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.
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 three ways;
The Judge may make a further Order, lasting for a specific period i.e. six 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. half or one 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.