Injunctions: Domestic Violence

This page is under construction

All domestic violence applications are made under the Domestic and Cohabitation Relationships Violence Ordinance (Cap 189) – see  How to Apply for an Injunction under the D&CRVO (Cap 189) Judiciary Website. Victim Support (for both women & men) is available through Harmony House

NAV v JTMW FCMC 4191/2012 (12th November 2014) – this case is clearly ongoing and the outcome uncertain – but either way it is a clear example of young children becoming pawns in a high conflict case.

See also the Community Legal Information Centre – here

Statistics: Child Abuse, Spouse/Cohabitant Sexual Violence & Battering Cases

Labour & Welfare Bureau Police Statistics

LWB Questions & Answers

LegCo Questions & Answers

Hong Kong Police – Child Protection & Domestic Violence

Background

Domestic violence occurs across all cultures, classes, religious groups and every strata of society. It arises in all kinds of relationships among both young and old – from married couples to cohabiting gay and lesbian partnerships. It occurs in both long and short marriages and relationships within every occupational group. In Hong Kong, as elsewhere, elderly relatives are often direct victims and of course children are always seriously affected either directly or indirectly. Such ‘family’ violence is almost always a criminal offence and and the criminal law is very well equipped to charge a wide range of offences beginning with common assault. So why is there a need for the ‘Domestic and Cohabitation Relationships Violence Ordinance’ to be on the statute books?

The most obvious answer is that, save in the most grievous cases, ‘locking up’ the main breadwinner is almost certainly going to be a Pyrrhic victory with very damaging consequences, financial and otherwise, for the family and any children. Criminal convictions short of imprisonment can also mean the loss of a well paid job. A husband is unlikely to want to see the mother of his children in prison and whilst a wife may wish to divorce her partner – there is no financial incentive for the divorce papers to be served on him in prison. Any two-income family with a large mortgage on a fine home with children at private school is going to be in financial difficulty if the main breadwinner receives a custodial sentence and thereafter unemployed. Separating and divorcing partners, in most cases, wish the violence to end and thereafter to set about securing the most favourable lump sum and maintenance arrangements for themselves and any children. Injunctive relief – whether by ‘ouster’ or non-molestation order, or both – should permit, at the very least, a cooling-off period and allow the parties time to consider what action, if any, to take next. Revenge is a dish best served cold and it may well be that, upon reflection, a wife might enjoy defenestrating her husband – but under the yoke of an injunction he is also likely to remain in his job and thus worth pursuing through FDR and beyond.

[Forthcoming] …

Non-Molestation and Ouster Orders

Section 3 Applies to Spouses and Former Spouses

Section 3(1) where any husband or wife – or former husband or wife (the applicant) applies to the District Court for an injunction – if the court is satisfied he or she has been molested by the spouse or former spouse then – subject to section 6 – the court may grant an injunction containing any or all of the provisions below – Note that this section also covers injunctions where any child (‘specified minor’) has been molested by the husband or wife –or former husband or wife.

By section 2 an ‘applicant’ simply means a person who applies for an injunction to be granted under section 3 (or 3A or 3B below) and ‘specified minor’ means a minor (a) who is a child (whether a natural child, adoptive child or step-child) of the applicant or respondent concerned; or (b) who is living with the applicant concerned. ‘Molestation’ is given a wide definition by the courts.

The ‘non-molestation’ section (often referred to by lawyers as an order for a ‘non-moll’) is provided by section 3(1)(a) – allowing the court to injunct the respondent spouse or former spouse restraining him or her from further molesting the applicant (or by section 3(1)(b) – any specified minor). There is no statutory time-limit on non-molestation orders but they are usually deemed to be short-term measures.

The ‘ouster’ section permitting an applicant to remove a respondent from the home is provided by section 3(1)(c). It allows the court to order that a respondent be prohibited – where the applicant or specified minor has been molested by the respondent – from entering or remaining in

(A) the residence of the applicant or specified minor
(B) a specified part of the residence of the applicant or specified minor; or
(C) a specified area whether or not the residence of the applicant or specified is in that area, whether or not the residence is the common residence of the specified minor or common residence or matrimonial home of the applicant and the respondent.

