Following on from our article last week we will continue to answer a few important questions on this topic. For those of you who did not get a chance to read our article last week please visit our website or the website of the Daily Post as it provides a good introduction to the topic and very important information you need to have if you are or have been the victim of domestic violence.
In this series of articles, we are looking at the Family Protection Act of 2008 to help us understand what victims can do to protect themselves. You can find the law which is easy to read on the paclii website or through a google search.
Can I bring a charge for domestic violence against my abuser if I already have a protection order?
Yes, you can. In the previous article we informed you that domestic violence is a crime. This means that even though you have a protection order you can still make a complaint to the police for your abuser to be charged with a crime. In fact, it is always a good idea to do both of them together, that is, applying for a protection order as well as making a complaint for the abuser to be charged and brought before the court for a trial.
Can other persons be included in my protection order?
Section 11(5) of the law says that if you are given a protection order by the court you can also ask for another family member to be included once you can satisfy the court that the abuser has committed an act of domestic violence against that person or is likely to commit an act of domestic violence against that person.
What are the usual conditions of a protection order?
Once the court makes a protection order it MUST include in the order, as a condition, that the abuser must be of good behaviour towards the victim and any other family member and that the abuser must not commit any other acts of domestic violence.
These are additional conditions which the court can put on the abuser:
(a) Stopping the abuser from approaching the victim,
(b) Stopping the abuser from approaching the victim while drunk on alcohol or kava or high on drugs,
(c) Stopping the abuser from contacting the victim,
(d) Stopping the abuser from being in certain places where the victim might be, such as where the victim lives, works or goes too often, even if those places are places where the abuser may have some right to be,
(e) Stopping the abuser from communicating with the victim,
(f) Stopping the abuser from doing anything that does not bring peaceful family relations,
(g) Stopping the abuser from using another person to do the things mentioned in (a) to (f).
(h) Stopping the abuser from having or carrying a weapon such as a gun or machete,
(i) Making the abuser get rid of the weapon or the court taking it from him to be disposed of by the police,
(j) Stopping the abuser from damaging property belonging to the victim,
(k) To have the abuser return any personal property of the victim or for the abuser to give access to the victim to his/her own property,
(l) Giving the victim exclusive right to occupy the home or part of the home even though the property may be owned by the abuser,
(m) Have the abuser participate in counselling, mediation or both.
Can someone other than a magistrate make a protection order?
Yes. Someone other than a magistrate can make a protection order but it will only be a temporary protection order. You can apply for a temporary protection order if you believe that because of distance, time or the circumstance of your case (e.g. it is late at night) it will not be possible to apply for a protection order from the magistrate. You can make this application for a temporary protection order to an authorised person.
The application can be made in-person, by telephone, in writing or by fax or email. If the authorised person grants the order, they can give all the same conditions as a magistrate could.
Who is considered to be an authorised person?
Persons who can be authorised persons under the law could be a principal chief of a village, assistant chief, church leader, community leader, teacher, village health worker, a member of the police force above the rank of Inspector.
Because these persons have to be appointed by the President on the recommendation of the Judicial Services Commission it would be a good idea to check with the office of the President or the Judicial Services Commission to obtain a list of the names of these people. You can also check with your village chief to find out whether he has been appointed to act as an authorised person under the Act.
Of course, this is not possible when you are in immediate danger but it would be good to get this list and have it on hand or circulate it among the women in the community so they have the information if it is ever needed.
Can a protection order be made in the absence of the abuser?
A protection order made by a magistrate or made by an authorised person can be made in the absence of the abuser.
If a protection order is made by a magistrate in the absence of the abuser the court may, at the same time issue a summons for the abuser to appear on a certain day and time for a further hearing or it may issue a warrant to arrest the abuser.
The warrant to arrest the abuser will only be issued by the court if it is satisfied that if it does not do so the victim will be in serious danger if the abuser is not brought into custody.
Next week we will continue this series by answering many more important questions on this topic.