Domestic Violence (Protection Orders) Act 1997

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/1997/Acts/Domestic%20Violence%20%28Protection%20Orders%29%20Act%201997.pdf

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now
Domestic Violence (Protection Orders) Act 1997
DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

1

BERMUDA
1997 : 1

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

[Date of Assent 23 February 1997]

[Operative Date 3 October 1997]

ARRANGEMENT OF SECTIONS

1 Short title
2 Interpretation
3 Meaning of "domestic

violence"
4 Meaning of "domestic

relationship"
5 Object of this Act
6 Application for a

protection order
7 Applications by minors
8 Applications by persons

lacking capacity
9 Applications by certain

other persons
10 Procedure on an

application
11 Power to make protection

order

12 Content of protection
order

13 Matters to be taken into
account

14 Notice to respondent
15 Power of arrest
16 Temporary order
17 Explanation to

respondent
18 Criminal proceedings
19 Duration of protection

order
20 Duration of temporary

order
21 Protection of respondent

in certain cases
22 Variation and revocation

of protection orders

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

2

23 Offence
24 Prosecution
25 Evidence
26 Bail
27 Power to enter premises

28 Other enactments
29 Restriction on publicity
30 Appeal
31 Ownership of property
32 Commencement

WHEREAS it is expedient to provide greater protection from
domestic violence:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

Short title
1 This Act may be cited as the Domestic Violence (Protection
Orders) Act 1997.

Interpretation
2 In this Act,—

"applicant" means—

(a) a person who applies for a protection order under this
Act; or

(b) a person on whose behalf an application for such an
order is made under section 7, 8 or 9;

"child" means a person under the age of 18 years;

"children's officer" means a children's officer under the
Protection of Children Act 1943;

"clerk" means clerk to the court;

"court" means—

(a) in sections 26, 28 and 29, any competent court;

(b) otherwise, a court of summary jurisdiction;

"domestic relationship" means one of the relationships described
in section 4;

"domestic violence" and "violence" have the meanings given in
section 3;

"family member", in relation to a person, means—

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

3

(a) another person who is related to him by blood, marriage
or adoption;

(b) in the case of partners who are not married, another
person who would be a family member of his under
paragraph (a) if the partners were, or were able to be,
married to each other;

"to harass" a person means—

(a) to follow him about from place to place; or

(b) to watch or beset his place of residence, work or
education, or the place where he happens to be, or the
approaches to any such place; or

(c) to intimidate him by—

(i) persistently abusing him verbally; or

(ii) making persistent telephone calls to him; or

(iii) threatening him with physical harm; or

(iv) maliciously damaging his property; or

(v) any other means;

"partner", in relation to a person, means—

(a) another person to whom he is married; or

(b) another person with whom he lives in a relationship in
the nature of marriage; or

(c) another person with whom he has a biological child in
common;

"prescribed form" means form prescribed by rules of court;

"protected person", in relation to a respondent, means a person
with whom the respondent is or has been in a domestic
relationship;

"protection order" means an order made under section 11,
including a temporary order;

"representative"—

(a) in relation to a child, means a person appointed
pursuant to rules of court to act under sections 6(2) and
7(2) on the child's behalf;

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

4

(b) in relation to a person to whom section 8 applies, means
a person appointed pursuant to rules of court to act
under sections 6(3) and 8(2) on the first-mentioned
person's behalf;

(c) in relation to a person to whom section 9 applies, means
a person appointed under that section to act under
sections 6(3) and 9 on the first-mentioned person's
behalf;

"respondent" means a person in respect of whom a protection
order, or an application for such an order, has been made;

"temporary order" means a protection order of a kind described
in section 16.

Meaning of "domestic violence"
3 (1) In this Act, "domestic violence" means violence by one
person against another person with whom that first-mentioned person is,
or has been, in a domestic relationship.

