Domestic Violence Act 2018

PART 1 Preliminary and General

1.. Short title and commencement

1.(1) This Act may be cited as the Domestic Violence Act 2018.

(2) This Act shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions, and for the repeal of different enactments or provisions of enactments effected by section 3.

2. Interpretation

2. (1) In this Act—

“Act of 1964” means the Guardianship of Infants Act 1964;

“Act of 1976” means the Family Home Protection Act 1976;

“Act of 1991” means the Child Care Act 1991;

“Act of 1995” means the Family Law Act 1995;

“Act of 1996” means the Domestic Violence Act 1996;

“Act of 2004” means the Civil Liability and Courts Act 2004;

“Act of 2010” means the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

“Act of 2013” means the Courts and Civil Law (Miscellaneous Provisions) Act 2013;

“Agency” means the Child and Family Agency;

“applicant” has the meaning assigned to it by section 6, section 7 or section 9, as the case may be, and where—

(a) an interim barring order has been made the applicant for the barring order to whom the interim barring order relates shall be deemed to be the applicant for that interim barring order, and

(b) a protection order has been made the applicant for the safety order or the barring order to whom the protection order relates shall be deemed to be the applicant for that protection order;

“barring order” has the meaning assigned to it by section 7(2);

“child” means a person who has not attained the age of 18 years other than a person who is or has been married;

“civil partner” has the meaning assigned to it by section 3 of the Act of 2010 and for the purposes of this Act includes a person who was a civil partner in a civil partnership that has been dissolved under the Act of 2010 but does not include a person who was in a civil partnership that has been dissolved by reason only of the application of section 109A of the Act of 2010;

“civil proceedings under this Act” means—

(a) proceedings relating to an application for the making, variation or discharge of a safety order, a barring order or an emergency barring order,

(b) proceedings, consequent on the making of an application for a barring order, for the making, variation or discharge of an interim barring order which relates to the application,

(c) proceedings, consequent on the making of an application for a safety order or a barring order, for the making, variation or discharge of a protection order which relates to the application,

(d) proceedings by way of appeal or case stated which are related to proceedings to which paragraph (a), (b) or (c) applies;

“court” means the District Court or the Circuit Court;

“dependent person”, in relation to the applicant or the respondent or both of them, as the case may be, means any child—

(a) of the applicant and the respondent or in respect of whom the applicant and the respondent are in loco parentis,

(b) of the applicant or in respect of whom the applicant is in loco parentis, or

(c) of the respondent or in respect of whom the respondent is in loco parentis and—

(i) where the child is a child of the respondent, the applicant is in loco parentis to that child, or

(ii) where the respondent is in loco parentis to the child, that child is a child of the applicant,

who is not of full age, or, if the child has attained full age is suffering from a mental or physical disability to such an extent that it is not reasonably possible for him or her to live independently of the applicant;

“emergency barring order” has the meaning assigned to it by section 9(3);

“full age” has the same meaning as it has in the Age of Majority Act 1985;

“interim barring order” has the meaning assigned to it by section 8(1);

“Minister” means the Minister for Justice and Equality;

“prohibited degree of relationship” shall be construed in accordance with subsection (2);

“protection order” has the meaning assigned to it by section 10(1);

“respondent” has the meaning assigned to it by section 6, section 7 or section 9, as the case may be, and where—

(a) an interim barring order has been made the respondent to the application for the barring order to which the interim barring order relates shall be deemed to be the respondent to that interim barring order, and

(b) a protection order has been made the respondent to the application for the safety order or the barring order to which the protection order relates shall be deemed to be the respondent to that protection order;

“safety order” has the meaning assigned to it by section 6(2);

“specified order” means—

(a) a safety order, barring order, interim barring order, emergency barring order or protection order, or

(b) an order varying or discharging an order referred to in paragraph (a);

“spouse” includes a person who was a party to a marriage that has been dissolved, being a dissolution that is recognised as valid in the State;

“welfare” includes physical and psychological welfare.

(2) For the purposes of this Act, two people are related to each other within a prohibited degree of relationship if they would be prohibited from marrying each other in the State by reason of that relationship.

(3) For the avoidance of doubt, a relationship does not cease to be an intimate relationship for the purposes of this Act by reason only that it is no longer sexual in nature.

3. Repeals

3. The following are repealed:

(a) section 51 of the Family Law (Divorce) Act 1996;

(b) the Domestic Violence Act 1996;

(c) the Domestic Violence (Amendment) Act 2002.

4. Expenses

4. The expenses incurred by the Minister and the Minister for Children and Youth Affairs in the administration of this Act shall, to such an extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

PART 2 Court Proceedings

5. Factors or circumstances to which court shall have regard in determining applications for specified orders

5. (1) Nothing in subsection (2) shall be construed as limiting the power of a court to make a specified order under this Act.

