Aroha in action hui: Navigating the legal system

[Animated graphic: Aroha in Action Family Start Hui 2023 graphic]

[Text on screen: Navigating the legal system, Marion Anderson-Ulu, Lisa Samusamuvodre]

[Text on screen: Noel Woods]

Noel Woods:

E te tī, e te tā, nau mai, hoki mai anō ki te Whare Tukutuku, where we will take you on a journey around navigating the legal system. E hoa mā, this is supported, of course, by our beautiful kaimahi here that represent our whānau across the motu, particularly here in Tāmaki Makaurau. Heoi anō, I’d like to welcome in the beautiful whānau from the Pacific Peoples’ Legal Education Programme, Folau He Vahanoa.

He uri nō Ngāpuhi, Ngāti Pāoa, and from the village of Ngā Motomoto in Fiji. Lisa Samusamuvodre is a barrister for the Pacific Peoples’ legal education team, and joining her is Marion Anderson-Ulu, nō Ngāti Hamoa. And as I mentioned, a Pacific Peoples’ Legal education programme, Folau He Vahanoa, do some amazing mahi in our communities here, particularly in Tāmaki Makaurau but of course across Aotearoa.

E whai mai nei ko tō tātou nei kaikōrero, he uri nō Ngāti Hamoa. E te tī, e te tā, let’s welcome in Marion Anderson-Ulu. Tēnā koe.

Marion Anderson-Ulu:

Thank you. Kia ora koutou. Talofa lava, I’m Marion, I am from Wellington.

[Text on screen: Marion Anderson-Ulu]

I am a family lawyer, barrister, practicing in Manukau, South Auckland, and I’ve been specialising in family law for about 20 years. I’m married with three adult children, and I just thank you for this opportunity. I hope that both mine and my colleague, Lisa’s, talk today is helpful in some way. I’m hoping that you’ve had an opportunity to read the slides that were sent out to you, that will have a lot more information that I’m not going to go through blow by blow. I really do want to just try and pull out some of the important elements to the slides.

The focus of my talk is on the Family Violence Act, which, this is the legal framework that covers the physical, sexual, psychological violence that we’re talking about, that I know is part of the topics for these workshops. This is an area of work that I do a lot of practice in. It’s family violence and it’s usually tied in with children when there are disputes around parenting arrangements.

[Slide on screen: FAMILY VIOLENCE]

So, the Family Violence Act, the purpose of it, as it’s highlighted in this slide here, is to stop and prevent family violence, and it’s by recognising that it’s unacceptable. Secondly, stopping and preventing the perpetrators from inflicting the family violence and then also keeping the victims safe.

[Slide on screen: s 4Principles to guide achievement of the purposes…]

In the Family Violence Act, there’s Section 4 which goes through those principles which are outlined in that box, and those bullet points have summarised what the purposes are. I guess what I really want to highlight is what I’ve got at the bottom underneath that box. The Family Violence Act provides several ways in which victims can get protection from a violent person. So, the two main things that I’m going to focus on is the Police Safety Order, which is highlighted at the bottom, and then also the Protection Order and just talking about the differences.

[Slide on screen: Picture diagram showing pathways]

There are some diagrams that I have provided in these slides and it’s just showing here, like in this diagram, the different pathways that you can get Protection Orders, in particular. But I’m going to move on and talk about the Police Safety Order.

[Slide on screen: Police Safety Order]

Now the Police Safety Order, as it says here, it’s the first option for legal protection under the Family Violence Act and this is issued by the police, so when there’s been a family violence call out, so this is on the spot, at the scene, when the incident happens. This doesn’t involve the court, this a call that the police make when someone has called the police. It might be the victim, it could be a neighbour, another family member that has called, because of concerns about the violent person on a victim, or the victim’s family.

So, we have the Police Safety Order. If the police constable has reasonable grounds to believe that it’s necessary, then that’s when the Police Safety Order is made.

[Slide on screen: Showing Police Safety Order]

I know it’s quite small, but you can actually see that’s just copy of what the Police Safety Order would look like, and it’s usually in place for a period of up to ten days. And the beauty of that is that in that period of ten days if the seriousness of the incident would enable the victim time to then find a lawyer and try and get a Protection Order.

[Slide on screen: Effect of Police Safety Order]

So here what we have is the effect of the Police Safety Order in those bullet points. It tells you what the consequences are of the Police Safety Order, so the person, the violent person, or the perpetrator, they have to leave the property occupied by the victim, by the protected person. If they’ve got weapons, they have to hand them in. If they’ve got a gun license, it’s suspended, and they must not be violent or have any contact with the protected person and children. If there’s a Parenting Order, that’s also suspended. So, there’s no contact with the children in the Parenting Order as they are also protected under the Police Safety Order.