(2) In this Act, "violence" means—

(a) physical abuse; or

(b) sexual abuse; or

(c) psychological abuse including, but not limited to—

(i) harassment; or

(ii) in relation to a child, abuse of the kind set out
in subsection (4); or

(d) threats of abuse of a kind specified in paragraphs (a) to
(c).

(3) Without prejudice to the generality of subsection (2)—

(a) a single act may amount to abuse for the purposes of
that subsection;

(b) a number of acts that form part of a pattern of conduct
may amount to abuse for those purposes even though
some or all of those acts, when viewed in isolation, may
appear to be minor or trivial.

(4) Without prejudice to the generality of subsection (2), a
person abuses a child psychologically if he—

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

5

(a) causes or allows the child to see or hear the physical,
sexual or psychological abuse of a person with whom the
child has a domestic relationship; or

(b) puts the child, or allows the child to be put, at real risk
of seeing or hearing that abuse occurring;

but a person who suffers such abuse has not, for the purposes of this
subsection, caused or allowed the child to see or hear the abuse, or, as
the case may be, put the child, or allowed the child to be put, at risk of
seeing or hearing the abuse.

(5) Conduct may amount to psychological abuse for the
purposes of subsection (2)(c) even though it does not involve actual
physical or sexual abuse or threats of physical or sexual abuse.

Meaning of "domestic relationship"
4 (1) For the purposes of this Act, a person is in a domestic
relationship with another person if—

(a) he is a partner of that other person; or

(b) he is a family member of that other person; or

(c) he ordinarily shares a household with that other person;
or

(d) a court determines that he has a close personal
relationship with that other person.

(2) For the purposes of subsection (1)(c), a person does not
share a household with another person by reason only of the fact that—

(a) he has—

(i) a landlord-tenant relationship; or

(ii) an employer-employee relationship; or

(iii) an employee-employee relationship—

with that other person; and

(b) they occupy a common place of residence (whether or
not other people also occupy that place of residence).

(3) For the purposes of subsection (1)(d), a person does not
have a close personal relationship with another person by reason only of
the fact that he has—

(a) an employer-employee relationship; or

(b) an employee-employee relationship—

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

6

with that other person.

(4) Without prejudice to the generality of the matters to which a
court may have regard in determining, for the purposes of subsection
(1)(d), whether a person has a close personal relationship with another
person, the court must have regard to—

(a) the nature and intensity of the relationship and, in
particular—

(i) the amount of time the persons spend together;
and

(ii) the place or places where that time is ordinarily
spent; and

(iii) the manner in which that time is ordinarily
spent; and

(b) the duration of the relationship;

but it is not necessary for there to be a sexual relationship between the
persons in question.

Object of this Act
5 (1) The object of this Act is, as far as possible, to prevent
domestic violence by making effective legal protection available for
persons who have suffered such violence or are threatened by it.

(2) A person who exercises a power conferred upon him by or
under this Act must be guided in the exercise of that power by the above-
stated object of this Act.

Application for a protection order
6 (1) A person who is or has been in a domestic relationship with
another person may apply to the court in the prescribed form for a
protection order in respect of that person.

(2) Where the person who is eligible to apply for a protection
order is a child, the application must be made by a representative in
accordance with section 7.

(3) Where the person who is eligible to apply for a protection
order is not a child but is a person in relation to whom section 8 or 9
applies, the application must be made by a representative in accordance
with whichever of those sections applies.

(4) In addition to the persons mentioned in subsections (1) to
(3), the following may make an application for a protection order—

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

7

(a) the Commissioner of Police;

(b) a children's officer;

(c) with the leave of the court, any other person whom the
court considers to have a sufficient interest, having
regard to the special circumstances of the case.

Applications by minors
7 (1) Subject to subsections (2) and (4), a minor may make an
application for a protection order under this Act.

(2) A child must make the application by a representative in
the prescribed form.

