domestic violence - FLAC · 3 domestic violence What protections are available under the law? Under the Domestic Violence Act, the following orders may be obtained: l Safety Order

July 2014

domestic violence

FLAC Legal DOMESTIC VIOLENCE_Layout 1 27/06/2014 14:57 Page 1

The law provides for theprotection, safety and welfare ofmarried couples, same-sexpartners, cohabiting couples,parents, children and any otherpeople who live in a domesticrelationship. Safety and welfareincludes the physical, emotional andmental welfare of the person inquestion.

Criminal law is also relevant indomestic violence situations,particularly where a couple isunmarried or else not cohabiting.Under the Non-Fatal Offencesagainst the Person Act, a personcan be charged with the offenceof assault, assault causing harm orserious harm, or with the offenceof making threats to kill or causeserious harm. Other offences thata person can be charged withunder this Act are coercion,harassment or endangerment.

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domest i c v io lence

DomesticViolence Act1996 (asamended)

Non-FatalOffencesagainst thePerson Act1997


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What protections are available under the law?

Under the Domestic Violence Act, thefollowing orders may be obtained:

l Safety Order

l Barring Order

l Interim Barring Order

l Protection Order

It is important to note that a court can onlygrant an order where you have appliedspecifically for that order. In other words, itcannot grant any other type of order even ifyou feel it might have been more appropriateor necessary, if you haven’t specifically appliedfor it. For example, if you apply for a BarringOrder, the Court cannot grant a Safety Orderunless you have also applied for one. Thus youmay be advised to apply for both ifappropriate – seek advice.

What happens if a person does notcomply with an Order?

If any of these orders is breachedby the offender, the Gardaí haveimmediate powers of arrest. It is acriminal offence to breach adomestic violence order and

Section 17of theDomesticViolence Act1996


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anyone found guilty of breaching a domesticviolence order is liable to a fine of up to€1,904.61 or a term of imprisonment of up to12 months, or both. Note that It is also anoffence to in any way hinder or prevent aperson who is protected under such Ordersfrom entering or remaining in a placespecified in the Order (such as the familyhome). Gardaí can arrest a respondentwithout a warrant or enter and search anyplace they suspect that person to be.

The offence of breaching the order will beheard in open court. All of these orders can beappealed.

Do I need a solicitor to apply for an Order?

If you wish to take legal action, you shouldseek advice from a solicitor, although in thecase of an interim barring order and/or aprotection order, it is important to note that asolicitor is not necessary at the first ex partehearing stage. Applicants can representthemselves throughout the process, althoughthis is not advisable, particularly where therespondent may have legal representationand is contesting the application. It isadvisable to have legal representation. LegalAid can be available (see the end of thisleaflet).


Safety Order

This order prevents the respondent (thewrongdoer) from committing furtherviolence, or threatening violence, against theapplicant (the person looking for protection)and his/her dependants. The respondent is notrequired to leave the home.

A dependant is any child of either, or both,parties, including any child residing with theapplicant and/or the respondent where eitherparty is responsible for looking after this child.A dependent child is any child who is underthe age of 18 or any adult child, who byreason of an intellectual or physical disability,cannot live independently.

If the applicant and the respondent are notliving together, the court can order therespondent not to watch (in other words,regularly or continuously look at and observethe applicant’s comings and goings) or benear the applicant’s home.

You will have to apply for the Safety Order inthe District Court.

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Who can apply for a Safety Order?

l Applicants for a Safety Order must be over18 and have a relationship with therespondent which is not mainly based on acontract, such as a lodger or tenant.

l A married spouse or civil partner, whethercurrent or former and irrespective of howlong they have lived together, can applyfor a Safety Order on his or her own behalfor on behalf of a child.

l An unmarried partner, (that is a personwho is not married to or in a civilpartnership with the respondent but iscohabiting) who is, living in an intimateand committed relationship with therespondent can apply for a Safety Order aslong as the couple have been livingtogether. This applies to same-sex andopposite-sex cohabiting couples.

l Parents with a child in common are able toapply for Safety Orders against each otherregardless of whether they are now orhave ever been cohabiting.

l Parents can apply for Safety Orders againsttheir own child if the child is over 18 andthe child does not suffer from either aphysical or mental disability or both.

l Children (aged under 18) can apply for aSafety Order but will need an adult or the

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Health Service Executive to apply on theirbehalf.

l The HSE can also seek an order for anadult or his/her dependent children.

l Relatives who live together (includingadoptees) can apply for a Safety Order.

