Non-violence programmes and prescribed services

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Table of Contents
2
Introduction
3
Related information
3
Details in legislation
3
Objection process
3
Assessment and determination
3
Terms of attendance or engagement with non-violence programme or prescribed service
3
Assessors and service providers must be approved
4
Assessor or service provider to notify safety concerns
4
Referral back to court if continued provision no longer appropriate or practicable or affected significantly by non-compliance4
Report and notice of completion and outcome of programme/service
4
Notice of non-compliance with direction
4
Registrar response to notice of safety concern or non-compliance
4
Respondent called before court due to safety concerns or non-compliance
4
Ministry of Justice role – the court
5
Information from the court
5
Police role - investigation
5
File sent to nearest Family Violence Coordinator/Family Harm Specialist
5
Enter an occurrence in the National Intelligence Application
5
Liaise with Family Violence Coordinator/Family Harm Specialist
5
Interview the respondent
6
Information being admitted as evidence or used without court’s authorisation
6
Use of Family Court records in criminal cases as part of the investigation
6
Admissibility of Family Court records as evidence
6
Police warnings
6
Reporting back to the court
7
Decision to charge
7
Specimen charge and precedent code
7
Time limit for bringing a prosecution
7
Summons or warrant to arrest
7
Victim Impact Statement
7
Ingredients of the offence
7
‘Reasonable excuse’
8
Service of protection orders
8
Closing the file
8
Reporting back to the court
8

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Introduction
Unless there is good reason not to, the court must direct respondents of protection orders to undertake an assessment for
and attend a non-violence programme or prescribed service when a protection order is made (ss188 and 198).
Failing to comply with a direction to undertake an assessment for and attend a non-violence programme or prescribed
service, without a reasonable excuse, is an offence that is liable on conviction to:
a fine not exceeding $5000, or
a term of imprisonment not exceeding six months (s211).
The Ministry of Justice and Police have an agreement that a registrar will refer such a matter to Police for determination as
to prosecution.
This topic sets out the relevant legislation and the process that Police must follow when investigating and prosecuting an
offence for failing to comply with a direction to undertaken an assessment for and attend a non-violence programme or
prescribed service under the Family Violence Act.
Related information
For related information, see:
Family harm policy and procedures
Protection and related property orders
Prosecuting family violence
Details in legislation
The relevant provisions are contained in the following legislation:
Family Violence Act 2018
Family Courts Rules 2002
Objection process
If a direction to undertake an assessment and attend a non-violence programme/prescribed service under section 188
and/or 198 is made on application without notice the respondent may notify the court that they object (s 189). After
considering an objection the court can confirm, vary or discharge the direction. When confirming or varying a direction the
Judge must warn the respondent that non-compliance is an offence punishable by imprisonment (s190).
Assessment and determination
After the court has made a direction the registrar arranges for the respondent to be referred to an assessor (s191). The
assessor must arrange to meet with the respondent as soon as possible to undertake the assessment and determine
whether there is an appropriate non-violence programme or prescribed service available (s192).
The assessor can decide not to undertake an assessment if they consider there is good reason not to (s192). The assessor
can also decide if the respondent’s attendance at a non-violence programme or prescribed service should be delayed to
enable other matters to be addressed first (s194).
If the assessor makes a determination of an appropriate non-violence programme or prescribed service this is notified to
the respondent, service providers and registrar (s197). The court can also direct the respondent to attend a prescribed non-
standard service where an assessment indicates this would be beneficial. The judge will decide in what order the
respondent should attend the various programmes and services (s198).
Terms of attendance or engagement with non-violence programme or prescribed service
After an assessment has occurred and a respondent referred to a non-violence programme/prescribed service, the service
provider must settle in writing with the respondent the terms of attendance of a non-violence programme which must
include:
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the number of programme sessions and details/arrangements regarding times and venues
terms of engagement with a prescribed service (s201).
Assessors and service providers must be approved
All assessors and service providers must be approved by the Chief Executive of the Ministry of Justice (the Secretary).
(An assessor is a person or organisation that has been granted an approval to undertaken assessments for non-violence
programmes, prescribed services or both. A service provider is a person or organisation that has been granted an approval
to provide programmes, prescribed services or both.)
The Secretary must publish a list of approved assessors and service providers on the Ministry of Justice website (s214).
Assessor or service provider to notify safety concerns
If a service provider or assessor has concerns about the safety of a protected person (that there is risk that is imminent,
escalating or grave and adds to the concerns that supported making the protection order) they must notify the registrar,
the District Commander at the appropriate Police district headquarters, and if there is a perceived risk to any child, the
chief executive. The registrar must inform the protected person and follow the procedure outlined below (s186).
Referral back to court if continued provision no longer appropriate or practicable or affected
significantly by non-compliance
At any time during the provision of a non-violence programme or prescribed service the service provider must notify the
registrar if they consider:
it is no longer appropriate or practicable for them to provide the programme/prescribed service to the respondent
the respondent is not fully participating in the programme/prescribed service and this is significantly affecting the
respondent’s ability to benefit fully.
