Domestic violence (also called family or intimate partner violence) can be broadly defined as violence or abuse in a domestic setting. It includes not only physical violence, but also a wide range of behaviours, such as: emotional abuse, verbal abuse, economic abuse, religious abuse, reproductive abuse, sexual abuse, controlling behavior, isolation, intimidation, and online abuse.
The Domestic and Cohabitation Relationships Violence Ordinance (Cap 189) (the DCRVO) provides injunctive relief (a protective order) for victims of domestic violence. The relief is ‘free-standing’ and need not be brought in proceedings for divorce or to enforce any other legal or equitable rights. The Ordinance offers protection from: spouses and former spouses, cohabitants and former cohabitants (including same-sex couples), as well as a wide range of relatives (including parents, children, brothers, sisters, grandparents, uncles, aunts, nieces and nephews).
In order to obtain relief, the applicant must show the court that the applicant or a ‘specified minor’ (i.e. their child or a minor living with the applicant) has been ‘molested’ by the respondent. ‘Molestation’ has been given a very broad meaning and does not require threats or use of physical violence. It has been variously defined as: ‘to cause trouble’, ‘to vex’, ‘to annoy’, ‘to pester’, or any degree of harassment that calls for the intervention of the court. Such behavior may include (for example) threats of violence, pushing and grabbing, pestering a party at their home or place of work, verbal abuse, damage and theft of property, and following/stalking.
The DCRVO provides for six types of relief: (i) non-molestation orders (prohibiting the respondent from continuing the molestation), (ii) ouster orders (excluding the respondent from entering a residence, part of a residence, or some other specified area such as a school or place of work), (iii) re-entry orders (to permit return to the home by the applicant/child), (iv) orders to participate in mandatory counselling, (v) authorizations of arrest (attached to orders prohibiting violence or ouster orders), and (vi) the power to vary or suspend a custody or access order for a child.
An authorization of arrest will only be attached if the court is satisfied that the respondent has caused ‘actual bodily harm’ or if it reasonably believes that the respondent is likely to cause actual bodily harm. Its purpose is to permit a police officer to arrest the respondent without a warrant on reasonable suspicion of breaching the injunction either through violence or entry into the prohibited area (rather than reasonable suspicion of an arrestable offence).
Applications under the DCRVO can be made by way of originating summons, or by summons in existing proceedings, with an affidavit/affirmation in support (although these steps may not be possible in urgent cases). Applications may also be made ex parte where just and reasonable in the circumstances: see Practice Direction 11.1.
Applicants should consider applying for an urgent grant of legal aid for legal representation to bring proceedings under the DCRVO. They may also approach shelters and counselling services available through the Social Welfare Department and a number of NGOs.