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PROTECTION ORDERS

PROTECTION ORDERS

TRINIDAD AND TOBAGO. Domestic Violence Act, 1991 of 16 August 1991 (Act No. 10 of 1991). (Trinidad and Tobago Gazette, Pt. A, Vol. 30, No. 216, Legal Suppl., 23 August 1991, pp. 87-109.)

PART II: PROTECTION ORDERS

4. (1) Where, on an application made in accordance with this Act, the Court is satisfied, on the balance of probabilities, that —

(a) the respondent has engaged in conduct that constitutes a domestic violence offence and unless the respondent is restrained, the respondent is likely to engage in further conduct that would constitute that or another domestic violence offence;

(b) the respondent has threatened to engage in conduct that would constitute a domestic violence offence and, unless the respondent is restrained, the respondent is likely to engage in conduct that would constitute that or another domestic violence offence; or

(c) the respondent has engaged in conduct of an offensive or harassing nature in respect of a spouse of the respondent, a parent, or a child or dependent of the spouse or of the respondent, to the extent that the spouse or the parent is fearful of injury, physical or mental, to herself or himself or to a child or dependent of the spouse or of the respondent,

the Court shall, subject to this section, make a protection order restraining the respondent from engaging in such conduct or in any other conduct referred to in this section.

(2) The Court, when making a protection order, may impose one or more of the prohibitions or conditions specified in section 5.

(3) Where the Court is satisfied —

(a) that a previous protection order has not been made against, and no undertaking has been given by, the respondent; and

(b) that no allegation is made against the respondent of conduct referred to in subsection 1(a),

the Court may, at any time before a protection order is made, accept from the respondent a signed undertaking that he shall refrain from engaging in conduct of the nature specified in the application and in conduct that would constitute any domestic violence offence.

(4) An undertaking given under this section may deal with such other matters that may be dealt with in a protection order as the Court sees fit, having regard to the matters referred to in section 6.

(5) An undertaking given under this section and any matters dealt with in that undertaking remain in force for the period stated in the undertaking, but not exceeding twelve months.

(6) Sections 15, 17 and 18 apply, with such modifications as may be necessary, in relation to an undertaking as they do to a protection order.

(7) The Court is not precluded from making a protection order by reason of an undertaking being in force under a previous application.

5. (1) Subject to this Act, a protection order may —

(a) prohibit the respondent from being on premises in which a prescribed person resides or works;

(b) prohibit the respondent from being on premises specified in the order, being premises frequented by a prescribed person;

(c) prohibit the respondent from being in a locality specified in the order;

(d) prohibit the respondent from engaging in conduct of an offensive or harassing nature towards a prescribed person;

(e) prohibit the respondent from speaking or sending messages to a prescribed person;

(f) where the order contains a prohibition of the kind referred to in paragraph (d) relating to conduct of an offensive or harassing nature that amounts to willful or reckless neglect of a child or dependent person — direct the respondent to ensure that reasonable care is provided in respect of that child or dependent person;

(g) prohibit the respondent from taking possession of specified personal property, being property that is reasonably used by a prescribed person specified in the application;

(h) direct the respondent to return specified personal property that is in his possession or under his control which belongs to the applicant or a prescribed person;

(i) prohibit the respondent from causing another person to engage in the conduct referred to in paragraph (d), (e) or (g);

(j) specify conditions subject to which the respondent may be on premises or in a locality specified in the order;

(k) direct that the applicant or respondent, or both, seek appropriate counselling or therapy from a person or agency approved by the Minister in writing.

(2) The Court may make an order that includes a prohibition of the kind referred to in subsection (1)(a) or (g) notwithstanding any legal or equitable interests the respondent might have in the property comprising the premises or in the property to which the prohibition of the kind referred to in subsection (1)(g) relates.

6. (1) In determining whether to impose one or more of the prohibitions or conditions specified under section 5, the Court shall have regard to the following —

(a) the need to ensure that a prescribed person is protected from violence or harassment;

(b) the welfare of a child of the spouse or of the respondent;

(c) the accommodation needs of a prescribed person;

(d) any hardship that may be caused to the respondent or to any other person as a result of the making of the order;

(e) the income, assets and financial obligations of the respondent and of the spouse of the respondent, a parent or dependent person;

(f) any other matter that, in the circumstances of the case, the Court considers relevant.

(2) In having regard to the matters referred to in subsection (1), the Court shall consider the matters referred to in subsection (1)(a) and (b) as being of primary importance.

