Family Violence Lecture Notes PDF

Audio file ========== [Your Recording 14.wavTranscript00:00:03Welcome back to.00:00:04The family law module. In this lecture we shall examine the topic of family violence.00:00:13The provisions in.00:00:14Respect of protection against family violence is found in part seven of the Women\'s Charter.0...

Audio file ========== [Your Recording 14.wavTranscript00:00:03Welcome back to.00:00:04The family law module. In this lecture we shall examine the topic of family violence.00:00:13The provisions in.00:00:14Respect of protection against family violence is found in part seven of the Women\'s Charter.00:00:20Now, before I go into the substantive provisions, I just wanted to make a preliminary note here.00:00:26You should know that part seven is in the process of being replaced entirely.00:00:31Pursuant to the Women\'s Charter, family violence and other Matters Amendment Act 2023, which was passed on 4th of July 2023 at the time of the recording of this lecture, the amendments have yet to take effect, so the current Part 7 remains.00:00:49But since the new part seven is likely to come into effect in the very near future, I will also be introducing you to some of.00:00:57The new provisions.00:00:59For purposes of this lecture, the Women\'s Charter provisions as they now stand are referred to as current sections, while the upcoming amended provisions will be referred to as new sections.00:01:14Now this is an outline of what we\'ll be covering in the lecture today. Firstly, very briefly, we will talk about the scope of the application of Part 7.00:01:23Right. Secondly, we will look at.00:01:25Who may be the?00:01:26Complainant or applicant in the application for protection.00:01:30Thirdly, we will then talk about when will relief be granted.00:01:35In this section, we will consider what family violence is, the exceptions, and the necessity for protection order.00:01:43We will then go on to consider the types of orders that may be made.00:01:47And subsequently the consequences of a breach of these orders, we will briefly discuss the circumstances under which a protection order may be rescinded, varied, suspended or revoked.00:01:59And finally, we will also talk about the procedure for the application.00:02:06So who does part 7 apply to right Part 7 applies to all persons in Singapore, including Muslims. Therefore it is not excluded by Section 3, subsection two of the Women\'s Charter.00:02:20This part forms part of a wider spectrum of remedies for the protection of violence, which include other statutory remedies such as the Penal Code, the protection from Harassment Act and the Law of Tots. You can look at this protection as complementary to 1 punitive and deter remedies of.00:02:40Imprisonment and fines under the criminal statutes as well as two financial compensation and damages under the.00:02:48Law of thoughts.00:02:50The purposes of the provisions with respect to family violence is really to maintain balance in protecting the family unit, but at the same time maintaining family harmony.00:03:03So who may be the complainant? In other words, who can access this remedy and apply for a protection order?00:03:12Under the current regime and for this, let\'s look at the left column.00:03:17The statute provides, firstly a family member of the perpetrator. I will expand on this term family member in the next slide.00:03:26Secondly, if the victim is a family member below the age of 21 or is an incapacitated person, then the Guardian or relative or person responsible for the care of the victim may also be the complainant.00:03:40Thirdly, there are situations where a complainant may be below the age of 21 if that individual is or has been married and is either the victim of family violence, the parent of the victim, or a relative of the victim whom the complainant is responsible for the care of.00:04:00In the right column I have put down the new Part 7 right. The statutory provision is drafted a little differently, but the persons who may apply for protection is mostly similar, except again the each limit is reduced from 21 years to 18 years. One other important change.00:04:20Is the introduction of the protector.00:04:23Now the Protector is a statutory office created by the amended Act. I will talk a little bit about the protector in the in the last slide of this lecture, but for now, let\'s focus on the application by individuals for a protection order against family violence.00:04:43Now just to understand who the family member is, what this term means, the family member is a spouse or former spouse of the person.00:04:54A child of the person, including an adopted child and a stepchild, a father or mother of the person, a father-in-law or mother-in-law of the person.00:05:04A sibling of the persons or a brother or sister.00:05:08Or any other relative of the person or an incapacitated person who, in the opinion of the court, should be regarded as a member of the family.00:05:16Of the person.00:05:17In other words, de facto relationships partners as well as boyfriends, girlfriends. They do not come under this definition, and the option of applying for a protection order.00:05:28When