Not seeing eye-to-eye with your neighbours? Got a stalker who will not leave you alone? Or maybe someone from the community won’t stop harassing you? If any of these scenarios sound familiar, you might need a restraining order.

What is a restraining order?

If you are being harassed by a stranger or someone else within the community, you can take action against them by applying to the District Court for a restraining order. In more serious cases, you can even go to the Police.

‘Harassment’ covers a broad range of behaviours including stalking, abusive messages, threatening behaviour, and unwarranted complaints. The Harassment Act 1997 recognises that behaviour that might seem harmless or trivial on its own may amount to harassment when seen in context.

When you apply for a restraining order, you must first show that the behaviour amounts to harassment as defined by the Act and second, that the harassment meets the legal test for obtaining a restraining order.
Importantly, if you are or have been in a domestic relationship with your harasser, you will need to apply to the Family Court for a Protection Order. This is a separate process under the Family Violence Act 2018 and beyond the scope of this article.

What is harassment?

For there to be harassment, you will need to prove the following two things:

  • A type of behaviour as defined by the Harassment Act
  • A pattern of behaviour, not just a one-off incident

Step 1: Is this the type of behaviour that can amount to harassment?

The Harassment Act provides a non-exhaustive list of ‘specified acts of harassment’. These include:

  • Watching, loitering, or blocking access to your home or workplace
  • Following, stopping or confronting you
  • Coming onto your property without your permission, or interfering with your personal belongings
  • Contacting you – whether by post, text, telephone, e-mail, Facebook or any other way
  • Giving you offensive material or leaving it where you are likely to find it – this can include posting offensive messages on social media
  • Doing anything else to make you fear for your safety, and anything that would make a reasonable person in your situation fear for their safety. This “catch-all” definition can include threats of violence, intimidating acts, or things done to your family rather than to you directly.

Step 2: Is there a pattern of behaviour?

It will not be harassment if the other person does something just once – like sending you a single, abusive text message. There must be a pattern of behaviour, which can be either of the following:

  • Twice in one year — There will be a pattern of behaviour if a person commits two or more acts of harassment within 12 months. It does not have to be the same kind of harassment each time. For example, the person might confront you on your way home from work, then follow it up with a threatening phone call a week later.
  • A continuing act — There will be a ‘pattern of behaviour’ if a person does anything as a continuing act over 12 months – i.e., the harasser posts an abusive message about you on Facebook and leaves the post up for at least one year.

In short, the legislation recognises that harassment can take on many different forms. The key point is that there must be two or more acts of harassment (or one continuing act) within 12 months. This does not mean that you need to wait for an entire 12 months before taking action. E.g., if you are harassed twice within the space of a week, you can apply for a restraining order right away.

When can a restraining order be made?

Before the Court can grant a restraining order, the Judge will need to be satisfied with five things:

  1. The behaviour amounts as harassment, which means the pattern of behaviour described by the Harassment Act
  2. The behaviour is causing you distress (or is threatening to do so)
  3. The behaviour would cause distress to a reasonable person in your circumstances
  4. The distress is serious enough to justify the making of a restraining order
  5. The order is necessary to protect you from future acts of harassment.

A recent Court decision shows the types of situation that can lead to a restraining order being granted.
L v C [2018] NZDC 19841

Ms L and Mr C lived across the street from one another in Napier. Ms L was a solicitor and solo mother with a 14-month old baby. Mr C was a man in his early 70s and had lived with his wife at the address since 2003. Ms L moved into her property in December 2013 and had brought two dogs with her.

Mr C alleged that, for several years, Ms L’s dogs have barked in an uncontrolled manner, causing him to become sleep deprived.
In June 2016, Mr C confronted Ms L about her dogs for the first time. A few days later, Mr C sent Ms L a threatening text message in the early hours of the morning. The next day, Mr C hand-delivered an intimidating letter to Ms L, complaining in blunt terms about her dogs’ barking.

There was no further communication between Ms L and Mr C for the next nine months. However, this proved to be the proverbial calm before the storm.

From March 2017, Mr C engaged in an escalating pattern of obsessive and threatening behaviour. The timeline below shows the extent to which Mr C went to make Ms L’s life “a living hell”.

  • March 2017: Mr C complains to the Chief Executive and Mayor of Napier City Council about Ms L’s dogs.
  • November/December 2017: Mr C hand-delivers a note to Ms L, where he threatened to blast a megaphone outside her property.
  • 8 December 2017: Mr C hand-delivers another note to Ms L, repeating his earlier threat about blasting the megaphone.
  • January 2018: Mr C hand delivers a further note, threatening to make complaints about five companies that Ms L was associated with.
  • February 2018: Mr C makes a complaint to the New Zealand Law Society, claiming that Ms L is not a “fit and proper person” to practice law.
  • 21 May 2018: Mr C approaches Ms L outside of her front gate, calling her “Barrister Fatso”. This incident resulted in Mr C being charged by the Police with intimidation.
  • 5 June 2018: Mr C posts a defamatory article about Ms L on www.Neighbourly.co.nz.
  • On the same day, Mr C enters a coffee shop where Ms L was present.
  • 6 June 2019: Mr C parks and waits in his car outside Ms L’s law office.
  • 7 June 2018: Mr C approaches Ms L outside her home while she is holding her baby.
  • On 8 July 2018, Ms L decided that “enough was enough” and applied to the District Court for a restraining order against Mr C.

