Domestic Violence

In the circumstances involving where you have been a victim of domestic violence an emergency Court order may be required for the protection of yourself and your children from future violence. Court order such as Non-Molestation Order, Occupation Order can be applied at the court.
Non-molestation orders are civil court orders which aim to protect the victims of domestic violence from being abused, to stop the abuser from being violent towards the victims, either physically or by threatening and intimidating. It is a type of injunction made under The Family Law Act 1996 to protect named individuals from abuse A breach of a Non-Molestation Order is an arrestable offence and now carries a maximum sentence
of 5 years imprisonment A non-molestation order/ or an Occupation order can only be used against someone that you are associated with in one of the following ways:
You may be an associated person if one of the following applies:

  • By marriage, civil partnership or engaged to be married or were married or were going to enter into a civil partnership and who has been domestically abusive to you.
  • You are or were living with as husband and wife including same sex relationships
  • A family member or relation, and who has been domestically abusive to you..
  • You have bene engaged to someone within the last three years who have been domestically abusive to you.
  • Someone you have a child with or someone who has had parental responsibility for your child who has been domestically abusive to you and/or the child.
  • Someone you have had an intimate relationship with for a significant period of time with someone who has been domestically abusive to you.

For an application for a Non-Molestation or Occupation Order, notice should be given to the other parties in the case. However, if you are in immediate danger, an application can be made to the court on the same day, without the other party beingthere. This is called a Without Notice (also known as ex parte) application. The court
must consider:

  • whether or not you are at risk to you or a relevant child of significant harm;
  • whether you will be prevented or deterred from applying if you have to wait;and
  • or whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay involved…in effecting substituted service

If the court grants a without notice order, the court will usually list the matter for a full hearing once the other side has been served with notice.

An Occupation Order
An Occupation Order controls who can live in a property. It can also restrict the Respondent from entering a certain area. If you do not feel safe living with the Respondent or you have left because of violence or intimidation and want to return without the Respondent being there, the order you would apply for is an Occupation Order.

Enforcing an Occupation Order or a Non-Molestation Order
Breach of a Non-Molestation Order is an arrestable offence under section 42A FLA 1996 and the respondent could be found guilty of a criminal offence.
An Occupation Order may have a power of arrest attached to it. This would allow the police to arrest the respondent if there is reasonable cause to suspect that the Order has been breached.
As of 11th January 2015 protection measures, such as a Non-Molestation Order and Occupation Order, can be recognised and enforced in other Member States of the EU. This is under the Regulation (EU) No.606/2013 of the European Parliament and of the Council on mutual recognition of protection measures in civil matters.

 

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