Can a protection order be Cancelled?

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A DVO or AVO is a civil Order between people to prevent violence in domestic circumstances. If you are a respondent to a DVO you are required to be of good behavior and not commit domestic violence against the aggrieved and any named protected persons and comply with the conditions of the Order or risk serious criminal penalties if breached. While it is possible to remove or vary a DVO this is very much dependent on a number of factors.

Firstly, are you the respondent or the aggrieved?

How to get a temporary protection order or permanent DVO removed

If you are the respondent and you are subject to a temporary DVO, your only option to prevent a permanent Order being made is to contest the application at a trial. This can be an expensive and risky exercise where the consequences of failure are that there are findings of fact against you that you committed an act or acts of domestic violence against the aggrieved.

If you are the respondent subject to a permanent DVO, then you must apply to the Magistrates Court to vary the Order. This is completely at the discretion of the Magistrate who ultimately decides whether the DVO is necessary and desirable. It is also important to note that a Magistrate does not have the authority to remove or revoke a DVO once it is permanent, what a Magistrate can do is vary the term/duration of the Order so that it ends immediately or within a certain period of time.

Can a DVO be withdrawn?

If you are the aggrieved and you have made the application privately, as in without the assistance of Police, then you can withdraw your application at any stage in the proceedings. If a permanent Order has been made that you want removed, then you have to apply to the Magistrates Court to vary the Order, so that it ends immediately. Again, this is completely up to the Magistrate as to whether or not they will accept your application. If a temporary Order has been made and no permanent order exists, then you can apply to withdraw your application and remove the temporary DVO.

To apply to have a DVO removed or withdraw your application, you have to contact the Magistrates Court registry where you filed your application for a DVO and file an application to withdraw your application and remove any existing Order.

If you are the aggrieved and the application has been made by the Police on your behalf, then it is at the discretion of the Police Prosecutor whether or not they will withdraw their application. Rarely do Police withdraw an application however, more often than not, a Police Prosecutor is willing to negotiate the terms of a DVO.

If you want to change the terms of the Order, then the process is such that you have to file an application to vary the DVO in the Magistrates Court. In your application you have to clearly state what you want changed or removed from the DVO and the reasons why.

Whichever pathway is relevant to you, it is important to note that the Magistrates Court has authority to approve or deny any application, so there is rarely any certainty in terms of the outcome. Unless both parties reach an agreement that the Magistrate is satisfied with, then usually the Court prefers to err on the side of caution.

The risks associated with a DVO if breached are criminal consequences which if charged and found guilty result is significant penalties depending on the seriousness of the breach. A criminal record will also result which will likely impact a person’s ability to gain or maintain employment and affect the offender’s day to day life generally. For these reasons, it is critical that you seek independent legal advice if you are served with an application for a DVO.

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How and when a Protection Order ends

Overview

How long do Protection Orders last for?

Family Violence Act 2018, s 107

If you’ve obtained a temporary Protection Order, it will last for three months. If the respondent doesn’t challenge it, or is unsuccessful in challenging it, it becomes final and permanent after three months.

A final Protection Order lasts forever. It will only end if you or the respondent apply to the Family Court to have it cancelled (“discharged”) and the judge decides that the Protection Order is no longer needed to protect you.

What if I don’t want the Protection Order anymore?

Family Violence Act 2018, s 91

If you’ve obtained a Protection Order, either you or the respondent can apply to the Family Court to have the order cancelled (“discharged”).

The judge will only cancel the Protection Order if satisfied that it’s no longer needed for your protection.

If the respondent has applied to have the order cancelled but you don’t agree with this, there’ll be a “defended” hearing, where both sides will get a chance to tell the judge their side of the story. The judge will then decide whether the Protection Order should stay in place or be cancelled.

If someone other than you or your children was specifically named in the order as another protected person, that person can also apply to have the order cancelled as far as it relates to them. If the order was also made against an associate of the respondent (called an “associated respondent”), they can also apply to have the order cancelled as it relates to them.

If an order is discharged against the respondent, the order will no longer apply for the benefit of a specified protected person or against an associated respondent.

Do I need to get the Protection Order cancelled if I want to see the other person?

Family Violence Act 2018, s 170

If you want to choose to see the person you have a Protection Order against, once or twice, or regularly, you don’t need to discharge the Protection Order to do that.

You don’t need to get the Protection Order cancelled (“discharged”):

• to visit the person in prison
• to allow the person to have contact with a child of your family
• just because an agency, like Oranga Tamariki, or a school, wants you to.

You are in control of allowing contact with the respondent for any of these reasons, or any other reason. All you need to do is be clear that you are choosing to allow this specific contact.

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Family violence and elder abuse

Where to go for more support

Community Law

www.communitylaw.org.nz

Your local Community Law Centre can provide free initial legal advice and information.

Age Concern

www.ageconcern.org.nz

Age Concern provides a range of resources on aspects of life for older people including elder abuse.

Phone: (04) 801 9338 or 0800 65 2 105
Email:

Elder Abuse Response Service (EARS)

Helpline: 0800 32 668 65

With this confidential 24-hour, free-phone helpline, registered nurses will listen and provide information and support about elder abuse – whether the caller is calling on their own behalf or is concerned about a friend or family member. Callers will then be referred to local elder abuse services to get the help they need.

Family Court

www.justice.govt.nz/family/family-violence

This Family Court webpage provides pamphlets and other information giving an overview of how family violence is dealt with in the courts and how Protection Orders can help keep people safe from family violence. The website also provides information on responding to a Protection Order application.

You can access the pamphlets online, or you can order hard copies by contacting the Family Court on:

Phone: 0800 587 847
Email:

Family Court family violence forms

These forms, and a guide for how to complete a Protection Order application, are available at www.justice.govt.nz/family/family-violence/protection-order-forms

Family Court fee waiver forms

These forms are available here:

www.justice.govt.nz/assets/Documents/Forms/application-for-waiver-individ-prev-waiver.pdf

Independent Police Conduct Authority

www.ipca.govt.nz

Postal Address: PO Box 5025, Wellington 6145

Phone: (04) 499 2050
Phone: 0800 503 728

Email:

The IPCA receives and investigates complaints against the police. A complaint form is available online.

“Family violence” (Law Society pamphlet)

Available at: www.lawsociety.org.nz/about-us/about-our-publications/law-awareness-brochures

Access pamphlets online or order hardcopies from the New Zealand Law Society.

Phone: (04) 472 7837
Email:

Women’s Refuge

www.womensrefuge.org.nz

Women’s Refuge provides 24-hour support, advocacy and accommodation for women and their children experiencing family violence.

Crisis Line

Phone: 0800 REFUGE (0800 733 843)

Women’s Refuge provides a free phone line for people anywhere in New Zealand. Get information, advice and support about family violence as well as help in a crisis.

Fact sheets

A range of resources and fact sheets are available online.

Phone: (04) 802 5078
Email:

Family Violence – It’s Not OK

www.areyouok.org.nz

Phone: 0800 456 450

“It’s not OK” is a community-driven behaviour change campaign to reduce family violence in New Zealand. Its goal is to change attitudes and behaviour that tolerate any kind of family violence. The website has resources for families who are experiencing abuse. It’s not OK is an initiative housed within the Ministry of Social Development.

Family violence and disabled people

www.areyouok.org.nz/resources/free-resources/domestic-violence-and-disabled-people-accessible-formats

Family violence and migrant families

www.areyouok.org.nz/resources/free-resources/culture-no-excuse-for-abuse-english

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