The nature of the remedies for domestic violence
There are currently two types of orders introduced by the Family Law Act 1996 and intending to serve as safeguards to victims of domestic violence. The first type is non-molestation orders and the second type is known as occupation orders.
Defining non-molestation orders
Non-molestation orders are orders in form of injunctions. Therefore, such orders contain provisions prohibiting the abuser from engaging in a specific course of action as defined in the order itself.
The usual conditions contained in those types of orders are:
A provision prohibiting the respondent from molesting another person who is associated with the respondent;
A provision prohibiting the respondent from molesting a relevant child.
There is no legal definition currently in place defining molestation since no such was introduced by the Family Law Act 1996, which is now governing the law around domestic violence. Nevertheless, some guidance is in existence from all common law to assist the courts in the interpretation of the term. Therefore, as established so far, violence is seen as a form of molestation but molestation could occur without the threat and use of violence and still be serious and inimical to mental or physical health.
The lack of definition serves the purpose of providing for relaxation of the application including keeping the remedy flexible and able to adapt to different circumstances.
Who can apply?
The order can be made in relation to ‘associated persons’ and ‘relevant children’.
Associated person encompasses a large group including current or former spouses, civil partners and cohabitants as well as those who are living as husband and wife but are not married. Further, people who have had an intimate personal relationship which is or was of significant duration also fall within the definition.
Relevant child has been defined to include any child living, or who might reasonably be expected to live with, either party to the proceedings or a child involved in existing children proceedings. Further, the court may consider a relevant child any other child whose interest they see as relevant.
When can an order be made?
The courts can make an order for non-molestation following an application. An application could be made on notice to the respondent. In exceptional circumstances it could be made without such notice when there is a risk of significant harm to the applicant and there is an urgent need for protection.
The application would need to be made by a person associated with the respondent whether or not other family proceedings have been initiated. Therefore, it could be used as a type of stand-alone application. In practice, whenever application is made for non-molestation order it is often made in conjunction with an application for an occupation order.
Additionally, the court can make an order on its own initiative in any family proceedings to which the respondent is a party. Prior to making such an order, the court needs to be satisfied that the order should be made for the benefit of any other party to the proceedings or ant relevant child.
Further, a recent development introduced by the DVCVA 2004 provides that whenever the court is considering whether to make an occupation order, it must also consider whether it would be appropriate to make, on its own initiative, a non-molestation order.
Factors the courts take into account
In the decision-making process whether in application or on considering making an order on their own initiative, the courts need to consider all of the circumstances of the case. This further includes having regard to the need to secure the health, safety and well-being of the applicant and any relevant child.
The effect of the order
Whenever an order is made, it is made in respect of a specific person. The order serves to prohibit him from doing whatever act is specified in the order. Breach of such could constitute a criminal offence, which could in turn be punished with imprisonment.
Nowadays, copies of any non-molestation order should be sent to the local police station once it has been served on the respondent who may subsequently be arrested if there are reasonable grounds to believe he is in breach.
Non-molestation orders may last for a specified period of time or until further order is made. Nevertheless, those orders are generally intended as a temporary remedy appropriate to be in place until a proper long-term solution is found. There is case law which shows that in exceptional circumstances a long-term or indefinite order could also be justified.
It is important to also note that if a non-molestation order is made in the course of other family proceedings, such will cease if those proceedings are subsequently withdrawn or dismissed.
Variation and discharge
Either party has the right to apply to the court to vary or discharge a non-molestation order made. If the court has made an order of its own motion, then it can vary or discharge it.