The Family Protection Act 2013 gave the District Court a jurisdiction the District Courts Act never contemplated: fast, fee-free orders to stop violence inside a family. The Act defines “court” as the District Court.
What counts as domestic violence
A person commits an act of domestic violence if he or she does any of the following acts against a family member: (a) assaults the family member, whether or not there is evidence of physical injury; (b) psychologically abuses, harasses or intimidates; (c) sexually abuses; (d) stalks so as to cause apprehension or fear; (e) behaves in an indecent or offensive manner; (f) damages or causes damage to the family member’s property; (g) threatens to do any of the acts in (a), (c) or (f).
“Family member” under section 2 includes a spouse, which covers a customary or de facto partner or the other parent of one’s child, a child, parent, grandparent, sibling, in-laws and anyone the spouse treats as family. Section 5(3) makes a single act enough. Section 6 makes domestic violence an offence, punishable by K5,000 or two years; customary compensation is no defence.
Applying
An application for a family protection order may be made by (a) the complainant; (b) any person on behalf of the complainant with the complainant’s written consent; (c) a lawyer with written consent; (d) a police officer with written consent. It must be in the prescribed form, but failure to use it does not invalidate the application. It may be made orally or in writing; if orally, the court must reduce it to writing as soon as practicable.
Notwithstanding any other law, policy, practice or procedure, no fees or charges are payable to a court in relation to an application for a family protection order. This overrides section 262 of the District Courts Act and Schedule 3 of the Regulation. See court fees.
In practice the applicant goes to the registry, or a police Family and Sexual Violence Unit, and completes the form. The Clerk lists it before a magistrate, often the same day.
The interim protection order
A court may make an interim protection order if it believes on reasonable grounds that the complainant is in danger of any form of domestic violence. It may do so whether or not the defendant or complainant is in court, and even though a full application has also been made. An interim order commences when served on the defendant, remains in force for not more than 30 days, and may be renewed only once for a further 30 days. In this Division “court” includes the Village Court.
This is the emergency remedy. The applicant’s own evidence is usually enough for reasonable grounds. The order takes effect on service, so the defendant must be served promptly; an unserved order protects no one. A person in a rural area may obtain an interim order from the Village Court and then apply to the District Court for a full order within the 30 days.
The protection order
Following an application under section 7, a court may make a protection order if it believes on reasonable grounds that the defendant has committed an act of domestic violence against the complainant, or is likely to commit one. In deciding, the court must take into account the need to protect the complainant, the safety and well-being of the complainant and other family members, and any other relevant matter. A family member’s name may be added.
Section 17 allows the hearing to proceed in the defendant’s absence if he was served, bound by bail to appear, or all reasonable efforts were made to notify him. Under section 19 the order commences on service and runs for the period specified, up to two years, or six months if none is stated.
| Section | Conditions |
|---|---|
| s 8 good behaviour | Not to commit domestic violence; not to get others to do so; to be of good behaviour |
| s 9 individual protection | Not to contact, approach, follow or communicate with the complainant or family members; to stay away from the home, workplace or school |
| s 10 property | To leave the home; not to damage property; to allow the complainant use of the home and property regardless of who owns it |
| s 11 counselling and mediation | To attend counselling, or mediation where appropriate |
| s 21 compensation | Compensation, by custom or otherwise, for personal injury, property damage or financial loss |
Breach
A person who breaches a condition of a family protection order or interim order is guilty of an offence. Penalty: a fine not exceeding K10,000.00 or imprisonment not exceeding three years, or both. Customary compensation is no defence; reasonable excuse is.
A breach is reported to the police, who charge the defendant, and the charge is heard under Part VII of the District Courts Act. Section 22 lets a court that convicts a person of any offence involving domestic violence make or vary a protection order on its own initiative, and section 23 makes the spouse a compellable witness.
Variation and revocation
Section 24 allows any person to whom the order applies to apply to the court that made it to vary or revoke it. Reconciliation does not end an order; a defendant who returns home while a no-contact condition stands is in breach even if invited. A protection order is a “decision” under section 1 of the District Courts Act and may be appealed under Part XI; see appeals. Maintenance and custody are dealt with by the same Court sitting as the Family Court; see the Family Court and the Lukautim Pikinini Act.
The District Courts Act is not on PacLII; it is available on vLex. The Family Protection Act 2013 is on PacLII as enacted; check for any later amendment.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.