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The Legal Context of Seeking Protection Orders

Much concern has been expressed recently about the granting of protection orders under the Domestic Violence Act 1995 and natural justice for respondents. Fathers’ rights groups, for example, have complained vociferously about the supposed lack of natural justice when temporary protection orders are made under section 13 of the Domestic Violence Act. 140 They assert that such orders are unfairly granted because they are made without first giving the respondent a chance to be heard. As well, case law has developed which suggests that these concerns about natural justice for respondents may be justified.141 The case law raises significant questions about what tests should be used in granting without notice and final protection orders.

In this chapter, we will analyse Domestic Violence Act case law and judicial practice in respect of protection order applications. We do this firstly to contribute to the legal debate about protection orders that is now occurring. We are specialists in the area of domestic violence practice and it is our view that concerns about current judicial practice from the perspective of battered women have not been adequately addressed to date. As well, we want to set out the legal context within which our women applied for protection orders. This needs to be done to clarify issues in our case studies which may seem strange or anomalous. For example, in Halle’s case, it may seem odd that we cannot tell why her application for a temporary protection order was put on notice – and therefore not decided for two long and frightening months. However, when we look at Justice Priestley’s decision in D v D,142 we realise that having Halle’s application dealt with “on the papers” and declined in the absence of any judicial reasons for the outcome is standard Family Court practice for battered women these days.

It is interesting that there has been very little discussion or commentary about natural justice issues for applicants for temporary protection orders, the overwhelming majority of whom are women. The focus of discussion to date appears to have been almost entirely on natural justice in respect of the male respondents. We would, therefore, like to consider this issue on behalf of applicants: does the way the Family Court currently deals with temporary protection order applications raise natural justice concerns for applicants? Additionally: are the objects of the Domestic Violence Act 1995 – to reduce and prevent violence in domestic relationships – being achieved through the processes by which the Family Court is “hearing” without notice protection order applications?143 We would like, furthermore, to expand the scope of those questions to the following other groups of applicants: what would natural justice and/or fulfilling the statutorily mandated approach of section 5(3) of the Domestic Violence Act 1995 entail for applicants whose without notice applications have been put on notice and for applicants for final protection orders?

140 New Zealand Law Commission. (2003). Dispute resolution in the Family Court (NZLC R82). Wellington: New Zealand Law Commision. Retrieved from http://www.lawcom.govt.nz.

141 See, for example discussions, below, of D v D [2004] NZFLR 320 (HC) and W v W (Family Court, New Plymouth, FP043/001/01, 30 May 2001, Judge Inglis).

142 D v D [2004] NZFLR 320 (HC).

143 As Judge Boshier states (Boshier, P. (2006). Domestic violence: A comparative New Zealand perspective. Speech to the Queensland Law Society, Family Law Residential, Sunshine Coast, Queensland, 19 August): “Where an applicant makes a ‘without notice’ application for a protection order, the application is usually determined on affidavit only, so that there is no ‘hearing’ as such. This allows for a protection order to be made available immediately, in situations of urgency. We allocate Duty Judges so as to ensure that these applications are able to be dealt with speedily. The respondent is then served with the order, advised of its effect, and given the opportunity to have the order removed at a later hearing.”

Current Legislative Framework

It is important to understand what domestic violence is, in order to understand what natural justice or due process for victims of domestic violence might involve. Section 3 of the Domestic Violence Act 1995 defines “violence” as physical, sexual or psychological abuse. Section 3(2) defines “psychological abuse” as including, but not being limited to intimidation, harassment, damage to property and threats of physical abuse. Section 3(4) then states that a single act may amount to abuse (for example, a gun to the head), but in addition, “a number of acts that form part of a pattern of behaviour may amount to abuse … even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.”

While this is the statutory definition, Roberta Valente, the staff director of the American Bar Association Commission on Domestic Violence, reminds us:144

Although the details of the assaults are shocking, their meaning lies beyond the deadening statistics documenting the severity and frequency of violence. Violence signifies crossing a boundary in which violation and degradation, previously unacceptable in a loving relationship, are now used as tools of power and coercion.

Battering is far more than a single event, even for the woman who is hit once, because it teaches a profound lesson about who controls a relationship and how that control will be exercised. Self-consciously exercised violence temporarily brings a man what he wants – his wife acquiesces, placates him, or stops her demands.

Section 3 of the Domestic Violence Act 1995 specifically acknowledges as “psychological abuse”

threats and behaviours that induce fear, humiliation, harassment and intimidation. However, the definition of psychological abuse is a non-exhaustive one. From our case studies we can also include: social isolation, financial deprivation as well as discrediting the woman’s moral character, her parenting skills, and her mental health to her friends, her community, the police and other service agencies. In terms of the latter, Valente reminds us, “Abusers develop a convincing repertoire of reasons to justify their violent and coercive controls.”145

In order to understand the statutory grounds on which temporary orders can be granted, section 13 of the Domestic Violence Act 1995 states that:

(1) A protection order may be made on an application without notice if the Court is satisfied that the delay that would be caused by proceeding on notice would or might entail—

(a) A risk of harm; or (b) Undue hardship—

to the applicant or a child of the applicant’s family, or both.

