Pursuant to Part IV Family Law Act 1996 Section 42 the Court have the power to make a Non Molestation Order prohibiting a person from molesting another person who is associated with them. It is also possible to seek provision to prevent the molestation of a relevant child.
What is meant by an associated person?
It is only possible to apply for a Non Molestation Order under the Family Law Act 1996 if you are able to prove to the Court that you fall under the category of being an associated person. This means that your relationship with the person against whom you are seeking the Order must fall within one of the following categories;
- You have been or are married to each other
- You are cohabitants or former cohabitants (including same sex couples)
- You live, or have lived, together in the same household, but not by way of one of you being the others employee, tenant, lodger or boarder
- You are relatives
- You have agreed to marry one another (regardless of whether or not this agreement has been terminated)
- You are parents to a child or he has had Parental Responsibility for the child
- You are parties to the same family proceedings
- You have or have had an intimate personal relationship with each other which is or was of significant duration
Types of Orders
Non Molestation Order
A Non Molestation Order can contain various different prohibitions upon the Respondent (this meaning the person against whom the Order is obtained). The Respondent may, for example, be prohibited from;
- Using or threatening violence
- Intimidating, harassing or pestering
- Communicating with the person who obtained the Order against them
The Judge is able to tailor the Order to meet the needs of the person seeking the Order. The purpose of the Non Molestation Order is to provide the person seeking the Order (the Applicant) with protection against the other party.
Enforcement of a Non Molestation Order
The introduction of the Domestic Violence, Crime and Victims Act 2004 brought about changes to the procedure with regard to enforcement of Injunction Orders. Previously the Court may have attached a "Power of Arrest" to a Non Molestation Order. The Power of Arrest would enable the Police to arrest the Respondent if they were satisfied that the Respondent had broken any part of the Injunction Order to which the Power of Arrest was attached.
The introduction of the Domestic Violence, Crime and Victims Act 2004 (Section 42A) brought about changes, which now mean where any person, who without reasonable excuse, does anything that he is prohibited from doing by a Non Molestation Order, they are guilty of an offence. The offence may be prosecuted, through the criminal procedure in either the Magistrates or County Court.
The introduction of the Domestic Violence, Crime and Victims Act 2004 brought about a higher penalty for breach of a Non Molestation Order. If found guilty of breach of a Non Molestation Order a term of imprisonment may be imposed, a fine, or both. A term of imprisonment may be for a maximum period of 5 years.
If arrested for breach of a Non Molestation Order, the Police will lead a conviction against the Respondent. Although we can obtain the Order, we will not be involved in the prosecution of the Respondent in the event of the orders breach. The prosecution will be brought by the Crown Prosecution Service.
In the event that the police cannot or will not enforce the Order as detailed above, a breach of the Order can be enforced by commencing civil proceedings for the Respondent’s committal to prison for contempt.
Occupation Order
Pursuant to Section 33 of the Family Law Act 1996 the Court can make an Occupation Order. A person has a right to seek an Occupation Order if they are entitled to occupy the property, has matrimonial home rights in respect of the property or it has been or was intended to be a home for them. We are able to offer you specific advice, taking account of your circumstances, as to whether you fall within this category and can seek an Order under Section 33 of the Family Law Act 1996.
When considering whether to make an Occupation Order the Court must take account of Section 35 (6) of the Family Law Act 1996. The Court shall have regard to all the circumstances including;
- The housing needs and housing resources of both parties and any relevant children
- The financial resources of each party
- The likely effect of any order, on the health, safety or well being of the parties and any relevant children (if they do not exercise its powers under subsection (3) and (4)
- The conduct of the parties in relation to each other and otherwise
- The length of time which has elapsed since the parties ceased living together
- The existence of any pending proceedings between the parties e.g. Ancillary Relief/Financial proceedings within Divorce
If successful in obtaining an Occupation Order a declaration may be made confirming that the Applicant has the right to occupy the property. The Court may also make an Order that one party leave the property enabling the other party to return.
Enforcement of an Occupation Order
The Court can still attach a Power of Arrest to an Occupation Order, despite the fact that this can not be attached to a Non Molestation Order. If a power of arrest is attached to an Occupation Order, then any breach can be notified to the Police and they would have the power to arrest the Respondent and produce him to the Court who made the Order.
NB. It is important to note that both Non Molestation and Occupation Order are only in force once they have been served upon the Respondent and the Respondent is aware of the terms of the Order. This is normally effected by personal service of the Order. This means that the Order will be handed to the Respondent by a Court Bailiff or Process Server.
Procedure for Obtaining a Non Molestation or Occupation Order
The first thing we shall consider for you is whether the Order should be made "ex parte" or "On notice".
An ex parte Application is one which is made without notice being given to the Respondent of the Applicant. This can be done in cases where the Court considers that the Applicant or any relevant child are at risk of significant harm, if an Order is not made immediately. If it is considered that you should make an ex parte Application then we will advice you accordingly,
If an Application is made on notice, then it means that the Respondent will be served with the Application and supporting documents before an Order is made, i.e. he will be told the date of the hearing so that he can attend
A step by step procedure for obtaining a Non Molestation or Occupation Order is detailed below;
- A Statement and Application will be drafted. The Application will state what Orders the Court are being asked to make. The Statement will set out the reasons why the Application is being made.
- If the Application is made ex parte then a Hearing will take place imminently (normally the same or next day). At that Hearing you may be represented and we shall put to the Court your case, and ask that an Order be made in the terms sought. The Judge will consider the Application and make such Order he/she sees fit. This Order will be made in the absence of the Respondent. After the Hearing we will make arrangements for the Order and supporting documents to be served upon the Respondent. Once served the Order is in force and we will notify the Police. The Order will contain a further Hearing date, referred to as the return date Hearing. The Respondent will be given notice of this Hearing and will have the right to attend the Hearing and put to the Court his case to the court. The court will then decide whether to make a further order.
- If the Application is made on notice then the Statement and Application (referred to in 1 above) will be sent to the Court with a request for a Hearing to be listed as soon as possible. The documents will be returned by the Court together with Notice of a Hearing date. The Respondent will be served with the Notice of Hearing and supporting documents and will have the right to attend the Hearing and put his case to the Court.
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Both points (2) and (3) above lead us to the point in the proceedings when the Respondent may be present at Court, to put his case. The matter may then proceed in one of 3 ways;
- The Judge may make a further Order, lasting for a specific period i.e. 6 or 12 months (this Order would need to be served upon the Respondent even if he is present at Court)
- The Respondent may offer an "undertaking" in an effort to settle the case. An Undertaking can be accepted by the Court pursuant to Section 46 of the Family Law Act 1996. An Undertaking differs from an Order. This is a promise to the Court usually in the same terms as a Non Molestation Order (e.g. not to use or threaten violence etc). An Undertaking is usually accepted at an early stage in the proceedings and prevents either party from having to give evidence or attend a final Hearing. Although the Police can not arrest the Respondent for breach of an Undertaking (like they can for breach of a Non Molestation Order) any breach would still place the Respondent in contempt of Court and he may be sent to prison.
- The Judge may list the case for a final hearing if no agreement can be reached as to how the case should conclude. If this is the case, the Judge may give directions for the filing of further evidence and will then list the case for a longer Hearing (e.g. ½ day or 1 day) when both parties will be expected to attend and give evidence. The Judge will then make a decision as to the Order which should be made depending upon the evidence heard.
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