did the Women\'s Charter will not be available to these categories of people? They will have to seek relief in other areas, such as the protection from Harassment act.00:05:41When will relief be granted? When will the court make an order for protection?00:05:47It is a two stage process. In the first step.00:05:51The court will have to be satisfied on the balance of probabilities that family violence has been committed or is likely to be committed, as against a family member.00:06:01In the second step, the court will have to be satisfied that it is necessary for the protection of the family member for such.00:06:07An order to be made.00:06:11In the first stage, we must determine whether there has been any act of family violence, whether the act complained of constitutes family violence. Family violence is defined in section 64 of the Women\'s Charter, and it could be one of four acts. So these are set out in the left column of this slide, firstly, willfully or knowingly placing.00:06:31Or attempting to please a family member in fear of hurt. So basically threats of hurt.00:06:37Secondly, causing hurt to a family member by such act, which is known, or ought to have been known, would result.00:06:43In hurt so.00:06:44Actually causing physical hurt. Thirdly, wrongfully confining or restraining a family member against his or her will. So wrongful restraint or finally causing continual harassment with the intent to.00:06:58Cause or knowing it is likely to cause anguish to a family member.00:07:03This definition has been somewhat expanded in the new Part 7, the part seven that has yet to be implemented. So under section 58 B, the new Section 58B family violence is broader, and it includes physical abuse, sexual abuse, and emotional or physical or psychological abuse.00:07:23I have not set up the full definition in this slide because it\'s very long, but I encourage you to refer to the Statute for a better understanding of this new definition in this new definition. Unlike the current section 64, which if you see, requires some intent on the part of the perpetrator to commit.00:07:43Family violence. The new definition focuses on the harm caused to the victim rather than the intention of the perpetrator.00:07:55Insofar as we are talking about physical heart threats of heart or wrongful restraints, now these can be a single act or repeated acts. As for the last limb regarding causing continual harassment, the last limb in section 64 under the current regime, it must be with the intent to cause.00:08:16Knowing that it is likely to cause anguish to a family member, this could be by words or actions. It could be direct or indirectly through third parties, but it has to be sufficiently repetitive causing, or ought reasonably to know it would cause worry, emotional distress, or annoyance. So this case of yuan.00:08:36Talk him and Ellen has described it as a cause of conduct by a person, whether by words or action directly or through third parties sufficiently repetitive in nature as would cause, and which he ought reasonably to know, would cause worry, emotional distress, or annoyance to another person.00:08:58There are exceptions in that family violence does not include any force lawfully used in self-defense or by way of correction towards a child. These exceptions are in both the current part seven and the new Part 7. The only difference between the current and new provisions is that the age of the child.00:09:18Has been reduced from 21 years to 18 years of age.00:09:23On the interpretation of correction towards a child, the family court in the case of TCV on behalf of Child A and TCU had to consider whether the caning by the respondent on the child was lawful correction. The District Judge in this case said that lawful correction must have been for the purpose of teaching.00:09:44Discipline with a measure of good sense and for the benefit of the child. So the court in this case found that the mother had caned the child not for the purposes of discipline but out of frustration and anger.00:10:00After establishing that there was family violence in the first stage, the court must also consider in the second stage whether the protection order is necessary for the protection of the family member.00:10:14These are some of the factors that the court can take into account.00:10:19Whether the complainant continued to live with the respondents after the act of violence, now if your complainant lived together with the respondent for several months after the act of violence, for example, even.00:10:32Sharing a bed.00:10:33And only felt the application as a response to an incident which was unrelated to the family.00:10:39Islands the court may then take the view that while there may have been incidents of family violence in the past, as they found in the first stage, it is not actually necessary to make the protection order, so the application would fail in the second stage.00:10:56On the other hand, if the complainant and respondent are no longer living together and not likely to remain in contact, then there may also not be any necessity for a protection order, but if the couple have children together and still have to