So, the person, and this is as in the violent person, may have to complete a risk and needs assessment, and that’s to identify any risk to the whānau when the Police Safety Order expires. So usually, like I said, when it’s up to ten days I think that’s when, that’s usually sufficient time for the victim to be supported by organisations like yourself, to try and find a lawyer to actually get this person, the victim, a Protection Order.

That diagram there is just basically a summary of what was in those bullet points about what the effects of the Police Safety Order are.

[Slide on screen: Breach of Police Safety Order]

This slide just talks about what happens if there’s a breach. So, if there is a breach, the person has to appear in the district court within 24 hours. So, depending on when in the week that happens it would either be before a judge. If it’s in the weekend, it’s usually a community magistrate.

The consequences are, so depending on, I guess, the nature of the breach, the community magistrate may make another Police Safety Order, so make a fresh one or refer the matter to a district court judge and the district court judge can make a temporary Protection Order.

[Slide on screen: PROTECTION ORDER]

So now I’m going to talk about the Protection Order itself. It says here, so if there’s an ongoing need for protection, if there is a pattern of behaviour that the victim thinks more than a Police Safety Order is required, that’s when the Protection Order is needed.

I’ll move down. You’ll see in this sentence there are three requirements for a Protection Order, and these are quite important to know. So, this is different from Restraining Order. A Protection Order under the Family Violence Act, you have to show that there’s been a family relationship between the people involved, so this is not about neighbours or people in a working relationship, this has to be a family relationship. So there has to be, that’s the first point. The second point is that there has to have been violence or a threat, a real threat of violence, and that violence as it’s got there, it includes physical, sexual, psychological, financial and other sorts of behaviour, which includes restricting a person’s contact with friends or family. That’s a common theme. Wilful damage is another example, if the person might not necessarily hit the victim or the protected person but might damage property in front of that person. Those are the kinds of behaviour.

When a Protection Order is made it automatically covers the children who regularly live with the protected person, and the idea is to prevent contact between the violent person and the children until safe contact arrangements are made, and my colleague Lisa is probably going to talk a bit more about that, about when the children involved and contact with the perpetrator.

[Slide on screen: Protection order]

I just realised there’s a third element which I didn’t cover, is that the person applying for the Protection Order has to show that there’s an ongoing need. So, if it’s not just based on, I guess, the incident that happened but if there’s going to be, based on past behaviour and if the perpetrator has shown a tendency to act in a violent way, or makes real threats of acting in a violent way, is there a likely hood that that’s going to continue, even in the future with the making of the Protection Order. There has to be an ongoing need for this Protection Order as well.

Sometimes you’ll get situations where the victim and the children might actually move away, move to the other part of town, they may try and do everything possible to actually put as much distance between them and the perpetrator. So, sometimes in the future that immediate need for the Protection Order might be minimised in the future by the proactive steps and the protective steps that the victim has done or undertaken; but that’s done on a case-by-case basis.

[Slide on screen: Children’s Views]

I’m just moving through these slides because my colleague is going to talk more about the children aspect.

[Slides on screen: A, B, C, D]

When there is a Protection Order, what I’m just going to show you here, A, B, C, and D. Basically, these are conditions to the Protection Order. So, the Protection Order, on the front it has the word ‘order’ and who is the protected person and who is the perpetrator, but on the back of the Protection Order itself there’s all this writing. You have all these conditions, so as I mentioned, you’ve got standard conditions, you’ve got exceptions to those conditions, more exceptions to the conditions, and then conditions about the weapons. So, I’m just going to summarise those conditions.

[Slide on screen: Rules to the protection order]

The rules to the Protection Order. The perpetrator is not to contact the protected person or anyone covered by the Protection Order in any way, and that includes calls, texts, face to face, social media, letters, emails, or any other way, and they’re not to be violent to them, abuse or threaten them in any way, and they can’t do anything that will make the protected person feel afraid that they might get hurt or have their property damaged, as I mentioned before. Wilful damage is something that we see a lot, I see a lot. So maybe the perpetrator hasn’t actually physically hurt the person, but they damage the property that might belong to the protected person.

So, if the protected person lives at the same address, they can’t go there. What it’s got here is that the protected person, if they need to get their belongings, they call someone else to go and get them, to assist them, so whether that’s if they have a lawyer get a lawyer, organise it, or the police to actually go and assist, or go on their behalf. The perpetrator can’t ask someone else, can’t try and get someone else to do those same behaviours, so the protected person can’t get a friend to try and make the threats and try to make contact with the protected person as well. I’ve got here at the bottom, so main rules, no contact and no violence. And in red, it is a crime when you break these rules, and the person can be arrested and go to prison.

Before I move on, there was a bit in there about the property. I’m also going to talk about property and furniture orders that you can apply for when you apply for a Protection Order, so I will touch on those as well.

[Slide on screen: Rules to the protection order contd.]

