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; - According to s. 2(2) DVO (but subject to s. 6(3) DVO), includes a man and a woman incohabitation; and - According to s. 3(1)(b) DVO, includes any child (person under 18 years of age) living withthe applicant. 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 This is a provision granted by the court which has the effect of restraining the other partyfrom molesting the applicant, or any child living with the applicant. - Ouster order / entry order An ouster order has incorporated a provision excluding one party from the matrimonial home,or from a specific part of the matrimonial home (e.g. the applicant’s bedroom), or even from aspecified area which does not necessarily have to include the matrimonial home. 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 In cases of emergency, where in the interests of justice or protection of the applicant or a child clearly demands immediate intervention of the court, the applicant may make anapplication to the court for an injunction in the absence of the other party. This is a highly draconian measure and is therefore applicable to only rare situations. - Enforcement: power of arrest Where a judge is minded to grant an injunction for 1) restraining the other party from using violence against the applicant or a child living with the applicant; or 2) excluding the other party from the matrimonial home or a specific place, and the judge is satisfied that the party to be restrained has previously caused actual bodily harm to the applicant, a power of arrest may be included in the injunction. This means that in the event that the party subject to the injunction breaches the terms of the injunction, a police officer may arrest that person without the need of a warrant. 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 The Bill proposes to extend protection to include the following persons: - Former spouses and former co-habitants of the opposite sex; - Immediate and extended family of the victim including their children, parents, grandchildren, grandparents, brothers, sisters, uncles, aunts, nephews, nieces and cousins; - Spouses of the persons listed in 1.2; - Such relatives as listed in 1.2 of the persons listed in 1.3. Under the amendment, the protection will apply irrespective of whether the victim is living with the abusive person. 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 victims of incest, where sometimes the non-offending parent may refuse to assist the victim in prosecuting the offending parent. The child victim would be able to apply for injunctions or other forms of protection while the main action is pending. 3. Extension of the validity period of an injunction The Bill proposes to extend the protection period of an injunction or an authorisation of arrest from the maximum of 6 months to 24 months. 4. Extends the power of the court to attach an “authorisation of arrest” “Power of arrest” is to be renamed as “authorisation of arrest”, and the power of the court in attaching the authorisation of arrest to an injunction is to be widened to include cases where the court reasonably believes that the respondent will likely cause bodily harm to the protected person. 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 granting an injunction concerning the minor after considering the welfare or the wishes of the minor and any material information, or upon incidence of domestic violence involving the minor. 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.

IMPORTANT: 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.

For enquiries: Please contact membersof our Family &Matrimonial PracticeGroup:

Tze-Yan Lam Consultant +(852) 2107 0335 ty.lam@onc.hk

Published by ONC Lawyers © 2008