(2) Without limiting the matters to which the Court may have regard when determining whether to grant a protection order on an application without notice, the Court must have regard to—

(a) The perception of the applicant or a child of the applicant’s family, or both, of the nature and seriousness of the respondent’s behaviour; and

(b) The effect of that behaviour on the applicant or a child of the applicant’s family, or both.

The test for granting without notice protection orders under the Domestic Protection Act 1982 was quite different. For instance, under the Domestic Protection Act, there was no mandatory requirement for the judge to consider the applicant’s and/or the child’s perspectives about the

144 Valente, R., & Farney, A. (2003). Creating justice through balance: Integrating domestic violence law into Family Court practice. Juvenile and Family Court Journal, 54(4), 35-55.

145 Ibid.

nature and seriousness and effects of the violence when deciding whether to make a without notice order or not. As discussed in Chapter 7, empirical research shows that women’s views are the single best predictor of the dangerousness of their partners or ex-partners.

More importantly, the Domestic Protection Act 1982 stated that the court could grant a without notice (ex parte) protection order only if the delay that would result in placing the application on notice “would or might entail risk to the personal safety” of the applicant or a child of the family, or where the delay “would or might entail serious injury or undue hardship.”146

As the head of the New Zealand Law Society’s Standing Committee on Domestic Violence has stated, the threshold for without notice orders was “deliberately and significantly lowered” by Parliament in the Domestic Violence Act 1995. She notes, moreover, that the Department of Justice report to the Justice and Law Reform Select Committee147 commented, prior to the Domestic Violence Act’s passage, that an increase in the numbers of without notice protection orders might indeed result from this express lowering of the threshold. The report stated:148

Under the Domestic Violence Bill, the threshold is reduced to either a risk of harm or undue hardship because in this context it was thought necessary to err on the side of providing more, rather than less, protection from as early a point in the process as possible. We acknowledge, however that a consequence of this is a likely increase in the number of protection orders that can be made without notice first being given to the respondent.

The Process for Deciding Without Notice Protection Order Applications

We return to the issue of the threshold below, but first it is important to understand the processes for considering without notice applications. As mentioned earlier, standard practice is for the judge to read the application and affidavits in support in chambers. There is no “hearing”

in any sense of the meaning of that word. The judge sees neither the applicant nor her lawyer.

According to our key informants, if any issues arise which the judge is unclear about or which were not covered in the papers to the judge’s satisfaction, then the application will usually be put on notice, often with time abridged, or, less frequently, dismissed or struck out.149 For example, in Amira’s case, her solicitor believes that the Family Court judge put her application on notice because he was unsure that whether Amira fully understood the meaning of her sworn affidavit.

Her problems with English fluency had been noted on her solicitor’s certificate. The judge, however, did not give instructions to her lawyer to have Amira re-swear her affidavit in front of an interpreter who reviewed its contents with her in her native language. He also did not send the papers back to her solicitor so that she could clarify any language issues prior to resubmitting the application to court. Instead, the judge directed that the application be put on notice.150

146 Domestic Protection Act 1982, s. 14(1).

147 Davis, W. (2004). Gender bias, fathers’ rights, domestic violence and the Family Court. Butterworths Family Law Journal, 4(12), 299-312, at p. 303.

148 Department of Justice. (1995). Report to the Justice and Law Reform Select Committee on the Domestic Violence Bill.

Wellington.

149 As Figure A2 in Appendix 1 shows, in March 2005, the latest month for which published data are available, this was the outcome in approximately 17% of cases (here we are using the moving average – monthly figures can fluctuate by as much as 5% on either side of this). A smaller number of without notice applications are declined outright. In an analysis of applications filed in the six months between 1 October 2003 and 31 March 2004 supplied to us by the Ministry of Justice, 9% of without notice applications were dismissed (7%) or struck out (2%).

150 See Zhang v Jiang (Family Court, Auckland, FP586/99, Judge Boshier) for another decision in which the presiding judge raised concerns about the applicant’s ability to comprehend what was in her affidavit. In that case, a temporary order had been made but this was discharged after a defended hearing in which the judge raised concerns about an affidavit made on behalf of the non-English speaking applicant.