By section 3(1)(d) the court may, alternatively, prevent a respondent from ousting an applicant or specified minor from the home – here the court has power to injunct a respondent to permit – where the applicant or child resides with the respondent – to enter and remain in the ‘common residence’ or matrimonial home of the applicant and the respondent or in a specified part of it. This may be ordered regardless of whether or not any other relief is being sought in the proceedings – most obviously but not limited to divorce or other children’s proceedings.

Where a non-molestation order (but not an ouster) is granted the court may include a provision requiring the spouse or former spouse to participate in a programme, approved by the Director of Social Welfare, that is aimed at changing the attitude and behaviour that lead to the granting of injunction.

Granting ‘an ouster’ is obviously regarded as a more draconian measure but is frequently granted by the courts where there is evidence of actual physical violence – particularly where any children have been present or involved. However in exercising its power to grant an injunction containing a ouster under section 3(1)(c) or (d) the court must have regard to the conduct of the parties, both in relation to each other and otherwise, to their respective needs and financial resources, to the needs of any specified minor and to all the circumstances of the case. Unlike non-molestation orders there is a statutory time-limit of 24-month for ‘ouster’ orders. See section 6.

Section 3A Relatives

Section 3B Cohbitees and Former Cohabitees

The non-molestation and ouster provisions in section 3B are identical to those in section 3 and as apply to a spouse, former spouse or specified child. Section 3B gives identical injunctive (protective) powers to cohabitees and any child (specified minor) and by section 2(b) includes such a relationship that has come to an end. Under this section the applicant must be ‘a party to a cohabitation relationship’. This will include cohabiting heterosexual couples and same-sex couples in gay and lesbian relationships.

Before allowing any application, by section 3B(2) the court must be satisfied that the applicant and respondent (‘the parties’) are in a cohabitation relationship. In looking at this the court must have regard to all the circumstances of the relationship including but not limited to any of the following factors that may be relevant in the particular case –

(a) whether the parties are living together in the same household;
(b) whether the parties share the tasks and duties of their daily lives;
(c) whether there is stability and permanence in the relationship;
(d) the arrangement of sharing of expenses or financial support, and the degree of financial dependence or interdependence, between the parties;
(e) whether there is a sexual relationship between the parties;
(f) whether the parties share the care and support of a specified minor;
(g) the parties’ reasons for living together, and the degree of mutual commitment to a shared life;
(h) whether the parties conduct themselves towards friends, relatives or other persons as parties to a cohabitation relationship, and whether the parties are so treated by their friends and relatives or other persons.

UK – New definition of domestic violence will include ‘coercive control’

The Home Office has announced that it will extend the definition of domestic violence so that it will now include ‘coercive control‘ and will encompass young people under 18. Victims aged 16 and 17 will be recognised.

A change to the official definition of domestic violence used across government will aim to increase awareness that young people in this age-group do experience domestic violence and abuse. This follows on from the Government’s Teenage Relationship Abuse Campaign and is backed up by the British Crime Survey 2009/10 which found that 16-19-year-olds were the group most likely to suffer abuse from a partner.

The government is also setting up a new NSPCC young people’s panel to help inform the government’s work on tackling domestic violence, particularly by and against young people

New definition

The new definition of domestic violence and abuse now states: ‘Any incident or pattern of incidents of controlling, coercive or threatening behaviour,  violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse: • psychological • physical • sexual • financial • emotional.

Controlling behaviour is: ‘a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.’

Coercive behaviour is:’ an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.’

This definition, which is not a legal definition (but is used by government departments for the purposes of, for example, targeting support services), includes so called ‘honour’ based violence, female genital mutilation (FGM) and forced marriage, and is clear that victims are not confined to one gender or ethnic group.

The new definition will be implemented by March 2013.

Alt J (∆) – Breezeblocks – From their album An Awesome Wave (2012)