July domestic violence

Transcription

1 Juy 2014 domestic vioence

2 do m es tic vio ence The aw provides for the Domestic protection, safety and wefare of Vioence Act married coupes, same-sex 1996 (as amended) partners, cohabiting coupes, parents, chidren and any other peope who ive in a domestic reationship. Safety and wefare incudes the physica, emotiona and menta wefare of the person in question. Crimina aw is aso reevant in domestic vioence situations, particuary where a coupe is unmarried or ese not cohabiting. Under the Non-Fata Offences against the Person Act, a person can be charged with the offence of assaut, assaut causing harm or serious harm, or with the offence of making threats to ki or cause serious harm. Other offences that a person can be charged with under this Act are coercion, harassment or endangerment. Non-Fata Offences against the Person Act

3 do m es tic vio ence What protections are avaiabe under the aw? Under the Domestic Vioence Act, the foowing orders may be obtained: Safety Order Barring Order Interim Barring Order Protection Order It is important to note that a court can ony grant an order where you have appied specificay for that order. In other words, it cannot grant any other type of order even if you fee it might have been more appropriate or necessary, if you haven t specificay appied for it. For exampe, if you appy for a Barring Order, the Court cannot grant a Safety Order uness you have aso appied for one. Thus you may be advised to appy for both if appropriate seek advice. What happens if a person does not compy with an Order? If any of these orders is breached by the offender, the Gardaí have immediate powers of arrest. It is a crimina offence to breach a domestic vioence order and Section 17 of the Domestic Vioence Act

4 do m es tic vio ence anyone found guity of breaching a domestic vioence order is iabe to a fine of up to 1, or a term of imprisonment of up to 12 months, or both. Note that It is aso an offence to in any way hinder or prevent a person who is protected under such Orders from entering or remaining in a pace specified in the Order (such as the famiy home). Gardaí can arrest a respondent without a warrant or enter and search any pace they suspect that person to be. The offence of breaching the order wi be heard in open court. A of these orders can be appeaed. Do I need a soicitor to appy for an Order? If you wish to take ega action, you shoud seek advice from a soicitor, athough in the case of an interim barring order and/or a protection order, it is important to note that a soicitor is not necessary at the first ex parte hearing stage. Appicants can represent themseves throughout the process, athough this is not advisabe, particuary where the respondent may have ega representation and is contesting the appication. It is advisabe to have ega representation. Lega Aid can be avaiabe (see the end of this eafet). 4

5 do m es tic vio ence Safety Order This order prevents the respondent (the wrongdoer) from committing further vioence, or threatening vioence, against the appicant (the person ooking for protection) and his/her dependants. The respondent is not required to eave the home. A dependant is any chid of either, or both, parties, incuding any chid residing with the appicant and/or the respondent where either party is responsibe for ooking after this chid. A dependent chid is any chid who is under the age of 18 or any adut chid, who by reason of an inteectua or physica disabiity, cannot ive independenty. If the appicant and the respondent are not iving together, the court can order the respondent not to watch (in other words, reguary or continuousy ook at and observe the appicant s comings and goings) or be near the appicant s home. You wi have to appy for the Safety Order in the District Court. 5

6 do m es tic vio ence Who can appy for a Safety Order? Appicants for a Safety Order must be over 18 and have a reationship with the respondent which is not mainy based on a contract, such as a odger or tenant. A married spouse or civi partner, whether current or former and irrespective of how ong they have ived together, can appy for a Safety Order on his or her own behaf or on behaf of a chid. An unmarried partner, (that is a person who is not married to or in a civi partnership with the respondent but is cohabiting) who is, iving in an intimate and committed reationship with the respondent can appy for a Safety Order as ong as the coupe have been iving together. This appies to same-sex and opposite-sex cohabiting coupes. Parents with a chid in common are abe to appy for Safety Orders against each other regardess of whether they are now or have ever been cohabiting. Parents can appy for Safety Orders against their own chid if the chid is over 18 and the chid does not suffer from either a physica or menta disabiity or both. Chidren (aged under 18) can appy for a Safety Order but wi need an adut or the 6

