Bill protects against domestic violence

Press, 21 May 1982, Page 12

Bill protects against domestic violence

By

OLIVER RIDDELL

in Wellington

A new Domestic Protection Bill is now being considered by Parliament's Statutes Revision Committee. It is intended to “mitigate the effects of domestic violence and to confer protection from molestation in the domestic sphere.” Seldom can any act of Parliament in New Zealand have had such a checkered path into the statute books.

The bill is a completely rewritten version of the Domestic Violence Bill, introduced into Parliament last year and also sent to the Statutes Revision Committee to hear public evidence on it. That bill itself relied very heavily on the work done in 1979 and 1980 on the Family Proceedings Bill, and also on the work of the Violent Offending Committee. The main purpose of the Domestic Violence Bill was to empower Family Courts and District Courts to make certain orders and so mitigate the effects of domestic violence. The evidence presented to the Statutes Revision Committee showed the inadequacies of the bill, a fact which the political parties came to recognise. Evidence given was horrific; some male members of Parliament confessed to being astonished at what they heard. They really had very little excuse for being “astonished.” In the real world, which some M.P.s may have foresaken, there has been ample evidence for years of ttye extent of domestic vio-

lence in New Zealand and its consequences. This evidence has not been suppressed either; many groups within society have been expressing their attitudes to the problem with great vehemence. Anyway, it became apparant to the Statutes Revision Committee and to Parliament that the Domestic Violence Bill would not answer. A better solution to the problem had to be found. Four options were open to Parliament:—

• First — it could retain the Domestic Violence Bill, subject perhaps to some improvements to it. No-one disagreed with the Minister of Justice (Mr McLay) when he said that clearly that approach was unsatisfactory to all M.P.s.

• Second — to have different legislation. This was the option chosen by Parliament, and resulted in the Domestic Protection Bill.

• Third — to expand and revise sections 176 and 179 of the Family Proceedings Act, 1980, which deal with non-molesta-tion orders. These revised sections would include in them provisions for domestic violence. • Fourth — to put domestic violence provisions into the Family Proceedings Act. Public submissions will now be sought by the Statutes Revision Committee on the Domestic Protection Bill. There are about 15,000 cases of domestic violence reported to the police every year, and

there is now an almost universal belief that these figures represent just the tip of the iceberg.

The Domestis Protection Bill tries to do something positive, to protect; the Domestic Violence Bill tried to do something negative, to prevent. The distinction is an important one. Legislation cannot prevent domestic violence, it can only seek to protect people from it, so calling such legislation by its new name makes sense. Under the new bill, where a man and a woman are or have been married to each other, or are or have been living together in the same household, either the man or. woman may apply to the Family Court or District Court for an order restraining the other party from using violence against, or. causing bodily harm to, the applicant or a child of the family, and from threatening to do so.

On hearing an application, the Court may make the order sought if it is satisfied that the respondent has used violence against, or caused bodily harm to, the applicant or the child oi the family, and is likely to-do so again. Where an application is made ex parte, any nonviolence order made in the first instance shall be an interim order.

The Court may at any time, on the application of either party, discharge a non-violence order if it is satisfied that the order ought not to have been made; that, through change ol circumstances, the protection

of the order is no longei needed; or that the interests ol the applicant now require the order’s discharge. Where a non-violence ordei is in force, any member of the police may (with a few riders) arrest without warrant any person believed on reasonable and probable grounds to have committed a breach of the order, whether or not the breach has been committed, and whether or not the arrested person committed it. However, no member of the police may arrest anyone on these grounds unless they believe that the rest of the person is reasonably necessary for the protection of the person protected under the order. The police must consider the seriousness of the act that constituted the alleged breach, the time that has since elapsed, the restraining effect of other people and circumstances, and the need for a cooling-off period. Anyone arrested for breach of an order shall be detained in police custody for 24 hours. If. during that time, the arrested person asks to be brought before a Judge, or the police consider they should be anyway, the arrested person shall be brought before a Judge as soon as practicable. The Judge may direct either that the arrested person be released forthwith or at any specified time within the 24 hour period, or that they continue to be detained in police custody until after 24 hours. The arrested person may not

be detained in custody for more than 24 hours.

Under the bill, where a Family Court makes a separation order it may also make a nori-molestation order on the application of either party if it is satisfied that this is necessary for the applicant's protection or any child. Any Court can make' a non-molestation order while a separation order is in force. A non-molestation order has three main effects. Under it. the person against whom it was made:—

• May not enter or remain on any" land or building occupied by the applicant or in which the applicant dr any child lives without the consent (express or implied) of the applicant.

• May not molest the applicant by watching or besetting the applicant’s dwelling or place of business, or by following or waylaying the applicant in any public place, of by making persistent telephone calls to the applicant at their house or place of business. • May not molest any child in the applicant’s custody. Under the bill, where a man and a woman (whether or not they are or have been married to each other) are or have been living together in the same household, either may apply to the Courts for an occupation order, granting the applicant the right to live in the household residence. The effect of this is that the person securing an occupation order is entitled, to the exclusion of the other person, to

occupy the premises over which the order applies. They can then, if they wish, apply for a non-molestation order. A tenancy order, vesting the applicant with the tenancy of the dwelling, may also be applied for under the new bill. It also can lead on to a nonmolestation order.

Anyone in breach of a nonmolestation order is liable on summary conviction for a term of imprisonment for up to three months or to a fine not exceeding $5OO. A non-molesta-tion order ends when both parties agree to resume living together, or when a Court discharges it on the application of either party. The intention of the bill is clear. It is to protect through the Courts people in domestic situations — mainly, but not necessarily exclusively, because of violence. The bill aims at reducing domestic violence by legally separating the parties, providing the means of separation designed specifically for that purpose. Other means of separation existed, but they were not designed to frustrate domestic violence.

The bill begs the whole issue of why people in domestic situations — but particularly men towards women — are violent. It simply sets out to frustrate such domestic violence when one of the parties has had enough. It does not prevent it in the first place; it prevents it from recurring if that is what one of the parties wants. As such, it represents a major step forward.