Print   

[excerpts]

DOMESTIC VIOLENCE ACT, 1996

Safety order.

2.(1) (a) In this section-

"the applicant" means a person, other than a health board, who has applied or on whose behalf a health board has applied by virtue ofsection6for a safety order against another person (in this section referred to as "the respondent") and the person so applying or on whose behalf the health board has so applied-

(i) is the spouse of the respondent, or

(ii) is not the spouse of the respondent but has lived with the respondent as husband or wife for a period of at least six months in aggregate during the period of twelve months immediately prior to the application for the safety order, or

(iii) is a parent of the respondent and the respondent is a person of full age who is not, in relation to the parent, a dependent person, or

(iv) being of full age resides with the respondent in a relationship the basis of which is not primarily contractual;

"kindred", in respect of two or more persons, means the relationship of each of those persons to the other person or to the rest of those persons by blood, adoption or marriage.

(b) In deciding whether or not a person is residing with another person in a relationship the basis of which is not primarily contractual, the court shall have regard to-

(i) the length of time those persons have been residing together,

(ii) the nature of any duties performed by either person for the other person or for any kindred person of that other person,

(iii) the absence of any profit or of any significant profit made by either person from any monetary or other consideration given by the other person in respect of residing at the place concerned,

(iv) such other matters as the court considers appropriate in the circumstances.

(2) Where the court, on application to it, is of the opinion that there are reasonable grounds for believing that the safety or welfare of the applicant or any dependent person so requires, it may, subject tosection 7, by order (in this Act referred to as a "safety order") direct that the respondent to the application-

(a) shall not use or threaten to use violence against, molest or put in fear the applicant or that dependent person, and

(b) if he or she is residing at a place other than the place where the applicant or that dependent person resides, shall not watch or beset the place where the applicant or that dependent person resides,

and the court may make such order subject to such exceptions and conditions as it may specify.

(3) Where a safety order has been made, any of the following may apply to have it varied, that is to say:

(a) if the application for the order was made by a health board in respect of any dependent person by virtue ofsection 6-

(i) the health board,

(ii) the person referred to insubsection (1) (c)of that section, or

(iii) the respondent to that application;

(b) if the application for the order was made by a health board in any other case by virtue ofsection 6-

(i) the health board,

(ii) the person who was the applicant for the order, or

(iii) the respondent to that application;

(c) in any other case-

(i) the person who was the applicant for the order, or

(ii) the person who was the respondent to the application for the order,

and the court upon hearing any such application shall make such order as it considers appropriate in the circumstances.

(4) For the purposes ofsubsection(3), a safety order made by a court on appeal from another court shall be treated as if it had been made by that other court.

(5) A safety order, if made by the District Court or by the Circuit Court on appeal from the District Court, shall, subject tosubsection (6) (a)andsection13, expire five years after the date of its making or on the expiration of such shorter period as the court may provide for in the order.

(6) (a) On or before the expiration of a safety order to whichsubsection (5)relates, a further safety order may be made by the District Court or by the Circuit Court on appeal from the District Court for a period of five years, or such shorter period as the court may provide for in the order, with effect from the expiration of the first-mentioned order.

(b) On or before the expiration of a safely order to whichparagraph(a)does not relate, a further safety order may be made with effect from the expiration of the first-mentioned safety order.

(7) Notwithstandingsubsection(5), so much of a safety order as was made for the benefit of a dependent person shall expire in accordance with such order or upon such person ceasing to be a dependent person, whichever first occurs.

(8) The court shall not make a safety order on an application for a barring order unless there is also an application for a safety order before the court concerning the same matter.

Barring order.

3.(1) In this section "the applicant" means a person, other than a health board, who has applied or on whose behalf a health board has applied by virtue of section 6 for a barring order against another person (in this section referred to as "the respondent") and the person so applying or on whose behalf the health board has so applied-

(a) is the spouse of the respondent, or

(b) is not the spouse of the respondent but has lived with the respondent as husband or wife for a period of at least six months in aggregate during the period of nine months immediately prior to the application for the barring order, or

(c) is a parent of the respondent and the respondent is a person of full age who is not, in relation to the parent, a dependent person.

(2) (a) Where the court, on application to it, is of the opinion that there are reasonable grounds for believing that the safety or welfare of the applicant or any dependent person so requires, it may, subject to section 7 and having taken into account any order made or to be made to which paragraph (a) or (d) of subsection (2) of section 9 relates, by order (in this Act referred to as a "barring order")-

(i) direct the respondent, if residing at a place where the applicant or that dependent person resides, to leave such place, and

(ii) whether the respondent is or is not residing at a place where the applicant or that dependent person resides, prohibit that respondent from entering such place until further order of the court or until such other time as the court shall specify.

(b) In deciding whether or not to grant a barring order the court shall have regard to the safety and welfare of any dependent person in respect of whom the respondent is a parent or in loco parentis, where such dependent person is residing at the place to which the order, if made, would relate.

(3) A barring order may, if the court thinks fit, prohibit the respondent from doing one or more of the following, that is to say:

(a) using or threatening to use violence against the applicant or any dependent person;

(b) molesting or putting in fear the applicant or any dependent person;

(c) attending at or in the vicinity of, or watching or besetting a place where, the applicant or any dependent person resides;

and shall be subject to such exceptions and conditions as the court may specify.

(4) (a) In respect of a person who is an applicant by virtue of paragraph (b) or (c) of subsection (1), the court shall not make a barring order in respect of the place where the applicant or dependent person resides where the respondent has a legal or beneficial interest in that place but-

(i) the applicant has no such interest, or

(ii) the applicant's interest is, in the opinion of the court, less than that of the respondent.