7. (1) An application for a protection order may be made by —

(a) the spouse of the person being the spouse in respect of whom the alleged conduct has been, or is likely to be engaged in by that person;

(b) where the alleged conduct involves a child or dependent —

(i) a person with whom the child or dependent normally resides or resides on a regular basis;

(ii) a parent or guardian of the child or dependent;

(iii) where the dependent is not mentally disabled — the dependent;

(iv) an experienced or qualified person in social welfare being a public officer and approved by the Minister in writing;

(v) a police officer; or

(vi) a person holding the office or performing the duties of a probation officer or medical social worker;

(c) a police officer;

(d) a parent of a spouse or a respondent or a parent against whom the alleged conduct has been, or is likely to be, engaged in.

(2) Where the applicant is a person referred to in subsection (1)(b) (iv), (v) or (vi) the parent or guardian in respect of whose child the alleged conduct has been engaged in and with whom the child normally resides or resides on a regular basis has a right to be a party to the proceedings.

(3) Where the application is made by a police officer in respect of a prescribed person who is an adult, that person shall be a party to the proceedings.

8. (1) An application for a protection order shall be made in accordance with Form 1 of the Schedule and shall be filed with the clerk.

(2) Proceedings in respect of an application shall be heard “in camera” unless the Court otherwise directs.

(3) Except as otherwise provided by this Act, the Summary Courts Act applies mutatis mutandis in respect of proceedings on an application.

9. The clerk shall fix a date for the hearing of an application for a protection order that is not more than seven days after the date on which the application is filed.

10. (1) Where an application has been filed with the clerk, a copy of the application together with notice of proceedings in accordance with Form 2 of the Schedule, shall, as soon as practicable, be served personally on the respondent.

(2) Where the application filed is in respect of a child or dependent, a copy of the application, together with notice of the date on which, and time and place at which, the application is to be heard shall, as soon as practicable, be served personally on —

(a) the parent or guardian with whom the child or dependent normally resides or resides on a regular basis; or

(b) where the child or dependent does not normally reside or does not reside on a regular basis with the parent or guardian — to the person with whom the child or dependent normally resides or resides on a regular basis.

(3) A notice of the proceedings which is issued and served under this section is deemed to be a summons that is duly issued and served under the Summary Courts Act and compels the respondent to appear in Court to answer the application as if it were a complaint to which that Act applies.

(4) Any notice of proceedings issued under this section may be served by the applicant or his agent, and the Court may, at its discretion, receive proof of such service by affidavit in accordance with Form 3 of the Schedule.

11. Where the hearing of an application is adjourned by reason of the fact that the application and the notice of proceedings have not been served on the respondent, the date, time and place fixed by the Court for the adjourned hearing shall be the date, time and place stated in the notice of adjourned proceedings.

12. Where notice of the proceedings has been served on the respondent in accordance with section 10 and the respondent fails to appear in person at the Court at the time fixed for the hearing of the application of the protection order, the Court may —

(a) proceed to hear and determine the matter in the respondent’s absence; or

(b) where the Court is satisfied having regard to the material before it, that it is appropriate to do so — adjourn the matter and issue a warrant for the respondent to be apprehended and brought before the Court.

13. If, on the date of the hearing of the application, the respondent appears in Court, but neither the applicant nor the person on whose behalf the application is made appears either in person or by his attorney-at-law, the Court may –

(a) dismiss the application;

(b) having received a reasonable excuse for the non-appearance of either party — adjourn the hearing of the application upon such terms as the Court may think just; or

(c) where the Court is satisfied having regard to the material before it, that it is appropriate for evidence to be given by affidavit — the Court may so direct, but the Court shall, on the application of any other party, order the attendance for cross examination of the person making any such affidavit.

14. (1) Where an application for a protection order has been made and the Court is satisfied on evidence that it is necessary, in order to ensure the safety of a prescribed person, pending the hearing and determination of the application, to make an interim protection order, the Court may make such order whether or not the application has been served on the respondent.

(2) An interim protection order —

(a) shall restrain the respondent from engaging in the conduct on which the application is based;

(b) may prohibit the respondent from being on premises on which a prescribed person resides; and

(c) shall not contain any other prohibition or condition specified in section 5 unless the Court is satisfied by reason of the circumstances of the case that it is necessary to do so to ensure the safety of a prescribed person.

15. Where the Court proposes to make a protection order or an interim protection order and the respondent is before the Court, the Court shall before making the order explain to the respondent —

(a) the purpose, terms and effect of the proposed order;

(b) the consequences that may follow if the respondent fails to comply with the terms of the proposed order; and

(c) the means by which the proposed order may be varied or revoked.

16. (1) A protection order remains in force for such period not exceeding twelve months, as the Court specifies in the order.

(2) Where a protection order contains a prohibition of the kind specified in section 5, the court may specify different periods, being periods none of which exceeds the period referred to in subsection (1), as the period for which each prohibition or condition is to remain in force.

(3) Subject to this section, an interim protection order remains in force for such period, not exceeding 14 days, as the Court specifies in the order.

