In most regions of New Zealand, the court bailiffs or the police serve orders made under the Family Violence Act 2018. For some time now this has not been the case in the Auckland area.
Auckland practitioners who represent applicants for orders under the Domestic Violence Act should note that usually the police will not become involved in service of the order made.
The ADLS Family Law committee recently wrote to police, pointing out that the practice in Auckland differs from that in other parts of New Zealand and inquiring why in the Auckland area the police have ceased serving protection orders and what can be done to resume this service.
The response: the Auckland police do not have the time nor the resources to serve all family violence orders. But they do, and will continue to, serve respondents where the court has specifically directed in the order that the police are to effect service. If there is no such direction, it will be up the applicant to arrange for service to be effected on the person against whom the order was made and to meet the costs of service.
Members of the legal profession who work in this area appreciate the prompt attention the New Zealand police give to effecting service of orders on those occasions when they are directed to undertake the task.
The police have access to information which makes service more readily achieved and, on those occasions when service is effected by the police, the recipient of the court’s order is more likely to recognise the gravity of the situation given the police involvement.
But where the police are not involved, service of a protection order can be difficult. Often an attempt to serve poses significant risk of violence to the lay-person who is effecting personal service. In the absence of police involvement, many parties with a meritorious case for a protection order are denied access to justice because they do not have the means to pay for a process server.
Failure to serve and to have proof of service may have devastating repercussions for the successful applicant. The ability to enforce compliance with the family violence order and to prosecute for breach of a family violence order is essential to the protective nature of orders under the Family Violence Act. While the police will attend any perceived family harm incident, a quicker response is often achieved where there is proof of service.
Proof of service is required even in circumstances where the respondent attended the defended hearing and was present in court when a protection order was made final. In one recent case, the applicant’s lawyer assumed the court registry would seal and arrange for service of the protection order on the respondent. The order was not served and after the order was breached there were issues with the police enforcing the order because there was no proof of service.
If a practitioner considers it desirable that the police effect service, the reasons should be addressed in either a memorandum of counsel or the applicant’s affidavit. A direction that the police effect service most commonly occurs where the respondent holds a firearms licence and/or is suspected to have access to firearms. ■
Sonja Clapham is a barrister at Shortland Chambers and a member of the ADLS Family Law committee ■