If the relationship is not based on marriage ora civil partnership the court considers thefollowing factors:

l The length of time the people involvedhave lived together.

l The type of duties carried out by eitherperson for the other or for their family.

l If any payment or other consideration wasmade by one person to the other for livingexpenses.

l Other matters the court considersappropriate in a particular situation.


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What factors will the Court considerwhen deciding whether to grant anapplication for a Safety Order?

Safety orders will be granted where the courtconsiders there are reasonable grounds forbelieving that a person’s physical orpsychological safety or welfare (or that of adependant) is at risk

What can a Safety Order do?

The court can order the respondent:

a) Not to use or threaten to use violenceon or put in fear or molest theapplicant or any dependant.

b) To stay away from the residence of theapplicant, if the parties do not live atthe same address.

It is important to note that the Safety Orderdoes not require the respondent to leave thehome if the parties reside at the sameaddress.

The court will hear applications from eitherside and, depending on the evidence beforeit, will make the order, including additionalconditions if it considers this appropriate.


What happens at the hearing?

The hearing of any application for a SafetyOrder is held in private and only theapplicant, the respondent, the judge and thecourt registrar attend. Where the applicanthas sworn an affidavit (which is a statement inwriting setting out the applicant’s reasons forseeking a Safety Order, sworn before by aCommissioner for Oaths or solicitor), therespondent can seek and will be providedwith a copy of this affidavit. While the Judgecan, if he or she considers it appropriate, hearevidence from a third party such as a Garda, achild, or a relative/ friend of the applicant orthe respondent, generally a judge will notseek to hear evidence from a third party andwill make his or her decision on the basis ofthe evidence of both parties.

What happens if the respondent doesn’tturn up in court?

If the respondent fails to attend court, thejudge can proceed to hear evidence from theapplicant and, if satisfied, can grant a SafetyOrder in his or her absence. The respondentmust be notified as soon as possible of theorder made, even orally, by the applicant orGardai, and will then be served with a copy ofthe order as a matter of urgency. A SafetyOrder only takes effect after the respondenthas been notified. The respondent can appealthe order made, but it will remain in placeuntil such time as the appeal is heard.

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How long does the Safety Order last?

An order made by a District Court can last upto five years. Before this order expires, anapplication can be made to have it extendedfor a further five years, or for a shorterperiod, as the court sees fit. Safety Ordersobtained to protect a dependant cease whenhe or she comes of age, although it is open tothat adult child to seek a safety order in his orher own right.

The Circuit Court can grant a Safety Order ofunlimited duration.

How do I seek to vary the terms of aSafety Order?

A Safety Order can be varied by application tothe Court which made the original order. Theperson who applied for the original order orthe respondent to the Order can make thisapplication on notice to the other party.

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Barring Order

This type of order requires the respondent(the wrongdoer) to leave the family homeuntil the order expires or is set aside. Youmust apply through your local District Court.

What does a Barring Order do?

Once a Barring Order is granted, the offendermust, according to the order the Court willmake, do one or some or all of the following:

l Leave the home and stay away from thehome for the order’s duration.

l Not use, or threaten to use, violenceagainst the applicant or any dependentchild.

l Not molest the applicant or any dependentchild or put them in fear.

l Not be in the area where the applicantand any dependent child lives.

