What are ‘injunctions’?
You can apply for injunctions under Part IV of the Family Law Act 1996 (‘FLA 1996’) if you have been the victim of domestic violence and the perpetrator (‘the respondent’) of the violence is considered a connected person. An injunction is a court order that either:
Protects you or your child from being harmed or threatened by the person who has abused you – this is called a ‘Non-Molestation Order’; or
Decides who can live in the family home or enter the surrounding area – this is called an ‘Occupation Order’.
There is no statutory definition of what molestation includes so practitioners must look to case law for guidance.
To be able to apply for a Non-Molestation Order you must be able to prove to the Court that the respondent is a connected person so falls into one of the categories below.
There is, therefore, a great deal of discretion afforded to the court in determining what constitutes molestation and, consequently, whether an application should succeed. This should not be troublesome in a case involving clear acts or threats of violence. However, where the molestation complained of is more indirect in its effect on you, success could prove more problematic.
Who can apply for a Non-Molestation Order?
You can usually apply for a Non-Molestation Order if you are a victim of domestic violence and the respondent is:
1. Someone you are having or have had a relationship with
· Husband, wife or civil partner;
· Former husband, former wife or former civil partner;
· Fiancé, fiancée or proposed civil partner;
· Former fiancé, former fiancée or former proposed civil partner – if your engagement or agreement to form a civil partnership ended less than 3 years ago;
· Boyfriend, girlfriend, partner or a person you are in or have been in a relationship with for more than 6 months.
If you were engaged to or had agreed to form a civil partnership with the respondent, you will need to provide evidence, such as a ring or statement from a witness who attended a ceremony or celebration.
2. A family member
You can apply if the respondent is a close family member, for example, a parent, brother, sister, aunt or uncle.
3. Someone who has parental responsibility for your child or grandchild
You can apply if you have a child or grandchild and the respondent is the child’s parent or person you share parental responsibility with.
If your child or grandchild has been adopted, you can also apply to get an injunction against:
· Their adoptive parent;
· Anyone who has applied to adopt them;
· Anyone the child has been placed with for adoption;
· The child or grandchild.
4. Someone you are living or have lived with:
You can apply for an order against a person you live or lived with unless they are your:
· Employer or employee;
· Landlord, tenant, lodger or boarder.
Duration of a Non-Molestation Order
A Non-Molestation order may be made for a specified period or until a further order is made. The length of the order will largely depend upon the extent to which the terms of the order affect the respondent. If the order can be broken without being aware and unintentionally by the respondent in the course of his/her day to day life then the court will be extremely keen to bring the order back to court as soon as possible. If the order only has an impact upon the respondent if he/she actively seeks to break it, then the court will be more minded to grant it for a longer, or indefinite, period of time.
Occupation Orders– the two tests
There are two tests to which the court must have regard when deciding whether to grant an Occupation Order.
The first is known as the ‘balance of harm test’ because it requires the court to balance the harm caused to you, the respondentand any relevant children if the order were or were not to be made. If you are entitled to occupy the house or are a spouse or former spouse of the respondent and there would be a risk of you or any relevant child suffering significant harm, attributable to the respondent, if the order were not made, which is greater than any harm caused to the respondent or any relevant child if the order were made then the court has a duty to grant the order. If you are not entitled to occupy the property and you are a cohabitant or a former cohabitant then the court must simply ‘have regard’ to the balance of harm test.
The second test is usually referred to as the ‘core criteria’, which the court may have regard at any time when granting an Occupation Order, even if they have found against you on the balance of harm test. The content of the core criteria depends upon your entitlement to occupy the home and your relationship with the respondent. If you are entitled to occupy the home then the core criteria is:
1. The housing needs and housing resources of both you, the respondent and of any relevant child;
2. The financial resources of both you and the respondent;
3. The likely effect of any order, or of any decision by the court not to exercise its powers, on the health, safety or well-being of both you, the respondent and of any relevant child;
4. The conduct of both you and the respondent in relation to each other and otherwise.
If you are not entitled to occupy the home but are a spouse or former spouse of the respondent then the court may have regard to some additional factors including the length of time since both you and the respondent lived together, the length of time since the marriage formally ended and any ongoing ancillary relief (financial) applications or disputes as to the ownership of the home. If you are not entitled to occupy the home but are a cohabitant or former cohabitant of the respondent then the court may also have regard to the nature and length of your relationship with the respondent, whether there are or have been any relevant children, the length of time since the your relationship with the respondent came to an end and whether there are any ongoing Schedule 1, Children Act 1989 maintenance applications.
Who can apply for an Occupation Order?
You can apply for an Occupation Order if you are a victim of domestic violence and if:
1. You own or rent the home and it is, was, or was intended to be shared with a husband or wife, civil partner, cohabitant, family member, person you are engaged to or parent of your child;
2. You do not own or rent the home but you are married or in a civil partnership with the owner and you are living in the home;
3. Your former husband, wife or civil partner is the owner or tenant, and the home is, was, or was intended to be your shared matrimonial home;
4. The person you cohabit or cohabited with is the owner or tenant, and the home is, was, or was intended to be your shared home.
Duration of an Occupation Order
Theduration of an Occupation Order will, like the Non-Molestation Order, largely depend upon the extent to which it restrains the respondent. However, there are also strict rules in Occupation Orders relevant to the maximum periods of time which an occupation order can be granted, dependant upon your entitlement to occupy the home and your relationship with the respondent. If you are entitled to occupy the home then the order may be made for a specified period of time, until the occurrence of a specified event or further order. If you are not entitled but a spouse or former spouse of the respondent then the order can only be made for 6 months, which can be extended in 6 month periods upon application. If you are a cohabitant with no entitlement to occupy then the order may, again, only be for 6 months but may be extended only once.
How to apply for an injunction?
If you satisfy the above criteria, you can apply for a Non-Molestation and/or an Occupation Order by filling in the relevant application form and preparing a witness statement in support telling the court what has happened and requesting the relevant order. There is no court fee payable for this.
If you need protection immediately, you can ask for an emergency order when you apply to the court on. You do not have to tell the respondent that you are applying so it is known as a ‘without notice’ application.
Once your application for an emergency order has been issued, the court will hold a hearing which you must attend. The court will make an emergency order at the hearing if your application is successful.
You will have to tell the respondent about your application after the hearing if an emergencyorder is made.
An emergency order will usually last until you return to the court for a second hearing which both you and the respondent must attend. If successful at this hearing, the court will renew the emergency order.
The person named in the injunction can be arrested if they break it.
Written by: Sam John
Sam is a solicitor with Wendy Hopkins Family Law Practice
For further advice on applying for an injunction, please contact our office (details below). However, If you are in immediate danger of being abused or have been abused, you should always report it to the police in the first instance.
T: 029 2034 2233