maintain regular contact with each other, then a protection order may still be necessary.00:11:18Even if they are not living together.00:11:20Another factor could be what is the original cause of conflict and has this original cause of conflict been resolved to the extent that family violence usually arises from some underlying dispute or issue? If it is clear that the underlying cause has been addressed and there is no longer a risk of family violence, then a protection order.00:11:41Have not been necessary.00:11:44Also, what is the severity of the incident of family violence? Sometimes it may be argued by the respondent that it was a single act of violence, and there is no history of family violence and therefore no necessity for the protection order. But if the single act was very severe, this may affect the courts determination of the necessity of the protection order.00:12:09Sometimes the court may also consider the respondents perspective on violence. If the respondents, for example, does not find it wrong to hit a child when the child cries or is not remorseful, or maybe even even proud of what he has.00:12:22Done.00:12:23Then it would certainly be taken into account by the Court in considering whether.00:12:28The protection order is necessary.00:12:32OK. Moving on to the types of orders that the court can make. Firstly, of course, there\'s the primary remedy, which is the protection order itself to restrain the respondent from committing family violence against their family member. These persons, the perpetrator and the victim are referred to as X&Y respectively.00:12:52In the new part 7.00:12:55The.00:12:55Protection order can also extend to prohibiting the respondent from inciting or assisting any person from committing family violence on a family member.00:13:05The protect the protection order may be indefinite or for a specified period.00:13:12The protection order is usually granted after a trial on the merits, right? So after affidavits and documents have been exchanged and there has been cross examination of the witnesses as well as submissions. But this process takes time. So what if there is a risk of violence pending the application for protection order in such situations?00:13:33Where the court is satisfied that there is a danger of violence pending the application for protection order, the grant, the court may grant an expedited order. This is usually made at the same time that the summons is issued, but there is a statutory expiry of 28 days, though this time period may be extended by the court.00:13:55This expedited order only takes effect at the earliest upon service on the respondent, if not on a later stipulated date.00:14:06Just one point you may want to know in terms of the difference between the current statute and the new Part 7 is that while under the current section 66, subsection 1, the court may grant an expedited order when there is an incident where there is imminent danger of family violence being committed. This word imminent has been removed in the news.00:14:2661, subsection 2 but practically speaking, it is unlikely to affect the the substantive considerations of whether the court should issue.00:14:36And expedited order.00:14:41Another type of order that the court can make is a domestic exclusion order or ADEO for short. In a way, it is quite drastic as it is an order to exclude the perpetrator from the home of the victim, and it grants the victim the right to exclusive occupation of the home. This order may be made regardless of who has legal title or interest in the home.00:15:04For example, if a husband and wife are living together and they jointly own the matrimonial home, but if a DO is granted against the husband, he would be excluded from living in or coming to his home.00:15:19The option of DEO is available both under the current part seven and the new Part 7, but there are additional provisions, including that under the new Section 60B, subsection 3, the Defeo may be made on the court initiative as well and under the new section.00:15:3961 AADO may also be made together with the expedited order.00:15:49OK. We have discussed protection order, expedited orders and domestic exclusion orders in addition to all of this, the Court can also make a counselling order. The court may refer the perpetrator or the victim or both of them or their children to attend counselling at a prescribed agency. In such a case, the agency.00:16:10Will contact the parties to make the counselling arrangements after the order has been made under the new section 60 E in addition to counseling, the court may also direct these individuals to attend other programs that are available, like parenting programs, caregiver training, family therapy.00:16:31Etc.00:16:33The new laws also clarify that the counselling order may be for a specified period, but cannot be longer than 36 months. It also states that the counselling order does not cease if the protection order is revoked or expired. This is unlike the current laws where the counseling order.00:16:53You also sees if the protection order seizes.00:16:57Parliament\'s intention for this amendment is to ensure that the necessary interventions