Most people know that the law has sanctions against people who use domestic violence. But what about people who encourage others to abuse in domestic situations? Nicola Utting of Davys Burton outlines the law on this question and looks at some recent cases.

Protection Orders

Under the Domestic Violence Act 1995 ("the Act") the Court may make an order protecting someone ("the applicant") against someone else ("the respondent") if the respondent has used domestic violence against the applicant and the order is necessary for the protection of the applicant.

Domestic violence is defined in section 3 of the Act and requires that the parties are or have been in a domestic relationship. This includes being a partner, being a family member, ordinarily sharing a household, or being in a close personal relationship.

Domestic violence means physical, sexual or psychological abuse, and can be a single act.

It must be established that the order is necessary for the applicant's protection. This entails showing domestic violence and an ongoing or threatened situation requiring protection in the future.

Associated Respondent

The Act also provides for protection from a respondent's associates. This person must be a person who the respondent is encouraging, or has encouraged, to do something to a protected person. The Court must be satisfied that the associated person has done something to a protected person (either before or after the person became protected) which would amount to domestic violence if the respondent had done it; and that making an order is necessary for the protection of the protected person.

The term 'encourage' is defined as including to 'incite', 'counsel', or 'procure'. These terms are not defined.

It will usually be obvious when a respondent is expressly encouraging someone. But there are also circumstances when it is not so clear.

The High Court in P v M (1998) 17 FRNZ 47 found encouragement of all four respondents as the result of a "pack mentality". In this case the applicant sought a protection order against the same-sex partner of his sister, against his sister, and against two other respondents. The applicant claimed that all four women had harassed and threatened him and his family and caused damage to his property. All four respondents knew of the abuse and shared a similar attitude towards the applicant and his family. All four were present and the abuse occurred over a sustained period. The Court was of the view that when four people join together in this way it is usual for them to encourage each other. Although it was not express encouragement, it was sufficient to fall within the Act's definition.

Encouragement has not been found when associated respondents act on their own initiative, from their own perception of the situation, independently of the respondent (Simon v Yates 25/6/97, Family Court, Kaitaia FP029/063/97, Judge MacCormick).

In M v M and M 7/9/00, Family Court, Rotorua FP063/340/00, Judge Whitehead, the applicant alleged that the respondent encouraged the associated respondent to abuse the applicant physically and verbally. The encouragement may not have been express but was implied from the respondent observing the behaviour of the associated respondent and not trying to stop the associated respondent continuing the abuse. The applicant in this case was the daughter of the respondent and the associated respondent was the wife of the respondent. There had been an incident involving all three parties where the applicant claimed that she had been physically and psychologically abused by both respondents. The incident occurred over one night.

The Court declined to include the associated respondent in a protection order on the grounds that there had been no encouragement from the respondent. Although there was domestic violence from the associated respondent towards the applicant, the respondent had not encouraged the associated respondent to follow the applicant and he could not have anticipated what would then occur. The Court said that when the respondents later acted together, that could be seen to be one encouraging the other by use of physical force, but found that at the time when they were acting together it was the respondent, and not the associated respondent, who was using domestic violence. It should be noted that the Court found that a protection order was not necessary for protection from the respondent and declined to make an order.

In Gibson v Gibson and Collyer 7/9/00, Family Court Rotorua FP 063/514/99, Judge Whitehead, the Court declined to make an order against the associated respondent on the basis that there was no evidence that the respondent had encouraged the associated person in the domestic violence.

Apart from encouragement, the requirements for making an order against an associated respondent are the same as those for an order against the respondent. It should be noted that the Court is making two distinct orders when making a protection order against a respondent and an associated respondent. For example, an application for a protection order without notice against a respondent and an associated respondent may be successful against the respondent but placed on notice in relation to the associated respondent. There may also be different conditions (for example relating to weapons or attendance at a programme) for the respondent and the associated respondent.

Copyright The Lawlink Group Ltd 2000

Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.


Nicola Utting is a solicitor with the Rotorua Lawlink firm of Davys Burton. Nicola works in family law and debt recovery.

Web site: Davys Burton
Email: nicola.utting@davysburton.co.nz

December 2000