7 do m es tic vio ence Heath Service Executive to appy on their behaf. The HSE can aso seek an order for an adut or his/her dependent chidren. Reatives who ive together (incuding adoptees) can appy for a Safety Order. If the reationship is not based on marriage or a civi partnership the court considers the foowing factors: The ength of time the peope invoved have ived together. The type of duties carried out by either person for the other or for their famiy. If any payment or other consideration was made by one person to the other for iving expenses. Other matters the court considers appropriate in a particuar situation. 7

8 do m es tic vio ence What factors wi the Court consider when deciding whether to grant an appication for a Safety Order? Safety orders wi be granted where the court considers there are reasonabe grounds for beieving that a person s physica or psychoogica safety or wefare (or that of a dependant) is at risk What can a Safety Order do? The court can order the respondent: a) Not to use or threaten to use vioence on or put in fear or moest the appicant or any dependant. b) To stay away from the residence of the appicant, if the parties do not ive at the same address. It is important to note that the Safety Order does not require the respondent to eave the home if the parties reside at the same address. The court wi hear appications from either side and, depending on the evidence before it, wi make the order, incuding additiona conditions if it considers this appropriate. 8

9 do m es tic vio ence What happens at the hearing? The hearing of any appication for a Safety Order is hed in private and ony the appicant, the respondent, the judge and the court registrar attend. Where the appicant has sworn an affidavit (which is a statement in writing setting out the appicant s reasons for seeking a Safety Order, sworn before by a Commissioner for Oaths or soicitor), the respondent can seek and wi be provided with a copy of this affidavit. Whie the Judge can, if he or she considers it appropriate, hear evidence from a third party such as a Garda, a chid, or a reative/ friend of the appicant or the respondent, generay a judge wi not seek to hear evidence from a third party and wi make his or her decision on the basis of the evidence of both parties. What happens if the respondent doesn t turn up in court? If the respondent fais to attend court, the judge can proceed to hear evidence from the appicant and, if satisfied, can grant a Safety Order in his or her absence. The respondent must be notified as soon as possibe of the order made, even oray, by the appicant or Gardai, and wi then be served with a copy of the order as a matter of urgency. A Safety Order ony takes effect after the respondent has been notified. The respondent can appea the order made, but it wi remain in pace unti such time as the appea is heard. 9

10 do m es tic vio ence How ong does the Safety Order ast? An order made by a District Court can ast up to five years. Before this order expires, an appication can be made to have it extended for a further five years, or for a shorter period, as the court sees fit. Safety Orders obtained to protect a dependant cease when he or she comes of age, athough it is open to that adut chid to seek a safety order in his or her own right. The Circuit Court can grant a Safety Order of unimited duration. How do I seek to vary the terms of a Safety Order? A Safety Order can be varied by appication to the Court which made the origina order. The person who appied for the origina order or the respondent to the Order can make this appication on notice to the other party. 10

11 do m es tic vio ence Barring Order This type of order requires the respondent (the wrongdoer) to eave the famiy home unti the order expires or is set aside. You must appy through your oca District Court. What does a Barring Order do? Once a Barring Order is granted, the offender must, according to the order the Court wi make, do one or some or a of the foowing: Leave the home and stay away from the home for the order s duration. Not use, or threaten to use, vioence against the appicant or any dependent chid. Not moest the appicant or any dependent chid or put them in fear. Not be in the area where the appicant and any dependent chid ives. 11