can be completed to ensure that the root cause of family violence is at rest and to avoid recurrence of family violence against current or future family members.00:17:18We have touched on the type of orders that can be made under the current statutory regime in the next few slides. I\'m going to briefly mention some new types of orders that would be available once the new part seven is implemented.00:17:33Firstly, there is the option of a stay away order or a no contact order. Stay away. Order basically prohibits the perpetrator from entering and remaining in an area outside the victim\'s home or any other place frequented by the victim.00:17:49A no contact order, as the name suggests, prohibits the perpetrator from visiting or communicating with the victim.00:17:57Under the new section 61, a subsection 2, these orders may also be made together with the expedited order, in other words, before a full trial of the matter.00:18:11Another new type of order is the mandatory treatment order. Under the new section 60F. This mandatory treatment order requires the perpetrator to undergo psychiatric treatment for a specified period, but no longer than 36 months.00:18:27The grounds for making a mandatory treatment order are, however, quite stringent. It takes place in two steps. Firstly, the Court must have reasonable grounds to believe that one the perpetrator is suffering from a psychiatric condition and two, the psychiatric condition is likely to be the contributing factor.00:18:48For the perpetrators, conduct or behavior that was the basis for making the protection order against him or her in determining whether there are such reasonable grounds, the court may call for a specified psychiatrist to provide a preliminary assessment report to assisted in its considerations.00:19:09If the Court considers that such reasonable grounds exist, then in the next step, the Court must call for a formal assessment report by the appointed psychiatrist.00:19:21A mandatory treatment order can only be made if the formal assessment report satisfies that certifies these methods so that the perpetrator is suffering from a psychiatric condition. That this condition is a contributing factor to his conduct or behaviour. The psychiatric condition is.00:19:40This susceptible to treatment and also that the perpetrator himself or herself is suitable for such treatment.00:19:53There is also a new order known as the electronic Monitoring order, but this order cannot be applied for by the victims themselves. It can only be applied for by the protector. Electronic monitoring could refer to E tagging through which the authorities can be alerted if, for example.00:20:13A perpetrator with a domestic exclusion order made against him or her enters the victim\'s home so action can be taken quickly by the authorities.00:20:23Parliament has made it clear that electronic monitoring is intended only for high risk perpetrators and only protectors may apply for it after an assessment is made on the circumstances of the case. It is therefore for exceptional cases only.00:20:42Perhaps the most drastic order that has been introduced with the new part seven is the removal order. The removal order requires a protector to remove the victim from the victims own home. If the court is satisfied that it is necessary for his or her protection again, it can only be applied for.00:21:02Their protector, and not by the victims themselves.00:21:06It is a last resort when all other interventions fail.00:21:11So I mean the removal order must also be accompanied by a care order where the victim is committed to the care of a fit person, like a crisis shelter as well as a supervision order where the victim is placed under the supervision of a protector or another court appointed person.00:21:30In addition, optionally it may be accompanied by an order prohibiting the victim from returning to his or her home, or an order prohibiting him or her from visiting or communicating.00:21:40With the perpetrator.00:21:45I\'ve just covered.00:21:46The types of orders that can be made in the protection against family violence. Now let\'s take a look at the consequences of a breach of these orders.00:21:55Under the current section 65, subsection 8, any person who willfully contravenes a protection order, domestic exclusion order, or an expedited order is guilty of an offence.00:22:10The penalty of the offence, the penalty for the offence is in respect of the first conviction, a fine not exceeding 5000 or to imprisonment for a term not exceeding 12 months or to both.00:22:23For a second or subsequent convictions, the penalty may be a fine not exceeding 8000 or imprisonment for a fine not exceeding 18 months, or both.00:22:34There are some changes in the new statutory provisions and these are set out in the second bullet point. I will leave you to read it on your own.00:22:50The standard of proof to show breach is, of course the criminal standard, which is proof beyond reasonable doubt.00:23:02The law also makes it clear that a family violent offence is an arrestable offence under the Criminal Procedure Code.00:23:11One last point, under the new part seven, there is a new division seven