The registrar is able to make a new referral to a different service provider or bring the matter to the attention of a judge
(s203).
Report and notice of completion and outcome of programme/service
On completion of a non-violence programme or prescribed service, the service provider must provide a report to the
registrar that:
states whether the service provider thinks the respondent has met the objectives of the non-violence
programme/prescribed service
advises of any concerns the service provider has about the safety of any protected person (that there is risk that is
imminent, escalating or grave and adds to the concerns that supported making the protection order) (s204).
Notice of non-compliance with direction
If one or more of the following events happen the assessor or service provider must notify the registrar:
the respondent fails to undertake an assessment or attend a non-violence programme or prescribed service
the service provider determines the respondent is not fully participating in a non-violence programme or prescribed
service and this is significantly affecting their ability to benefit fully (s207).
Registrar response to notice of safety concern or non-compliance
If there are safety concerns, as outlined above, or the respondent has failed to meet the objectives of the non-violence
programme/prescribed service (and a notice has been received from an assessor or service provider) the registrar must
call the respondent before court or bring the matter to the attention of a judge (s208).
Respondent called before court due to safety concerns or non-compliance
If a respondent appears before the court, the court may, after hearing from the respondent, do any or all of the following:
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admonish the respondent
confirm, vary or replace, or discharge the direction for assessment and attendance of a non-violence
programme/prescribed service or change the terms of attendance or engagement
make a replacement direction that requires the respondent to attend or engage with a further, or different,
assessment, programme or prescribed service
make, or vary or discharge terms or conditions of a parenting order (interim or final)
make any order or direction the court thinks fit in the circumstances.
Where the court confirms or varies a direction the judge must warn the respondent that non-compliance with the direction
is an offence punishable by imprisonment (s210).
Ministry of Justice role – the court
The registrar will decide whether to refer a matter to Police for determination as to prosecution.
Information from the court
Once the registrar has made the decision to refer the matter to police for prosecution, the court will assemble the
following documentation for the file:
letter requesting police review the file with a view to prosecution
chronology of relevant details
certified copies of:
the temporary and/or final protection order, including the direction for assessment and to attend a non-violence
programme/prescribed service
proof of service of the direction, duly certified with times of service included, or, alternatively, an affidavit of service
or other evidence to prove personal service
judge's minute regarding any action taken by the court (if applicable)
copy of any relevant letters, records of telephone conversations and file notes sent, received, or recorded by the
court.
Police role - investigation
File sent to nearest Family Violence Coordinator/Family Harm Specialist
Court staff will send the above information to the local Family Violence Coordinator/Family Harm Specialist. These will be
designated in a memorandum of understanding between Police and Ministry of Justice. Court staff should first ensure the
Family Violence Coordinator/Family Harm Specialist is not on leave and if they are away for more than one week, the file
should be sent directly to the OC of the relevant station.
The Family Violence Coordinator/Family Harm Specialist will add any relevant Police information (such as NIA printouts)
and a NIA file cover sheet before passing the file to the OC station for actioning.
Enter an occurrence in the National Intelligence Application
The file is entered into NIA, and allocated to an enquiry group/staff member. The usual procedure is followed when
entering the relevant information into NIA:
for 'start date' the date of the letter from the registrar is to be recorded
for 'location of the incident or event' the street address where the assessment, non-violence programme or
prescribed service was held is to be entered
the 'family violence-related offence' box should say 'yes'
the offence code is 3855.
Liaise with Family Violence Coordinator/Family Harm Specialist
It is important the investigating officer continues to liaise with the Family Violence Coordinator/Family Harm Specialist to
ensure they are kept informed about progress of the case.
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Interview the respondent
Normally it will be expected that police will need to interview the respondent. The offence is not committed if the
respondent had a ‘reasonable excuse’ for non-compliance and therefore it is important to ask the respondent the reasons.
Information being admitted as evidence or used without court’s authorisation
Information (eg. a statement or an admission) received by an assessor or service provider is able to be disclosed for:
proceedings in response to safety concerns or a respondents non-compliance with a direction
investigating or prosecuting an offence against s211
investigating or prosecuting an offence committed, or alleged to have been committed, during provision of a
programme or prescribed service
an inquiry that may be or is opened, ordered or conducted into a death (including any related inquest that may be or
is held) under the Coroners Act 2006
This information must not be admitted as evidence in any court or before any person acting judicially (s205(2)).
Use of Family Court records in criminal cases as part of the investigation
Rule 427 of the Family Court Rules allows certain Family Court records to be searched and copied by parties or persons
having a genuine and proper interest in the proceedings (Rule 429). This would include Police who seek to bring
proceedings under s 211. Police can apply to have copies of the documents noted in Rule 426. Such documents include
records of reasons noted by a judge but not a judge's personal notes. Police may put to the respondent the material
sanctioned by Rule 426.
