innovative approaches to stopping family violence. Wellington: Steele Roberts.

Cost and Availability of Legal Aid

The cost of applying for protection orders was frequently mentioned by the women in our case studies. Laura, who was “totally without money”, did not get legal aid when she applied. She was amazed that, unlike the situation in South Africa, women in New Zealand are expected to pay to get a protection order, if they do not qualify for legal aid. Mele reported that cost was one of the reasons her mother did not take advocates’ advice to apply for a protection order. Claire, who also did not qualify for legal aid, initially baulked at the cost of making an application, although she later did apply after Robert continued to stalk and harass her. Tina initially did apply for a protection order, spending $1,000 in the process. She later withdrew the application “because being a solo mother was something I couldn’t handle.” When Tony resumed his abuse, she considered making a second application but decided against it because of the cost. She told us that she had been advised that as she had an annual after-tax income of $17,000 and two dependent children she was “unlikely” to qualify for legal aid.109 As Tina remarked, “Even a teenager makes that money.”

While these four women specifically decided against applying for a protection order because of the cost, legal costs had major implications for others. Eve and Lee-Mei both applied for orders but later abandoned their applications as the cost of their defended applications began to mount.

Claire told us that the cost of proceedings played a role in her decision to agree to certain undertakings proposed by Robert’s lawyer. As we shall see at the end of this chapter, these undertakings – entered into to save Claire mounting legal bills – have now resulted in her sense of safety and autonomy being severely eroded. Louise and Tessa both ended up representing themselves because of the costs they were incurring in Family Court proceedings. So did Amanda who estimated that she had spent $10,000 in legal fees in relation to proceedings under the Domestic Violence Act 1995 and the Guardianship Act 1968. Lee-Mei too had spent more than

$5,000 by the time she abandoned her application for a protection order.

A further significant point to emerge from the case studies is that the cost of making an application for a protection order is almost never the only cost facing women leaving an abusive partner. The case studies include examples of women having to pay for medical treatment, counselling, installing security lights, changing locks, and relocating themselves and their children.

Some women lost their bond money or did not have enough bond money for suitable accommodation. Some had to pay for replacing appliances and furniture taken by the perpetrator, repairing damage he had caused to rental property and replacing household goods he had destroyed. Commonly, perpetrators left women with significant unpaid phone and power bills, large hire purchase commitments and rent arrears. Some women were effectively asset-stripped by their perpetrators. Others, like Hilda, had to change jobs, taking a major drop in income and seniority in the process.

Concerns about legal costs confirmed what key informants told us: that eligibility for legal aid has been very restrictive, with many women exceeding the income limits for eligibility but still not having sufficient resources to pay legal fees themselves. Some of this has been remedied by regulation 5 of the Legal Services Regulations 2006, which came into effect on 1 March 2007.

Regulation 5 has increased the gross annual income eligibility limit to allow applicants to qualify for legal aid even if their income is well above that received by a beneficiary.110

109 Although eligibility rules for legal aid have since been changed, the advice given to Tina was probably correct at the time.

110 Specifically, reg. 5 states: “Legal aid for civil matters: maximum levels of income … (1) The maximum levels of income for the purposes of determining an applicant’s eligibility for legal aid in respect of a civil matter are—(a)

$19,741 per year for a single applicant: (b) $31,225 per year for an applicant with—(i) a spouse or partner; or (ii) 1 dependent child: (c) $36,371 per year for an applicant with—(i) a spouse or partner, and 1 dependent child; or (ii) 2