3. Getting a Protection Order
This is the procedure for getting a Protection Order under the Domestic Violence Act in order to stop abuse or domestic violence.
What Does the Law Say?
The Domestic Violence Act of 1998 protects people (men, women and children) in abusive relationships. (See: Reporting Child Abuse; Stopping Child Abuse Using the Domestic Violence Act; the Domestic Violence Act)
What Must You Do?
If you want to get a Protection Order you will have to go to the court on two separate days. The first time you go, the magistrate might give you an interim order if he/she believes there is a threat to your safety. If the magistrate gives you an interim order, he/she will set a return date when you have to go back to the court.
The return date is the second time you have to go to court, and the abuser is also called to appear in court on this day. You do not need an attorney to get a Protection Order.
Steps in Getting a Protection Order
1. Apply for a Protection Order
You go to the magistrate’s court to apply for a Protection Order . The clerk of the court must explain what your rights are and how to get a Protection Order. Take with you any documents like medical reports, photographs of the injuries,
supporting affidavits from family members, neighbours or children who know about
the abuse.
2. Court Issues Interim Protection Order
The magistrate will listen to your story and read any affidavits that you have brought with you. If the magistrate believes there is enough evidence of abuse he/she will give you an interim or temporary Protection Order . The magistrate will also give you a suspended warrant of arrest which you can use to get the abuser arrested if he disobeys the order.
You can ask the magistrate:
• for protection from domestic violence
• to have a firearm confiscated, if you explain how this has been used to threaten you
• for the abuser to have no contact with the children, if appropriate
• for the police to come with you to collect your belongings at your home
• not to say where you have moved to, if you are leaving or have left home
• for the abuser to be evicted from the home
• for the abuser not to prevent you from entering the common home
• for emergency monetary relief, for example for loss of earnings because you can’t work, medical and dental expenses, accommodation expenses, money for food or clothes
3. Protection Order Served on Abuser
The Sheriff of the Court, or the police will serve the Protection Order on the abuser. You can ask the court to phone you and tell you when the Protection Order has been served. The order is only effective from the time that it has been served on (delivered to) the abuser by the Sheriff or the police.
If you do not hear from the court that the Protection Order has been served within one week, then you should check with the clerk of the court whether it has been served or not. Sometimes the Sheriff of the Court can’t find the abuser.
The Protection Order tells the abuser that he must be at court on a return date written on the Protection Order. He must go to court to tell the magistrate why the Protection Order shouldn’t be made final. The return date is usually a few weeks
after serving the documents.
4. Go Back on Return Day
You must go to court on the return day written on the Protection Order. The abuser will also be there. You can ask the police to protect you if necessary. The court will decide whether to make the temporary order final or to set it aside. If the abuser doesn’t come to court then the court will probably make the order final.
5. Court Issues the Final Protection Order and Warrant
Once the magistrate has heard all the evidence, he/she will issue a Protection Order. The magistrate also issues a warrant of arrest, to be used if the abuser disobeys the Protection Order. The Sheriff or police serve the final Protection Order on the abuser. You get a copy of the order signed by the court (certified copy), together with the warrant. The order lasts until you choose to cancel or change it.
If the Abuser Doesn’t Obey the Protection Order
If the abuser doesn’t obey the Protection Order:
- You can go to any police officer with the warrant of arrest which is attached to the Protection Order
- You tell the police how the abuser has broken the protection order
- The police will charge him with breaking the Protection Order
- The police must arrest the abuser if you are in danger (they can also do this without a warrant) or if they think you are not in immediate danger, they will warn him to appear in court
If You Lose Your Warrant of Arrest
If you lose your warrant of arrest and Protection Order you can go back to the clerk of the court and get another copy.
What Happens to the Abuser?
- If the abuser is arrested, he will be kept in jail until he goes to court within 48 hours.
- Besides being charged with disobeying the Protection Order, he can be charged with any other criminal offence he has committed while abusing you, for example if he assaulted you or pointed a firearm at you.
- If he is found guilty in court, he will be fined or sent to jail.
Changing the Protection Order
If you want to change the Protection Order, you can give written notice to the abuser and to the court to apply to change the order or to withdraw it completely. You must say why you want to change it or withdraw it.
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