Calling a halt to domestic abuse

MOST of us are fortunate to have a home to go, a place we can retreat from the world.  Domestic abuse victims are sadly denied this refuge. It is understandable that victims are slow to report incidents of domestic abuse to the gardaí as they are often reluctant to proceed with criminal prosecutions, which are heard in open court.

However, there are several civil remedies available to you if you are experiencing domestic abuse. The Family Law (Maintenance of Spouses and Children) Act 1976 was the first step in providing relief for victims outside the arena of criminal law. The reliefs available by virtue of the 1976 Act were further expanded by the Domestic Violence Act 1996. Applications for such protective measures are heard “in camera”, which means that the general public are not permitted to attend such hearings. Only the applicant, respondent and their legal representatives are allowed to attend. You do not need to be concerned that details of your individual circumstances will be circulated by the local media or simply by members of the general public who attended court on that day.
It is a common misconception that the term “domestic abuse” refers only to physical violence. One of the aims of the 1996 Act is to provide protection for those whose “safety and welfare” is at risk because of the conduct of another person in a domestic relationship.  The 1996 Act thereby provides a remedy to persons suffering not only physical, but also sexual, emotional or mental abuse and this remedy is available to spouses, civil partners, cohabitants and family members. It must be emphasised that the legislation is gender neutral, that is, orders can be granted against both men and women. 
What type of order can I apply for?
The most common orders sought under the acts are barring orders, safety orders and protection orders. If a barring order is granted, the respondent is ordered to leave the family home and is prohibited from entering the home. In addition, the court may also bar the respondent from using or threatening to use violence against the applicant, or any dependants from molesting, or putting the applicant or any dependant in fear or visiting or watching the applicant’s home. A dependant person is dependant up until the age of 18 but can be dependant for a further three years; for example, if in full-tme education. Equally, adult children, who have a physical or mental disability can be defined as a dependant child. A barring order can last for up to three years.
A barring order can be applied for by the following categories of people:
• Spouses and former spouses
• Civil partners and former civil partners
• Cohabitants who have lived together as husband and wife for six months out of the previous nine months
• The parent of an adult child
• The HSE on behalf of a person who is entitled in their own right but whom the HSE believe is fearful of making such an application.
However, with the exception of spouses or civil partners, persons falling into the remaining categories may only obtain a barring order if they have an equal or greater interest in the property in question than the respondent.
The safety order was introduced by the Domestic Violence Act 1996. A safety order does not bar someone from the family home, rather it orders the respondent not to use violence or threaten to use violence, molest or put in fear the applicant or any dependant. A safety order can be useful in circumstances where the applicant wishes to support the respondent during a difficult time, for example, addiction treatment and does not wish the respondent to be removed from the family home. At the same time, the applicant can be protected in the event of the respondent becoming violent as a result of substance abuse. It can also be useful in circumstances where a couple have separated but remain living in the same home and tensions arise. This order can last up to five years.
A safety can be obtained by:
• Spouses and former spouses
• Civil partners and former civil partners
• Cohabiting couples are now eligible without any minimum time requirement (- Civil Law Act 2011).
• Parents who are not residing together but have a child in common (- Civil Law Act 2011).
• A parent of the respondent
• Someone being of full age who resides with the respondent in a non-contractual relationship; for example, siblings could apply for a safety order but a person could not obtain a safety order against a lodger.
Consequences of breaching an order
Breach of any order made under the Domestic Violence Act 1996 is criminal offence. The gardaí can arrest without warrant and charge a person who breaches such an order. Anyone who is found to have breached an order is liable upon conviction to a fine up to €1,904.61 or term of imprisonment for up to 12 months, or both. 
How do I get an order against someone?
To obtain a barring order or a safety order, you must apply to the district court. The respondent must be notified so he/she can attend in court on the day of the hearing to defend the application. In cases where the respondent does not appear in court, the evidence of the applicant is usually found to be sufficient. All evidence must be presented to the court orally. The applicant is also permitted to call other witnesses to support his or her claim such as gardaí, doctors or social workers. They must be prepared to be cross-examined by the respondent or his/her legal representative, who may dispute the evidence. Your solicitor will organise for such witnesses to attend at the hearing but if you do not have a solicitor you will have to make the arrangements yourself.
It is not unusual to experience a waiting time of two to four  weeks  before your application will be heard. While you are waiting for the court to hear your application, the court can grant you an immediate order called a protection order. The protection order has the same effect as a safety order. In exceptional circumstances, the court can grant an interim barring order. This is an immediate order, requiring the violent person to leave the family home. In both instances, the respondent is not given an opportunity to defend such an application and it is for that reason that such orders are temporary.
You can engage a solicitor to make an application on your behalf or you can make the application yourself. It is advisable, however, to engage a solicitor who can advise you in relation to your personal circumstances, the suitability of any of the aforementioned orders and your eligibility for legal aid.

Mairéad Doyle is a partner at Michael Houlihan and Partners