Domestic Violence Injunctions
The Law on Non-Molestation Orders and Occupation Orders:
The Family Law Act 1996 outlines the law in relation to Non-Molestation Orders and Occupation Orders and details the powers of the Courts to protect victims of domestic violence from harm within a relationship or from an associated person.
A “Non-Molestation Order” is an Order preventing a Respondent from molesting the Applicant and any relevant child. The term ‘molesting’ is broadly defined and covers domestic violence and/or threats of violence, as well pestering and physical and verbal abuse. As a result, a wide range of behaviours can be deemed to be evidence of molestation and cases are determined on a case by case basis.
An “Occupation Order” is an Order regulating the occupation of a property and can be obtained to exclude a Respondent from a property for the protection of the Applicant or relevant child or to control the occupation of that property.
The law in relation to such applications is complex and the Court will only award such Orders if a stringent criteria and the correct procedure is met. That said, the Courts do realise the need of domestic violence victims for protection from harm and are willing to make such Orders to ensure an individual's protection.
Applications under the Family Law Act 1996 can be made either “Without Notice” (also known as “Ex-Parte”) or “With Notice” depending upon the urgency upon which the protection is required. A “Without Notice” Application is made without notice to a Respondent and the Applicant simply attends Court with their application and supporting evidence and asks the Judge to make the relevant Order. If granted, the Order is personally served upon the Respondent and he or she is given the opportunity to attend a Return Hearing to have their views heard. A “With Notice” Application is made with notice to a Respondent and is where both parties attend court to allow a judge to determine whether the order being sought is relevant.
How to Fund an Application for a Non-Molestation Order and/or Occupation Order:
On 1st April 2013, access to Public Funding (formerly known as Legal Aid) changed and the Legal Aid Agency will no longer offer Public Funding for many family and matrimonial disputes.
However, if eligible, Public Funding will still be available for those seeking a Non-Molestation Order and/or an Occupation Order under the Family Law Act 1996, as the Legal Aid Agency and the Government realise the need to offer help and assistance to those people in a vulnerable or harmful situation.
Eligibility for Public Funding is assessed using a twofold criteria based upon 1) the Applicant’s financial “Means” and 2) the “Merits” of the Applicant’s case. This means that the Applicant not only has to be financially eligible for Public Funding but have a case with strong merits that justifies the use of Public Funds.
If Public Funding is granted for an Applicant, this will cover their Legal and Court Fees or all work undertaken in respect of their matter including preparing and issuing their application, representation at any Court hearings, serving the Respondent with any Orders and all other ancillary correspondence and work required in their case.
If an Applicant is ineligible for Public Funding, their Application for a Non-Molestation Order and/or Occupation Order will need to be funded on a private paying basis and work undertaken will be charged on a “time spent” basis meaning that an Applicant will be charged depending on the amount of work undertaken to deal with their specific case.
The Solicitor dealing with the Applicant’s matter will be able to advise the Applicant of the estimated costs of their proceedings based upon the amount of work required in each particular case.