When I talked about those exceptions, so the exceptions to the no contact rule. Sometimes in an emergency, contact is necessary. The second bullet point, contact, I’m talking about visits. Visits is part of a court order such as a Parenting Order or a written parenting agreement. If it’s allowed, then that’s another exception to the no contact rule. If contact is a special condition of the temporary protection order, so if there is an allowance for it, then that’s okay. Both parties need to attend a family group conference or any kind of restorative settlement conference or any court proceedings. So that’s another exception to the rule.

[Slide on screen: Rules to the protection order contd.]

Another key exception, you’ll note here it’s been highlighted, that it’s with the protected person’s consent, so they have to agree that there can be some further exceptions to the no contact rule. So, if the protected person wants the perpetrator to live at the same address, that is allowed. The protected person can also agree to other types of contact, so we’ve got calls, texts, social media, but they must give permission in writing, such as letter, email, text.

But just as easily, I guess, is the consent can be given, it can also be withdrawn at any time. So, the protected person, and that’s why it’s in red, can decide not to allow contact at any time and tell the person to stop, and that’s where the perpetrator has to understand that no means no. So even right up to the eleventh hour, if the protected person changes her mind – and I say ‘she’ – then the perpetrator has to understand that it’s a no and walk away and move away. So that’s often a tricky one that we see happen a lot, particularly when children are involved.

So, if the protected person has withdrawn her consent but the perpetrator doesn’t leave, that’s when it’s considered a breach of the Protection Order. He’s broken the rules, and he can be arrested. 

[Slide on screen: D. Standard conditions about weapons]

Now there is a condition about the weapons. So, I’ve highlighted there the note about what a weapon is defined as. So, we’ve got the firearm, air gun, pistol, it’s a restricted weapon, ammunition or explosive as those terms are defined in the Arms Act. So, we’re not talking about baseball bats, we’re not talking about pieces of wood that might have been picked up, this is quite specific to a firearm. So, any guns and gun licenses have to be given to the police within 24 hours.

[Slide on screen: Family violence act 2018, Non-Violence Programme Assessment]

I’ll just briefly touch on the actual non-violence programme.

[Slide on screen: Another important condition to the protection order]

So, the perpetrator has to do a Living Without Violence programme, a non-violence programme. It would usually say on the Protection Order and I think if I just… actually, sorry, that’s probably a bit too big. But I’ll use this page here.

[Slide on screen: Example of protection order]

I’ve just got a made-up person, Siosi Otasi. For him, he has to go to a Living Without Violence programme at Friendship House, and it gives the details, where is that located. Okay. So, you’ll find that information on the Protection Order itself.

[Slide on screen: Going to a non-violence programme]

I guess the effect of the non-violence programme, or the aim, the purpose of it, is to teach the perpetrator about the effects of family violence, how the family violence laws work and finding better ways to deal with conflict so that they can live without violence. There is an assessment, in that case that I gave with Siosi Otasi, Friendship House will do an assessment. They’ll work out how much of a risk he poses to anyone protected in a protection order and will work out the most appropriate programme for Siosi.

If the person has particular needs, it’s the Family Court that can refer them to specific programmes or services. And so, an example here is maybe a drug and alcohol programme as well. 

[Slide on screen: Objection to go to a non-violence programme]

There are instances where the perpetrator might think, ‘I don’t need a violence, I don’t need to go to a Living Without Violence programme. They might, (a) either think that because they don’t think they have a problem, or sometimes they will object to do another programme because they’ve done one recently. So, sometimes if they’re going through criminal court, they may have to have done an anger management programme, may have been directed in the criminal court, so there is the family violence court in the criminal court as well. Often that gets confused with family court too. But usually with the Protection Order there is a direction, or it is compulsory. There is a direction for a Living Without Violence or non-violence programme.

If the perpetrator for whatever reason thinks that he or she doesn’t need to do this non-violence programme, they’ve got ten working days to file their objection to the court, and it’s up to the judge to make that call about whether they should still do it or not.

In red there you’ll see that there is actually a fine, there’s a consequence for not doing the programme. So, if that person doesn’t turn up, they have the potential to be sent to prison for up to six months or given a fine up to $5,000.

In situations where a perpetrator has been served with a temporary Protection Order, that person does have a right to be heard if they want to challenge or defend the making of the temporary Protection Order. The temporary Protection Order lasts for three months, so the perpetrator has within that period to actually go and get a lawyer, if they can, or file their own defence or challenge to the making the temporary Protection Order becoming a final order.

The perpetrator, if they think that they’ve done some positive changes, that they’ve made some positive changes, then they can put that in their evidence to say why they don’t think the temporary Protection Order should become a final one.

[Slide on screen: What if the person wants to be heard]

In red there you’ll see, if the person does nothing, if the perpetrator does nothing, he’s been given the temporary Protection Order, he’s been given a copy of the court’s documents. If that person decides not to do anything, what happens is that temporary Protection Order becomes final after three months. So those rules and conditions become permanent. And the idea is, too, it prevents the protected person from having to do anything more, so the protected person doesn’t have to go back to court. That will just happen automatically.

