Family Violence Act: Protection Order (Respondent) - On-Notice Defence - No Without-Notice Order Made

The Process at a Glance: The respondent is served with the application and given notice of the hearing date. Counsel takes instructions and files a response affidavit before the hearing. At the hearing, the court hears both parties and decides whether to make a protection order or decline the application. An order made on an application on notice is a final protection order from the outset (ss 76(1) and 158(1)(a)), so the 3-month notice procedure for temporary orders does not apply. If an order is made, the matter transitions to the parent plan workflow from Stage 5 onward. If the application is declined, counsel advises on any residual obligations and the possibility of a further application by the applicant.

Key Legislation and Case Law: Family Violence Act 2018 (FVA 2018) - s 60 (application for a protection order), s 79 (requirements - the court may make an order if satisfied that the respondent has inflicted, or is inflicting, family violence AND that an order is necessary for protection), s 83 (regard to the perception of the applicant and the effect of the behaviour), s 171 (questions of fact are decided on the balance of probabilities), s 76(1) and s 158(1)(a) (a temporary order is one made on an application without notice; an order made on an application on notice is a final protection order). Family Court Rules 2002 - rule 314 (notice of defence on the approved form, with an affidavit, at least 5 clear days before the hearing). Key cases: Surrey v Surrey [2008] NZCA 565; [2010] 2 NZLR 581 - the necessity of a final protection order and the onus on the respondent to show countervailing factors. Note: only the parties, their lawyers and certain other people may attend a Family Court hearing (Family Court Act 1980 s 11A), and a report of proceedings that identifies a child or a vulnerable person needs the leave of the court (s 11B).

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