(3) Subsection (2) does not prevent a child on whose behalf an
application for a protection order is made by a representative from being
heard in the proceedings; and where the child expresses views on the
need for or the outcome of the proceedings, the court must take account
of those views to the extent that it thinks fit, having regard to the age
and maturity of the child.

(4) Subject to section 8, a minor who—

(a) is or has been married or has attained the age of 18
years; and

(b) wishes to apply for a protection order—

must make the application on his own behalf, without a next friend or
guardian ad litem; and orders may be made on the application, and
enforced, as if he were of full age.

Applications by persons lacking capacity
8 (1) This section applies to any person, including a minor, (not
being a child) who—

(a) lacks, wholly or partly, the capacity to understand the
nature, and to foresee the consequences, of decisions in
respect of matters relating to his personal care and
welfare; or

(b) has that capacity, but wholly lacks the capacity to
communicate decisions in respect of such matters.

(2) Where a person to whom this section applies is eligible to
apply for a protection order, the application must be made on his behalf
by a representative in the prescribed form.

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

8

Applications by certain other persons
9 (1) This section applies where—

(a) a person other than a child or a person to whom section
8 applies is eligible to apply for a protection order; and

(b) that person is unable, whether by reason of physical
incapacity or fear of harm or other sufficient cause, to
make the application personally.

(2) Where this section applies, the court may, on an application
made by an adult person who is not under disability, appoint an adult
person to be a representative of another person for the purpose of
making and prosecuting, on behalf of that other person, an application
for a protection order.

(3) Where an application for the appointment of a
representative is made under subsection (2), the court must make the
appointment if it is satisfied—

(a) that reasonable steps have been taken to ascertain the
wishes of the person to whom the application relates in
relation to the matter; and

(b) where his wishes have been able to be ascertained—

(i) that he does not object to the appointment; or

(ii) if he objects, that his objection is not freely
made; and

(c) that it is in his best interests that the appointment
should be made; and

(d) that the proposed representative—

(i) has consented in writing to the appointment;
and

(ii) is not under a disability; and

(e) that there is unlikely to be a conflict between the
interests of the proposed representative and the interests
of the person to whom the application relates.

(4) The fact that an application for a protection order is made
on a person's behalf by a representative appointed under this section
does not prevent that first-mentioned person from being heard in the
proceedings.

(5) Without prejudice to the generality of paragraph (b) of
subsection (3), where—

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

9

(a) a representative appointed under this section applies on
another person's behalf for a protection order; and

(b) at any time before the application is determined, the
other person objects to the continuation of the
proceedings,

then, unless the court is satisfied that the objection is not freely made,
no further steps may be taken in the proceedings.

Procedure on an application
10 (1) Subject to sections 9 and 16, where an application for a
protection order has been made, the court shall issue a summons in the
prescribed form summoning the respondent to a hearing.

(2) The summons, together with a copy of the application, must
be served on the respondent personally.

Power to make protection order
11 (1) The court may make a protection order if it is satisfied
that—

(a) the respondent is using, or has used, domestic violence
against a protected person; and

(b) the making of the order is necessary for the protection of
such a person.

(2) Without prejudice to the generality of section 3(3)(b), or the
matters that the court may consider in determining, for the purposes of
subsection (1)(b) of this section, whether the making of a protection order
is necessary for the protection of a protected person, where some or all of
the conduct in respect of which the application is made appears to be
minor or trivial, the court must nevertheless consider whether the
conduct forms part of a pattern of conduct in respect of which a
protected person needs protection.

(3) For the avoidance of doubt, an order may be made under
subsection (1) where the need for protection arises from the risk of
domestic violence of a different type from the conduct found to have
occurred for the purposes of paragraph (a) of that subsection.

Content of protection order
12 (1) A protection order may, subject to this Act, make provision
as specified in subsections (2) to (4).

