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Domestic Violence Restraining Order

SECTION 3 (1) (2) (a) - (h) (3) - (5) defines "Domestic Violence" as follows:

"Domestic Violence" in relation to any person means violence against that person ('the victim') committed, directed or undertaken by a person ('the perpetrator') with whom the victim is, or has been, in a family or domestic relationship. In relation to subsection (1), "violence" means any of the following -

  1. physical injury or threatening physical injury;
  2. sexual abuse or threatening sexual abuse;
  3. damaging or threatening to damage property of a victim;
  4. Threatening, Intimidating or harassing;
  5. Persistently behaving in an abusive, cruel, inhumane, degrading, provocative or offensive manner;

A covering memo from the Clerk of the Court should accompany the orders with the application and forwarded to the Senior Officer of the nearest Police Station where the respondent resides/protected person resides.

On the same token the RPO/DPO of the district where the Court is can assist in any Orders from Court to the respective Police Station.

Where service is completed ensure that an affidavit of service is completed by the Police Officer who served the respondent and deliver, posted or fax to the registry of the Court in which the application was filed in time for the hearing of the matter.

Where service is completed ensure that an affidavit of service is completed by the Police Officer who served the respondent and deliver, posted or faxed to the registry of the Court in which the application was filed in time for the hearing of the matter.

THE COURT PROCEDURE

Who can apply?

Section 19 subsections 1-2 of the Domestic Violence Decree highlights this point.

Adult by themselves or by the caregiver.

A child by:

  • a parent or guardian of the child.
  • an adult with whom the child resides.
  • a child himself/herself who has attained the age of 16 yrs and is married.
  • 16 yrs & above and the Court has granted leave for the children to make the application on their own behalf.

Others who can apply?

  • A police officer - where a person has been charged with a domestic violence offence and the victim’s safety or wellbeing is at risk;
  • The Director of Social Welfare or a welfare officer appointed under section 37 (2) of the Juveniles Act (Cap 56);
  • The Public Trustee or another person holding an appointment in respect of the management and care of property and any affairs of a person of unsound mind under section 17 (1) & 23 of the Public Trustee Act Cap 64: and
  • Other person where it appears to the court to be necessary for the safety of wellbeing of the victim.

Application by Police - Phone

Subsection 5 of section 41 states that a Judicial officer’ Magistrate/Judge’ who directs that hearing or part of a hearing may take place by phone may give directions concerning any details or protocols that will apply in relation to how the hearing by phone will proceed.

SERVICE OF ORDERS

The sealed copy of the interim order or final order as required in Section 43 must be provided:

  1. To the applicant and must be personally served on the respondent.
  2. By the Clerk of the Court on the request to a person over the age of 16 yrs who is protected by the order.
  3. By the Clerk of the Court to the Commissioner of Police in accordance with Section 45 of the Decree.

Section 45 is a requirement that Clerk of the Court should forward a copy of the Order to the Commissioner of Police without delay for records purposes.

Breach of Domestic Violence Restraining Order

Under section 77 (1) of Domestic Violence Decree any person who, having notice of domestic violence restraining order by which they were bound, without reasonable excuse contravenes the order or part of the order, is guilty of a criminal offence and is liable for conviction.

Media Release

Keynote Address by Chief Justice Anthony Gates
at the Opening of the Fiji Law Society's Convention
"Fundamentals of Private Practice" 25th September 2015,
Novotel, Suva

Click here to view/download the speech.