(b) Where in proceedings to which this section applies the applicant states the belief, in respect of the place to which paragraph (a) relates, that he or she has a legal or beneficial interest in that place which is not less than that of the respondent, then such belief shall be admissible in evidence.

(5) Without prejudice to section 22, nothing in this Act shall be construed as affecting the rights of any person, other than the applicant or the respondent, who has a legal or beneficial interest in a place in respect of which the court has made an order under this section.

(6) Where a barring order has been made, any of the following may apply to have it varied, that is to say:

(a) if the application for the order was made by a health board in respect of any dependent person by virtue of section 6-

(i) the health board,

(ii) the person referred to in subsection (1) (c) of that section, or

(iii) the respondent to that application;

(b) if the application for the order was made by a health board in any other case by virtue of section 6-

(i) the health board,

(ii) the person who was the applicant for the order, or

(iii) the respondent to that application;

(c) in any other case-

(i) the person who was the applicant for the order, or

(ii) the person who was the respondent to the application for the order,

and the court upon hearing any such application shall make such order as it considers appropriate in the circumstances.

(7) For the purposes of subsection (6), a barring order made by a court on appeal from another court shall be treated as if it had been made by that other court.

(8) A barring order, if made by the District Court or by the Circuit Court on appeal from the District Court, shall, subject to subsection (9) (a) and section 13, expire three years after the date of its making or on the expiration of such shorter period as the court may provide for in the order.

(9) (a) On or before the expiration of a barring order to which subsection (8) relates, a further barring order may be made by the District Court or by the Circuit Court on appeal from the District Court for a period of three years, or such shorter period as the court may provide for in the order, with effect from the expiration of the first-mentioned order.

(b) On or before the expiration of a barring order to which paragraph (a) does not relate, a further barring order may be made with effect from the expiration of the first-mentioned barring order.

(10) Notwithstanding subsection (8), so much of a barring order as was made for the benefit of a dependent person shall expire in accordance with such order or upon such person ceasing to be a dependent person, whichever first occurs.

(11) The court shall not make a barring order on an application for a safety order unless there is also an application for a barring order before the court concerning the same matter.

(12) For the purposes of subsections (2) and (3), an applicant or a dependent person who would, but for the conduct of the respondent, be residing at a place shall be treated as residing at such place.

Interim barring order.

4.(1) If, on the making of an application for a barring order or between the making of such application and its determination, the court is of the opinion that there are reasonable grounds for believing that-

(a) there is an immediate risk of significant harm to the applicant or any dependent person if the order is not made immediately, and

(b) the granting of a protection order would not be sufficient to protect the applicant or any dependent person,

the court may, subject to section 7 and having taken into account any order made or to be made to which paragraph (a) or (d) of subsection (2) of section 9 relates, by order (in this Act referred to as an "interim barring order")-

(i) direct the respondent, if residing at a place where the applicant or that dependent person resides, to leave such place, and

(ii) whether the respondent is or is not residing at a place where the applicant or that dependent person resides, prohibit that respondent from entering such place until further order of the court or until such other time as the court shall specify.

(2) Subsections (3), (4), (5), (6), (7) and (12) of section 3 shall apply to an interim barring order as they apply to a barring order.

(3) Where the court in exceptional cases considers it necessary or expedient in the interests of justice, an interim barring order may be made ex parte or notwithstanding the fact that the originating document or other notice of the application required to be duly served on the respondent to the application for a barring order has not been so served.

(4) An interim barring order shall cease to have effect on the determination by the court of the application for a barring order.

(5) Notwithstanding subsection (4), so much of an interim barring order as was made for the benefit of a dependent person shall cease to have effect in accordance with that subsection or upon such person ceasing to be a dependent person, whichever first occurs.

Protection order.

5.(1) If, on the making of an application for a safety order or a barring order or between the making of such an application and its determination, the court is of the opinion that there are reasonable grounds for believing that the safety or welfare of the applicant for the order concerned or of any dependent person so requires, the court may by order (in this Act referred to as a "protection order") direct that the respondent to the application-

(a) shall not use or threaten to use violence against, molest or put in fear the applicant or that dependent person, and

(b) if he or she is residing at a place other than the place where the applicant or that dependent person resides, shall not watch or beset the place where the applicant or that dependent person resides,

and the court may make the protection order subject to such exceptions and conditions as it may specify.

(2) Where a protection order has been made, any of the following may apply to have it varied, that is to say:

(a) if the application for the order was made by a health board in respect of any dependent person by virtue of section 6-

(i) the health board,

(ii) the person referred to in subsection (1) (c) of that section, or

(iii) the respondent to that application;

(b) if the application for the order was made by a health board in any other case by virtue of section 6-

(i) the health board,

(ii) the person who was the applicant for the order, or

(iii) the respondent to that application;

(c) in any other case-

(i) the person who was the applicant for the order, or

(ii) the person who was the respondent to the application for the order,

and the court upon hearing any such application shall make such order as it considers appropriate in the circumstances.

(3) For the purposes of subsection (2), a protection order made by a court on appeal from another court shall be treated as if it had been made by that other court.

(4) A protection order may be made notwithstanding the fact that the originating document or other notice of the application required to be duly served on the respondent to the application for a safety order or a barring order has not been so served.

(5) A protection order shall cease to have effect on the determination by the court of the application for a safety order or a barring order.

(6) Notwithstanding subsection (5), so much of a protection order as was made for the benefit of a dependent person shall cease to have effect in accordance with that subsection or upon such person ceasing to be a dependent person, whichever first occurs.

(7) For the purposes of this section, an applicant or a dependent person who would, but for the conduct of the respondent, be residing at a place shall be treated as residing at such place.