(2) A protection order may prohibit the respondent—

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

10

(a) from using violence against a protected person, but so
that the order identifies the kind or kinds of violence in
terms of the definition of "violence" in subsection (2) of
section 3; or

(b) from entering or remaining in the place of residence of a
protected person; or

(c) from entering or remaining in an area specified in the
order, being an area in which the place of residence of a
protected person is located; or

(d) from entering the place of work or education of a
protected person; or

(e) from entering or remaining in a particular place; or

(f) from harassing a protected person.

(3) A protection order may also—

(a) require the respondent to—

(i) allow a protected person to enter and remain on
premises specified in the order; or

(ii) leave premises specified in the order; or

(iii) continue any legal or other obligation the
respondent may have to make payments in
respect of rent or a mortgage or public utilities
or taxes, being payments for the benefit of
premises which the respondent has been so
required to leave; or

(iv) make to, or on behalf of, a protected person
payments in respect of that person's need for
food, housing or medical, psychological or other
care, being a need directly arising from the
domestic violence;

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

(4) A protection order may also include a provision—

(a) prohibiting the respondent from taking possession of
personal property of either the applicant or the
respondent, being property that is reasonably needed by
a protected person; or

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

11

(b) directing the respondent to give to a particular person
possession of so much of the property of either the
applicant or the respondent as is specified in the order;
or

(c) prohibiting the respondent from damaging property of a
protected person or the respondent; or

(d) prohibiting the respondent from causing another person
to engage in conduct described in paragraph (a) or (c).

Matters to be taken into account
13 (1) In considering an application for a protection order, the
court shall have regard to—

(a) the need to ensure that persons are protected from
domestic violence; and

(b) the welfare of any child who is a protected person; and

(c) the accommodation needs of a protected person; and

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

(e) any other matter that in the circumstances of the case
the court considers relevant.

(2) In considering whether to include in a protection order a
requirement or condition mentioned in subsection (3), or a provision
mentioned in subsection (4), of section 12, the court shall take into
account the property, income and financial resources, and the financial
obligations, of the applicant and the respondent.

(3) Of the matters specified in subsection (1) of this section, the
court shall give the greatest weight to those specified in paragraphs (a)
and (b).

Notice to respondent
14 (1) Subject to this Act, the court shall not make a protection
order unless the respondent—

(a) has had actual notice in the prescribed form of the
application for the order; and

(b) has been given the opportunity to oppose, or otherwise
make representations in relation to, the making of the
order.

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

12

(2) Where a protection order is made or varied by the court, the
clerk shall forthwith—

(a) arrange for an order in the prescribed form to be
formally drawn up and filed in the court; and

(b) cause—

(i) a copy of the order to be served on the
respondent; and

(ii) copies also to be sent to—

(aa) the Commissioner of Police; and

(bb) any other party to the proceedings.

Power of arrest
15 (1) The court may attach a power of arrest to a protection order
if it is satisfied that the respondent—

(a) in the past caused actual bodily harm, or threatened to
cause bodily harm, to the applicant or a child of the
applicant; and

(b) is likely in the future to cause bodily harm to the
applicant or a child of the applicant.

(2) Where a power of arrest is attached to a protection order, a
police officer may arrest without warrant a person who he has
reasonable cause to suspect is in breach of the order.

(3) Where a person is arrested without a warrant in reliance on
subsection (2)—

(a) he shall be brought before the court within the period of
48 hours beginning at the time of his arrest, or as soon
as reasonably practicable thereafter, to be dealt with
under section 23; and

(b) he shall not be released within that period except on the
direction of the court,

but nothing in this section authorises his detention at any time after the
expiry of that period.

Temporary order
16 (1) The court may make a protection order without subsection
(1) of section 14 having been complied with if the court is satisfied that
undue hardship, or the risk of harm, would be caused to a protected
person otherwise.

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

13

(2) A protection order made by virtue of subsection (1) of this
section is in this Act referred to as a temporary order; and a person in
respect of whom an application for a protection order is made under this
Act is a respondent to the application for the purposes of this Act even
though a temporary order is made on the application and he may have
had no prior knowledge of the making of the application.