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Who may apply for a Barring Order?

l Applicants for a Barring Order must beover 18 and have a relationship with therespondent which is not mainly based on acontract, such as a lodger or tenant.

l The spouse or civil partner of a violentperson can seek a Barring Order on his orher own behalf or on behalf of adependent child, regardless of how longthey have lived together or who owns allor most of the house.

l A co-habiting partner, who is not thespouse or civil partner of the respondentbut who has lived with the respondent inan intimate and committed relationship forat least six of the previous nine months,can apply for a Barring Order on his or herown behalf or on behalf of a child.However the applicant must have greaterownership rights in the family home.

l Parents with a child in common are able toapply for a Barring Order against eachother regardless of whether they are nowor have ever been cohabiting, on the basisthat they fear for the safety or welfare ofa dependent child.

l Parents can apply for Barring Ordersagainst their own adult child aged over 18,unless that child has greater ownershiprights in the family home.

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l Children (aged under 18) can apply for aBarring Order but will need an adult or theHealth Service Executive to apply on theirbehalf.

l The HSE can also seek an order on behalfof an adult or his/her dependent children.

What happens at the hearing?

The hearing of any application for a BarringOrder is held in private and only theapplicant, the respondent, the judge and thecourt registrar attend. Where the applicanthas sworn an affidavit (which is a statement inwriting setting out the applicant’s reasons forseeking a Barring Order, sworn before by aCommissioner for Oaths or solicitor), therespondent can seek and will be providedwith a copy of this affidavit. While the Judgecan, if he or she considers it appropriate, hearevidence from a third party such as a Garda, achild, or a relative/ friend of the applicant orthe respondent, generally a judge will notseek to hear evidence from a third party andwill make his or her decision on the basis ofthe evidence of both parties.

The court shall not make a Barring Order incircumstances where the applicant has nolegal or beneficial interest in the home orproperty, or where the court is of the opinionthat the applicant’s legal and beneficial


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interest in the home or property is less thanthe respondent. However, whatever views ofthe applicant or the respondent might have asto their interest in the property, it is a mattersolely for the court to determine the parties’relative property rights after considering allthe evidence.

If a judge decides not to grant a BarringOrder, for whatever reason, it may still beopen to the court to grant a Safety Order asan alternative, but only where the applicanthas sought both a Barring and a Safety Order.You might be advised therefore when seekinga Barring Order to also seek a Safety Order.

How long does a Barring Order last?

The District Court may grant a Barring Orderfor up to three years and an application for anextension can be made. There is no timelimitation on such an order if made by theCircuit Court. If a barring order is made forthe benefit of a dependent person such as achild it ceases to have effect when that personturns 18.


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Protection Order

While you are waiting for the court to decideon your application for a Safety or BarringOrder, the court can give you an immediatetemporary order called a Protection Order.

This has the same effect as a Safety Order butbecause it is only intended to last until thecourt decides on your case, it is temporary.

How do I get a Protection Order?

You apply in the District Court where you areseeking the Safety or Barring Order. TheProtection Order is granted following anemergency or urgent application and on thebasis of the applicant’s evidence only.Evidence is usually given by the person who isin fear swearing an affidavit (which is astatement in writing setting out theapplicant’s reasons for seeking the order,sworn before by a Commissioner for Oaths orsolicitor) with the help of a court clerk.

A Protection Order may be granted withoutthe knowledge of the respondent. This iscalled an ex parte application. However, therespondent must be notified as soon aspossible of the order made, even orally, by theapplicant or the Gardaí, and is then servedwith a copy of the order as a matter ofurgency. A Protection Order only takes effectafter the respondent has been notified.


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The respondent is given the opportunity toattend and address the court when the fullhearing for the Barring or Safety Order takesplace.

Interim Barring Order

This order is only granted in exceptional cases.There must be evidence of immediate risk ofsignificant harm to the person applying and aProtection Order must also be consideredinsufficient in the circumstances. Evidence isusually given by the person who is in fear ofthe violence swearing an affidavit orinformation and this can be with theassistance of the Court Clerk. This gives factualdetails of the violent situation. If theapplication is made without the knowledge ofthe respondent then the respondent will begiven a copy of the affidavit or informationand the note of the proceedings.

An Interim Barring Order can be grantedwithout the knowledge of the respondent(this is called an ex parte application), but heor she must be served immediately with theorder, usually by the Gardaí. An interimbarring order only takes effect after therespondent has been notified. A full courthearing of the facts must take place withineight working days of the Interim BarringOrder being made.


