On Tuesday the 12th June, I had the honour to speak at An Cosán alongside the inspiring Selina Switzer, the courageous Miriam Moriarty Owens (both film-makers), and the lovely Phil McCormack (from Saoirse Women’s Refuge). The film was inspiring and hopeful. The ladies shared stories of thriving after adversity. Phil spoke about the many supports available to those leaving an abusive relationship. I spoke about the legal remedies. I would like to share my speaking notes here also.
Talk on the legal remedies for domestic violence, Lisa Quinn O’Flaherty, An Cosán, June 12th 2018
My hope for this evening is to open up discussion. Domestic violence tends to be a hidden evil; victims fear telling their friends and family. I hope that we can all leave here tonight with a greater understanding of what a victim experiences, and that each one of us can become someone in whom a friend, colleague or family member can safely confide, without judgement.
In relation to the law, domestic violence impacts both the civil law and the criminal law. Many acts of domestic abuse are criminal and can be prosecuted and punished by the criminal courts in the same manner as had an offence been perpetrated upon a stranger.
The victim is not a party to a criminal prosecution. She is merely a witness for the state. The Gardaí will take a statement, and the victim may be told to come to court and give evidence. She does not have her own lawyer, and she has no control over how things play out in Court.
She does however have some rights as victim of crime. She has a right to be advised of the status of the proceedings, of all the court dates, of when the accused is released on bail or after a prison sentence. She has a right to be protected from repeat victimisation. The Gardaí are obliged to take steps to help ensure she does not suffer further violent incidents. She also has a right to be advised of organisations that can help her. And the Gardaí are obliged to ensure that the victim does not experience secondary victimisation, or unnecessary trauma as a result of her cooperation with the criminal process.
The criminal process runs independently and separately of any family law proceedings. A victim can choose to avail of family law protections in parallel with criminal proceedings or chose not to do so. He can choose to avail of family law protections regardless of whether there have ever been any criminal proceedings.
Family law provides broader and targeted protections for victims. It covers abuse such as financial abuse and controlling behaviour as well as physical violence. There are numerous remedies that may be of use to those experiencing domestic abuse including protective orders, maintenance, judicial separation, divorce, and property adjustment orders.
The Safety Order is an order that give the Gardaí the power of arrest without a warrant if the respondent puts the applicant in fear, for example by showing up at a place where she has been ordered not to be, by making threats or by using any kind of violence. Without an order, the Gardaí can be powerless to intervene in certain types of domestic violence. The court can tailor the order to match the applicant’s needs for example by ordering the respondent not to text or email the applicant.
If the parties live together, they can continue doing so with an order place, and it does not require the respondent to leave the family home.
Safety order applications can be made by spouses, by persons who live together, by parents of an adult child, by people who live together in a non-contractual relationship e.g. siblings (but not housemates), and by couples who don’t live together but share a child.
The court looks at the nature of the relationship and the length of time the parties have been together in deciding whether it is appropriate to make an order.
A safety order will be made where there has been violence or threats in the recent past, and there is a risk of abuse occurring again.
The applicant can go on any week day to the family law court at Dolphin House in Temple Bar. She should bring with her all the evidence of past abuse including photographs of injuries, letters from doctors if available, and a record of dates on which incidents occurred.
The application is made by the applicant alone or with her solicitor. The respondent does not have to be present in court for the court to make an interim order, known as a protection order. If the court grants a protection order, it will give a date in the near future for both the parties to come to court and be heard on whether it is appropriate to grant a longer order. A safety order can be made for up to 5 years. After 5 years the court can renew an order, on application.
A barring order is an order that requires the respondent to leave the family home for a specified period. It will be granted firstly on an interim basis for up to 8 days and after both parties have been heard, the court can make a barring order for up to three years. The court can additionally order that the respondent not use or threaten violence nor attend at specified places.
Because the barring order requires somebody to leave their home, it has a different threshold than that of a safety order. The categories of people who can apply for a barring order are more limited. A spouse or civil partner may apply as can a person who has been living with the respondent in an intimate and committed relationship for 6 out of the previous 9 months. A parent who lives with their adult child may also apply, but in all of these cases the person making the application must have an equal or greater property interest in the family home. If the respondent is the sole owner or the sole tenant, the court cannot grant a barring order.
The barring order does require that the parties have lived together immediately prior to the application, but if the applicant has had to leave the family home because of the respondent’s behaviour, they will still be regarded as having lived together.
