Domestic violence

 

What is domestic violence?

Domestic violence is any form of physical, sexual and psychological violence which threatens the safety or welfare of family members and certain persons in domestic relationships. Physical or sexual violence against a family member is a crime. 

Domestic violence legislation protects spouses/civil partners and children and offers legal remedies to dependent persons, and persons in other domestic relationships where their safety or welfare is at risk because of the conduct of the other person in the relationship. It also gives An Garda Síochána powers to arrest without warrant where there is a breach of a court order.

What orders can the court make?

Safety order

A safety order prohibits the person against whom the order is made (the respondent) from engaging in violence or threats of violence. It does not oblige that person to leave the family home. If the person does not normally live in the family home, it prohibits them from watching or being in the vicinity of where the person applying for the order (the applicant) and dependent children lives. A safety order can be made for up to five years.

Barring order

A barring order requires the respondent to leave the family home and stay away from the family home of the applicant and/or dependent children. It may also include terms prohibiting the respondent from using or threatening to use violence. A barring order can be made for up to three years.

Once a summons has been issued for a safety order or a barring order the applicant can apply for a protection order or an interim barring order while waiting for the application to be heard in court.

Protection order

This is a temporary safety order. It gives protection to the applicant until the court decides on a safety or barring order application. It is intended to last until the case is heard and a decision made. It does not oblige the respondent to leave the family home.

Interim barring order

This is a temporary barring order. It is intended to last until the barring order application is heard in court and a decision made. Under the Domestic Violence Act, 2002 a full court hearing must take place within eight working days of the granting of an interim barring order. The Court must be of the opinion that there are reasonable grounds for believing there is an immediate risk of significant harm to the applicant or any dependent person if the order is not made immediately and the granting of a protection order would not be sufficient to protect the applicant or any dependent person.

Who can apply for these orders?

• Spouses and former spouses

Spouses and former spouses can apply for orders against each other because of violence towards themselves or towards their children.

• Civil partners and former civil partners

Civil partners and former civil partners can apply for orders against each other because of violence towards themselves or towards their children.

• Co-habiting couples

Where a couple are not married to each other or are not civil partners of each other but are living together in an intimate and committed relationship, one partner can apply for protection against violence by the other partner. The protection available depends on how long they have been living together and on who owns the family home. If you have been living with your partner for six months during the past nine months  you are entitled to apply for a barring order, unless the violent partner owns the family home in full, or has greater ownership rights than you do.  If you have lived together in the past , you can apply for a safety order.

• Parents

A parent can apply for protection against domestic violence by their own child if the child is over 18. The parent can apply for a barring order, unless the adult child owns the home in full, or has greater ownership rights. The parent can also get a safety order.

• Parents of children in common

A parent can apply for an order on the basis that he/she fears for the safety/welfare of a dependant child.
A parent can also apply for a safety order against the other parent of their child because of violence by that parent against them or any of their children.

• Others living together

You can apply for protection against violence by someone over 18 who you are living with if the court decides that your relationship is not primarily based on a contract. For example, two relatives living together could be covered. If you come within this heading, the courts will be able to give you a safety order. You will not qualify for a barring order.

• Children

Children may apply for orders but an adult or health board must make the application on their behalf.

• Health Board

A health board may apply on behalf of a person or that person's dependent children.  

• How to make an application

Most applications under the domestic violence legislation are made in the District Court. You can engage a solicitor to make an application on your behalf or you can make the application yourself. You may be entitled to legal aid.

If you choose not to engage a solicitor you will need to contact the District Court office in the area where you or the respondent live. You will need to lodge the relevant court forms in the court office. Court staff will identify the forms you need to make your application but cannot tell you what to put in the forms. When you have completed the necessary form(s) you must lodge them in the District Court for service on the respondent. The forms will be sent to the respondent so that the respondent can attend in court on the day of the hearing. You must also attend in court on the day to make your application.

What if I need protection pending the hearing of my application for a safety order or barring order?

You can apply for a protection order or an interim barring order at any time after you have issued a summons.

You must complete an application form called an 'information' providing details including the incidents of violence and the reason why you require protection on an emergency basis. You must swear the 'information' on oath before a judge of the District Court who will decide whether your application should be granted.

What happens in court when I apply for a protection order or interim barring order?

Your application will be heard on an 'ex parte' basis. This means that the respondent will not have been told that the application is being made and will not be in court.

You must tell the court why you need a protection order or an interim barring order and why the court should make an order without letting the respondent know that the application is being heard.

If you are applying for an interim barring order there must be evidence of immediate risk of significant harm to you and/or dependent children if the court does not grant the order immediately.

What happens in court on the day of the full hearing of an application?

The courtroom

On the day of the full hearing both parties can attend in court. The judge sits at a bench facing the parties and the courtroom. The only other person in the courtroom is the clerk of the court who deals with the administration of the case.

Giving evidence

All evidence must be presented to the court orally. This means that witnesses have to attend and give evidence in the witness box.They must be prepared to be cross-examined by the respondent or his/her legal representative who may dispute the evidence. As your solicitors, we will organise for other witnesses to attend at the hearing, for example Gardaí. If you do not have a solicitor you will have to make the arrangements yourself. 

As the applicant you give evidence first. You will be asked to step into the witness box and swear on oath that what you say to the court is the truth. The witnesses, if any, follow. You may or may not need witnesses. However if you think a witness would be helpful to your case you should ask them if they would be willing to go to court and give evidence on your behalf.

Sometimes it is necessary to issue a 'witness summons' to secure the attendance of a witness. Where this happens you should apply to the court office for the issue of a witness summons and serve it on the intended witness. You may have to cover reasonable expenses of the witness or provide reasonable compensation for loss of time for attending court to give evidence on your behalf.

The role of the judge

The judge decides based on the evidence that is presented on the day whether a safety order or a barring order should be made and how long any such order should last. The District Court can grant a safety order for up to a five years and a barring order for up to three years.

How is the respondent informed of the making of an order?

The decision of the court is produced in the form of a written document called an 'order' and is usually sent by the court office to the respondent by ordinary post.

In the case of protection order or an interim barring order the court usually directs that order be served on the respondent by An Garda Síochána. The interim barring order stays in place until the full hearing of the barring/safety order application.

Should I do anything after the order is made?

The court office will notify the Gardaí of the making of the order by sending a copy to the local Garda station by post. To avoid any delay in notifying the Gardaí you should call to the Garda station immediately after the order has been made, tell them of the making of the order and leave a copy with them.

The Gardaí may need to call to your home at a later stage should there be a breach of the order by the respondent. You should keep a copy of the order with you at all times.

Can I apply for orders not included in my written application?

The court can make other orders where asked to do so without the party being required to make a separate application. For example, you or the respondent may want the court to deal with issues of custody, access and/or maintenance of children. It is therefore advisable to discuss these issues in advance with your solicitor and be prepared to give your views.

What happens if someone breaches the terms of an order?

A breach of any order under the domestic violence legislation is a criminal offence. The Gardaí can arrest and charge a person who breaches such an order.

 

for more information on the legal side of domestic violence whether married or unmarried or in the context of divorce in Ireland contact Keith Walsh, keith@kwsols.ie, 01 455 4723

The above information is impartial and is based on the Courts Services information.