The Domestic Violence (Protection Orders) Act not only seeks to protect spouses and former spouses, it also seeks to protect children or other members of the household.
Therefore, if the violence, abuse or harassment is directed at a spouse, child or other member of a household, that person either by himself/herself or through the agency of another may bring a complaint. In the case of a child, it may be brought by a parent, a child care officer or welfare officer or by the police.
Proceedings under the Domestic Violence (Protection Orders) Act are civil in nature.
However, the breach of a protection order is an offence for which a person could be fined or imprisoned. The conduct required for the imposition of a protection order must be proved on a balance of probabilities, and the standard of “beyond reasonable doubt”, which is usually the case for crimes, is not required.
Before granting a protection order, the court must be satisfied that the person, unless restrained, is likely to engage in further conduct that amounts to a breach of Section 3 of the act, that is, further domestic violence.
An application for a protection order must be heard within two days after the date of the service of the application or as soon as practicable thereafter. Evidence may be given on an affidavit and it is not necessary to call a person who made an affidavit to give evidence unless a party to the proceedings or the court so requires.
Under the act, the court can make a protection order or an interim protection order against a person, notwithstanding that the person has been charged with an offence arising out of which the application for the order arose.
In making a decision with respect to an application for a protection order, the court must have regard to the following:
(a) the need to ensure that persons are protected from violence and harassment;
(b) the welfare of any child who is a member of the respondent’s household;
(c) the need to preserve and protect the institution of marriage or a union other than marriage, and to give protection and assistance to the family as a natural and fundamental group unity of society;
(d) the accommodation needs of members of the household;
(e) any hardship that will be caused to the respondent or to any person as a result of the making of the order; and
(f) any other matter that in the circumstances of the case, the court considers relevant.
Before making a protection order, the court must explain to the respondent in language that he understands:
• the purpose, terms and effect of the proposed order;
• the consequences that may follow if the respondent fails to comply with the terms of the proposed order; and
• the means by which the proposed order may be varied or revoked.
The respondent must be given a copy of the order of the court.
If the respondent is aware of the terms of a protection order and disobeys the order, then he/she commits an offence and may be charged with breaching the order. The penalty for a breach is a fine of $5 000 or imprisonment for a maximum term of one year, or both.
A party to the proceedings in which the order was made may apply to the court to vary or revoke the protection order.
Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to cnmcc@caribsurf.com.