Ordering somebody to leave their home is a very extreme measure, and for that reason the court tends to require that there be a significant risk of harm to the applicant. The barring order is seen as an order to be used in extreme circumstances. The applicant should ensure he brings all the evidence that he has with him to court, again photos of injuries, letters from doctors as well as a copy of the folio or the lease to his house.
The process for making an application for a barring order is the same as that for a safety order. The applicant goes in person to the District Court at Dolphin House. The staff at the court office will help with filling out any of the paperwork. It is very important to make an application for a safety order as well as for a barring order. If the court decides not to make a barring order, it can only make a safety order in the alternative if an application for the safety order has been made.
If a person leaves an abusive partner or if a barring order is granted, they may be worried about how they are going to support themselves financially. It is possible to make an application to the District Court for an order of maintenance. The application can be made at the same time as application for a safety order, and it is done by way of an exchange of Affidavit of Means, which is a long form listing the assets, income, expenses and debts of each of the parties. The court looks at the need of each of the parties as well as what the respondent can afford to pay.
It is also possible to make a maintenance application for a child against a step-parent, a person who has been appointed a guardian or former cohabitant of a child’s parent, in particular circumstances. It is not always necessary that the person be the biological parent. If they are looking after the child as if it were their own for a significant period, they may be liable to maintain the child.
If a greater amount of maintenance is required an application can be made to the Circuit Court. For cohabitants looking for maintenance for themselves, as opposed to for their children, they will have to show the Circuit Court that they have been financially dependent and that they have lived together for 5 years or two years if they have a child.
All of the protections in both the criminal law and the civil law are available to people regardless of their immigration status. You can still get a barring or a safety order if you are living here illegally. If someone is concerned about bringing themselves to the attention of the authorities, they should take advice from a solicitor or from the Crosscare Migrant Project helpline. Domestic violence will be relevant in a leave to remain application.
If a person is living in Ireland on a spousal visa, they may be worried about their right to remain in Ireland if they leave their spouse. INIS has special guidelines for dealing with such cases. The important thing is to gather as much evidence of the abuse to be able to demonstrate that they are deserving of an independent visa. It is useful to get a letter of support from a DV organisation.
Nobody should have to tolerate abuse, just to stay in Ireland.
DOMESTIC VIOLENCE ACT 2017
The new domestic violence legislation will consolidate the old legislation, as the 1996 Act has been amended several times. It has been signed into law but has not commenced yet. Hopefully, that will happen this year.
The new legislation allows for an emergency barring order, which allows for a barring order to be made for up to eight days even where the applicant has no property rights in relation to the family home. It is intended to apply in emergency situations.
The new act will also criminalise coercive control. Coercive control is a pattern of emotional abuse, the use of fear or blackmail to make a partner act in a particular way. It is the kind of behaviour that can be hard to put your finger on in a relationship. It can include behaviour like shouting or sulking every time a partner wants to see her friends or to get a job or assert her independence in any way, resulting in the victim feeling like she is walking on eggshells to avoid upsetting her partner and always doing things his way. It can include gaslighting or intimidation or attempts to destroy the victim’s self-esteem. Criminalising coercive control is extremely important, as it sends a message that emotional abuse is just as serious as physical abuse. Many survivors report that it has taken longer to heal from the emotional abuse than from the physical.
To conclude, the one thing that I would like to assert really is strongly is that the victim knows her relationship best. As friends, we can listen, respond and refer, but we can’t push somebody into leaving a relationship or into seeking a court order or making a statement to the Gardaí.
Any changes to the status quo of an abusive relationship, can indicate to the abuser that he or she is losing control of their partner and their relationship. It can make the situation very volatile. It is important to remember that 70% of women who have been killed by a partner have been killed in the period surrounding leaving the relationship. For that reason, in non-emergency situations the victim should liaise with one of the domestic violence organisations in order to make a safety plan, before leaving or seeking a court order. In emergency situations, always call 112 or 999.
The above is intended for information purposes only, and is not intended to be relied upon as legal advice. Please contact us for advice specific to your needs. We, at Fitzsimons Redmond are happy to discuss with you your legal options for dealing with domestic abuse. You might also find the following phone numbers of use:
Women’s Aid Helpline: 1800 341 900
Saoirse Refuge Helpline: 01- 463 0000
Amen: 0818 222240 (helpline for male victims of domestic abuse)
Crosscare Migrant Project: 01 -873 2844 (confidential immigration advice)
By Lisa Quinn O’Flaherty