Domestic violence occurs when a family member, partner or ex-partner attempts to physically or psychologically dominate or harm the other.

Occurs in all cultures, races, ethnicity, religions, backgrounds, perpetrated by both men and women, in all types of relationships; (same-sex, opposite-sex, married, living together, separated, dating) Has many forms; (physical, psychological, emotional, sexual, economic, social etc). Popular emphasis has tended to be on women as victims with the rise of the womens movements concerning about wives being beaten by their husbands, and has remained a major focus.

 CONVENTION

ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN, 1981 (CEDAW)

Ratified by 139 nations; Malaysia (1995), UK (1986) New Zealand (1985). The Committee of CEDAW issued General Recommendation 19 (1992) which clarifies that State Parties to the

Convention are under an obligation to take all appropriate means to eliminate violence against women.

violence that is disproportionately directed against a woman because she is a woman or that affects women disproportionately. It includes acts that infl ict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence.

1st international human rights instrument to deal exclusively with violence against women. Provides first comprehensive definition of violence against women. Art. 4(c) States shall exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women. Art. 4(k) States shall collect, compile, and make public certain statistics and data.

violence against women constitutes a violation of the rights and fundamental freedoms of women and impairs or nullifi es their enjoyment of those rights and freedoms, and concerned about the long-standing failure to protect and promote those rights and freedoms in the case of violence against women.

Special Rapporteur on Violence against Women to the Commission of Human Rights (CHR).

Beijing Declaration and Platform for Action, 1995. Universal Declaration on Human Rights, Articles 1, 2, 3, and 5. ICCPR & ICESCR.

 Violence

against women and girls continues unabated in every continent, country and culture. It takes a devastating toll on womens lives, on their families, and on society as a whole. Most societies prohibit such violence - yet the reality is that too often, it is covered up or tacitly condoned.

At least 1 out of every 3 women around the world has been beaten, coerced into sex, or otherwise abused in her lifetime - with the abuser usually someone known to her.

 Art.

1, Declaration on the Elimination of Violence against Women, 1993 defines violence against women as
any act of gender-based violence that

results in, or is likely to result in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.

A pattern of abusive behaviors by one partner against another in an intimate relationship such as marriage, dating, family, or cohabitation. Merriam-Webster dictionary: the inflicting of physical injury by one family or household member on another; also: a repeated/habitual pattern of such behavior."

Patterns of behaviour characterised by the misuse of

No statutory definition in the laws of UK. The Children and Family Court Advisory and Support Service, "Domestic Violence Policy defines DV as;

power and control by one person over another who are or have been in an intimate relationship. It can occur in mixed gender relationships and same gender relationships and has profound consequences for the lives of children, individuals, families and communities. It may be physical, sexual, emotional and/or psychological. The latter may include intimidation, harassment, damage to property, threats and financial abuse.

Section 2 domestic violence means the commission of any of the following acts: a) wilfully placing the victim in fear of physical injury; b) causing physical injury, c) threatening to engage in any sexual conduct or otherwise, d) confining or detaining against the victims will; or e) destructing or damaging the property with intent to cause distress or annoyance to the victim. by a person (the offender) against a) his or her spouse; b) his or her former spouse; c) a child; d) an incapacitated adult; or e) any other member of the family; (known hereinafter as victim)

Section 3(1) domestic violence means violence against that person by any other person with whom that person is, or has been, in a domestic relationship. Section 3(2) violence means a) Physical abuse b) Sexual abuse c) Psychological abuse Section 4: domestic relationship includes partners, family members, those sharing a household, and individuals having a close personal relationship with the other person.

UK: Before 1997

Domestic Violence and Matrimonial Proceedings Act 1976 (DVMPA 1976) Domestic Proceedings and Magistrates Courts Act 1978 (DPMCA 1978)

After 1997
Family Act 1996 (Part IV) Domestic Violence, Crime And Victims Act 2004 (DVCVA 2004)

Malaysia Domestic Violence Act 1994 New Zealand Domestic Violence Act 1995

MALAYSIA Prohibition Order (Part II DVA 1994) Compensation and Counseling (Part III) UK Non-Molestation Order (S. 1 DVMPA 1976; S. 42 FLA 1996 + S. 1 of DVCVA 2004) Ouster Order/Occupation Order (S. 16 DPMCA 1978; Ss. 33-41 FLA 1996)
NZ Protection Order (Part 2 DVA 1995) Programmes (S. 32 DVA 1995) Police Safety Order (Part 6A) Order relating to Properties (Part 3)

Interim Prohibition Order (IPO) [S. 4]

Order prohibiting the offender from using

violence against the victim pending investigation. Ceases to have effect when the investigation is complete.

