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Domestic Violence

 

Domestic Violence - The Law

The power to make a Non-Molestation or Occupation Order comes from part IV of The Family Law Act 1996. 

In the words of The Family Law Act 1996, a Non-Molestation Order is an order prohibiting a person from molesting another person who is associated with them.  An order that stops someone doing something is called an injunction.

Molestation in this context means harassment, physical/emotional abuse, phone calls, text messages, aggressive behaviour and so on.

The Court can make an Order protecting the person asking for the Order or any relevant children (or both).

The application is made in writing on a form supported by a statement setting out the allegations.  Once the application is issued at Court it will be served upon the other person by a process server.  The papers will give a date for an attendance at Court, usually within 2 to 7 days.  At that Court hearing the Judge will ask if the matter is going to be contested and if it is then he will give Directions as to what should happen next, ie further statements, witness evidence, gp reports etc and set the matter down for trial.

At the trial both parties give evidence and the Judge will then make a finding and decide whether the application should be granted or not.

The Court has to consider all the circumstances when it decides whether to make an Order, but the Family Law Act tells the Judge to look in particular at the health, safety and well being of the person asking for the Order and relevant child.

There is no fixed length for an Order.  It is up to the Court how long to make an Order for.  Most often it is made for a year.

If a person who is told not to do something by a Non-Molestation Order breaks the Order this is called a breach.  Any breach of a non-Molestation order is a criminal offence.  The maximum penalty is 5 years in prison.

Any breach of a Non-Molestation Order is an arrestable offense.

Sometimes a compromise is reached whereby an Undertaking is offered rather than an Order being made.  So, where someone asks for a Non-Molestation Order the Court can accept an Undertaking instead promising not to do the things that would have been prevented by an Order.  This is not an admission of guilt and often a quick, cheap and effective way to bring the proceedings to an end at the first court hearing.

An Undertaking is between the parties and the Court.   It does not give the police any particular powers.

Turning now to Occupation Orders.  An Occupation Order is an Order making rules about who can live in a house, how they must behave in the house, and which parts of it they can use.  It can tell a person they must leave a house, must not go to a house, or must not go within a certain distance of it, or down the street it is on.

An Occupation Order telling someone they must leave their own house is not usually made unless there are very good reasons.

Depending on the circumstances, an Occupation Order can be made under any one of sections 33-38 of the Family Law Act 1996.  Each of them is slightly different.

Claire would be able to make an application under section 33 which gives the Court the greatest powers.  The Court has to consider the all the circumstances including:

  • The housing needs and housing resources of both parties and relevant children
  • The financial resources of each party
  • The likely effect of any order or of a decision not to make one on the health, safety and well being of the parties and any relevant children
  • The conduct of the parties

As well as looking at the factors above, the Court has to decide where  the “balance of harm” lies.  It is quite tricky to explain but basically where it is worried that the consequences of either course of action are very serious, the Court has to work out the least risky option.  It says, that if the person asking for the Order (or any significant child) is likely to suffer significant harm from the other person without the Order being made, then the Court MUST make the Order UNLESS the other person is likely to suffer equally bad or worse significant harm themselves if an Order IS made.

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given in relation to such materials. Hodgsons Law shall not be liable for any technical, editorial, typographical or other errors or omissions within the information provided on this website, nor shall we be responsible for the content of any web images or information linked to this website. Jo Hodgson is the sole director of Hodgsons Law.