There are times when Domestic Violence Injunctions are truly necessary. Then there are times when an Injunction is being used as a “sword” and not a “shield.” The court must find, when an Injunction is entered properly, that the Petitioner had been a victim of Domestic Violence or is in imminent fear of become a victim of Domestic Violence. See Oettmeier v. Oetmeier, 960 So.2d 902 (32 Fla. L. Weekly D1743);
Moore v. Hall, 786 So.2d 1264 (Fla. 2d DCA 2001);
Gustafson v. Mauck, 743 So.2d 614, (Fla. 1st DCA 1999);
Cleary v. Cleary, 711 So.2d 1302 (Fla. 2d DCA 1988). The court can use additional criteria as enumerated in
Florida Statute 741.30 to determine whether the imminent fear of become a victim of domestic violence is reasonable. The statute reads: “In determining whether a petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the court shall consider and evaluate all relevant factors alleged in the petition, including, but not limited to:
- The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse.
- Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner.
- Whether the respondent has threatened to conceal, kidnap, or harm the petitioner’s child or children.
- Whether the respondent has intentionally injured or killed a family pet.
- Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives.
- Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement.
- Whether the respondent has a criminal history involving violence or the threat of violence.
- The existence of a verifiable order of protection issued previously or from another jurisdiction.
- Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communications equipment, clothing, or other items belonging to the petitioner.
- Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence.”
In a recently decided case, the Court in Malchan v. Howard, — So.3d —-, 2010 WL 787800 (Fla. 4th DCA, 2010) held that “A court may issue an injunction when it appears that the petitioner is either the victim of domestic violence or ‘has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence.’ ”
Ambrefe v. Ambrefe, 993 So.2d 98, 98 (Fla. 2d DCA 2008) (quoting section 741.30(1)(a), Florida Statutes). In determining whether the victim’s fear is reasonable, “the trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole.
Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001) (citing
Gustafson v. Mauck, 743 So.2d 614, 616 (Fla. 1st DCA 1999)). In the
Malchan case, the mother failed to present sufficient evidence that she had a reasonable fear of imminent danger of domestic violence. Her only basis for requesting the injunction was a disputed incident three years before and a subjective fear that her anticipated request for child support might cause Malchan to become angry. Additionally, the court in
Moore v. Hall, 786 So.2d 1264, 1266-67 (Fla. 2d DCA 2001), held a pushing incident, coupled with a knife in a statuette, was insufficient to support the issuance of an injunction when it occurred twelve years prior and there had been no further violence or threats.
As you can see by the case law, there needs to be a direct connection between the imminent fear and the threat of violence. It’s not enough to say, “I’m just afraid he/she is going to hurt me.” There has to be something that happened in close proximity to the filing of the Petition for the Protection Against Domestic Violence. Merely subjective fear does not meet that threshold.
