THE UNIVERSITY OF TECHNOLOGY, JAMAICA

THE FACULTY OF LAW

FAMILY LAW
LECTURE NOTES – UNIT 5
SEMESTER 2

DOMESTIC VIOLENCE

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TEXT
Bromley’s Family Law, 10th Edition, Pages 208 - 261

LEGISLATION

Domestic Violence Act, 1995 & Rules, 1996 &

Matrimonial Causes Act s.10

CASES
Nanda v Nanda
Khan v Khan [1995] 2 FLR 221, CA
Wiseman v Simpson [1988] 1 All ER 245, CA
Re H ( A Minor) (Occupation Order: Power of Arrest) [2001] FCR 370
Davis v Johnson [1979] AC 264 –
Horner v Horner [1982] 2 All ER 495
Johnson v Walton [1990] 1 FLR 350
C v C [1998] 1 FLR 554
Re B-J (A Child), sub nom Re B-J (Power of Arrest) (2001) 2 WLR 1660
Chalmers v John [1999] 1 FLR 392
G v G (Occupation Order: Conduct)[2000] 2 FLR 36
Banks v Banks [1999] 1 FLR 726
B v B (Occupation Order) [1999] 1 FLR 715
Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112
Re W (Exclusion: Statement of Evidence) [2000] 2 FLR 666
R v Ireland; R v Burstow [1998] 1 FLR 105
Montgomery v Montgomery [1964] 2 All E.R. 22
Robinson v Robison [1963] 3 All E.R. 813
Salt v Cooper [1874-80] All E.R. Rep. 1204; (1880) 16 Ch.D. 544
Winstone v Winstone [1959] 3 All E.R. 580

INTRODUCTION

VENUE
In Jamaica proceedings under the act may be brought in a Resident Magistrate’s Court or
a family court.

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Types Of Orders
There are two principal types of orders. A protection order and an occupation (ouster)
order.

Who May Apply For Protection Orders

In all of the acts, spouse includes persons who cohabit as if they were man and wife and
also includes a former spouse.

Note the extension to ‘visiting relationships’ by amendment in 2004. See S. 4;

The following persons may apply for a protection order:-

a) the spouse
b) a person with whom a child lives if the conduct involves a child or dependant
c) a parent or guardian of the child or dependant
d) the dependant, where they are not mentally disabled
e) persons approved by the relevant Minister
f) a police officer

What Is A Protection Order?

Section 4 provides for an order containing provisions preventing the respondent from
remaining in a specified area, household and place of work or education and from
molesting the applicant in certain ways.

How Will The Court Exercise Its Discretion

In deciding whether or not to exercise its powers, the legislation sets out the test. Section
4 (2) of the Act states that the Court makes an order if satisfied that:-

a) the respondent has used or has threatened to use, violence against, or caused physical
or mental injury to a specified person and is likely to do so again; or
b) having regard to all the circumstances, the order is necessary for the protection of a
specified person.

Exparte Protection Orders

Section 4 (3) provides that the court may make an exparte protection order if it is satisfied
that the delay would be caused by proceeding on notice would or might entail:-

a) risk to the personal safety of the prescribed person; or

b) serious injury or undue hardship

Undertakings
The advantage of an undertaking is that it represents a method of allowing the parties to
settle their dispute.

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Interim Protection Orders
The Court may make an interim protection order, which ensures the safety of the
prescribed person, pending the hearing and determination of the application. All exparte
orders must be interim.

Power Of Arrest
Provided certain criteria are met, once a protection order is in force, there is a power of
arrest. Provided that the order has been served upon the respondent, if he contravenes it,
then a constable can arrest the respondent without a warrant if he has reasonable grounds
for suspecting his in breach of the order.

Protection/Ouster Orders

Occupation Orders
The court can make an order that the prescribed person is allowed to occupy the
household for such period or periods as the court thinks fit and upon such conditions as
the court thinks fit. An order in these terms would be required where the respondent had
interfered, or threatened to interfere with the prescribed person’s right to occupy the
household. The order has the effect of declaring the prescribed person’s right of
occupation and restraining the respondent from interfering with that right.

The court will only make an occupation order if it is satisfied:-

a) that it is necessary for the protection of the prescribed person; or
b) would be in the best interests of the child.

The order will only be made exparte if the court is satisfied that:-
a) the respondent has used violence against or caused physical or mental injury to
the prescribed person; and
b) the delay that would be caused by proceeding on notice could or might expose the
prescribed person to physical injury.

If an occupation order is made exparte, it must be an interim order.

As pointed out above, when the Court makes an occupation order exparte, it shall at the
same time make an interim protection order unless it considers that there are special
reasons why the protection order should not be made.

The legislation specifically states that where the court makes an occupation order it has
the effect of enabling the court to override the respondent’s legal property rights and to
allow the specified person to occupy to the exclusion of the respondent.

The legislation provides that before making an occupation order (other than an interim
occupation order) the Court shall direct that notice be given to any person having an
interest in the property that would be affected by the order. Notably the legislation does

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not provide for conditions in relation to financial support or payment of mortgage or rent
by the excluded respondent.

Other Orders
In most jurisdictions, when the Court makes an occupation order or tenancy order it can
also make an ancillary order, granting to the applicant the use of all or any of the:

 furniture
 household appliances;
 household effects

Injunctions in the Supreme Court

The Supreme/High Court always has an inherent jurisdiction to grant injunctions.

By Section 10 of the Matrimonial Causes Act - there is power upon the application of a
party to the marriage for the court to grant an injunction. However, the parties must be
spouses within the definition of the Matrimonial Causes Act.

A spouse who is in need of injunctive relief, but who does not qualify, or who does not
wish to bring immediate proceedings for dissolution/nullity can nonetheless bring
proceedings under the relevant provisions. S10 of the Matrimonial Causes Act, a Fixed
Date Claim Form would be used.

Once a petition has been issued however, then the application for the injunction under S.
10 can be made by way of an ordinary interlocutory summons.

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