If you or your children are the victims of domestic violence or abuse act now to protect yourself or your children – call the police and/or leave the house. The personal safety of you and your children is more important than the legal niceties.
If you are affected by domestic abuse (which can include violent behaviour and emotional abuse) from an “associated person”you can apply for an injunction under the Family Law Act 1996 to protect you.
An “associated person” can include:
- Present and former spouses
- Parents of children
If you are not an associated person then you are unable to use this provision but instead you can apply under the Protection from Harassment Act 1997.
Non Molestation Order
You could seek a Non Molestation Order to prevent the other party from harassing you or using or threatening violence against you. This can be sought ex parte (ie. without notifying the other party) if there is a risk of harm if the other party receives the papers seeking relief before the Order is in place for protection. Breach of a Non-molestation Order is an arrestable criminal offence but no civil Power of Arrest is available.
You may also be able to seek an Order that the other party is required to vacate the home and not return to it or a defined area. However the Courts do not tend to allow these orders to be made without the other party having being served and having had the opportunity to seek legal advice and attend Court.
The Judge may not make an Order that the other party vacate for a number of reasons. The Court will not make the Order if the other party or a relevant child is likely to suffer more harm if the order is made. Consideration is also given to factors such as housing and financial considerations and the conduct of the parties. In addition, the Courts view orders ordering one party to vacate a home as a drastic measure especially if it overrides rights of ownership of the home and may prefer a scenario where you are protected by a non-molestation order where both parties remain in the home but each are restricted to separate parts of the house.
Power of Arrest
We could also seek a Power of Arrest if there has been violence which is likely to recur. If granted, an Order is personally served on the other party with a copy going to the Police who can then arrest the other party if it is believed the Order has been breached. Breaches of the Order may result in a fine or committal to prison.
Any Order will have a Penal Notice attached which confirms that if the other party breaches the Order you can apply to Court for a committal hearing. The other party is asked to “show cause” why they should not be sent to prison for breach of a Court Order. The Judge has power to send the other party to prison, impose a suspended sentence or a fine if satisfied that there has been a breach of the Order.
The Courts are able to accept an Undertaking from the other party if they are prepared to promise not to use or threaten violence and to agree to live in specified parts of the home or vacate it altogether. Making this promise has the same effect as a Court Order but does not require the other party to accept that the allegations are true. The undertaking cannot carry a Power of Arrest and therefore may not be acceptable but if breached could be enforced in the same way as a Court Order. Breach of an Undertaking is not a criminal offence.
Rights of Women.org provides useful information including a guide to legal aid.