However, that did not stop Mr C from continuing with his crusade against Ms L. Upon receiving Ms L’s application for a restraining order, Mr C made complaints about the paternity of Ms L’s child with the Police. A few days later, Mr C’s wife confronted Ms L outside of her home, alleging that Ms L had kidnapped her own baby. Mr C defended the restraining order application. Throughout the trial, Mr C argued that the alleged acts of harassment were all done for a “lawful purpose”. Specifically, Mr C claimed that he was entitled to make complaints to the Council about Ms L as she had breached her ownership obligations under the Dog Control Act 1996. Mr C also argued that he was entitled to raise this issue with Ms L directly.

In considering that argument, the Judge found that it would be possible to view a communication to a dog owner for the lawful purpose of requesting the owner to comply with their legal obligations. However, in this case, Mr C’s complaints were not made for a lawful or legitimate purpose. They were all intended to threaten and cause distress to Ms L.

In her affidavit, Ms C also gave evidence about the impact that Mr C’s behaviour had on her. Ms L said that she found Mr C’s conduct to be extremely distressing for herself and her baby and that she was fearful for her safety. She gave evidence about having to take time off work, that she had installed a security system on her property, and that she no longer walked in her neighbourhood alone.
Due to Mr C’s escalating pattern of behaviour, the Judge decided that it was necessary to grant Ms L a restraining order for five years. This is considerably longer than the default period of just one year under the Harassment Act.

Mr C appealed the District Court Judge’s decision to the High Court. However, the High Court found that Mr C’s appeal was without merit and ordered Mr C to pay Ms L ‘increased costs’ (an extra 25 per cent above the normal District Court scale costs).

The above case illustrates that seemingly innocent complaints about a person’s conduct may constitute harassment in certain situations. This will typically be the case where the complaints go beyond legitimate communication, involve improper threats, or are otherwise intimidatory.
Given that Mr C’s campaign against Ms L spanned over two years, it is surprising that Ms L did not apply for a restraining order much earlier. That said, the troubling features of Mr C’s harassment justified the making of a restraining order for five years, which is the maximum period available under the Harassment Act.

So, what does a restraining order do exactly?

A restraining order makes it a criminal offence for the harasser to contact you in any way, or do things such as watching or following you or doing anything else that would make you fear for your safety.
If the harasser does one of these things, then he or she can be charged with breach of a restraining order. The maximum penalty for a first or second breach is six months’ imprisonment. For a third or subsequent breach, the maximum penalty increases to two years’ imprisonment.
Applying for a restraining order

Anyone who is being harassed can apply to the District Court for a restraining order. The application process is somewhat unusual and involves the person filing an application, a notice of proceeding and supporting affidavit. This last document is a sworn statement by you in which you describe all the facts and explain why you believe a restraining order is necessary.

Once your application has been filed, a court security officer will attempt to serve it on the harasser. The Court Registrar will then set the case down for a hearing in front of a Judge. This will usually be two or three months from the date you filed your application.

What happens at the Court hearing?

The case will normally be set down for a two-hour hearing, although a longer hearing will be required if the facts are complex or many witnesses will be giving evidence.

At the start of the hearing, you (or your lawyer) will give an opening statement, outlining why you’ve applied for a restraining order and who will be giving evidence. You will then present your evidence about the harassment. Usually, you will be one of the witnesses, but you may also call other witnesses to give evidence. You will then be asked questions by your lawyer (if you have one) and from the Judge.

The harasser (or their lawyer) can then cross-examine you about your evidence. Cross-examination is a process where the other party gets to question witnesses about key areas of dispute. The aim is to get the witness to admit to facts that strengthen the other party’s case or weaken your case.

The harasser will then call their witnesses, and you will also get the chance to cross-examine those witnesses.
At the end of the hearing, you (or your lawyer) will sum up the case, stating why a restraining order should be made in light of the evidence and your submissions on the law.

The Judge might then announce their decision before leaving the Courtroom. More often, the Judge will reserve their decision and will send a written judgment to the parties a few weeks’ later.

Conclusion

The Harassment Act is not particularly user-friendly or easy to follow for someone unfamiliar with Court procedure.
The process of applying for a restraining order is fairly involved and requires a written application and supporting affidavit, along with written submissions on the law. The application will always be heard in front of the Judge. This can be quite a daunting experience if you have never been to Court before.

If you are contemplating applying for a restraining order (or need to defend an application for a restraining order), please contact Joshua Pietras at ARL Lawyers on (04) 576 1662 to arrange a time for a consultation.

2019-11-27T13:51:59+00:00 November 19th, 2019|