12 do m es tic vio ence Who may appy for a Barring Order? Appicants for a Barring Order must be over 18 and have a reationship with the respondent which is not mainy based on a contract, such as a odger or tenant. The spouse or civi partner of a vioent person can seek a Barring Order on his or her own behaf or on behaf of a dependent chid, regardess of how ong they have ived together or who owns a or most of the house. A co-habiting partner, who is not the spouse or civi partner of the respondent but who has ived with the respondent in an intimate and committed reationship for at east six of the previous nine months, can appy for a Barring Order on his or her own behaf or on behaf of a chid. However the appicant must have greater ownership rights in the famiy home. Parents with a chid in common are abe to appy for a Barring Order against each other regardess of whether they are now or have ever been cohabiting, on the basis that they fear for the safety or wefare of a dependent chid. Parents can appy for Barring Orders against their own adut chid aged over 18, uness that chid has greater ownership rights in the famiy home. 12

13 do m es tic vio ence Chidren (aged under 18) can appy for a Barring Order but wi need an adut or the Heath Service Executive to appy on their behaf. The HSE can aso seek an order on behaf of an adut or his/her dependent chidren. What happens at the hearing? The hearing of any appication for a Barring Order is hed in private and ony the appicant, the respondent, the judge and the court registrar attend. Where the appicant has sworn an affidavit (which is a statement in writing setting out the appicant s reasons for seeking a Barring Order, sworn before by a Commissioner for Oaths or soicitor), the respondent can seek and wi be provided with a copy of this affidavit. Whie the Judge can, if he or she considers it appropriate, hear evidence from a third party such as a Garda, a chid, or a reative/ friend of the appicant or the respondent, generay a judge wi not seek to hear evidence from a third party and wi make his or her decision on the basis of the evidence of both parties. The court sha not make a Barring Order in circumstances where the appicant has no ega or beneficia interest in the home or property, or where the court is of the opinion that the appicant s ega and beneficia 13

14 do m es tic vio ence interest in the home or property is ess than the respondent. However, whatever views of the appicant or the respondent might have as to their interest in the property, it is a matter soey for the court to determine the parties reative property rights after considering a the evidence. If a judge decides not to grant a Barring Order, for whatever reason, it may sti be open to the court to grant a Safety Order as an aternative, but ony where the appicant has sought both a Barring and a Safety Order. You might be advised therefore when seeking a Barring Order to aso seek a Safety Order. How ong does a Barring Order ast? The District Court may grant a Barring Order for up to three years and an appication for an extension can be made. There is no time imitation on such an order if made by the Circuit Court. If a barring order is made for the benefit of a dependent person such as a chid it ceases to have effect when that person turns

15 do m es tic vio ence Protection Order Whie you are waiting for the court to decide on your appication for a Safety or Barring Order, the court can give you an immediate temporary order caed a Protection Order. This has the same effect as a Safety Order but because it is ony intended to ast unti the court decides on your case, it is temporary. How do I get a Protection Order? You appy in the District Court where you are seeking the Safety or Barring Order. The Protection Order is granted foowing an emergency or urgent appication and on the basis of the appicant s evidence ony. Evidence is usuay given by the person who is in fear swearing an affidavit (which is a statement in writing setting out the appicant s reasons for seeking the order, sworn before by a Commissioner for Oaths or soicitor) with the hep of a court cerk. A Protection Order may be granted without the knowedge of the respondent. This is caed an ex parte appication. However, the respondent must be notified as soon as possibe of the order made, even oray, by the appicant or the Gardaí, and is then served with a copy of the order as a matter of urgency. A Protection Order ony takes effect after the respondent has been notified. 15

16 do m es tic vio ence The respondent is given the opportunity to attend and address the court when the fu hearing for the Barring or Safety Order takes pace. Interim Barring Order This order is ony granted in exceptiona cases. There must be evidence of immediate risk of significant harm to the person appying and a Protection Order must aso be considered insufficient in the circumstances. Evidence is usuay given by the person who is in fear of the vioence swearing an affidavit or information and this can be with the assistance of the Court Cerk. This gives factua detais of the vioent situation. If the appication is made without the knowedge of the respondent then the respondent wi be given a copy of the affidavit or information and the note of the proceedings. An Interim Barring Order can be granted without the knowedge of the respondent (this is caed an ex parte appication), but he or she must be served immediatey with the order, usuay by the Gardaí. An interim barring order ony takes effect after the respondent has been notified. A fu court hearing of the facts must take pace within eight working days of the Interim Barring Order being made. 16