As an interesting aside, we first learned about the way without notice protection order applications are determined from an editorial staff member at a legal publisher. When we went looking for unreported protection order cases, we were told there was nothing worth looking at in them. The publisher no longer puts these unreported cases on their database. The reason: the temporary protection order minutes or “judgments” were so perfunctory that there was nothing in them worthy of retrieval. An ironic offshoot of the process by which these without notice applications are being handled is that development of the jurisprudence in this significant area of the law is being truncated because decision making is non-transparent and judgments unavailable for critique and discussion.

As well as the application for a temporary protection order being dealt with summarily on the papers by the judge, no Family Court time is actually allotted to deal with these applications.

Alison Towns and Hazel Scott describe the decision-making process:151

The legal process of seeking a temporary order was depicted by judges as rational in law, requiring essentially a tick box approach to the provision of orders in which certain requirements must be met under the [Domestic Violence] Act and if these requirements were represented in the documentation received by the judge, orders would be granted. If the requirements were not met the judge might turn the application down, send the documentation back to the lawyer for further information or put the request for orders on notice. Lawyer I noted the variability among judges, referring to one judge who he constituted as never giving temporary orders, and advised against going to that court for such orders. He portrayed the courts as influenced by prevailing beliefs stating that when the Act first came out temporary protection orders were handed out “like lollies” in order for judges to avoid being “seen as chauvinistic”. Judge 2 noted that reading documentation and making important decisions about issuing of temporary orders often occurred during a 15-minute tea break.152

Our key informants described a similar process being used throughout the country to determine temporary protection order applications. One key informant mentioned the “tick box” approach and stated that temporary protection order applications were almost invariably dealt with in her region after 4 pm. “That’s why lawyers are told to get their applications to the Court by 2.30 or 3 pm”, she said, noting that the time that the Family Court judge gave to each application depended on things like whether he had a dinner engagement that evening or had some other reason to get away before 6 pm. She also told us that the Family Court staff were not allowed to help legally unrepresented women fill out the “25-page document” necessary for filing for a temporary protection order.153 She said that “the Court staff need to be seen as neutral as between the applicant and the respondent and that extends to providing assistance to complete the forms.” And she mentioned, with a certain degree of sarcasm, “And if that application is handwritten, [the applicant] doesn’t have a chance!” Among other things, her comment underlines the need for victim advocacy of the kind we recommended in the previous chapter (recommendation 12).

151 Towns, A., & Scott, H. (2006). Accountability, natural justice and safety: The protection order pilot study (POPS) of the Domestic Violence Act 1995. New Zealand Family Law Journal, 5(7), 157-168.

152 In terms of the “lollies” allegation, it needs to be noted that Christopher Perry, in an empirical study of 208 protection order applications made to the Christchurch Family Court in 1997, expressed concern that 61% of the without notice applications that were directed to proceed on notice involved severe abuse. See Perry, C. (2000). An empricial study of protection orders made to the Christchurch Family Court. Butterworths Family Law Journal, 3, 139-145.

153 Our key informant significantly underestimated the number of pages. There are in fact 35 pages of forms (viz, DV1, 1 page; DV3, 10 pages; DV4, 19 pages; DV5, 2 pages; and DV6, 3 pages). These forms are available at http://www.justice.govt.nz/family/forms/list/default.asp?inline=domestic-violence.asp.

Whether treating without notice applications in the manner described is driven by a desire to spare women the stress of having to appear before a judge, as suggested by some key informants – or is a pragmatic response to the large increase in applications following the implementation of the Domestic Violence Act 1995, as suggested by other key informants, is a moot point. Either way, we think this routinisation of handling without notice applications has not served applicant women well, as we discuss below. First, however, we review the operation of section 13 in terms of protecting the respondent’s right to natural justice.

Natural Justice Protections for Respondents and Section 13(1)

A good deal of case law follows what might be called a “plain meaning/purposive interpretation”

of section 13(1). That is, the section is interpreted widely to provide protection to the largest number of possible applicants. For example, in van Rijn v van Rijn, Judge MacCormick stated:154

The basis on which a temporary order can be made in terms of the provisions of this Act and certainly compared with the requirements for other orders to be made on an ex parte basis, is not high. The behaviours complained of need only be such as might entail undue hardship for a temporary order to be made on a without notice basis if the delay that would be caused by proceedings on notice would or might cause that.

Judge MacCormick went on to comment that there were protective measures built into the requirements of the Domestic Violence Act 1995, primarily the solicitor’s certificate testifying to the legal advice given to the applicant to fully disclose all material facts and the 42-day rule.155

Because of these “protective measures”, Judge MacCormick held that there were no issues of natural justice that had to be addressed. In the judge’s words:156

The relative ease with which the statute permits a temporary order to be made – relative to a final order – is offset by the requirement that every solicitor acting for an applicant must certify pursuant to Rule 26 of the Domestic Violence Rules.

