Understanding the Law
January 31, 2014
Against domestic violence

The Family Court has the responsibility of dealing with matters which touch and concern members of the family whether it is in a common law or matrimonial relationship. It grants injunctive relief to a party for his or her own protection or on behalf of any member of the family. The law provides for protection, occupation and tenancy orders. This week we will take a close look at the main features of protection orders.{{more}}

Protection Order

Where any member of the family whether common law or married spouse is experiencing or is threatened violence in the home by another member of the household, that person (the applicant) could apply to the Family Court for an order of protection. Application could be made on his own behalf or that of another member of the household. Where a child or dependent is concerned the application could be made by a police officer, a social worker, a probation officer; the Solicitor General, parent or guardian. An application for protection order could also be made by a parent or relative of a spouse who is not a member of the respondent’s household.

Prospective applicants could go to the Family Court office and fill out the relevant form to have their matters heard by the president of the Family Court. A date to attend court is usually given and the bailiff of the court would serve the respondent, that is, the person whom the action is taken against. A lawyer could be retained to represent a person in court.

Section 4 of the Domestic Violence (Summary Proceedings) Act, No.13 of 1995 empowers the court to make an order to prevent the respondent who is causing or threatening violence to be excluded from the home; or from entering the applicant’s work place; or any specified place. If the application relates to a child who is at school then the order will be in such terms to prevent the respondent from entering that institution.

The court may also order the respondent to cease from molesting the applicant or from making persistent telephone calls. It could also order the respondent to refrain from annoying or ill treating the applicant or from using abusive language to the applicant.

Power of arrest

Where the respondent has used violence or has threatened violence against the applicant and is likely to do it again, the court may attach a power of arrest to the protection order. Where the protection order has a power of arrest attached, a police officer may arrest the respondent without a warrant if he or she breaches the order by committing an offence.

The police officer has to assess the situation and must make sure that the arrest is reasonably necessary. In doing so he has to look at the seriousness of the breach and whether or not there is a cooling off on the part of the respondent. If the respondent is taken into custody the cooling off period must not be for more than 24 hours. Even though a power of arrest is not attached to the protection order a police officer could arrest the respondent based on the gravity of the situation.

A protection order may be made ex parte, that is, in the absence of the respondent if the court is satisfied that delay would cause hardship or injury or jeopardize the safety of the applicant. The order must be served on the respondent.

If the respondent breaches a protection order he is liable on conviction to a fine of not more than $5,000 or imprisonment for a term of not more than six months.

No one has to endure domestic violence. One must seek help immediately.

Ada Johnson is a solicitor and barrister-at-law.

E-mail address is: [email protected]