[Slide on screen: Contact with children]

So, my colleague will cover the children as I mentioned earlier.

[Slide on screen: Property and Furniture Orders]

Now I just thought I’d touch on this information about property and furniture orders. I’ve got there that this is not my information, it’s actually on the MOJ website, which is Ministry of Justice. So, they do have some helpful information on their website in terms of family violence issues, especially if you’re going to go through the family court. So, it’s worth having a look on the Ministry of Justice website. But just to let you know, there are situations where there’s property and furniture orders, ideally for protected persons who are having to look after the children, rather than them having to move out of the home, that they can actually stay in the property and keep the furniture or take the furniture with them if they decide that they want to move out. But that can only be done at the same time as you apply for the Protection Order, so you can’t just apply for the property and furniture orders on their own, they go in tandem with the Protection Order.

[Slide on screen: Information on Occupation orders and Tenancy orders]

I’ll just explain, so you’ve got an Occupation Order. This is the first type of Property Order. It’s an Occupation Order, it says that you can continue to live in the place even though, if its owned by, I say the respondent there, that’s the perpetrator. Even if it’s a tenancy and the respondent’s name, or the perpetrator’s name is on the tenancy, the victim can still stay there. Or if it’s both their names on the tenancy agreement. It just means that he can’t live there unless the victim says that it’s okay, unless she consents to him being there. That’s a bonus for the protected person and the children.

The other order is a Tenancy Order. It can say that the perpetrator is no longer the tenant of a house that they’ve been renting. The victim can still stay there, but not the perpetrator. Once the Property Order is made, the police can actually remove or arrest the perpetrator if that person won’t leave, or if they try to keep coming back. Another good benefit is about ending a tenancy. If you’re renting, you can move out and end your tenancy early if you experience family violence, and you can do this by giving your landlord two days written notice at no cost.

[Slide on screen: Withdrawal from a tenancy following family violence]

On this next slide, this was information from the Tenancy Services website. It’s actually got here, ‘A tenant who experiences family violence during a tenancy can remove themself from the tenancy by giving the landlord at least two days written notice.’ You’ve still got to give evidence of the family violence, there has to be, I imagine the evidence in this case would be either a police safety order or a temporary protection order, so that can help resolve the tenancy whether it’s fixed term or periodic.

[Slide on screen: Information on furniture orders]

Now just briefly on those furniture orders that I talked about, you can either have furniture that stays with you. If you’re going to stay in the property the furniture stays also, or if the victim decides that the victim wants to move out and move somewhere else with the children but needs the furniture for the children like the cots, the beds, you know, those items that are not cheap to try and start all over again. At least these orders allow the victims to be able to take belongings, even if it may have been under, or it may belong to the perpetrator, but it benefits the family. So those are the remedies that you can apply for, that the victim can apply for, as well as the Protection Order. Where they stay and having their household items with them is just all part of them helping them feel safe in a very volatile or unsettling situation. So, at least there’s still some stability despite the chaos.

So, look, you’ve got here, furniture includes appliances like fridge, other items, bed, those items are not cheap to try and replace and start again, and it shouldn’t, really, be on the victim and the children to suffer when their lives have been up ended.

Alright, so I’m going to pass over to my colleague, Lisa, and she’s going to continue on, so thank you.

[Text on screen: Noel Woods]

Noel Woods:

Ah, hoki mai anō. Tēnā koe Marion, thank you very much for sharing your knowledge and wisdom, and at once we acknowledge you and your whānau and your villages as well. We now invite another māreikura from Pacific Peoples’ Legal, tēnā koe Lisa, kei a koe te wā.

Lisa Samusamuvodre:

Tēnā rā tātou katoa. Ko Lisa Samusamuvodre tōku ingoa.

[Text on screen: Lisa Samusamuvodre]

He uri ahau o Ngāpuhi me Ngāti Pāoa. I te taha o tōku papa no Fītī is, nō reira, ni sa bula vinaka. Tēnā rā tātou katoa. Like my colleague Marion, I am a barrister and I have been practicing in South Auckland now for some odd 20 years in the family court space, and it’s a privilege to be able to come on here today and to be able to share some insights in terms of what the legal framework is, and understanding what your role is in terms of working within our vulnerable communities. I’m hoping that you’ll be able to take away some pointers in terms of being able to work with our whānau, in terms of some of the situations that they may be going through, navigating the family law, the criminal law space.

So, I’d like for you to come with me on this journey in terms of looking at how do we navigate working in the family violence space. But in terms of your roles working with whānau, how do we have discussions with our whānau in terms of looking at what contact with children looks like. 

[Slide on screen: Contact with children]

Many of you will be involved in whānau that will be working with victims, or alternatively with the respondents in a Protection Order.

As Marion has indicated, when a temporary Protection Order is made there is a condition of that order that the respondent is not to have any contact with the victim or the applicant, but also with any child of that whānau. They are not allowed to have any unsupervised contact, which means can’t come and pick them up, take them to the movies, take them to the park, do all of those normal day-to-day things that you would expect would still happen. There cannot be any unsupervised contact; and that is one of the conditions of the Protection Order.

