Non-Molestation Orders

A non-molestation order is a a court order (injunction) that protects you or your child from being harmed or A non-molestation order is a court order (injunction) that prevents the individual who has abused you or your child from harming or threatening you. It is a civil order sought from a Judge (or Magistrates) through the Family Court by a victim of domestic violence.

An injunction is a court order directing a specific individual to do or not do something. For example, in most family law cases, people seek injunctions against a husband, wife, or partner. We may, however, be able to get an injunction against someone in your family or with whom you have had a close relationship that has used violence against you. You can also seek legal help for your child.

An emergency injunction is an informal term for a court order issued without notice/ex parte, which implies that the person you are seeking against will not be aware of the injunction until it is served on him or her.

Under the Family Law Act of 1996, the court can issue one of two types of injunctions:

Non-Molestation Orders

A non-molestation order is a court order (injunction) that prevents the individual who has abused you or your child from harming or threatening you. It is a civil order sought from a Judge (or Magistrates) through the Family Court by a victim of domestic violence.

Who Can Apply for A Non-Molestation Order?

A person may apply for a non-molestation order if he or she has been subjected to violence, abuse, or threatening behaviour from another ‘connected person.’ An associated person is generally a relative or someone you have had a deep relationship with, whether married or cohabited. This is governed by Section 62(3) of the Family Law Act of 1996 and applies to the majority of couples, including:

• Partners and former partners
• Family relations (including in-laws)
• People who live(d) together
• People who have children together

You may apply on your own or behalf of a child. However, before starting court proceedings, it is often beneficial to write a letter to the Respondent. This is known as a ‘letter before action.’

What Is Domestic Violence or Abuse?

Domestic violence is defined as any act of threatening behaviour, aggression, or abuse (psychological, physical, sexual, financial, or emotional) involving adults who have been intimate partners or family members, regardless of gender or sexual orientation. Anyone over the age of 18 is considered an adult.

Family members, whether directly related, in-laws, or step-family, are defined as:

• Mother
• Father
• Son
• Daughter
• Brother
• Sister
• Grandparents

The legal definition of injury is any harm done to a person due to acts or omissions. Domestic violence can take many forms, including physical, emotional, psychological, and financial abuse. Unfortunately, many people are scared to express their abuse because they are ignorant of their resources. As a result, most victims of domestic violence are unaware that they are victims of some domestic abuse.

How Non-Molestation Order Protects You?

A non-molestation order often prohibits an abuser from

• Using or threatening to use physical harm
• Intimidating, harassing or troubling you
• Communicating with you (if appropriate)
• Instructing or inciting others
• Arriving in the prohibited zone, for example, not entering within a certain distance of the victim’s residence/work/study/school, child’s etc

How To Apply for Non-Molestation Order?

If you have been the victim of domestic abuse, you can seek a non-molestation order (injunction). The application form FL401 is used to submit a non-molestation order. If you wish to keep your address and phone number confidential, use form C8. You should also file a thorough witness statement to explain what transpired and seek the non-molestation order. The individual who requests an order is the ‘applicant,’ whereas the respondent is against whom charges are pursued.

There is no court charge for applying for a non-molestation order.

For How Long A Non-Molestation Order Is Normally Granted?

A non-molestation order is usually given for 6 to 12 months.

Occupation Orders

An occupancy order requires someone to leave home where you reside, enable you to return if you have already gone, or only occupy specified areas of the house. The facts of your case determine the length of the injunction. The court will issue different orders based on your rights to the property, such as whether you are a lodger or an owner-occupier and your connection with the other individual, known as the Respondent. It will also take into account the needs of any children.

An occupancy order governs who may reside in the family home and can prevent your abuser from accessing the area. If you feel uncomfortable living with your spouse or have left your house due to violence but wish to return and exclude your abuser, you may file for an occupancy order.

What relief can the applicant seek from the court in the occupation order?

Depending on the parties’ relationship, an Applicant may petition to the Court for one or more of the following:

• to enforce the applicant’s right to stay in the home
• to require the Respondent to permit the applicant to enter and remain in the home
• to regulate the occupation of the home (for example, who may use what parts of the house and at what times)
• to prohibit, suspend or restrict the Respondent’s rights to occupy the home (and in some instances to terminate those rights)
• to require the Respondent to leave home or part of it
• to exclude the Respondent from a particular geographical distance away from home

 

What factors will the court consider in making an occupation order?

The Court may consider the following criteria in deciding whether or not to issue an order:

• the housing requirements and housing resources of each of the parties and any relevant child
• the potential effect of the Order/failure to make an Order on the health, safety, or well-being of the parties and any relevant child
• the parties’ behaviour

How occupation order protects you?

An occupancy order governs the family residence and includes provisions such as:

• Suspended rights to occupy or visit
• Taking an abuser out of the house
• Keeping an abuser from returning
• 100 metres surround security surrounding the house

For How Long an Occupation Order Is Normally Granted?

An Occupation Order can be granted for 6-12 months.

How Can We Help?

1. Taking your statement – Our staff will collect a detailed statement from you during the initial appointment. We will require a history of your relationship and information of current instances involving the Respondent and yourself. In addition, our family law attorneys may ask for your written permission to write to your doctor, the hospital, or the police for a report.
2. Document preparation – Our skilled team of family law professionals will create your application, as well as a statement outlining all of the essential facts of your case. If there are witnesses, our family law experts may want to interview them so that further affidavits may be drafted and sworn by them. We will then take the application to the court and set a hearing date. Unless your case is so urgent that a hearing on the same day is necessary, this is likely to be around a week in advance.