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.
For more information on:
- Factors the courts take into account
- The effect of the order
- Variation and discharge