Protection Orders|Restraining Orders

How to Get a Restraining Order

Family Lawyer auckland

What you can do if you are in a relationship or have been in a relationship and your ex partner is harassing you .

You are unfortunately disbarred from applying to the Family Court for a Restraining Order under the Harassment Act 1997 if you are or were previously in a domestic relationship with the person who is harassing you.

Section 9 (4) states:

“A person who is or has been in a domestic relationship with another person may not apply under this Act for a restraining order in respect of that other person.”

A Restraining Order is designed for use by persons being harassed by those that are not in a domestic relationship with one another such as next door neighbours.

The Harassment Act was not designed for partners and ex partners such as husband and wives, instead you can apply for a protection order under a different piece of legislation called the domestic violence Act.

A domestic relationship is defined in section 4(1) of the domestic violence Act 1995 as meaning:

(1) For the purposes of this Act, a person is in a domestic relationship with another person if the person—
(a) is a spouse or partner of the other person; or
(b) is a family member of the other person; or
(c) ordinarily shares a household with the other person; or
(d) has a close personal relationship with the other person.

In determining whether a close personal relationship exists, the family Court judge must have regard to—

(a) the nature and intensity of the relationship, and in particular—
(i) the amount of time the persons spend together:
(ii) the place or places where that time is ordinarily spent:
(iii) the manner in which that time is ordinarily spent;—
but it is not necessary for there to be a sexual relationship between the persons:
(b) the duration of the relationship.

If you feel the need you may be able to apply for a restraining order against family members of your ex partner because it is unlikely that the Court would consider them to be in a close personal relationship with you.

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Where there is or has been a domestic relationship.

If you have been in or are still in a domestic relationship with another person, typically a partner then you are able to apply to the family Courts for a protection order if there has been domestic violence.

Domestic violence under the Domestic Violence Act 1995 (DVA) is not limited to physical violence. The objective of the legislation is to recognising that domestic violence, in all its forms, is unacceptable behaviour.

Domestic violence includes psychological abuse, including, but not limited to,—
(i) intimidation:
(ii) harassment:
(iii) damage to property:
(iv) threats of physical abuse, sexual abuse, or psychological abuse:
(iva) financial or economic abuse (for example, denying or limiting access to financial resources, or preventing or restricting employment opportunities or access to education)

Section 3(2) Domestic Violence Act 1995

Also, although some acts, when viewed in isolation, may appear to be minor or trivial, they may nevertheless form part of a pattern of behaviour which viewed as a whole amounts to abuse, harassment or intimidation. Section 4(b) Domestic Violence Act 1995

Before the family Court can make a Protection Order under the Domestic Violence Act 1995 it must be satisfied that in addition to domestic violence having occurred between persons who are or were in a domestic relationship that the making of an order is necessary for the protection of the applicant.

Section 14(1)(b) Domestic Violence Act 1995

The Family Court in deciding whether a protection order is necessary must have regard to—

(a) the perception of the applicant, of the nature and seriousness of the behaviour in respect of which the application is made; and
(b) the effect of that behaviour on the applicant.

 

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Copyright (c) 2014 Naomi Cramer  family lawyer auckland