which relates to a new appointment known as enforcement officers. Now I will not delve into this too much, but you may want to know that these enforcement officers are appointed by the Director General and they have powers to detect.00:23:30And investigate any family violence offenses.00:23:37I earlier mentioned the possibility of a counselling order in the event of a breach of a counselling order under the current regime, it will likely be punishable as contempt of court.00:23:50Under the new section 60 E, subsection 8, if the perpetrator contravenes a counseling order without reasonable excuse, he or she would be committing an offence and would be liable on conviction to a fine not exceeding \$2000.00. But this is applicable only to the perpetrator and not to the victim.00:24:09Or any child of the perpetrator and victim.00:24:12Likewise for a mandatory treatment order, there are also consequences for breach.00:24:23The court has the.00:24:24Power to vary, suspend or revoke the orders made under section.00:24:30Under part seven of the women\'s.00:24:31Charter.00:24:32The statutory provisions that provide for this power of the court is set out in this side.00:24:40What about the factors to consider in rescinding varying or revoking these orders?00:24:45Now we\'re a protection order is concerned if there have been no changes in circumstances or the factual situation that existed between the time that the order was made and the time that the application was made, then the application by the perpetrator to revoke the order should be dismissed.00:25:04But even if circumstances have changed, the Court must also be satisfied that it is no longer necessary for the order to continue.00:25:14In considering whether there are, there is necessity for the order to continue factors that should be considered are similar to the factors in granting a protection order. In other words, things like degree of contact between parties, amount of time that has passed since the last incident of family violence.00:25:34Nature of family violence that led to the Protection Orders, the severity of it, and all that incidents of family violence after the protection order had been granted.00:25:46Let\'s come now to the procedure for the application for protection order.00:25:51Section 79, subsection 4 provides that an application under Part 7 must be made in the same manner as an application for a summons is made to a District Court or Magistrates Court under the Criminal Procedure Code, and it is to be dealt with in accordance with the provisions of the code as may be prescribed.00:26:12By the family justice.00:26:13Rules.00:26:14Protection order proceedings are described as quasi criminal proceedings in the rules. So how is the application commenced? It is not like the other matrimonial proceedings we have seen so far where the application is commenced by read or originating application, or an interlocutory summons under an existing divorce.00:26:35Instead, it is done by filing a written complaint with the registry in a prescribed form. It is done online via the integrated Family Application management system, or IFMS, so not litigation.00:26:50And the application the applicant will also have to visit the Family Protection Center at the family justice courts to complete the application. Alternatively, he or she may also attend at any protection specialist centers or pave integrated services for individual and family protection specialist.00:27:10Centers.00:27:12If the applicant is not able to submit the application online, he or she may also do so in person at the centres I earlier mentioned.00:27:21FPC PSE, or pay if ISIS FPSC.00:27:28The application for protection is made by a prescribed form, which includes particulars of the parties particulars of the family violence, including the latest incident and past incidents of family violence. It would help to also include documents which the applicant may have, such as a police report or medical reports.00:27:48As well as photographs, example of the injuries suffered by the victim.00:27:53There will then be a meeting with the Court family specialist or a social worker. The Court family specialist or social worker will provide the applicant with information on the personal Protection order application cover issues with regard to safety. They will assess the needs of the family as well as the needs of.00:28:11The victim.00:28:13The counselor may also make necessary referrals to the appropriate community and support agencies.00:28:21After the meeting with the counselor, the applicant is then brought before a duty judge to affirm or swear on the complaint. The duty judge may dismiss the application if it is not founded on merits, or the judge may issue a summons to compel the respondents. Attendance at this stage, the judge may also issue an expedited.00:28:40Order if he or she assesses there is imminent danger of family violence to the applicant.00:28:48After the summit is issued, it needs to be served. The service methods are as provided in the criminal procedure code and it includes personal service or, if this is not possible, then it may be left with some adult member of the