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.
Ancillary Relief
The Grenadian Statute in section 15 speaks about the power of the courts to make ancilliary relief on or after making an application for an occupation order. However, the relief available in this statute is not widespread and mainly speaks of granting the use of furniture, household appliances or household effects, or if the applicant is dependent – financial support. It is ambiguous from the facts whether Angela was dependent on Brando. However, the shortfall of this section is that it does not provide compensation for monetary loss.
In the Trinidad and Tobago statute compensation is provided for monetary loss incurred by an applicant as a direct result of the conduct that amounted to domestic violence. The compensation must not exceed $15,ooo and can include compensation for loss of earnings, medical and dental expenses, moving and accommodation expenses and reasonable legal costs including the cost of an applicant under the act. This would be beneficial to Angela since the facts have indicated that she has loss earning because of her inability to work.
Regrettably, the most Angela would get in relief under the Grenadian statute is the use of the furniture and household appliances.
