DOMESTIC VIOLENCE INJUNCTIONS

The law has now been consolidated and codified so that there are two forms of order related to domestic violence, being non-molestation and occupation orders. These orders can be taken out by associated persons

The Family Law Act 1996 provides relief for married, formerly married, cohabiting and formerly cohabiting heterosexual couples.

Non-molestation orders Family Law Act 1996 s.42

These orders extend protection against molestation and violence to a larger group of associated persons whereas in the past it related to only spouses and cohabitants. There is now protection for the whole family as well as those in married or unmarried heterosexual relationships. The group now includes elderly people who need to be protected from members of their family, or mothers against sons, as well as engaged or formerly engaged couples.

These orders retain harassment or pestering as well as violence. The order can be made without notice. A power of arrest can be attached and undertakings may be accepted in lieu.

Associated Persons Family Law Act 1996. s.62

The definition of associated persons covers those who are or have been married to each other or have been cohabitants or former cohabitants, who have lived in the same household, or are related, or have agreed to marry and any child of associated persons who have parental responsibility. Cohabitants are a man and a woman who are living together as husband and wife. This excludes homosexual relationships. This may change to include homosexual partners.

Relatives

These include father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandfather, grandmother or granddaughter. It can also include brother sister, uncle, aunt, niece or nephew. It includes all those relationships which would have existed if the cohabitants had been married.

Obtaining a non-molestation order

An application can be made by an associated person who qualifies, or if the court decides that such an order should be made for the benefit of any party or relevant child. The application can be made during ancillary relief proceedings or on its own.

What is the definition of molestation?

The act does not define molestation, but it is regarded as being wider than violence and includes any sort of harassing or pestering.

Cases have included unwelcome calls made to the wife from whom a man was separated, behaviour induced by drugs, giving information to the papers which resulted in unwanted publicity.

The court’s powers

The court must decide whether in all the circumstances, having regard to the health safety and wellbeing of the applicant or any associated person or child that the order should be made. Health is to include physical and mental health.

Without notice or ex parte orders

These orders might be made when the court thinks that there is a risk of significant harm to the applicant or a relevant child if the order is not made immediately.

The respondent might be aware of the proceedings, but is evading service and the applicant will be seriously prejudiced by the delay.

Undertakings

An undertaking may be given to the court in place of an order and this will have the same effect as an order and be enforceable as such. This is one of the most common methods of resolving a matrimonial matter. This was an established practice, but now is part of the statutory procedure.

The only difference is that a power of arrest will be not attached to an undertaking. An undertaking is a promise to do or refrain from doing something.

Power of arrest

The court has a mandatory duty to attach a power of arrest to the order unless the applicant will be adequately protected without it. The police may arrest without a warrant if they have reasonable grounds for suspicion that the order has been broken. The court may remand in custody the respondent who breaches the order.

Occupation orders

These are more difficult orders to obtain because the courts are reluctant to turn someone out of their home. Unlike the non-molestation order this depends on the matrimonial status of the parties and whether or not they have any property rights in relation to the matrimonial home. It can only be made in respect of a property, which is or was an actual or intended home and never a second or investment property.

There are three types of people who can apply:

• entitled persons;
• non-entitled persons;
• persons with matrimonial home rights.

The last are those who have rights of occupation which are called matrimonial home rights.

Persons who may not apply:

• a former spouse with no existing right to occupy;
• a cohabitant or former cohabitant with no existing right to occupy.

The court’s powers

The court may enforce, restrict or terminate matrimonial home rights. They may prohibit, suspend or restrict the exercising by either spouse of those rights to occupy the home or part of it. The court may require either spouse to permit the other to exercise their rights of occupation, declare the applicant’s rights, and require someone to leave the home or part of it and exclude the respondent from a defined area around the home.

The court may take into account the conduct of the parties and their respective housing needs, needs of any children and their respective financial resources. Also the effect of any lack of any order on the health safety or wellbeing of the parties and any relevant child and all the circumstance of the case.