respondents family residing with him or with his employee and his business addressed, or be affixed on a conspicuous.00:29:09Please.00:29:10The service is.00:29:11Usually carried out by the court server.00:29:14The summons will state the first mention date and both the complainant and the respondent must attend at this mention. If the complainant is absent, the application may be struck off.00:29:26If the respondent is absent, a warrant for his arrest can be issued.00:29:31Now, at the first mention, the parties will be asked for their respective positions.00:29:36The complainant would have the option of withdrawing the application if he wishes and the respondent may also admit to the contents of the complaint and an order may be made without trial.00:29:50This is a list of some of the matters that we that will generally be dealt with at the mentioned stage, and these would include pre trial matters such as the exchange of affidavits of the parties and witnesses if there are any applications to strike out whole or part of the affidavit that have been exchanged, there will be a consideration of the number as well as identity of the witnesses.00:30:14Whether there\'s any need for discovery of documents, expert reports and any challenges to these reports.00:30:21Whether there are any related proceedings pending in any other court, including the Sharia court.00:30:27And also they would.00:30:28Give trial dates if the matter is to proceed to a contested hearing.00:30:35Me.00:30:35Please doubt that trial can include a consideration of whether the hearing should be in camera, whether or not, and what sequence of witnesses would be called. The usual rule would be for the complainant to go first and then the complainants witnesses, then the respondent and the respondents witnesses.00:30:54When it comes to evidence, do note that disputed incidents taking place after an application is filed will not be considered by the court. For this, you may wish to take a look at the case of Ting Cheng Sin. In this case, the High Court hearing an appeal from a decision below held that the District Judge should not have admitted.00:31:14Evidence by the complainant of a disputed incident that had taken place 2 1/2 months after the application was made.00:31:24With regard to evidence of children, the case of Q and QV has cautioned us to proceed with care. Evidence must not be accepted at face value without some measure of corroboration. The rationale for this rule is that children at times find it difficult to distinguish between reality and fantasy.00:31:47Finally, under Rule 99, A of the family justice rules, the court can hear an application for protection order in the absence of the respondent and make such orders as it deems fit.00:32:02Before I come to the end of the lecture, I thought I\'ll touch on this new role of the protector. I earlier mentioned that this is a new statutory office created by the amendments to the Women\'s Charter. By now, we already know that the protector has the power to apply for a protection order on behalf of victims.00:32:22The Protector also has some other powers.00:32:25And this slide summarizes them they include.00:32:30To assess the victim for risks or family violence.00:32:35To enter the.00:32:36Victim\'s premises for purposes of this assessment.00:32:39To obtain information and examine records held by third parties about whether the victim is experiencing family violence and even to make emergency orders to restrain the perpetrator from committing family violence if the protector is of the view that there is imminent danger.00:32:58You are encouraged to review the amendments for a better understanding of how these powers work.00:33:06We have come to the end of this.00:33:07Lecture. Keep reading.](https://1drv.ms/u/s!AGaPTZsZg5MLiZp4) \#separator:tab \#html:false Who may be the complainant for family violence? Under the current s65(2) Individuals below {{c1::21 years}} of age who are married may apply if they are responsible for their {{c1::child}} or a relative below {{c1::21}}. Under the new Part 7 s60 (3) A person who is below {{c2::18 years}} of age may not apply for a protection order under subsection (2) unless the person is married or was previously married A wilful contravention of family violence orders occurs when a person intentionally violates a {{c1::Protection Order}}, {{c1::Domestic Exclusion Order}}, or {{c1::Exclusion Order}}. The eligibility criterion for complainants under the age of 21 allows {{c1::guardians}} or responsible individuals to file complaints for {{c2::family members}}, or those married or with children. The different types of abuse recognized under family violence under s64 WC include {{c1::Physical}}, {{c2::sexual}}, {{c2::emotional}}, and {{c2::psychological}} abuse. -- family violence does not include any force lawfully used in (i) {{c3::self-defence}}, or (ii) by way of {{c3::correction towards a child below 21 years of age}}; Types of orders the court may make where there is family violence under s64 to 67 of WC: The amendment introduces {{c1::expedited orders}}, {{c2::personal protection orders}}, {{c2::exclusion orders}}, and {{c2::counselling orders}}.