In terms of our children, what we do in terms of being able to still promote whakawhanaungatanga, what do we do to make things still safe for our children to be having contact with the respondent? As lawyers and as community workers, we’ve got to work out what does safe mean? And in the family law space, we as lawyers cannot assess what safety is but we need to look at what safeguards we can put in place, what arrangements we can put in place to ensure that our tamariki are going to be safe with an alleged perpetrator of violence.

So, in this particular slide, it says here that the court must assess whether a child is going to be safe when having unsupervised contact with the respondent. The lawyers don’t assess what safety means, meaning that the lawyers don’t say, ‘Okay, dad is safe. He’s a good guy, he’s got really good friends, he’s got a good job.’ Those are things that we can’t assess. The court, a judge, needs to assess whether somebody is going to be safe to have unsupervised contact with their children, given the background of what allegations have been made in terms of family violence.

[Slide on screen: Contact with children]

Some of the discussions that you might be having with the whānau that you work with is, well, if supervision is required, who supervises? Who comes up with these names that can supervise the respondent with their children? And that’s why it’s really important when you’re working with whānau not to know who just are the parents of these children, but to know who are the significant people in this whānau, how can they assist in a situation where an unnatural boundary has been created, preventing the respondent from having contact with a child.

So, supervisors could be nanny, koro, aunty, uncle, cousins. But again, they need to be people that can be protective and also stand up when the respondent perhaps gets out of hand or wants to do things on their own. Supervision means in a situation where there’s been a temporary Protection Order, is that the supervisor has to be eyes and ears on the children during any time or any contact session that the respondent has with a child.

So, you could still have a respondent pāpā pick up a child, bring him to a hui or there might be a tangi, or anything like that, but there needs to be a supervisor there that is in charge and is monitoring that situation. Because what you don’t want is a continuation or further allegations of violence being made against the respondent and most of all, you want to ensure that a child is kept free from any further allegations or situations of violence.

When you are working through the family court system the court will be asking you, before it’s made a determination later on about who is safe, who is not, the court will be asking, who are the supervisors, why are they being proposed as the supervisors, are they safe and is there agreement for the supervisors to supervise either mum or dad’s contact with the children?

Sometimes whānau can’t come up with an agreement about who the supervisors of contact could be. Sometimes the respondent might have a whole list of people who he’d like to be the supervisors of his contact, or her contact. It might be his drinking buddies; it might be people that have a history with family violence call outs. Again, choose supervisors that are appropriate in terms of being protective of these children. The focus is always going to be what is in the best interests and welfare of the child, not what the respondent or even the applicant wants. The focus for any contact or care arrangement is always the child.

When there is no agreement in terms of who can supervise contact, you may want to have some discussions with the respondent about, well should he be instructing, or she be instructing a lawyer to assist in terms of progressing contact with a child? Sometimes in court proceedings we can be waiting for weeks, months even, in terms of getting a court date to progress a Protection Order, or even to progress a parenting order. A parenting order used to be known as like a custody order before. And in those months, a child might not be seeing his or her mother or father, the respondent in a Protection Order matter. So, it’s really important to be having discussions with a whānau about, well who can supervise? Who can allow time to be regularly available to supervise contact between a child and the respondent? When you can’t get that agreement, the respondent may have to file an application in court seeking to have a parenting order, to have contact, to have supervised contact with a child.

For instance, in a situation you could have mum, Ana, has the child, Hemi, in her care. Ana has a protection order against dad, John, and she doesn’t agree for John to be having any contact whatsoever with their child. So, John is likely to instruct a lawyer to apply for a parenting order for contact, but because of the condition that his contact must be supervised, he must be applying for supervised contact.

In the situation where no-one can agree to who will supervise contact, or there are just no appropriate people to be able to supervise that contact each and every weekend or whenever the father or the respondent is wanting to have contact, the lawyers could apply to the court for funding under Section 60 of the Care of Children Act. And that funding is made available by the ministry to supervise contact centres. So, they’re professional contact centres, who will supervise contact between the respondent and a child or children. They are approved only by the court and the funding goes directly to that supervised contact centre.

In some situations where there is no agreement whatsoever about supervised contact, then the respondent will need to make an application to court for any kind of contact, supervised, at a supervised contact centre. And what should be happening and what you could be doing is to encourage the respondent to be seeking a hearing in terms of resolving some of those contact issues, or at least defining what the scope of contact should be between the respondent and the child.

Actually, before I come to the next slide, there are a couple of slides that I haven’t put in here and that is an error on my part, but I just want to quickly talk to you about that. What is really important in the process, is the children’s’ views. And I did have some slides available, I’m sorry, I haven’t put them on there. But the important thing to know is that, when going through the court proceedings mum might have a lawyer, dad might have a lawyer, but how do we ensure that these children’s’ views are also taken into account when looking at making orders for the benefit of these children. Remember, court proceedings are all about the best interests and welfare of the children being the first and paramount consideration for the court.