(4) Where the Court adjourns the hearing of an application for a protection order and an interim protection order is in force in respect of the respondent, the Court may extend the period for which an interim order is to remain in force until the date fixed for the further hearing of the application.

(5) An interim protection order ceases to be in force —

(a) when a protection order is made on that application and the respondent is present at the time the protection order is made;

(b) when a protection order is made on that application but the respondent is not present at the time the protection order is made — when the protection order is served on the respondent; or

(c) when the application is dismissed.

17. (1) Where a protection order or an interim protection order is in force, a party to the proceedings in which the order was made may apply to the Court in the prescribed form for an order varying or revoking the order.

(2) On an application under subsection (1), the Court may by order vary or revoke the protection order or interim protection order.

(3) A copy of an application under this section shall be served personally on each person who was a party to the proceedings in which the original order was made.

(4) In determining whether to vary or revoke a protection order the Court shall have regard to the matters specified in section 6.

18. Where —

(a) a protection order or an interim protection order is made and —

(i) the respondent was present at the time the protection order or interim protection order was made; or

(ii) where the respondent was not present at the time the protection order or interim protection order was made but the order has been served personally on the respondent; and

(b) the respondent contravenes the order in any respect,

the respondent is guilty of an offence punishable on summary conviction, by a fine not exceeding $5,000 or imprisonment for a period not exceeding six months or both.

PART III: BAIL

19. Where the Court is required to determine whether to grant bail in respect of an offence under section 18, the Court shall take into account, inter alia —

(a) the need to ensure that a prescribed person is protected from violence or harassment;

(b) where the defendant or the victim of the alleged offence has custody of a child — the welfare of that child;

(c) any hardships that may be caused to the defendant or to members of the family if bail is not granted.

20. (1) Where the defendant is charged with an offence under section 18, the Court, in granting bail, may also order that the recognisance be subject to such of the following further conditions as the Court considers appropriate —

(a) that the defendant not harass or molest, or cause another person to harass or molest, a specified prescribed person;

(b) that the defendant not be on the premises in which a specified prescribed person resides or works;

(c) that the defendant not be in a locality in which are situated the premises in which a specified prescribed person resides or works; and

(d) where the defendant continues to reside with a specified prescribed person — that the defendant do not enter or remain in the place of residence while under the influence of alcohol or a drug.

(2) Where a police officer believes on reasonable grounds that a person who has been admitted to bail subject to one or more of the conditions set out in subsection (1) has failed to comply with a condition of the recognisance, the police officer may apprehend the person without a warrant.

PART IV: MISCELLANEOUS

21. Where a Magistrate is satisfied, by information on oath, that —

(a) there are reasonable grounds to suspect that a person on premises has suffered, or is in imminent danger of physical injury at the hands of another person and needs assistance to prevent or deal with the injury; and

(b) a police officer has been refused permission to enter the premises for the purpose of giving assistance to the first mentioned person,

the Magistrate may issue a warrant in writing authorising a police officer,

(c) to enter the premises specified in the warrant at any time within 24 hours after the issue of the warrant; and

(d) subject to any conditions specified in the warrant, to take such action as is necessary to prevent the commission or repetition of the offence or a breach of the peace or to protect life or property.

22. Where a police officer believes on reasonable grounds that a person has committed or is committing an offence under section 18 of this Act, he shall make an arrest without warrant.

23. Where a person has been charged with a domestic violence offence and an application for a protection order is before the Court, the Court may exercise its power to grant the order, notwithstanding that the offence for which the person has been charged and the application for the protection order arise out of the same conduct.

24. (1) Where a protection order or an interim protection order is made or varied by the Court, the clerk shall arrange for an order in the prescribed form to be formally drawn up and filed in the Court.

(2) A copy of an order made under subsection (1) shall be served —

(a) personally on the respondent;

(b) on any other person who was a party to the proceedings; and

(c) a police officer not below the rank of Sergeant in the district of the Court in which the order was made,

by the applicant or his agent.

(3) In subsection (1), a reference to an order in the prescribed form means —

(a) in the case of the making of a protection order or an interim protection order — an order in accordance with Form 5 of the Schedule; and

(b) in the case of the varying of a protection order or an interim protection order — an order in accordance with Form 6 of the Schedule.

25. Where it appears to the Court that it is not reasonably practicable to serve a copy of an application or an order personally, the Court may —

(a) order that the copy of the application for the protection order or the copy of the protection order itself, be served by such other means as the Court thinks just; or

(b) make an order for substituted service.

26. Nothing in this Act shall be regarded as removing any jurisdiction which the High Court may have in respect of the matters referred to under this Act.

27. An appeal shall lie to the Court of Appeal from any order or judgment of the Court made or given under this Act and the procedure in respect of such an appeal shall be as is laid down in the Summary Courts Act.

Extracted From: Cyberlaw.harvard.edu

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