(3) Without prejudice to the generality of subsection (1), a
court, in considering whether to make a temporary order must have
evidence—

(a) that the respondent's conduct complained of by the
applicant for the order is serious; and

(b) that a protected person is in fear of a repetition of that
conduct; and

(c) that further such conduct is likely to be directed to a
protected person.

Explanation to respondent
17 Where the court proposes to make a protection order and the
respondent is before the court, the court shall before making the order
explain to him in language that he understands—

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

(b) the consequences if he should fail to comply with it; and

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

Criminal proceedings
18 The court may make a protection order in respect of a person
notwithstanding that he has been charged with an offence arising out of
the same conduct as that out of which the application for the protection
order arose.

Duration of protection order
19 (1) Subject to section 20, a protection order remains in force for
such period, not exceeding 12 months, as the court specifies in the
order.

(2) Where a protection order contains a number of
requirements or prohibitions, the court may specify in the order different
periods, being periods none of which exceeds 12 months, as the periods
for which the several requirements or prohibitions are to remain in force.

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

14

Duration of temporary order
20 (1) A temporary order remains in force for such period, not
exceeding 28 days, as the court specifies in the order.

(2) Notwithstanding subsection (1), where—

(a) the court adjourns the hearing of an application for a
protection order; and

(b) a temporary order is in force,

the court may extend the period for which the temporary order is to
remain in force until the date fixed for the further hearing of the
application.

(3) Subject to subsections (1) and (2), where a temporary order
has been made on an application for a protection order, the temporary
order ceases to be in force—

(a) in the case where the respondent is present when a
protection order is made, when the latter order is made;

(b) in the case where the respondent is not so present, when
the protection order is served on him;

(c) when the application is dismissed.

Protection of respondent in certain circumstances
21 (1) Where an agreement, including a mortgage or a lease of
premises, provides that, if a respondent ceases to reside in his place of
residence, a person (an "affected person") may take action that would be
prejudicial to the interests of the respondent or a protected person, the
affected person is not entitled to take that action if the respondent ceases
to reside in his place of residence in obedience to a protection order.

(2) Where the court is satisfied that an agreement referred to in
subsection (1) exists in relation to a respondent, the court shall at the
time of making a protection order direct the clerk to send a notice in the
prescribed form to the affected person.

Variation and revocation of protection orders
22 (1) Where a protection order is in force, a party to the
proceedings in which the order was made may make application to the
court in the prescribed form for the order to be varied or revoked.

(2) On an application under subsection (1), the court may vary
or revoke the order.

(3) The clerk shall cause a copy of an application under
subsection (1) to be served on each person, other than the party making

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

15

the application, who was a party to the proceedings in which the original
order was made.

(4) In considering whether to vary or revoke a protection order
under subsection (2), the court shall have regard to the matters specified
in section 13.

(5) A protection order shall not be varied without the
respondent being given the opportunity to oppose, or otherwise make
representations in relation to, the variation.

Offence
23 Where a protection order is made or varied and—

(a) the respondent was present when the relevant order was
made; or

(b) the respondent was not present at that time but a copy
of the order has been served on him,

he is guilty of an offence if he contravenes the order, and liable on
summary conviction to a fine not exceeding $5,000 or to imprisonment
for a term not exceeding 12 months or to both.

Prosecution
24 (1) The applicant for a protection order (including a person who
applied under subsection (4) of section 6) may institute a prosecution
under section 23 to enforce the order.

(2) Where such a prosecution is instituted against a person,
the summons shall require him to appear to answer the information at a
time not later than 72 hours after the time at which the summons is
issued.

(3) Service of the summons referred to in subsection (2) shall
be effected not later than 24 hours before the time appointed in the
summons for the hearing of the information.

