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Domestic Abuse - Do you need protection?

View profile for Juliette Kilkenny
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Domestic Abuse - "any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality".

This can include but is not limited to psychological, physical, sexual, financial or emotional abuse.

If you have been or are a victim of Domestic Abuse, then the suffering can stop. We can assist you in obtaining protection through the Family Court to put an end to the abuse. You may be able to apply for a Non Molestation Order and/or an Occupation Order to protect you from further harm.

A Non Molestation Order is an order under Part IV Family Law Act 1966. Such an Order can prohibit someone from using or threatening violence against you, from intimidating, harassing or pestering you or from communicating with you. Furthermore the other party would not be able to instruct or encourage any other third party to do anything they themselves are forbidden to do under the terms of the order. This list of terms is not exhaustive and the order can also prevent someone from damaging or attempting to damage your property or specific items and from coming within a certain distance of your property or other significant address such as a school or place of work. The terms requested in your application would very much depend on the circumstances of your case and what would be required to afford you the most appropriate protection.

The person whom you are applying for protection against must be considered an "associated person" as specified in the Family Law Act 1996. This includes a spouse, civil partner, cohabitant, family member or someone you share Parental Responsibility with for your child/children, amongst others. We would be able to double check this with you before proceeding with any application.

There are two possible ways of applying for a Non Molestation Order depending whether there is an imminent risk of harm to yourself. If so, the application can be made ex parte. This means no notice is given to the other party of your intention to apply to the court for protection. You would attend court on an urgent basis with you application and statement in support, which we will help you prepare, and request the order is made by a District Judge there and then. If the District Judge believes your application has merit to warrant an urgent order, it will be made immediately at court. However such order does not become effective, and thus you are not yet protected by the terms of the order, until it has been personally served upon the other party. Don't worry as we can also assist you in arranging personal service of the order by a Process Server which is often done within a matter of hours. A copy of the order would also be provided to the Police so that they are similarly aware of the order becoming effective. This is because breach of any of the terms of a Non Molestation Order is a criminal offence. The Police would not be able to take whatever action they deem appropriate for such breach if they're not aware of the order being in place.

The alternative route to applying for a protective order is to apply on notice. This pretty much is as it says on the tin. You or we would prepare your application and statement in support in the same way as outlined above, but instead of attending court within a couple of days to request the order, your paperwork would be submitted to the court and a hearing date listed within perhaps 7 or so days. The other party, the Respondent, would then be given notice of the first hearing along with a copy of your application and statement. The route you therefore choose to apply for a Non Molestation must be considered carefully as potentially with the latter option, there becomes a window of time whereby the Respondent is aware of your intention to apply for a protective order, is aware of the forthcoming hearing date but you do not have the protection of an order yet in place.

The District Judge will decide as to how long any order will be in force for.

At the same time as applying for a Non Molestation Order you can also apply for an Occupation Order. Although either application can be made separately from the other. An Occupation Order is an order of the court controlling who lives in a specific property, often to the exclusion of others. Additional terms can also be applied for such as who will be responsible for ongoing payments of the mortgage or rent and if someone is to be excluded from a property, the date and time they should vacate that property. The same ways to make your application as set out above apply with an Occupation Order and indeed both orders can be applied for using the same application and statement in support. You must also be considered an "associated person" with the person you are applying for the order against. The one obvious difference however is the way in which a breach of an Occupation Order is dealt with. Such a breach is not a criminal offence but instead is contempt of court. The onus would then be on you as the applicant to return the matter back to the Family Court and prove the breach when sanctions may be imposed.

Finally, a recent Government announcement confirmed an extra £4 million is to be allocated to the Domestic Abuse Fund. The Fund was originally launched in July this year to provide specific support to over 25,000 victims and their families to fund additional beds in refuge, to allow access to eduction, employment and life skills to help survivors build a safe and healthy future for themselves and their families. This is welcome news which will build on any assistance we can provide to obtain protection in the first instance.

If you require any assistance in obtaining either of the above orders to protect you from Domestic Abuse, then please do not hesitate to contact our Family Team in York on 01904 624185 when an initial meeting can be arranged to discuss matters in further detail. At the same time we will be able to assess your eligibility for Legal Aid.