Injunctive remedies for domestic violence victims
Victims of domestic violence and intimidation frequently need urgent help to protect them, and sometimes a child,from their abuser. Typically, protection is obtained by way of an emergency injunction. However, you don’t have to have suffered actual violence to be able to apply for an injunction.
An injunction is a court order that requires someone to act – or not to act – in a certain way. There are three types of injunctions available under the Family Law Act 1996 for the protection of domestic violence victims: non-molestation orders, occupation orders and prohibited steps order.
Sometimes, the situation is so urgent that an emergency injunction is necessary. Usually, this is where the abuser has been physically violent towards the applicant, or has subjected them to harassment or intimidation. An emergency injunction is granted by the court without notice to the party against whom it is made. That party will not know about the injunction until it is served on them.
What is a non-molestation order?
A non-molestation order is an injunction prohibiting the abuser from engaging in a specific course of action as defined in the body of the order.The usual conditions contained in non-molestation orders are:
- A provision prohibiting the abuser from molesting the victim or others associated with the her
- A provision banning the abuser from communicating with the victim
- A provision prohibiting the abuser from molesting a relevant child
What amounts to ‘molesting’?
There is no legal definition of molestation set out in the Family Law Act 1996, but would involve conduct that amounts to physical violence and threats of physical violence; intimidating, harassing or pestering; and encouraging others to do the same.
Who can apply?
A non-molestation order can be made to protect both ‘associated persons’ and ‘relevant children’.
An associated person may be a spouse or former spouses, civil partner and cohabitants, as well as anyone who is living as a husband or wife with someone but are unmarried. In addition, anyone who has had an intimate personal relationship for a significant period of time falls within the definition of ‘associated person’.
Relevant child includes 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. The court can also treat another child as a relevant child if their interests are relevant to the application.
When can a non-molestation order be made?
The courts can make an order for non-molestation on the application of the victim (or associated person). The application does not have to be in connection with any other proceedings, such as divorce proceedings or applications involving children. In practice, applications for non-molestation orders are often made in conjunction with an application for an occupation order.
An application can be made ‘on notice’ to the respondent. In exceptional circumstances, where urgent protection is required because there is a risk of significant harm to the victim and/or children, an emergency application can be made without notice.
The court can, instead, make a non-molestation order on its own initiative in any family proceedings to which the abuser/respondent is a party(or in an application for an occupation order). However, before doing so, the court must be satisfied that the order is necessary for the benefit of any other party to the proceedings or any relevant child.
What factors will the court take into account?
When deciding whether it should make a non-molestation order, the court needs to consider all of the circumstances of the case. This includes having regard to the need to secure the health, safety and well-being of the applicant and any relevant child.
What is the effect of a non-molestation order?
A non-molestation order is made in respect of a specific person (the abuser). Under its terms, the abuser is prohibited from doing whatever act/s are specified in the order. Breach of the order may constitute a criminal offence, and could result in up to five years’ imprisonment.
Copies of the non-molestation order should be sent to the local police station once served on the respondent. The respondent may then be arrested if there are reasonable grounds to believe he is in breach.
Non-molestation orders may be made to last for a specified period of time or until further order is made, though in practice, they typically last 6-12 months. However, these orders are generally intended to be a temporary remedy pending a long-term solution. In exceptional circumstances, a long-term or indefinite non-molestation order may be justified.
Note that if a non-molestation order is made in the course of family proceedings, the order will end if those proceedings are subsequently withdrawn or dismissed.
Can the order be varied or discharged?
Either party has the right to apply to the court to vary or discharge a non-molestation order. This includes the right to renew it. If the court has made an order of its own motion, then it can also decide whether to vary or discharge it.