So, how do their views get in front of the court? Children that are involved in court proceedings particularly around family violence will have their own lawyer appointed by the court. There are legislation involved setting out what the framework is, the role of that lawyer, and also to ensure that that lawyer has a standard brief in terms of being able to meet with the children and to report to the court.

The primary role of a lawyer that is appointed to represent a child is that they are independent of the parents’ lawyers, and one of the other roles of the lawyer is that they are to meet and ascertain the views of a child. But you might ask, well, what if my child is two years old? Their views are all about Paw Patrol and when their next snack is going to be. So, this lawyer, is a senior lawyer, and what they will usually do is look at the circumstances of leading a child. Might not be able to take the viewpoints of a child but they could look at the significant people that look after this child. What is the worldview of this child? Any views of a child must be reported to the court. We will file a memorandum. I’m a lawyer for a child, so is Marion.

We must file a report with a judge setting out the child’s views. And that view might be that they want to have contact with dad, or they might not want to have contact with dad. The court must take into account what the children’s views are, but the weight that’s given to those views is dependent upon that child’s age, their maturity, their development, and I guess their understanding of the situation. So, in terms of progressing matters through the family court the children’s views is very important. Their views must always be communicated to the court to ensure that they take part and that they’ve been given opportunity to participate in the proceedings, depending upon their age, development and also their maturity.

[Slide on screen: Who can request to attend a safety programme?]

So, coming back to, well, we’ve got the children’s views, we’ve got dad, he’s probably going to instruct a lawyer to progress matters through the family court because he can’t get any supervised contact, mum is sitting there with her lawyer and is wanting to progress getting a final Protection Order. But in the meantime, what kind of things could we be doing in terms of addressing some of the needs that each of the parties have, in terms of understanding what’s going on, in terms of what they can do to address the violence in the home, victims as well as defendants or respondents, there’s a different way of addressing what’s going in their minds and in terms of offering support to help address those needs.

An applicant can ask through the family court, an applicant who has applied and been granted a Protection Order, a temporary Protection Order, they can apply through the court to attend a safety programme, a programme that is there to assist victims of family violence, how to gain self-confidence, how to be able to navigate their way possibly in leaving a relationship, but also, if she returns or he returns to a relationship, what kind of things does she need to, or he needs to have set up in terms of being able to protect themselves and their children from ongoing family violence?

So, an applicant can apply to attend a safety programme. There are even programmes available for children who have been victims of family violence. Usually, it’s only available for children that are older than four or five years old. Also, there could be specified persons under the Protection Order, such as it could be an older child or it could be another person living in the family, a grandmother who has also been affected by the family violence. That person could also apply to attend a protected person’s programme. They will be issued by the registrar of the family court.

So, in terms of your role as working with vulnerable families, ensure that your clients who are victims or even those that are respondents, what are they doing to address the issues that are going on behind the walls of their home or in their whānau? And it may well be that these programmes for a protected person, but also for a respondent, may not be the only things that these clients are needing, or that these whānau are needing. It could be other stresses on this whānau, budgeting advice, parenting programmes, and that’s probably where you come in, in terms of being able to flesh out what they may need in terms of ticking off, responding to, addressing and assessing some of the stresses in that whānau.

[Slide on screen: Protection from violence]

As community workers I know that family violence can pervade many areas of where we work. But what I want to talk to very briefly is, what are some of the remedies that you can look to in terms of assisting your whānau? Because I think, bottom line, that’s what we do. We have a look at the tools that we have so that we can address with the whānau that we work with. Family violence, Marion’s addressed some of those, police safety orders, temporary Protection Orders, property furniture orders. But I want to just quickly lead you in terms of, well, let’s look at protection from violence in terms of the Oranga Tamariki Act, because sometimes that is where our disclosures and our reports of concern end up. Not just in the family court and getting Protection Orders, but also taking that further in terms of investigating and getting really strong wraparound supports through the Oranga Tamariki Act.

Who are Oranga Tamariki? They’re the agency, the state agency, that are responsible for ensuring that our tamariki are safe. Oranga Tamariki should only intervene only if necessary. Okay. It should be seen as a pathway of less intervention, but only when necessary. Sections 4, 5 and 13 of the Oranga Tamariki Act set out what the purposes, the principles and the guidelines that should be and must be considered when making decisions for children that are in need of care and protection.