17 do m es tic vio ence If you think you need an Interim Barring Order, you shoud go to your oca District Court. Court cerks can be hepfu in fiing out appication forms. The in camera rue A cases in the Famiy Law Courts in Ireand are heard in camera (in private). Therefore, members of the genera pubic are not permitted to enter the court. The in-camera rue has changed recenty to aow the media to have imited access to famiy aw hearings and to have imited rights to report on the proceedings. 17

18 do m es tic vio ence Usefu addresses: Women s Aid: This vountary organisation provides on-going support and information to women affected by domestic vioence. A freephone hepine gives confidentia information and can refer caers to other necessary services 7 days a week, 10 am to 10 pm (except Christmas Day). Person-to-person advice and information appointments are aso avaiabe by caing the hepine. A court accompaniment scheme provides support for women going through the courts system. Women s Aid freephone nationa hepine: Website: Amen: A confidentia hepine and support service for mae victims of domestic abuse and their famiies. Hepine: Website: 18

19 do m es tic vio ence Lega Aid You may be eigibe for ega aid if you are a person of moderate means. To quaify for ega aid in civi cases your disposabe income and assets must be beow a certain imit, there must be merit to the case and there must be no other satisfactory way of resoving the probem. After approva, the Lega Aid Board provides you with the services of a soicitor and, if necessary, a barrister. You can appy for ega aid for more than one matter at a time. The Board s offices are caed Law Centres and are ocated around the country. For the ocation of your nearest Law Centre, ca A those who are granted ega advice and/or ega aid must pay a fee caed a contribution to the Board. The minimum contribution is 30 for ega advice and 130 for ega aid. Law centre staff wi advise what a person s actua contribution wi be as each person is assessed on an individua basis. Before you quaify for ega aid, you must first satisfy a means test. Your disposabe income must be ess than 18,000 and your disposabe capita cannot be more than 100,000. If you are in receipt of aowances, they wi be taken into account and they are deductibe when cacuating disposabe income. The maximum aowance on chidcare faciities if you are working is 6,000 per chid per year and the maximum aowance on accom moda - 19

20 do m es tic vio ence tion costs (e.g. rent) is 8,000 per year. The Pubic Service Pension Reated Levy and the Universa Socia Charge are now aso con sider - ed and are deductibe for the purposes of assessment. The vaue of an appicant s home and its norma contents are excuded when assessing the vaue of his/her capita resources (property). If your capita resources exceed 4,000, you must compete a Statement of Capita. For further detais on financia eigibiity requirements or for detais of other aowances, contact your oca Law Centre. A fu ist is avaiabe at FLAC has prepared a guide to the state ega aid system which you can downoad at bit.y/clafacsheet. Need more information? Lega information eafets are aso avaiabe from FLAC on a variety of other areas of aw. They are free to downoad as PDFs from the FLAC website or in print from your oca FLAC centre or Citizens Information Centre. 20

21 do m es tic vio ence Notes 21

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24 FLAC Mission Statement FLAC (Free Lega Advice Centres) is a human rights organisation which exists to promote equa access to justice for a. Whie every effort has been made to ensure the accuracy of this eafet, it is provided for genera ega information ony and is not intended as a substitute for ega advice. The information it contains is correct as of date of pubication. FLAC does not accept any ega iabiity for the contents of this eafet. Peope with specific ega probems shoud consut a soicitor. FLAC is very gratefu to Matthew Kenny, soicitor, Katie Dawson BL and to Heen Louise Caffrey BL for their hep in drafting and finaising this eafet. FLAC offers free, confidentia basic ega information via its o-ca teephone information ine at and one-to-one ega advice through its network of vountary advice centres countrywide FLAC Free Lega Advice Centres, Juy 2014 LoCa: fb.me/facireand Designed and printed by Printwe Design This pubication was supported and part-funded by the Citizens Information Board