The provisions of the Domestic Violence Act provide some of the most powerful remedies to persons who are exposed to the threat of, or have actually suffered, physical, mental and verbal abuse in the home.

These are available to men, women and children. They are entitled to rely on the provisions of the act, and make applications for what are commonly referred to as 'restraining orders', but are properly called occupation or protection orders. Applications may be made by:

a spouse, including a common law spouse and a former spouse,

persons who are involved in visiting relationships,

a child or dependant residing in the home,

a parent of that child or dependant,

a social worker,

a constable or other persons living in the household, with the permission of the court.

Whether the applicant obtains a protection or an occupation order, will depend on the circumstances of the case and the particular remedy required. Where the spouse or child has been threatened, or has actually suffered verbal or physical abuse, the court may grant a protection order to prevent the other person from:

entering or remaining in the house, workplace, school or in the area in which the house, place of work or school is located.

molesting, waylaying, making persistent telephone calls or using abusive telephone calls.

More dire consequences

The occupation order has even more dire consequences. If the court is satisfied that it is necessary for the protection of a child or spouse, an order may be made giving that spouse or child the right to live in a particular household. In fact, the occupation order may be effective to cause the owner of the home to be removed from his residence.

As the safety of the child or spouse is the principal concern of the court, protection and occupation orders may be made ex parte (that is, without the other party being present), if there is proof that the delay is likely to result in physical injury to the spouse or child. Where an ex parte occupation order is made, an interim protection order will also be made. However, once the order has been served, the person against whom it has been made will have an opportunity to apply to the court to show cause why the order should not have been made, or should be varied or discharged.

The remedies under this Act could safely be viewed as self-help remedies, because they can only be granted in the Family or Resident Magistrate's Court, and the process must be commenced by the individual applicant rather than by an attorney-at-law.

Potential applicants should note that the occupation or protection order has 'teeth', because the person against whom it has been made may be subject to imprisonment and/or a fine if it is breached.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon and Co. Send feedback and questions to lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.