[Slide on screen: Report of concern (ROC)]

I want to run through very quickly what you could be faced with when working with whānau where there is family violence in there. So, the first point to start the process of Oranga Tamariki involvement is a Report of Concern. If you believe that there has been or is likely to be harm or neglect or deprivation to a particular child, you may report that to Oranga Tamariki. That is what we call a ROC, or a Report of Concern, that’s the trigger point, the starting point for moving concerns for a particular child. Remember your role is to detect, to find out, to see if there has been family violence or if there is a child that is at risk. It is not your role to be detectives, in terms of investigating and going through all the motions. You detect and then you pass the information on. When you pass it on to Oranga Tamariki, it’s a social worker’s job to investigate, and their investigation will look at response times, depending on the child’s age, development, vulnerability.

[Slide on screen: Protection from Violence]

Sometimes non-urgent pathways are taken by Oranga Tamariki when looking at either neglect or family violence in the home. The ROC is made, the investigation is held, and that is where you come in, in terms of supporting whānau to attend a hui-a-whānau with Oranga Tamariki social workers. But also, I would encourage you to be attending whānau hui with the whānau that you’re involved in to make a plan as to how you are going to address some of the issues that you can see and that’s happening in this whānau.

Oranga Tamariki, as well as with you, are encouraged to focus on what can be some of the out of court, less intervention solutions, looking at counselling, programmes, rehabilitation, getting them monitoring and support of Oranga Tamariki. And this is all to ensure that we have safe outcomes for our children. It can be that there’s no further action required by Oranga Tamariki, but again, we’re looking at what are some of the remedies that you can have, what are some of the pathways that you can be involved in, and this could be one.

The last one that I want to talk on is really the urgent pathway or action with Oranga Tamariki, and that is when things have got to a level that you can’t simply just be sitting around and discussing, debating, what we’re doing. A Report of Concern is made. Is there a risk of serious harm and if you think that there is, make that ROC, make the concern and it’s quite likely that Oranga Tamariki can file urgent applications without notice, and that could include filing to uplift a child, a warrant, or a custody, interim custody order.

So again, coming back, what are the remedies that you have working with other organisations? It might be that you have to make a Report of Concern. It might be that you’re encouraging your whānau to access a lawyer to file for a temporary protection order or encouraging them to go through the process of filing for parenting orders with the assistance of a lawyer through the family court. Nā reira, tēnei te mihi.

[Text on screen: Noel Woods, Lisa Samusamuvodre]

Noel Woods:

Tēnā koe, tēnā koe Lisa for that beautiful kōrero, and in fact I’d like to invite Marion back up to get ready for some pātai. 

[Text on screen: Marion Anderson-Ulu]

No doubt, I think plenty of questions have been rolling through. Heoi anō, here we have a pātai.

[Slide on screen: Pātai]

“Just for clarification, although a person has a PO, a Protection Order, if they invite the perpetrator to their home, is it legal until they say no?”

Marion Anderson-Ulu:

So, there was that no contact, you know, the rules to the Protection Order. One of the exceptions is if the victim consents to the perpetrator coming back home, so that’s acceptable, that’s okay and the perpetrator is not breaching the order. So, that is okay, but the perpetrator just has to understand that if the lines are crossed, if the boundaries are crossed, the minute she says no, or the victim says no, then that’s it. He has to back away. If he doesn’t, then that is a breach.

Lisa Samusamuvodre:

Treat it like insurance. It’s there, it’s in the background, so if the applicant says, ‘Yeah, come home, let’s see if we can make a go of this, but behave yourself.’ As soon as they don’t behave yourself, then that’s when the applicant might say, ‘Okay bro, you need to leave.’ So, treat it like that, it’s there if you need it.

Noel Woods:

Kia ora.

[Slide on screen: Pātai]

“How does a Protection Order affect the perpetrator’s livelihood, you know, example, employment, if they are here on a visa or a residency?”

Lisa Samusamuvodre:

In this particular situation, a Protection Order isn’t listed as a criminal conviction. A Protection Order is only noted on say, for instance, police files. But it’s not on a criminal conviction and sometimes that is what employers are looking at. So, they will ask whether or not are there any criminal convictions. A Protection Order isn’t listed as that. But you may find in terms of applications for permanency, you will have to show, I think, whether or not there has been any police involvement or even criminal involvement, and even ones that are pending. Okay, so you might need to be aware of that if there is a pending, particularly for a residency application.

[Slide on screen: Pātai]

Noel Woods:

“If mum has a Protection Order against papa, against dad, and they have a parenting agreement to allow supervised contact through a whānau member, but dad has not been sticking to the conditions of agreement, is mum allowed to stop supervised contact?”

Lisa Samusamuvodre:

Yes. Yes. If he’s not sticking to the conditions, yeah, she’s got every right to say no.

Noel Woods:

Kia ora, thank you for that pātai Lina. Over to some more questions, Lina again.

“Does mum still need to apply for a Protection Order if dad is not recorded on the birth certificate?”

Marion Anderson-Ulu:

Oh, look, I think if there’s acknowledgement that he’s dad, even if dad’s not on the birth certificate, we see this a lot, right Lisa? Everyone knows that dad is dad, but he’s not necessarily on the birth certificate, doesn’t stop mum applying for a Protection Order. It’s about the safety, right, it’s about her safety and that of her children. So regardless of whether dad is on the certificate or not, but people know he’s the dad, mum’s got that remedy for her protection. Hopefully I’ve answered that correctly.

