How to apply for a protection order

In terms of the Domestic Violence Act, 1998, if you feel you’re a victim of any act of domestic violence, you can approach your local magistrate court in bringing an application for a protection order.

Domestic violence is an ongoing pattern of coercive control that can increase in severity over time.

Victim and perpetrator often share financial, social and familial ties, complicating matters.

Physical abuse may include shoving, slapping, punching, kicking, throttling and biting; assault with objects or a weapon; emotional and psychological abuse; verbal abuse; and sexual abuse including rape, attempted rape or indecent assault.

A protection order specifies the conditions an abuser must adhere to as specified by the courts, for example:  Not commit any act of domestic abuse; Pay you rent, mortgage or other monies such as child support; and Hand over firearms or weapons to police.

Before obtaining a protection order, you need to apply for an interim protection order.

The interim order specifies the date at which the final order will be considered.

You don’t need to lay a criminal charge to obtain a protection order. However, if you’re a victim of a type of domestic abuse that’s also a crime, you can apply for a protection order,  lay a criminal charge or both.

If your abuser breaches or breaks the protection order conditions, they will be charged with contempt of court.

This applies even if the breach is not a crime, such as controlling behaviour. If it involves a crime, such as assault, the abuser can be charged with contempt of court and assault.

The first step is completing Form 2: Application for a Protection Order, available at police stations, courts and on the Justice and Constitutional Development website.

Police should also give you Form 1 which explains your rights. If you’re hurt or need a different place to stay, they must help you get medical attention and find a place of safety.

Any court that covers the area in which you live or work, or in which your abuser lives or works, or the area in which any incidents of abuse took place, can grant a protection order.

Someone else can apply on your behalf but need your written permission.

If you’re under 18, mentally impaired, unconscious or unable to give permission for any other reason, someone can apply for you.

Once Form 2 is completed and certified, you take it to the clerk of the court, who will fill out Form 4: Interim Protection Order and set a return date for the case.

The magistrate might meet you before granting the order to ask questions.

You may have to return a day or two later to find out if the interim order has been granted.

Once granted you’ll receive a copy and it will be served on your abuser by police, or, for a fee, the sheriff.

The interim order doesn’t come into effect until served.

Once the clerk has received a “return of service” document confirming serving, they must give you a certified copy of the interim order and a warrant for the arrest of the abuser (Form 8).

This warrant only comes into effect if your abuser breaks the conditions of the interim protection order. You can have him arrested or charged by giving police the warrant and an affidavit (Form 10).

The interim protection order has a “return date” on it.

On this date you (the applicant) and your abuser (the respondent) may give the court further information about the abuse, and the conditions in the interim order will either be confirmed, changed or set aside, in a final protection order.

The magistrate may decide not to grant an interim protection order. Instead, a notice (Form 5) will be served on your abuser, which will also have a return date.

It will warn your abuser to appear in court on that day and give reasons why a protection order should not be made against him.

In this case, no arrest warrant is issued. On the return date, your final protection order can be granted, remaining in force until an application for setting it aside is granted.

On the return day, your case will be considered in the magistrate’s chambers.

If your abuser doesn’t oppose the order, isn’t present but there’s proof the interim order was served, or if neither of you is present but there’s proof it was served, the final protection order will likely be granted.

If neither of you appear and there’s no proof of service, the interim order will likely be set aside.

If only you appear but there is no proof of service, the interim order will likely be extended.

If only you or both of you appear and request the interim order be set aside, it will be.

If your abuser is present and contests the granting of a final protection order, the case will go to trial.

 This article was paid for by Joanne Anthony-Gooden Incorporated.