Domestic Violence - 2
In addition to a Protection Order, a victim of domestic violence may also make application to the court for an Occupation or a Tenancy Order. As to an Occupation Order, this is an order entitling one person or more to live in the household residence. Such Order will not be made unless it is necessary for the protection of a victim or is in the best interest of a child or dependent. As with a Protection Order, and for the same reasons, an Interim Occupation Order may be made on an ex-parte application. Further, where such an Order is made, the Court must at the same time make an Interim Protection Order unless it is believed that there are "special reasons" for not doing so. Of crucial importance is that an Interim Occupation Order lasts for 14 days, during which time the parties may continue to live together in the household residence. But, upon its reimportance by a final Order, the successful litigant becomes entitled to occupation, to the exclusion of the Respondent.
In respect of a Tenancy Order, this allows the Applicant to take possession of the household premises as a tenant. Such an Order is made if two conditions are met. One is where the Respondent is either the sole tenant or a tenant holding jointly with the Applicant; and, the other, where the dwelling house is the household residence of the Applicant or the Respondent. As in the case of an Application for an Occupation Order, an Interim Tenancy Order of 14 days' duration, as well as an Interim Protection Order, may be made ex-parte. And, in the same vein, upon the expiration of the Interim Order, and its reimportance by a final Order, the successful party becomes entitled to sole tenancy, to the exclusion of the Respondent.
Of course, such Orders, whether Protection, Occupation or Tenancy, are not permanent. They cease to have effect when, upon application by a party to the proceedings, they are discharged by the Court. And, in making a determination to discharge, the Court is guided to a large extent by the likelihood of the perpetrator of the abuse doing so again. Further, in respect of Occupation and Tenancy Orders, Section 16 of the Act provides for three ancillary orders. These relate to furniture, household appliances and household effects "in the household residence or other premises", in the case of an Occupation Order, or "in the dwelling house", in the case of a Tenancy Order. Ancillary Orders are normally of 3 months' duration and, in any event, expires or is discharged.
Section 3 of the Act provides for a number of applicants. Application may be made in a victim's own right or on behalf of others affected. In the case of a Protection Order, a spouse victimized or likely to be victimized by the Respondent's conduct may apply in his or her own right. So, too, may a person who has a child "in common" with the Respondent and who has been or is likely to be subjected to domestic violence by the Respondent. Further, a number of persons are entitled to apply on behalf of a child or dependent affected by the abuse or likelihood thereof. Among them are a person with whom the child or dependent resides; a parent or guardian; a Social Welfare officer; a police officer; a probation officer; a live-in partner of the Respondent over a period of more than 12 months; or a nurse.
Where an Occupation Order is sought, application may be made by a victimized spouse fearing victimization; by a parent or close relative of the affected spouse, provided that parent or relative does not live in the household; or by those persons referred to earlier who may be entitled to make application on behalf of an affected child or dependent. And, as to a Tenancy Order, application may be made by the affected spouse or, if the spouse is "unwilling" to make an application by a parent or guardian of an affected child or dependent.
The Act imposes specific duties on police officers. They must, for example, respond to "every" complaint or report of domestic violence, irrespective of whether the complainant is the victim. They are also expected to assist victims. Further, in responding to a complaint, they have a duty to complete a Domestic Violence Report form, the particulars of which include the name of the parties; their sex and relationship; information about the history of domestic violence between the parties; the date and time the complaint was received; the type of abuse; and the kind of weapon used, if any. And, to carry out their work, they are given specific additional powers of entry, as well as of arrest, with or without warrant.
Quite obviously, to ensure compliance with the orders of the Court, it is made an offence for a person against whom an Order is made, and who has had notice of the Order, to contravene any provision of the Order, or fails to comply with "any direction of the Court". For non-compliance, the penalty is fine or imprisonment or both. A first conviction attracts a fine not exceeding $9,000.00 or 3 months' imprisonment. For a second, the offending party is liable to a fine not exceeding $15,000.00 or to a term of not less than 24 months' imprisonment, or to both. And, on a third "or any subsequent" conviction, the penalty is imprisonment for a term of not less than 24 months and not exceeding 5 years. As to disregard of a direction of the Court, the offender becomes liable to a fine of $3,000.00. Quite interestingly, in any proceedings under the Act, facts are proven on a "balance of probabilities."
A final point is this. The availability of remedies and relief under the Act does not prevent a victim from pursuing sanctions provided for by other legislation. Thus, on information tendered by a complainant, the police might yet institute criminal proceedings against a perpetrator of domestic violence. There, of course, the standard of proof is "beyond reasonable doubt".
(c) William Para Riviere, 2013