Noel Woods:

Ka pai. 

“If travel is involved in supervised access is this covered under Section 60?”

Lisa Samusamuvodre:

The actual travel for attending supervised contact, for either the applicant or the respondent, is not involved. Section 60 funding by the Ministry of Justice is purely to pay for the attending at a supervised contact centre, so it’s the cost of the supervised contact centre, not the actual travel to and from the contact centre. Kia ora.

Noel Woods:

“Access to legal representation can be challenging for some of the Family Start whānau in their rohe, that due to less legal representation wanting to do legal aid. Now we have long wait times, conflicts of interest or they simply can’t afford if the don’t meet the legal aid threshold. Sometimes our whānau don’t have the means to travel three hours away or get fatigued with the whole process and don’t put the legal safety measures around them. What’s your whakaaro?”

Lisa Samusamuvodre:

I agree in some of the smaller sorry Marion. Especially, in some of our smaller centres. Unfortunately, the number of lawyers that are doing legal aid provider, or have legal aid provider status, is becoming less and less, unfortunately. So, I completely agree with the sentiments and the concerns in that. And it may well be that you’re having to organise, perhaps, organise interview or appointments with lawyers that might be able to do it online, through MS teams or Zoom, to be able to get representation that way.

Marion Anderson-Ulu:

And there’s family court navigators as well, so I think in the major cities. Even up North too, there are family court navigators or kaiārahi. So, they’re there to help people that can’t get legal representation, so sometimes just navigating what forms to use to apply. So, if you check out your local courthouse. I mean if you’re not having any success getting lawyers or legal representation for your clients or for families that you’re working with, try the local court, district court and ask to see if there are family court navigators within those courtrooms that can actually try and help, even just having the right forms, what forms do I use to apply for Protection Orders, for example. So hopefully that helps.

Noel Woods:

Ka pai. A follow-up question here. What if you believe OT puts visitations, oh we lost that pātai, visitations with whānau ahead of a child’s well-being?

Lisa Samusamuvodre:

That’s one that you’re going to have work through more with Oranga Tamariki, particularly if they’ve got formal orders for custody, which means that they are putting in place the care arrangements or access arrangements between a whānau member with a particular child. What I would suggest that you could do is ensure that your concerns are noted with Oranga Tamariki so that it is there on their CYRAS system or their internal information system, and the reasons why you hold that. If the concerns that you have are such that you feel that it’s a serious risk or harm, could you be making a report of concern? So, again, having more discussions, ensuring that the information that you’re concerned about is on the table for them to make the decisions about.

Marion Anderson-Ulu:

And sometimes, actually, OT have might put a safety plan in place. They may not actually have orders, but they decide, police have been involved so Oranga Tamariki get brought in, so they come up with a safety plan for the whānau. So, if you’re kind of thinking, oh, I don’t think that’s actually a really good safety plan that the social worker has put in. You know, maybe you might want to talk to the social worker’s supervisor, maybe have a kōrero with the social worker, your concerns maybe and the supervisor in terms of why you think you might sort of push back on that so called safety plan that you think, actually, I think that’s putting the child at risk. So, yeah, it’s probably a bit more of an internal thing, but don’t stop the dialogues, it’s worth, like Lisa said, you might just put it on record that you disagree for whatever reason. Yeah, that’s another option.

Lisa Samusamuvodre:

Because more often than not, our community workers are our watchdogs for our whānau. The social workers can’t be there all the time, and neither can the lawyers. So, if you’ve got concerns, please make them noted, in terms of those that are perhaps making the decisions for these children. Please make them noted so that they’re on file and then we can look at, do we need to revisit this this plan, do we need to revisit this care or contact arrangement.

Noel Woods:

Kia ora. And finally, just how do whānau and kaimahi that are locked in right now get access to your kaupapa?

Lisa Samusamuvodre:

So Folau He Vahanoa, it’s a workshop that we provide targeting community organisations that work with Pasifika whānau, but we also have colleagues that attend a programme, Te Korimako, that also targets working with our vulnerable whānau or Māori whānau, as well with similar issues. We have a workshop and it’ll probably be coming up next year. Have a look at our website, but also in terms we’re, by day, we’re barristers in Manukau so we’re happy to answer any questions or queries that you may have in terms of working with your whānau as well.

Noel Woods:

Kia ora. E aku māreikura, tēnā kōrua. Thanks to Lisa and Marion for sharing your knowledge, and also helping our people navigate this system that, at times, can be a scary experience. Pacific Peoples’ Legal, tēnā koutou. 

[Graphic: Illustration of main points]

[Animated graphic: Aroha in Action Family Start Hui 2023 graphic]

[Text on screen: Presented by]

[Graphic: Tākai logo]