Prohibition Order (PO) [S. 5(1)]

Court order of restraining the offender from

using violence against the complainant, the child and the incapacitated adult (the victims. includes prohibition from inciting other to commit DV.

a) Granting exclusive occupation of the shared

b) c)

d)
e)

residence to the victims to the exclusion of the offender. Restraining the offender from entering such residence. Requiring the offender to permit the victims to enter his (the offender) residence, accompanied by any enforcement officer to collect the victims personal belongings. Requiring the offender to avoid making communication with the victim. Requiring the offender to allow the victim to use his (the victim) vehicle.

12 months, renewable for another 12 months. Extension cannot be more that once. [s.6(2)(b)] Any one or more order in s. 6(1) can be made or made anew upon contravention in accordance with s. 9. [s.6(2)(a)]

POA may be attached if the offender is likely to cause injury to the victim. If attached, police may arrest the offender without warrant if he is reasonably believed to be in breach of the IPO or PO or orders in s. 6(1)(a) or (b). After arrest, he shall be brought before a judge within 24 hours and shall not be released within that period except if the judge directs.

Willful contravention of a PO is an offence punishable with fine RM2000 / imprisonment 6 months / both. Willful contravention of PO by using violence on the victim is liable to a fine RM4000 / imprisonment 1 year / both. Subsequent violations imprisonment 72 hours-2 years and fine RM5000. PO includes IPO.

Compensation may be awarded to the victim who suffers personal injuries or damage or loss of property as a result of DV as the court deems reasonable. How? a) Extent of injuries, pain and suffering. b) Cost of treatment. c) Loss of earnings. d) Value of property. e) Other necessary expenses e.g. lodging, transport, housing loans, rentals.

The parties concerned may be put in any suitable therapy or conciliatory body instead of or in addition to PO. The court may take the advice of a social welfare officer or some other trained or experienced person. Conciliatory body bodies providing counseling services set up under the Department of Social Welfare (nonMuslims) and the Islamic Religious Affairs Department (Muslims)

Before 1997 S. 1 DVMPA 1976. After 1997 S. 42(1) FLA 1996 an order containing either or both of the following provisions: a) provision prohibiting a person (the respondent, R) from molesting another person who is associated with R; b) provision prohibiting R from molesting a relevant child. a) S. 62 FLA 1996 Definition of the associated persons, and relevant child.

 No

definition provided in FLA but some case law illustrated its meaning as harassing or pestering. E.g. Unwelcome visits (Vaughan v Vaughan [1973] 1 WLR 1159), offensive phone calls (Horner v Horner [1982] 2 WLR 914). Johnson v Walton [1990] FLR 350 there must be an intention to cause harm or distress.

S. 42(2) FLA When court will make such order? a) if an application for the order has been made by a person who is associated with R; or b) No application but the court considers it should be made for the benefit of any party, or relevant child. S. 42(5) FLA Consideration for granting NMO a) If there is application, the court will consider the need to secure the health, safety and well being of A, and/or any child. b) If not, the court will consider the need to secure the health, safety and well being of the person whose benefit the order would be made.

S. 43 Leave of court required for applications by children under 16. S. 44 Evidence of agreement to marry or form a civil partnership. S. 45 Ex parte orders. S. 46 Undertakings. S. 47 Arrest for breach of order. S. 48 Remand for medical examination and report. S. 49 Variation and discharge of orders

Breach w/out reasonable excuse guilty. Ex-parte order [S. 45] guilty if he is aware. Not punishable as a contempt of court. If he has been punished as a contempt of court, cannot be convicted under this section. Punishment;
on conviction on indictment; imprisonment 5

years / fine / both; on summary conviction; imprisonment 12 months / fine not exceeding the statutory maximum / both.

Before 1997 S. 16 DPMCA 1978 After 1997 (Ss. 33-41 FLA) S. 33(1)Who may apply?

a) Entitled person/persons with matrimonial home

rights may apply under s. 33 FLA 1996 b) Non-entitled person may apply under one of ss. 35-38.

S. 35 former spouse. S. 36 cohabitant/former S. 37 neither spouse is entitled S. 38 neither cohabitant is entitled

Entitled person/Persons with matrimonial home rights, S. 33(3) FLA 1996;

Enforce, restrict or terminate matrimonial rights;
Prohibit, suspend or restrict the exercise by either

spouse of those rights to occupy the home or part of it; require the respondent (R) to permit the exercise by the other of occupation rights; Declare the applicants rights; Require R to leave the home or part of it; Exclude R from the defined area around the home.

Criteria to guide court to grant OO [S. 33(6) FLA 1996]

The parties conduct. Housing needs and financial resources. Health, safety or well being of parties or

child.

Mandatory duty [S. 33(7) FLA 1996]

If the applicant or any relevant child is likely

to suffer significant harm attributable to Rs conduct if the order is not made.

Myers v Myers [1971] 1 WLR 404 If the house is large enough so that the parties might be kept apart and if they are relatively sensible and civilised and there is no violence, an injunction will not be granted merely because the situation is unpleasant and tense. Phillips v Phillips [1973] 1 WLR 615 The premises are very small, the wife and the son would become psychiatric invalids if situation continued and there was medical evidence to this effect. OO was granted.

