Non-molestation and Occupation Orders

These Family Law Act injunctions are only available to people suffering from harm or domestic violence at the hands of an ‘associated person’. Relationships which fall into this category are:

  • Married persons
  • Those in a civil partnership
  • Cohabitants or former cohabitants (including same sex couples)
  • Those who live or have lived in the same household
  • Persons who have a child together or both have parental responsibility for the same child
  • Those who have formally agreed to marry, even if that agreement has ended
  • Persons in an ‘intimate relationship of significant duration’ even if they are not living together
  • Two persons involved in the same family proceedings, for example divorce or child matters.

A non-molestation order will prevent the aggressor from using or threatening violence against the applicant or applicant’s child, or intimidating, harassing or pestering them. They are made to ensure the health, safety and well being of the applicant and their child.

An occupation order dictates who can live in the family home, by removing the abuser, restricting him or her from re-entering and can go as far as to restrict them coming within an area surrounding the home. The applicant may have even left the home due to the violence so an occupation order can remove the abuser, thus allowing the applicant to re-enter to live in their home free from harm.

To be eligible to apply for an occupation order the applicant must have a legal right to occupy the home. This can be because they are the legal owner, joint owner, tenant or co-tenant. They can also be deemed to have a right if they are married to or are cohabiting with an owner or tenant.

The court applies the ‘balance of harm’ test in deciding whether or not to grant the order sought. This takes into account the risk of the applicant or child suffering significant harm should the order not be made. In respect of occupations orders there is an additional test, called the ‘core criteria’. This takes into account:

  • the housing needs and housing resources of each of the parties and of any relevant child;
  • the financial resources of each of the parties;
  • 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 the parties and of any relevant child; and
  • the conduct of the parties in relation to each other and otherwise.

Where the applicant is not entitled to live in the property except by association then there are further considerations.

The orders can be set to last a specific period of time or until further of the Court. Where an occupation order is made in respect of an applicant who is not entitled to reside then the orders will be made for periods of 6 months, extendable by returning to Court

The orders can have a power of arrest attached. This means if an order is breached then the abuser will be automatically arrested. Breach is a criminal offence and can be punishable by way of a fine or imprisonment or both.