If you think you need an Interim BarringOrder, you should go to your local DistrictCourt. Court clerks can be helpful in filling outapplication forms.

The in camera rule

All cases in the Family Law Courts in Ireland areheard in camera (in private). Therefore,members of the general public are notpermitted to enter the court. The in-camera

rule has changed recently to allow the media tohave limited access to family law hearings andto have limited rights to report on theproceedings.

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Useful addresses:

Women’s Aid: This voluntary organisationprovides on-going support and information towomen affected by domestic violence. Afreephone helpline gives confidentialinformation and can refer callers to othernecessary services 7 days a week, 10 am to 10pm (except Christmas Day). Person-to-personadvice and information appointments are alsoavailable by calling the helpline. A courtaccompaniment scheme provides support forwomen going through the courts system.

Women’s Aid freephone national helpline:1800 341 900

Website: www.womensaid.ie

Amen: A confidential helpline and supportservice for male victims of domestic abuse andtheir families.

Helpline: 046 902 3718

Website: www.amen.ie


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Legal Aid

You may be eligible for legal aid if you are aperson of moderate means. To qualify for legalaid in civil cases your disposable income and assets must be below a certain limit, there mustbe merit to the case and there must be noother satisfactory way of resolving the problem.After approval, the Legal Aid Board providesyou with the services of a solicitor and, ifnecessary, a barrister. You can apply for legalaid for more than one matter at a time. TheBoard’s offices are called Law Centres and arelocated around the country. For the location ofyour nearest Law Centre, call 1890 615 200.

All those who are granted legal advice and/orlegal aid must pay a fee called a contributionto the Board. The minimum contribution is€30 for legal advice and €130 for legal aid.Law centre staff will advise what a person’sactual contribution will be as each person isassessed on an individual basis.

Before you qualify for legal aid, you must firstsatisfy a means test. Your disposable incomemust be less than €18,000 and your disposablecapital cannot be more than €100,000.

If you are in receipt of allowances, they willbe taken into account and they are deductiblewhen calculating disposable income. Themaximum allowance on childcare facilities ifyou are working is €6,000 per child per yearand the maximum allowance on accom moda -


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tion costs (e.g. rent) is €8,000 per year. ThePublic Service Pension Related Levy and theUniversal Social Charge are now also con sider -ed and are deductible for the purposes ofassessment.

The value of an applicant’s home and itsnormal contents are excluded when assessingthe value of his/her capital resources(property). If your capital resources exceed€4,000, you must complete a Statement ofCapital.

For further details on financial eligibilityrequirements or for details of otherallowances, contact your local Law Centre. Afull list is available at www.legalaidboard.ie.FLAC has prepared a guide to the state legalaid system which you can download atbit.ly/CLAflacsheet.

Need more information?

Legal information leaflets are also available

from FLAC on a variety of other areas of

law. They are free to download as PDFs

from the FLAC website or in print from your

local FLAC centre or Citizens Information

Centre.


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FLAC Mission Statement

FLAC (Free Legal Advice Centres) is a human rightsorganisation which exists to promote

equal access to justice for all.

While every effort has been made to ensure theaccuracy of this leaflet, it is provided for generallegal information only and is not intended as asubstitute for legal advice. The information itcontains is correct as of date of publication. FLACdoes not accept any legal liability for the contentsof this leaflet. People with specific legal problemsshould consult a solicitor.

FLAC is very grateful to Matthew Kenny, solicitor,Katie Dawson BL and to Helen Louise Caffrey BL fortheir help in drafting and finalising this leaflet.

FLAC offers free, confidential basic legal informationvia its lo-call telephone information line at 1890350 250 and one-to-one legal advice through itsnetwork of voluntary advice centres countrywide –www.flac.ie/help

This publication was supportedand part-funded by the Citizens Information Board

© FLAC – Free Legal Advice Centres, July 2014

LoCall: 1890 350 250 | www.flac.ie

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domestic violence - FLAC · 3 domestic violence What protections are available under the law? Under the Domestic Violence Act, the following orders may be obtained: l Safety Order