How Family Law can help victims of Domestic Violence
Posted on 17th November 2017
What is a Non-Molestation Order and am I eligible?
Non-Molestation Orders are different to restraining orders. Restraining orders are obtained in the criminal courts as part of perpetrator’s sentence and so there needs to be a criminal conviction. Non-Molestation Orders on the other hand are obtained in the family courts and do not require a criminal prosecution.
Section 42 of the Family Law Act 1996 states that a non-molestation order is a provision prohibiting a person from molesting another person who is associated with the respondent (i.e. the person against whom proceedings are brought). To be able to apply for a Non-Molestation order an applicant (i.e. the person applying for the order) therefore need to be ‘associated persons’. The definition for this is found in Section 62 of the Family Law Act 1996 and means the applicant and the respondent must be related or associated in one of the following ways:
- they are or have been married to each other;
- they are or have been civil partners of each other;
- they are cohabitants or former cohabitants;
- they live or have lived in the same household, otherwise than merely by reason of one of them being the other’s employee, tenant, lodger or boarder;
- they are relatives;
- they have agreed to marry one another (whether or not that agreement has been terminated);
- they have or have had an intimate personal relationship with each other which is or was of significant duration;
- they have entered into a civil partnership agreement (as defined by section 73 of the Civil Partnership Act 2004) (whether or not that agreement has been terminated);
- in relation to any child, they are both a parent of the child; or they have or had parental responsibility; or
- they are parties to the same family proceedings.
Funding and costs
Unlike most private family law cases, proof that an applicant is a victim of domestic violence (also known as LASPO evidence) is not required to obtain legal aid for a Non-Molestation Order. Legal aid is however subject to eligibility limits on income and capital, and if an applicant does not qualify then they would need to fund proceedings privately. Costs awards can be made against a respondent, although they are not guaranteed, and the prospects of costs would be carefully considered by us and advice given, before any proceedings are launched.
When a new client informs us that they are a victim of domestic violence and they would like protection, we act very quickly. Once funding is established we aim to go to court within 2 working days. Within this time the client comes in to the office for an interview and we take their statement. We then draft this together with the application form.
When there is a serious risk of harm to the client we go to court on a ‘without notice’ basis. This means that we do not tell the respondent we are attending court to obtain a Non-Molestation Order, this gives the client more protection. If we were to give the respondent ‘notice’ i.e. tell them that we will be attending court, the respondent could intimidate or harass the client and make them change their mind about going to court.
It is for the judge to decide whether the applicant has been a victim of molestation and will make an order accordingly.
If the order is made without notice then the court lists a return date so the respondent can go to court and contest the Non-Molestation Order if they intend to do so.
How long do they last?
Non-Molestation Orders are usually for a specified period of time (i.e. 12 months) but can be renewed or made ‘until further order’. There is no limit to how long a Non-Molestation Order can last for nor is there a limit on the length of time they can be renewed for.
What can the order specifically state?
Non-Molestation Orders can state that the respondent cannot use or threaten violence against an applicant or any relevant child, intimidate, harass, or contact the applicant directly. There can also be location restrictions so that the respondent is not allowed within 100 meters of the applicant’s house or their child’s school. However, there needs to be sufficient reasons for this to be put in the order and this is a matter for the Judge to decide.
What if the Non-Molestation Order is breached?
There is a power of arrest attached to the Non-Molestation Order and it is now a criminal offence to breach it. The sealed court order is sent to the police so they are aware of it. However, the applicant should always keep a copy of it so that they can show it to the police if necessary.