Evidence
25 Notwithstanding any other law to the contrary, in any hearing of
an application for a protection order made by a children's officer under
paragraph (b) of section 6(4) in the interests of a child, the spouse of the
person in respect of whom the order is sought is a compellable witness.

Bail
26 (1) The following provisions of this section have effect,
notwithstanding any law to the contrary, in relation to the grant of bail in
respect of an offence against section 23.

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

16

(2) Matters that the court must take into account are—

(a) the need to ensure that persons at risk are protected
from violence; and

(b) where the respondent or a victim of the alleged offence
has custody of a child, the welfare of the child; and

(c) any hardship that may be caused to the respondent or a
protected person if bail is not granted or if, where bail is
granted, a particular condition is imposed.

(3) The court may grant bail on such terms and conditions as it
thinks fit.

(4) Where a person contravenes a condition attached to bail
that has been granted to him, the bail is forfeit and he may be re-
arrested.

Power to enter premises
27 A police officer may without warrant enter any premises for the
purpose of giving assistance to any one present on the premises if he has
reasonable grounds to suspect that a protection order is being
contravened.

Other enactments
28 (1) Subject to this section, nothing in this Act restricts or limits
any jurisdiction that any court has under any other enactment
regulating matrimonial, family or domestic disputes.

(2) So long as—

(a) there is in force under section 9A of the Matrimonial
Proceedings (Magistrates' Courts) Act 1974 ("the 1974
Act") an order made in proceedings under that section
on the application of a complainant; or

(b) an application has been made by a complainant in such
proceedings for such an order and has not been
withdrawn or otherwise finally disposed of,

an application cannot be made by him or on his behalf under section 6
or 7 or 8 or 9 of this Act in respect of the defendant in those proceedings.

(3) Where—

(a) there is in force a protection order made under this Act
in respect of a person as respondent; or

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

17

(b) an application has been made under this Act for such an
order in respect of a person as respondent but has not
been withdrawn or otherwise finally disposed of,

the applicant at whose instance the order was made, or by or on behalf
of whom the application was made, cannot make an application in
proceedings under section 9A of the 1974 Act for an order under that
section in respect of that same person as defendant in those
proceedings.

Restriction on publicity
29 (1) It is an offence for a person to publish in a newspaper, or to
disseminate by broadcast or otherwise to the public, the identity of a
party to any court proceedings relating to a protection order, or any
information from which the identity of such a party may readily be
ascertained.

(2) A person guilty of an offence against subsection (1) is liable
on summary conviction to a fine not exceeding $5,000 or to
imprisonment for a term not exceeding 12 months or to both.

(3) Except with the leave of the court, a person other than—

(a) a party to court proceedings relating to a protection
order; or

(b) a person otherwise directly concerned in those
proceedings; or

(c) counsel; or

(d) a children's officer,

shall not be present at those proceedings.

Appeal
30 (1) Subject to subsection (3), a person aggrieved by a decision
of a court in proceedings under this Act (not being proceedings under, or
in respect of an offence against, section 23 or subsection (1) of section
29) may appeal to the Supreme Court against the decision.

(2) For the purposes of—

(a) enforcing an order made by the Supreme Court on an
appeal under subsection (1) of this section; or

(b) varying or revoking under section 22 an order made by
that Court on such an appeal,

DOMESTIC VIOLENCE (PROTECTION ORDERS) ACT 1997

18

such an order is deemed to be an order of the court from which the
appeal was brought to the Supreme Court, and not the Supreme Court
itself.

(3) An appeal does not lie by virtue of subsection (1) of this
section from—

(a) the making, variation or revocation of a temporary order;
or

(b) the refusal of the court to make a temporary order.

Ownership of property
31 Nothing in this Act alters any right that a spouse may have to
ownership of property.

Commencement
32 This Act comes into operation on such day as the Minister
responsible for Legislative Affairs may appoint by notice published in the
Gazette.