5 March 2020

Protection for victims of domestic violence: non-molestation orders

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The Family Law Act [1996] provides a wide range of protection to victims of domestic violence. One of the measures in place is non-molestation orders. A non-molestation order is an order prohibiting a person from molesting another person who is an associated person or a relevant child.

Several questions/issues come into play when considering whether a person is eligible to apply for a non-molestation order.

What is domestic violence?

The first issue to address is whether you have been a victim of domestic violence. The cross-government definition of domestic violence is welcomingly wide and defines domestic violence to be:

Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse:

i. Psychological;

ii. Physical;

iii. Sexual;

iv. Financial; and

v. Emotional.

Who can apply?

The next issue to address is whether you are eligible to apply for a non-molestation order. Individuals who are “associated persons” under the 1996 Act can apply for a non-molestation order.

What is an “associated person”?

The definition of “associated person” is also wide and includes a range of categories. As per section 62 of the 1996 Act, a person is an “associated person” if the person you seek protection from is:

i. your current or former spouse or civil partner;

ii. your current or former cohabitant i.e. someone who you have lived with outside of marriage or civil partnership;

iii. someone you have lived with in the same household for some reason other than being an employee, tenant, lodger or boarder;

iv. your relative or the relative of your current or former spouse, civil partner or cohabitant. The term “relatives” includes immediate relationships and other close relationships such as grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, step-parents and step-children;

v. your finance or proposed finance, regardless of whether the agreement to marry has come to an end;

vi. an individual with whom you have shared an intimate relationship of a significant duration; and

vii. a party to some other family proceedings to which you are also a party.

You may also apply for a non-molestation order in the capacity of a parent of a relevant child. This is in cases where the person from whom protection is needed is the other parent

or an individual who has or has had parental responsibility for the relevant child. This protection extends to children who have been adopted.

Can children apply?

As per section 43 of the 1996 Act, children who are under the age of 16 may apply to the court for a non-molestation order. However, the leave of the court is required before proceedings can start. This affords the courts the opportunity and power to ensure that any child applicant has sufficient understanding of the process as well as the remedy which is being sought from the court.

What if you are not an “associated person”?

If you are not an “associated person,” you will not qualify for a non-molestation order under the 1996 Act. Instead, you may look at alternative means of protection open to you beyond the scope of the 1996 Act. These may include but are not limited to, a criminal restraining order or harassment order.

What factors will the court look at?

In determining whether you are eligible for a non-molestation order, the court will look at factors contained in section 42(5) of the 1996 Act. Namely, the court will have regard to all circumstances of the case including the need to secure the health, safety and well-being of the person and any relevant children.

What is the duration of a non-molestation order?

As per section 42(7) of the 1996 Act, a non-molestation order may be made for a specified period or until a further order is made by the court. The exact duration of the order will be stated in any non-molestation order issued by the courts, as much depends on the circumstances of each individual case. However, it is not unusual for an initial order to be made for a period of 6 months with the possibility of extending with future applications. The court reserves the discretionary power to make a non-molestation order which may last indefinitely. However, this is a rare occurrence which may only be considered in truly exceptional circumstances.

What happens if a non-molestation order has been breached?

Under section 42A of the 1996 Act, the breach of a non-molestation order is an offence punishable by:

(a) a conviction on indictment, to imprisonment for maximum of 5 years, a fine or both; or

(b) on summary conviction, to imprisonment for maximum of 12 months, a fine or both.

How can we help?

We have a team of experienced family lawyers who can help you obtain protection as a victim of domestic violence. We also have a team of experienced criminal law practitioners who can help you explore alternative options.

Disclaimer:

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.

About the Author

Mahnoor Shahid
Mahnoor has extensive experience in dealing with various types of in-country and out-of-country immigration matters. This includes advising and assisting clients on a vast spectrum of immigration applications, ranging from Entry Clearance to British citizenship.

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