(2) In determining an application for a specified order, the court shall have regard to all the factors or circumstances that it considers may have a bearing on the application including where relevant:

(a) any history of violence inflicted by the respondent on the applicant or a dependent person;

(b) any conviction of the respondent for an offence under the Criminal Justice (Theft and Fraud Offences) Act 2001 that involves loss to, or is to the prejudice of, the applicant or a dependent person;

(c) any conviction of the respondent for an offence that involves violence or the threat of violence to any person;

(d) whether any violence inflicted by the respondent on the applicant or a dependent person is increasing, or has increased, in severity or frequency over time;

(e) any exposure of any dependent person to violence inflicted by the respondent on the applicant or any other dependent person;

(f) any previous order under this Act or the Act of 1996 made against the respondent with regard to any person;

(g) any history of animal cruelty by the respondent;

(h) any destruction or damage caused by the respondent to—

(i) the personal property of the applicant, the respondent or a dependent person, or

(ii) any place where the applicant or a dependent person resides;

(i) any action of the respondent, not being a criminal offence, which puts the applicant or a dependent person in fear for his or her own safety or welfare;

(j) any recent separation between the applicant and the respondent;

(k) substance abuse, including abuse of alcohol, by the respondent, the applicant or a dependent person;

(l) access to weapons by the respondent, the applicant or a dependent person;

(m) the applicant’s perception of the risk to his or her own safety or welfare due to the behaviour of the respondent;

(n) the age and state of health (including pregnancy) of the applicant or any dependent person;

(o) any evidence of deterioration in the physical, psychological or emotional welfare of the applicant or a dependent person which is caused directly by fear of the behaviour of the respondent;

(p) whether the applicant is economically dependent on the respondent;

(q) any matter required to be considered by the court under, and in accordance with, subsections (2) and (3) of section 29;

(r) any other matter which appears to the court to be relevant to the safety or welfare of the applicant and any dependent person.

6. Safety order

6. (1) (a) In this section—

“applicant” means a person (other than the Agency) who has applied, or a person on whose behalf the Agency has applied by virtue of section 11, for a safety order against another person (in this section referred to as “the respondent”) and the person so applying or on whose behalf the Agency has so applied—

(i) is the spouse of the respondent,

(ii) is the civil partner of the respondent,

(iii) is not the spouse or civil partner of the respondent and is not related to the respondent within a prohibited degree of relationship, but was in an intimate relationship with the respondent prior to the application for the safety order,

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

(v) being of full age, resides with the respondent in a relationship the basis of which is not primarily contractual, or

(vi) is a parent of a child whose other parent is the respondent;

“kindred”, in relation to 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, marriage or civil partnership.

(b) For the purposes of paragraph (a)(v), 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 are residing together,

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

(iv) any other matters 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 an applicant or a dependent person so requires, it shall, subject to section 12, by order (in this Act referred to as a “safety order”) prohibit the respondent to the application from doing one or more of the following:

(a) using or threatening to use violence against, molesting or putting in fear, the applicant or the dependent person;

(b) if he or she is residing at a place other than the place where the applicant or that dependent person resides, watching or besetting a place where the applicant or the dependent person resides;

(c) following or communicating (including by electronic means) with the applicant or the dependent person.

(3) A safety order may be subject to such exceptions and conditions as the court may specify.

(4) Subject to subsection (5) and section 21, a safety order made by the District Court or by the Circuit Court on appeal from the District Court shall expire 5 years after the date of the making of the order or on the expiration of such shorter period as the court may provide for in the order.

(5) On or before the expiration of a safety order to which subsection (4) 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 5 years or such shorter period as the court may provide for in the order which further order shall take effect from the date of expiration of the first-mentioned order.

(6) On or before the expiration of a safety order, other than a safety order to which subsection (4) 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 5 years or such shorter period as the court may provide for in the order and that further safety order shall take effect from the date of expiration of the first-mentioned order.

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

(8) Where a safety order has been made, any of the following persons may apply to have the order varied:

(a) where the application for the order was made by the Agency in respect of a dependent person by virtue of section 11—

(i) the Agency,

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

(iii) the respondent to that application;

(b) where the application for the order was made by the Agency in respect of any other person (other than a dependent person referred to in paragraph (a)) by virtue of section 11 —

(i) the Agency,

(ii) the applicant for the order, or

(iii) the respondent to that application;

(c) in any other case—

(i) the applicant for the order, or

(ii) the respondent to the application for that order.

(9) The court may, upon hearing an application under subsection (8), make such order varying the safety order as it considers appropriate in the circumstances.

(10) For the purposes of making an application under subsection (8), 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.

7. Barring order

7. (1) In this section “applicant” means a person (other than the Agency) who has applied, or a person on whose behalf the Agency has applied by virtue of section 11, 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 Agency has so applied—

(a) is the spouse of the respondent,

(b) is the civil partner of the respondent,

(c) is not the spouse or civil partner of the respondent and is not related to the respondent within a prohibited degree of relationship but lived with the respondent in an intimate relationship prior to the application for the barring order, or

(d) 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, having taken into account any order made or to be made to which paragraph (a) or (d) of section 15(2) relates, that there are reasonable grounds for believing that the safety or welfare of the applicant or a dependent person so requires, it shall, subject to section 12, by order (in this Act referred to as a “barring order”)—

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

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

(b) In deciding whether or not to make 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 the 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:

(a) using or threatening to use violence against, molesting or putting in fear, the applicant or a dependent person;

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

(c) following or communicating (including by electronic means) with the applicant or a dependent person.

(4) A barring order may be subject to such exceptions and conditions as the court may specify.

(5) 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 that place.

(6) (a) In respect of a person who is an applicant by virtue of paragraph (c) or (d) 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 and—

(i) the applicant has no legal or beneficial interest, or

(ii) the applicant’s legal or beneficial 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 that belief shall be admissible in evidence.

(7) Without prejudice to section 32, 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.

(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) and section 21, 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) 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 and that further barring order shall take effect from the expiration of the first-mentioned order.