This means that any lawyer acting for an applicant must personally sign a solicitor’s certificate stating, inter alia, that the lawyer is satisfied that full and frank disclosure of all relevant circumstances has been made to the court and that she or he is also satisfied “that the (without notice protection) order sought is one that ought to be made.”157 Indeed, Rule 26 provides much greater protection to respondents than is found in other types of ex parte proceedings, for instance, those under the Care of Children Act 2004 or the Property (Relationships) Act 1976.

Clark, in his recent article “Ex parte orders in the Family Court and natural justice court and the New Zealand Bill of Rights Act 1990”, concurs with Judge MacCormick’s analysis. He specifically concludes:158

The system deferring the respondent’s right to be heard as set out in the Domestic Violence Act accommodates a reasonable construction of natural justice in the

154 Van Rijn v van Rijn (Family Court, Auckland, FP004/1068 D/01, Judge MacCormick), at p. 2.

155 The 42-day rule is set out in s. 76 of the Domestic Violence Act 1995. Section 76(1) states: “Where the Court makes a temporary order under this Act, the respondent is entitled to notify the Court that he or she wishes to be heard on whether a final order should be substituted for the temporary order.” Section 76(3) states: “Where the respondent notifies the Court, in accordance with subsection (1) of this section, that he or she wishes to be heard, the Registrar must assign a hearing date, which must be—(a) As soon as practicable; and (b) Unless there are special circumstances, in no case later than 42 days after the receipt of the respondent’s notice.”

156 Van Rijn v van Rijn (Family Court, Auckland, FP004/1068 D/01, Judge MacCormick).

157 See Rule 26 of the Domestic Violence Rules 1996 (certificate of lawyer to be included in applications without notice).

158 Clark, E. (2003). Ex parte orders in the Family Court and the New Zealand Bill of Rights Act. Butterworths Family Law Journal, 4, 205-212, at p. 213.

circumstances. The availability of protection orders without notice is an essential tool in preventing violence but this interest must be balanced against the respondent’s right to be heard. The system mandated by the Domestic Violence Act does this adequately by requiring a high standard of proof and by including a statutory direction that the respondent must be heard as soon as practicable and within 42 days.

Clark discusses in detail the reasons why the solicitor’s certificate and the 42-day rule meet the standards of natural justice. In terms of the solicitor’s certificate, Clark emphasises:159

Such a duty of candour means that for a protection order to be granted without notice under the Domestic Violence Act, there must at least be a credible prima facie case put before a Judge. This would seem to significantly reduce the risk of respondents being disadvantaged by protection orders which are later found to be totally without merit. It also means that the applicants granted without notice orders are more likely to genuinely need them.

In terms of the 42-day rule, he comments:160

Also relevant is the fact that the Domestic Violence Act specifies the maximum time that should be taken before the respondent is given an opportunity to be heard.

Defences against a temporary protection order being made final and applications for discharge or variation must be held as soon as practicable and in not more than 42 days. This time frame seems to be what the Act envisions as the longest delay that fairness will allow on the respondent’s right to be heard.

It is clear that the Family Court does not in many cases comply with the natural justice protection of 42 days.161 However, as Clark succinctly puts it:162

A lack of resources then pervades both the system of issuing without notice orders and the system for applying for discharges. A shortfall in funding, however, has never been accepted as an excuse for breaching rights in New Zealand, especially with respect to the provision of Court services. It is incumbent upon the Executive to allocate sufficient resources for the Courts to comply with their obligations under the Domestic Violence Act and the [New Zealand Bill of Rights Act 1990].

We will return to this later in our report but for now underscore that if there are natural justice issues that arise because the Family Court is inadequately resourced, then any such funding inadequacies should be remedied.

There is also clear High Court authority which supports Clark’s and Judge MacCormick’s analyses. For example, TLL v PS163 is an appeal by the respondent against whom a temporary protection order has been made. No reasons had been given by the Family Court judge for his decision and the appellant argued that the lack of reasons together with the without notice procedure had violated his natural rights. Justice Lang in this recent High Court decision canvasses many of the issues, and concludes that there is no natural justice flaw inherent in the granting of without notice protection orders under section 13. After repeating the general statement about how the making of a temporary protection order without notice under the

159 Ibid, at p. 209.

160 Ibid, at p. 210.

161 See, for example, Barwick, H., Gray, A., & Macky, R. (2000). Domestic Violence Act 1995: Process evaluation Wellington: Ministry of Justice. At p. 72, the authors state: “Approximately two fifths of the hearings in the file study were actually held within 42 days.”

162 Clark, E. (2003). Ex parte orders in the Family Court and the New Zealand Bill of Rights Act. Butterworths Family Law Journal, 4, 205-212, at p. 211.

163 TLL v PS[Protection orders] [2006] NZFLR 897 (HC).