Angela and Brando, both lawyers in private practice, marry in 1990. They live rent-free in an apartment owned by Brando's parents. On 20 November 2002, Brando strikes Angela repeatedly with his fists and a belt and uses abusive language towards her. Distraught, Angela immediately leaves and goes to stay at her parents' house, which is two hours drive away. Because of this, she is unable to appear in court the following weeks and she asks a colleague to take over some of her matters. As a result, Angela loses $20,000 in income.
Angela wants to return to the apartment and her work but is very fearful about Brando's violence. Her best friend, Gemma, is encouraging her to get relief under domestic violence legislation without notice being given to Brando, because she fears Brando will bring constitutional challenges to delay relief. Angela is very fragile emotionally and Gemma wants to bring an action on her behalf. Advise Gemma In advising Gemma the jurisdiction of choice is Grenada and the applicable legislation to the fact scenario is the Domestic Violence Act 2001. ADVICE TO GEMMA Can Gemma bring an action on behalf of Angela?
Gemma as a 'best friend' is not covered by the statute to bring an action on behalf of Angela who is classified as a spouse under the statute. Section 3 (2) of the statute expressly states that an application for an order, other than a tenancy order, may be made by- (a) any person of full age against whom the alleged conduct has been, or likely to be, directed by the respondent; (b) a parent or guardian of a person not of full age against whom the alleged conduct has been or is likely to be directed (c) a police officer; (d) a person appointed by the Minister in writing for the purpose of this section.
The facts presented indicate that Gemma was not the victim or likely victim; therefore she does not qualify to bring an action. Moreover, Gemma is not a guardian or parent of the victim and even if she was, Angela who is the victim is an adult and does not fall in the category of a 'person not of full age' and do not qualify under category (b). Furthermore, Gemma is not a police officer and not a person appointed by a Minister. In this regard Gemma cannot bring an action on behalf of Angela for domestic violence.
The limited number of persons that can bring action on behalf of a victim in Grenada poses a serious problem. The reality in these small commonwealth countries is that a best friend is normally a close confidant and one who normally acts on behalf of an individual in time of need. In section 4 (1)(d) of the Barbados Domestic Violence (Protection Order) Cap 130A, provision is made for a person other than a person mentioned in paragraph (a), as agent for a person to whom that paragraph applies to bring an action. If Gemma was in Barbados she would qualify under this category.
It is suggested that the limitation in Grenadian statute is an oversight on the part of the legislatures and one that must be addressed to ensure that there is fast and effect relief for persons who unable to file on their own and are too distraught to approach the police or a minister for assistance It is advisable at this point and taking into consideration Angela's emotionally fragility and fear that Gemma solicits the assistance of a police officer or a person appointment by the minister who is qualified under the statute to bring an action on Angela's behalf.
Is Angela protected under the Act? Gemma needs to be cognizant of the fact that in order for the court to exercise its inherent jurisdiction to grant relief to Angela, it has to determine if she qualifies as a protected person under the statute. An application can be made under section (3) of the statute whenever conduct amounting to domestic violence is alleged to have occurred. Furthermore, in section 2, (interpretation section) provision is made for the protection for a spouse. Angela qualifies for protection under the category of 'specified person' which means the spouse of the respondent.
The statute also makes mention of persons whom domestic violence is directed towards, which includes a spouse. Section 2 of the statute states 'domestic violence by a person means abusive conduct directed towards a member of the person's household; or a spouse' Angela is married and therefore qualifies as a spouse under the statute and should be afforded the necessary protection. Do Brando's actions amount to domestic violence as defined by the Act? The difficulty arises here because the evidentiary burden is on Angela to prove that Brando's conduct amounts to domestic violence.
The facts of the case indicate that Brando strikes Angela repeatedly with his fists and a belt and uses abusive language towards her on November 20 2002. There is no requirement in the statute for there to be a pattern of behaviour and therefore the one abusive act after ten years amounts to physical abuse which consecutively connotes domestic violence. The statute in its interpretation section (s 2) supports this view and suggests that domestic violence 'includes physical abuse, emotional or psychological abuse. '
Even though it is unclear whether she was abused before November 20, 2002, the abusive actions directed towards Angela on that particular day are indicative of physical, emotional and psychological abuse; which of course includes persistent intimidation of the person by the use of abusive or threatening language. What type of order is suggestion and will it be successfully granted? Gemma encourages Angela to a relief ex -parte order. That is seeking protection without notice to Brando. Herein the difficulty lies.
It might be necessary to apply for a protection order, an occupation order and ancillary relief. However, applying for them on an ex parte basis might not be entertained by the court, since Angela would have to prove that the abuse is likely to happen again. In the facts of the case it is unclear as to whether Brando's actions are likely to happen again. However, domestic abuse did happened and of course a protection orders will be granted but not on an ex parte basis. Protection and Occupation order
An application for a protection order can be made under section 4 of the statute. It will prohibit Brando from entering or remaining in the household residence or entering or remaining in an area specified in the order, being an area in which the household residence is located. However, in section 3 of the statute, for the court to successfully grant a protection order Angela would have to satisfy that Brando has used or threatened to use domestic violence and is likely to do it again and having regard to the circumstances the order is necessary for her protection.
It has already being established that Brando's action falls in the category of physical, emotional and psychological abuse as defined under the statute and as such it is clear that a protection order is needed. The statute makes provision for an order to be made ex parte 'if the court is satisfied that delay would be caused by proceeding on notice and that such delay would or might entail (a) risk of physical injury to the specified person or undue hardship to the specified person.
However, the court becomes stringent in making these orders because of the human rights elements attached. The constitutional provision of right to privacy, freedom of expression and a right to property and respect for the sanctity of marriage makes it difficult for a court even in time of need to grant an ex parte order. In the facts of the case there is no indication that the abuse was over a longterm period or likely to continue.
It is moot as to whether the court will grant an ex parte order on the basis of one isolated abuse – the important question is whether the abuse is likely to continue. In addition to the protection order, Angela can seek an occupation order. Section 7 of the Act makes provision for the application an occupation order. It grants Angela the right to live in the household residence exclusively. However, the facts indicate that the apartment belongs to Brando's parent and they lived there rent free.
It is unresolved as to whether the court will grant an occupation for exclusive possession for a house that does not belong to the couple in the first place. The act of excluding a person from his/her premises is criticized as being draconian in effect and the court is strict in its approach in granting such an order. Furthermore, in section 22 the court on making these orders and for the protection of married life may recommend the parties to participate in counseling. One is in support of this option.