Types Of Orders
There are two types of orders available under the Act:
• Non-Molestation Orders; and
• Occupation Orders
Both may be useful in cases of domestic violence. Each type of order is available to different groups of people.
A non-molestation order is used to stop someone (called “the respondent”) from:
• Using or threatening violence against another person (called “the applicant”).
• Using or threatening violence to a child.
• Molesting a person in any way.
Molesting Can Include:
Behaviour that harms, troubles, vexes, annoys or inconveniences an associated person or any relevant children.
Molestation Can Be Direct And Includes A Range Of Behaviour, Such As:
• Physical harm.
• Verbal abuse or threats.
• Pestering another person.
Molestation Can Also Be Committed Indirectly, Including:
• In writing or through social media.
• Through a third party.
• Persistent abusive text message, phone calls or messages on social media.
Molesting can also include pushing, punching, slapping, hair pulling, throwing objects and spitting.
A non-molestation order can also be used to keep a person away from a particular place such as the area around a home or a workplace.
For An Application To Be Successful There Must Be Evidence:
• Of the behaviour complained of.
• That the applicant or a child are in need of protection.
• That an order is needed to control the behaviour of the respondent.
An order only becomes effective when it has been served on the respondent.
Typically, a non-molestation order is made for six to twelve months but it is possible to apply for further orders.
Breaching a non-molestation order is a criminal offence punishable with up to five years imprisonment or as a contempt of court.
An occupation order determines who will live at the family home. An occupation order can sometimes be used to exclude someone completely from a property or can set out rules to enable a property to be shared.
Granting an order depends on the relationship of the parties and their rights to occupy the property in question.
For an application to be successful the so-called “balance of harm” test must be applied. Essentially the judge will consider whether the applicant or any child is likely to suffer significant harm due to the conduct of the respondent if the occupation order is not made. The test includes the need to consider whether making an occupation order will cause greater harm to be suffered by the respondent and any child.
If the judge does not find sufficient reason under the balance of harm test, an application might still be brought. In deciding whether or not to make an occupation order the court will consider all the circumstances of the case, including the:
• Housing needs of the parties.
• Financial resources of the parties.
• Likely effect of any decision by the court not to exercise its powers on the health, safety or well-being of the applicant and any child.
• Conduct of the parties to each other.
Occupation orders are intended to determine temporary living arrangements to give the applicant and respondent time to organise where they will live and how they will divide their property.
An occupation order can be made for a period of up to six months, but it is possible to apply for further orders.
Sometimes it is thought safer for an order to be made swiftly and without the other person being aware of the application. These are known as “without notice” or “ex parte” orders. The court will always arrange a further hearing so that both parties can have their say once the immediate urgency is taken out of the situation and the vulnerable person or people protected.
Who Can Apply For Non-Molestation And Occupation Orders?
Non-molestation and occupation orders are only available to certain categories of people known as “associated persons”. These are people between whom there is or has been a relationship. The relationship does not necessarily need to have been intimate and includes:
• People living in the same household.
People Who Are Not Eligible For Non-Molestation And/Or Occupation Orders
People who do not fall into any of the above categories cannot make use of the remedies available under the Family Law Act. This would include, for example, people who have never lived together or people being ‘stalked’. Such people may be able to take action under the Protection from Harassment Act or a common law action in tort for damages and/or an injunction.
Enforcement Of Non-Molestation And Occupation Orders
Breach of a non-molestation order is a criminal offence. In the crown court it is punishable by imprisonment for a term not exceeding five years, or a fine, or both. In the magistrates court, the offence is punishable by imprisonment for a term not exceeding 12 months, or a fine, or both. The court cannot attach a power of arrest to the non-molestation order itself. The final decision as to whether to take criminal proceedings for the breach of the non-molestation order lies with the Crown Prosecution Service.
Where an occupation order has been made and it appears to the court that violence has been threatened against the applicant or child, then the court must attach a power of arrest unless it is satisfied that the applicant or child will be adequately protected without it. If the order is without notice, attaching a power of arrest is at the court’s discretion. The court may attach a power of arrest to one or more provisions of the order if it appears that violence has been used or threatened against the applicant or child, and there is a risk of significant harm to the applicant or child from the perpetrator if the power of arrest is not attached immediately.
If a power of arrest is granted, a police officer may arrest without warrant if an order is breached. The offender must be brought before the court within 24 hours. If there is no power of arrest and an injunction is breached, an application for committal to prison for contempt may be made by way of service of summons by court officials. If contempt of court is found, it is punishable by fine or imprisonment. However, courts will not generally order committal on a first breach unless it is very serious. Orders are more likely to be suspended conditionally.
If the court has granted an order but has not attached a power of arrest or has attached that power only to certain provisions of the order, the applicant can apply to the court for a warrant for arrest for breach of the order. The application for a warrant for arrest must be sworn on oath, and a warrant must only be issued where there are reasonable grounds for believing that the person has not complied with the order.
How Can We Help?
We can advise on the merits of a proposed application for a Non-molestation and an Occupation order and, where necessary, represent you in proceedings before the Court.
We can also assist individuals who may have been served with an application for an order or made the subject of an order.
For initial legal advice about Family Law Act Injunctions please schedule a free 30 minute consultation at a date and time convenient to you by using our online booking calendar.