Admissibility of Family Court records as evidence
The determination as to admissibility must be instructed by the Evidence Act. In particular, s 50(1) of the Evidence Act
states:
50 Civil judgment as evidence in civil or criminal proceedings
(1) Evidence of a judgment or a finding of fact in a civil proceeding is not admissible in a criminal proceeding or another civil
proceeding to prove the existence of a fact that was in issue in the proceeding in which the judgment was given.
Section 50(1), thus, limits the admissibility of the evidence of a judgment or a finding of fact to prove the existence of a fact
in a criminal proceeding that was at issue at a civil hearing.
Much of the material provided by the Family Court would be admissible as it would be relevant and not unfairly prejudicial
to the defendant. However, judge's minutes or other material offered as evidence that the defendant admitted the charge,
where this was not taken directly from the defendant, for example through a transcript of proceedings, would not be
admissible.
Judgments and findings of fact from the Family Court are not admissible in the District Court to prove the existence of a
fact that was at issue before the Family Court. Thus, where the Family Court has given a decision or finding of fact on
whether a respondent failed to comply with a direction, this finding would be inadmissible.
This means a judge's minute or other material that includes such a finding would, in that form, be inadmissible. However,
this only relates to judgments and ‘findings of fact’ not to documents on which a judge may have based that finding.
Accordingly, documents such as ‘certified copies of temporary and/or final protection orders’ would be admissible.
Police warnings
Given the seriousness of breaching a court order, if there is sufficient evidence, it is expected that in most cases there will
be a prosecution.
However, all relevant factors should be considered, such as the family violence history of the respondent, including
number of previous breaches of protection orders and related property orders; whether the respondent appeared to have
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a reasonable excuse for non-compliance, and whether it is within the time frame for prosecution (see below).
If the officer considers prosecution is not warranted they should consult with the District Prosecution Manager and Family
Violence Coordinator/Family Harm Specialist. In the event of a decision not to charge, the respondent should be warned
that failure to comply with a direction in future will result in prosecution.
Reporting back to the court
The investigating officer needs to keep court staff informed of any decision not to charge and the reasons for this (contact
the person referred to in the covering letter sent from the court).
Decision to charge
Once a decision has been made to charge, the charge is entered in NIA (use the occurrence ID from the one that has
already been entered). This will create the charging document.
Specimen charge and precedent code
See the Legislative Reference Table (LRT).
Act:
Family Violence Act 2018
Section
Offence of failing to comply with a direction to undertake an assessment for and attend a non-violence
Title:
programme or prescribed service
Section:
211
Charge Text: (1) while a protection order was in force against him/her and having been directed to undertake an
assessment for and attend a non-violence programme or prescribed services, failed to comply (2) without
reasonable excuse (3) being an offence punishable by six months imprisonment or a $5,000 fine.
Penalty:
S211 six months imprisonment, $5000 fine
Category:
Two
Time Limit: 12 months
Act
Fails to comply with a direction to undertake an assessment for and attend a non-violence programme or
Information:prescribed service (no firearm involved)
Justice
3855
Code:
Time limit for bringing a prosecution
The charging document must be filed within 12 months of the date of a notice of non-compliance.
Summons or warrant to arrest
It is expected that a summons would first be sought and served. If it cannot be served, or the person fails to attend, a
warrant to arrest can be sought under section 34 of the Criminal Procedure Act.
Victim Impact Statement
A victim impact statement is not required as there is no direct victim.
Ingredients of the offence
The prosecutor must prove the following ingredients:
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Ingredients to prove
Evidence (not exhaustive)
1 That a protection order has been issued naming the defendant as the respondent.
Usual identity issues to be
covered.
Certified copy of protection
order
2 That the court properly made a direction for the respondent to undertake an assessment
Copy of direction
for and attend a non-violence programme or prescribed service under the Family Violence
Act (s188).
3 That the respondent was served with the direction to undertake an assessment for and
As per Family Court rules of
attend a non-violence programme or prescribed service.
service - see below for
summary.
Documentation provided by
Family Court.
4 That the respondent failed to comply with the direction
Notice under section 207.
‘Reasonable excuse’
The offence is only committed if there was not a 'reasonable excuse'. Therefore, the defendant can try to establish that
he/she had a 'reasonable excuse' for failing to comply with a direction.
Service of protection orders
See Westlaw commentary regarding proof of service requirements.
Closing the file
Once a case is finalised it should be filed following usual local processes.
Reporting back to the court
The prosecutor should advise court staff of the outcome of the case. (Contact the person referred to in the covering letter
sent from the court).

Version number:
1
Owner:
Director: Community Partnerships & Prevention
Publication date:
02/07/2019
Last modified:
02/07/2019
Review date:
02/07/2021
Printed on : 04/05/2021
Printed from : https://tenone.police.govt.nz/pi/non-violence-programmes-and-prescribed-services
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