Changes from 1 July 2019: Family Violence Act 2018 and other legislation

Fri 21 Jun 2019

Changes from 1 July 2019: Family Violence Act 2018 and other legislation On 1 July 2019, the Family Violence Act 2018 comes into force. This ...

On 1 July 2019, the Family Violence Act 2018 comes into force. This replaces the Domestic Violence Act 1995.

The remaining provisions of the Family Violence (Amendments) Act 2018 also come into effect on 1 July 2019. These amend a number of other Acts.

The Ministry of Justice provides a summary of the changes.

A brief summary and brochure on changes to protection orders is also available from the Ministry of Justice.

Family Violence Act 2018

Some key provisions and changes under the Family Violence Act 2018 are highlighted below, with links to the relevant sections for further information.

Part 1 of the Act sets out its purpose, principles to guide the achievement of that purpose, definitions, and other preliminary provisions.

The new Act gives decision-makers in the family violence system more guidance about the nature and impact of family violence.

The purpose of the Act is to "stop and prevent family violence by—

recognising that family violence, in all its forms, is unacceptable; and stopping and preventing perpetrators from inflicting family violence; and keeping victims, including children, safe from family violence." (section 3)

Section 3(2) states that any court or person who exercises a power under the Act must be guided by this purpose.

Fifteen principles are set out to guide the achievement of the purpose of the Act (section 4). Selected principles include:

(b) decision makers should, whenever appropriate, recognise that family violence is often behaviour that appears to be minor or trivial when viewed in isolation, but forms part of a pattern of behaviour that causes cumulative harm:

(c) decision makers should, whenever appropriate, recognise that family violence often is or includes coercive or controlling behaviour:

(h) perpetrators of family violence should face effective responses to, and sanctions for, family violence:

(i) perpetrators of family violence should have access to, and in some cases be required to engage with, services to help them stop and prevent their family violence:

(j) victims of family violence should have access to services to help secure their safety from family violence:

(k) arrangements that support the ongoing safety and well-being of a victim of family violence should whenever practicable be sustained (for example, employment, education, housing, or community involvement):

(l) responses to family violence should be culturally appropriate and, in particular, responses involving Māori should reflect tikanga Māori (Māori customary values and practices):

(m) decision makers should consider the views of victims of family violence, and respect those views unless a good reason exists in the particular circumstances for not doing so (for example, because doing so would or may compromise victims’ safety):

Definitions are provided of family violence, abuse and psychological abuse (sections 9-11).

Family violence includes physical abuse, sexual abuse and psychological abuse, and dowry-related violence.

Psychological abuse can include: threats, intimidation, harassment, damage to property, ill-treatment of pets/animals, financial or economic abuse, and hindering or removing access to necessary aids, devices, medication, or other support.

Violence can include a pattern of behaviour that may be coercive or controlling or causes the person, or may cause the person, cumulative harm.

A single act may amount to abuse, and a number of acts that form part of a pattern of behaviour (even if all or any of those acts, when viewed in isolation, may appear to be minor or trivial) may amount to abuse.

Causing or allowing a child to see or hear the physical, sexual, or psychological abuse of a family member (or putting a child at risk of this) is considered psychological abuse of the child. (However the person subjected to the abuse is not considered to have caused or allowed the child to see or hear the abuse.)

Definitions are also provided of "family relationship" (general, sharing household, and close personal relationship) (sections 12-14).

A person may be considered to have a close personal relationship with another person if they are the recipient of care-carer relationship (section 14(2)).

Part 2 of the Act is about information sharing.

See our separate NZFVC News story on changes to information sharing.

Part 3 is about Police safety orders (PSOs).

Changes include that PSOs can be issued for up to 10 days (previously five). Also, Police can provide a written direction to a person bound by a PSO that they must attend a risk and needs assessment.

Part 4 is about protection orders.

New provisions allow a representative or an organisation approved by the Ministry of Justice to apply for a protection order on behalf of an applicant. This can be applications made on behalf of a child, a person lacking capacity, or a person prevented from applying personally due to fear of harm or other sufficient cause (section 74).

A new provision enables the court to direct that a Protection order applies to any child of the applicant, whether or not that child ordinarily or periodically resides with the applicant (sections 86-87).

As previously, a protected person may suspend the standard no-contact condition in a protection order by giving consent to contact with the respondent (sections 91-93). However a new provision notes that consent to contact must be in writing or in a digital communication (for example, in a text message, email, letter, or standard form). The cancelling of consent to contact may take any form (for example, words spoken face to face, or by telephone) (section 94).

New guidance is provided for courts determining whether to discharge a protection order, including a temporary protection order (section 110).

Part 5 is about property orders.

Applicants with (or applying for) a protection order can apply for an occupation order, tenancy order or furniture order. Previously, to make an order, the court had to be satisfied it was necessary for the protection of the applicant, or in the best interests of a child. Under the new, broader test, the court must be satisfied the order is reasonably necessary:

to meet the accommodation needs of the applicant, a child, or both, or
to enable the applicant to continue existing childcare, education, training, or employment arrangements for themselves, a child, or both; or
is in the best interests of a child.

The court must also have regard to the reasonable accommodation needs of any other people who may be affected by the order.

Part 6 is about procedure.

Part 7 is about programmes and prescribed services.

New provisions enable the court to direct people who commit family violence to attend a wider range of services.

Part 8 is about overseas protection orders.

Part 9 is about public registers.

Part 10 contains other provisions.

Family Violence (Amendments) Act 2018

The Family Violence (Amendments) Act 2018 makes changes to a number of Acts to improve responses to family violence in criminal and civil law.

The first stage of amendments came into effect on 3 December 2018. These amended the Bail Act 2000, Crimes Act 1961, and the Evidence Act 2006 to:

provide that the safety of victims, including children, is the priority when courts make decisions on bail. For example, before deciding on a perpetrator’s bail, the court is to first consider the effect of the decision on the victim
create the new offence of strangulation or suffocation
make it an offence to force someone into marriage or a civil union in New Zealand or overseas
make it a specific offence to assault a family member
enable video evidence

The Ministry of Justice has produced videos providing information about strangulation or suffocation, forced marriage, and assault on a family member.

The second stage of amendments come into effect on 1 July 2019. These amend the Sentencing Act 2002, the Criminal Procedure Act 2011 and the Care of Children Act 2004 to put in place the remaining changes. These include changes to:

Make breaching of a protection order a specific aggravating factor to be considered at sentencing
Introduce a 'family violence flag' that can be attached to an offence so that court staff are aware of the potential risks associated with a case
Make changes in relation to parenting arrangements:
- enable judges considering applications under the Care of Children Act (CoCA) to make temporary protection orders where a CoCA order wouldn’t provide enough protection
- enable judges to impose protective conditions for child handover arrangements if there’s been family violence
- require judges to consider the existence or breach of a protection order when they assess a child’s safety.

A range of changes to the Oranga Tamariki Act 1989 (Children’s and Young People’s Well-being Act 1989) also come into effect on 1 July 2019.

Update: The New Zealand Law Society has recorded two CPD webinars: