The Domesttc Vtolence Act

DOMESTIC VIOLENCE

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THE DOMESTTC VTOLENCE ACT
ARRANGEMENT OF SECTLONS

1. Short title. 2. Interpretation.

PARTI. Preliminary

PART11. App:icritiorz for Orders 3. Power of Court to grant protection order or occupation order.

Protection 0rrler.s
4. Application for protection order. 5 . Breach of protection order. 6 . Duration and discharge of protection order.

Occirpatim Orders
7. Application for a grant of occupation order. 8. Ex prrrtP application for occupation order. 9. Effect of occupation order. 10. Variation of discharge of occupation order. 11. Procedure relating to occupation orders. 12. Power of Court to make ancillary order.

13. Interim orders. PAR^ 111. General
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14. Conduct of proceedings. 15. Standard of proof. 16. Restriction of publication of proceedings. 17. Orders by consent. 18. Counselling. 19. Appea1s. 20. Prdcction of rnortgagec. 21. Matrimonial Causes Act. 22. Rules of Court.

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THE DOMESTIC VIOLENCE ACT

Acts 15 of 1995,

32 of 2004.

[6thMay, 1996.1

PART I, Preliminary 1. This Act may be cited as the Domestic Violence Act.

short title.

2.-(1) In this Act-

lnterpretation.

"applicant" means any person who applies or on whose

behalf application is made, pursuant to this Act, for an

order;

"child" means-

(a) a person who is under the age of eighteen years 3212004 and who has never been married, being a child of S. 2(a), both spouses who resides, or immediately preceding the date of the application was residing, in the household residence;

(b) a child of either spouse who resides, or immediately preceding the date of the application was residing, in the household residence and uho is or was, living in the household as a child of the family;

(c) a child whether or not a child of a member of the 3212004

household and-

S. 2(b)(i).

(i) who is or has been a member of the household; or

(ii) who resides in the household on a regular basis; or

(iii) of whom any member of the household is 3212004

the guardian;

S. 2(b)(ii).

"Court" means the Resident Magistrate's Court or the Family Court;

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"dependant" includes-
(a) a member of the family of a respondent being a person who is eighteen years of age or older and normally resides, or resides on a regular basis, with the respondent; and
(b) a person who, by reason of physical or mental disability, age or infirmity, is reliant on the respondent for his welfare or maintenance;
"ex parte application" means an application made without notice to the respondent;
"member of the household" means a person who normally resides, or resides on a regular basis, with the respondent and "member of the respondent's household" shall be construed accordingly;
"occupation order" means an order made pursuant to section 7 and includes an interim order made under section 8;
"prescribed person" means the spouse, a parent, a child or dependant of the respondent or any person who is a member of the respondent's household or is in a visiting relationship with the respondent;
"protection order" means an order made pursuant to section 4 and includes an interim order made under that section;
"respondent" means a person who is named in an application made pursuant to this Act;
"spouse" includes-
(a) a woman who cohabits with a man as if she were in law his wife;
(b) a man who cohabits with a woman as if he were in law her husband;
(c) a former spouse:
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"visiting relationship" means a relationship between a man 3212004 and a woman who do not share a common residence, s.2(9. which is a close personal relationship by virtue of its nature and intensity having regard to-

(a) the amount of time that the persons spend together;
(b) the place where that time is ordinarily spent; (c) the manner in which that time is ordinarily spent;
(d) the duration of the relationship; and
(e) the existence of a child (if any) of both parties.

PART 11. Applicationfor Orders

3.-(1) The Court may, on application, grant a protection order or occupation order in accordance with this Act.
(2) An application for an order referred to in subsection (I), may be made-

Powerof Court to
grant protection
order or occupation order.

(a) by the spouse or parent in respect of whom the alleged ? ' conduct has been, or is likely to be, engaged in by the respondent;

(b) where the alleged conduct is used or threatened against 3212004

a child or dependant by-

s. 3(a).

(i) a person with whom the child or dependant normally resides or resides on a regular basis;

(ii) a parent or guardian of the child or dependant;
(iii) a dependant who is not mentally disabled;
(iv) a person who is approved' by the Minister responsible for social welfare to carry out social welfare work; or
(v) a Constable;

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3212004 S. 3(b).

(c) by a person who is a member of the respondent's household or who is in a visiting relationship with the respondent, in respect of the alleged conduct engaged in or threatened by the respondent toward that person.

Q 3212004
s. 3(c).

(3) An application under subsection (2) may be made on behalf of a person entitled to apply under paragraph (a) or (c) of

that subsection by-

3212004
s. 3(c).

(a) a Constable; or
(b) any other person, whether or not a member of the household, with the leave of the Court.
(4) In determining whether to grant leave under subsection (3)(b), the Court may take into account whether or not-
(a) the application is-

(i) in accordance with the wishes; or (ii) in the best interests, of the person entitled to apply; and

(b) there is any conflict between the i~terestsof the person seeking leave and the person entitled to apply.

Protection Orders

Application for protection order.

4.-(1) Application may be made to the Court for a protection order to prohibit the respondent-
(a) from entering or remaining in the household residence of any prescribed person; or
(b) from entering or remaining in any area specified in the order being an area in which the household residence of the prescribed person is located; or

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(c) from entering the place of work or education of any prescribed person; or
(d) from entering or remaining in any particular place; or
(e) from molesting a prescribed person by-

(i) watching or besetting the household residence, place of work or education of a prescribed person;
(ii) following or waylaying the prescribed person in any place;
(iii) making persistent telephone calls to a prescribed person;
(iv) using abusive language to or behaving towards a prescribed person in any other manner which is of such nature and degree as to cause annoyance to, or result in ill-treatment of the prescribed person; or
(v) damaging any property owned by, or available 3212004 for the use or enjoyment of, the prescribed S. 4(a). person, or any propepy in the care or custody or situated at the residence of the prescribed person.
(2) On hearing an application under subsection (I), the Court may make a protection order if it is satisfied that-
(a) the respondent has used or threatened to use, violence against, or caused physical or mental injury to, a prescribed person and is likely to do so again; or
(b) having regard to all circumstances, the order is necessary for the protection of a prescribed person.

(3) A protection order may be made on an ex parte application if the Court is satisfied that the delay that would be caused by proceeding on summons would or might result in-
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( a ) risk to the personal safety of a prescribed person; or (b) serious or undue hardship,
and any protection order made on an ex parte application shall be an interim order.
(4) Where a protection order is granted on an ex parte application, it shall be served personally on the respondent who may apply immediately for it to be discharged.
(5) In making a protection order under this section or an occupation order under section 7, the Court may at the same time, of it own volition or upon the application of any party applying for the order, make an order, in accordance with the provisions of the Maintenance Act, for the maintenance of-
( a ) any applicant entitled to be maintained by the respondent; or
(b) any member of the household in respect of whom the applicant is entitled to apply for maintenance as against the respondent,
if no such order for maintenance is already in force:
Provided that the duration of an order for maintenance urider this section shall not exceed the duration of the protection order made under this section or the occupation order made under section 7, as the case may be.

Breach o f protection order.

5-41) Where a protection order, whether interim or otherwise, is made and-
( a ) it is served personally on the respondent; and
(b) the respondent contravenes the order in any respect,
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the respondent commits an offence and is liable on conviction to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding six months or to both such fine and imprisonment.
(2) Subject to the provisions of this section, where a protection order is in force, a Constable may arrest without warrant a person whom he has reasonable cause to suspect of having committed a breach of the order.
(3) No person shall be arrested pursuant to this section unless a Constable believes that the arrest of that person is reasonably necessary for the protection of the prescribed person.
(4) For the purposes of subsections (2) and (3), the Constable shall take into account-
(a) the seriousness of the act which constituted the alleged breach;
(b) the time that has elapsed since the alleged breach was committed; and
(c) the restraining effect of other persons or circumstances on the respondent.
(5) Where an arrest is made under this section-
(a) the person arrested shall be entitled to make a telephone call to one person of his choice, not being the applicant;
(b) the Constable who makes the arrest shall ensure that the person arrested is informed, at the time of arrest, of the right conferred by paragraph (a); and
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(c) the person arrested shall be brought before the Court within a period of forty-eight hours beginning at the time of his arrest.

Duration and d~schargeof protection order.

6.-(1) A party to the proceedings may apply to the Court for a discharge of a protection order.
(2) A copy of an application made under subsection (1) shall be served personally on each person who was a party to the proceedings in which the original order was made.

(3) In determining whether to discharge a protection order the Court shall have regard to the matters referred to in section 4 (2).

Occupation Orders

Application for a grant of occupation order.

7.-(1) Application may be made to the Court by or on behalf of a prescribed person for an occupation order granting the prescribed person named in the order the right to live in the household residence.

(2) Subject to subsection (3), the Court may, on an application under subsection (I), make an occupation order
granting to the prescribed person, for such period or periods and on such terms and subject to such conditions as the Court thinks fit, the right to occupy the household residence.

(3) The Court may make an order under subsection (2) only if the Court is satisfied that such an order-
(a) is necessary for the protection of the prescribed person; or
(b) would be in the best interest of a child.
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