|Tolerate a Spouse’s Violence No More - The Domestic Violence Ordinance|
The primary piece of legislation that specifically addresses this issue is the Domestic Violence Ordinance (Cap. 189) (“DVO”). In this newsletter we would be focusing on the remedies and protection provided for by the DVO, as well as the important changes that have been proposed in the Domestic Violence (Amendment) Bill dated 5 July 2007.
Domestic Violence Ordinance (Cap. 189) - Who does it protect?
- “A party to a marriage” in s. 3(1) DVO – usually the wife, but also includes the husband;
What orders can it grant?
It can grant injunctions containing a number of provisions. An injunction is a court order by whicha party can be required to do, or restrained from doing, certain acts:
- Non-molestation order
- Ouster order / entry order
An entry order is a provision for when the applicant has been molested and excluded from the matrimonial home by the other party to the marriage, requiring that other party to permit thea pplicant to enter and remain in the matrimonial home or in a specified area of thematrimonial home.
- Ex parte injunction
- Enforcement: power of arrest
Pre-conditions to granting an injunction
Either 1) the applicant or 2) a child living with the applicant (no relationship required) has been “molested”. As a general definition, any conduct that intentionally causes such a degree of harassment that intervention by the court should be appropriate would constitute “molestation”. Violence or threats of violence is not necessary.
Law reforms – Domestic Violence (Amendment) Bill 2007
There has been increasing pressure on the Government to address domestic violence following a spate of family tragedies in the Tin Shui Wai new town. In response, the Government introduced a number of amendments to the DVO by way of the Domestic Violence (Amendment) Bill 2007 on 15 June 2007. Some of the noteworthy improvements under the Bill are highlighted briefly below.
1. Extension of the class of persons subject to protection
Under the amendment, the protection will apply irrespective of whether the victim is living
2. Minor (under 18) can make their own applications by “next friends”
Under the current law, children can only make applications to the court for an injunction through their parent. The amendment proposes to allow the child victim to make an application via a “next friend” – a person, usually a relative but not necessarily so, who would represent the child in a court action. This may be particularly effective in assisting child
3. Extension of the validity period of an injunction
4. Extends the power of the court to attach an “authorisation of arrest”
5. Empowering the court to vary or suspend a custody order or an access order
The amendment would allow the court to vary or suspend a custody order or an access order in relation to a minor when
6. Empowering the court to order compulsory participation in Social Welfare programmes
Criminal courts have power under the current law to make an order requiring convicts of violent crimes to participate in
programmes approved by the Director of Social Welfare which are aimed at changing the attitude and behaviour of such persons. The amendment proposes to extend this power to family courts, so as to change the behaviour that lead to the granting of injunctions.
Without knowledge of the background/facts of the individual matter, we do not intend for the above summary to deal with every important topic or to cover every aspect of the topics with which it deals. Such summary is for general information purposes only and is not intended to provide legal advice.
Please contact membersof our Family &Matrimonial PracticeGroup:
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Published by ONC Lawyers © 2008