There a couple and their baby lived in a very small flat and the husband brought his teenage son to live there also. The husband drank was violent. The wife lived with her parents and applied for ouster order which she obtained.

S. 47(2) The court shall attach POA if to its order (NMO/OO) if R has used or threatened to use violence against A or relevant child unless it is satisfied that A and the relevant child will be adequately protected with it (does not apply to ex-parte order in s. 45) S. 47(6) If attached, police may arrest without warrant if they have reasonable ground to believe that the order has been breached. S. 47(8) if not attached, later application may be made for this to be done. S. 47(10) if arrested, R will be brought before the court and remanded including for medical report [s. 48(1)].

S. 7 Applications
Who may apply? person who is or was in

a domestic relationship (see definition in s. 4). If A is eligible but under 16 (see s. 9(2)) or unable (see s. 12(1)(b)) or lack of capacity (see s. 11), apply by representative. If not eligible, may apply restraining order under s. 9 of Harassment Act 1997. Application be made to the Family Court (FC).

S. 2 temporary order means an order of limited duration that is made on an application without notice. S. 13(1) Granted if the delay caused by proceeding on notice would cause risk of harm or undue hardship to A. S. 13(2) Considerations to make TO;

a) nature and seriousness of the behaviour; and b) effect of that behaviour.

S. 14 (1) FC will make PO if;

a) R is using, or has used, DV against A / a

child of As family / both; or encouraging another person to use DV [s. 14(2)] against A / a child of As family / both and; b) Necessary.

S. 14(5) Considerations to make PO similar to TO.

 Who will a PO protect? The applicant. Persons other than A i.e. child living with A [s. 16(1)] or person with whom A has domestic relationship [s. 16(2)].
From

whom a PO will protect?

The respondent.

Rs associates (someone else who R has encouraged to be violent towards the protected people) [S. 17].

Non violence conditions [s. 19(1)]

Non-contact conditions [s. 19(2)]

Conditions relating to weapons [ss. 21-26]. Special conditions [ss. 27 & 28]

TO lasts until
It become final PO i.e. 3 months unless R

successfully defends it [s. 77(1)]. it lapses if extended [s. 77(4)]. It is discharged [s. 80].

Final PO permanent, unless discharged by FC [s. 47]. Protection for child while they usually or regularly live with A, regardless of age. If A died;
PO/TO continues until lapses/is discharge. PO for child lapses when he reaches 17.

S. 32 When PO is made, R or his associates will be directed to attend SVP if necessary. Information about SVP is in PO. S. 33 Terms of direction of SVP. Teaches:

domestic violence and how it affects

protected persons how the Domestic Violence Act 1995 works skills for living without violence and for dealing with any future arguments or conflict in better ways.

attend to this programmes from the Family Court that are free and confidential Objectives.

S. 29 The applicant also may apply to

Helps protected people feel more confident

and teaches them how to keep from DV. Gives protected people detailed information about DV and PO.

Provides programmes developed specifically for children.

S. 49(1) What constitutes breach?

a) Contravention of PO.

b) Failure to comply any conditions in PO.

S. 49(2) No reasonable excuse for breach. S. 49(3) Punishment 2 years imprisonment. S. 49A failure to attend SVP without excuse, 6 months imprisonment / $5000 fine and still have to attend. Breach criminal offence, will appear in Criminal Court.

S. 124B(2) Issued when Police believe on reasonable grounds that DV has occurred / might occur. S. 124K Duration cannot exceed 5 days. S. 124E Effects of PSO; R may

vacate any land or building occupied by a

person at risk. not assault, threaten, intimidate or harass, follow, stop or contact the person at risk. surrender all firearms and their licences.

S. 124C No consent is required to issue PSO S. 124D Cannot to be issued against child

 S.

124L(1) R will be taken into custody and be brought before the criminal court by;
Necessary force (within 24 hours) Warrant of arrest issued under s. 124O(1)(a).

S.

124N The court may:

release R without any further order. direct the Police to issue another PSO. issue a temporary protection order (if the person at risk does not object).

Malaysia Statute

UK

NZ Domestic Violence Act 1995

Domestic Violence 1. Family Act 1996 Act 1994 2. Domestic Violence, Crime And Victims Act 2004 - Prohibition Order (Part II DVA 1994) - Compensation and Counseling (Part III) - Non-Molestation Order (S. 42 FLA 1996 + S. 1 of DVCVA 2004) - Ouster Order/Occupation Order (Ss. 33-41 FLA 1996)

Remedies/ Injunctions

- Protection Order (Part 2 DVA 1995) - Programmes (S. 32 DVA 1995) - Police Safety Order (Part 6A) - Order relating to Properties (Part 3)