What is domestic violence and domestic abuse?
Domestic violence or abuse includes all kinds of physical, psychological, sexual, financial and emotional abuse between people who are, or were, in a relationship with each other or are family members over the age of 16.
There is no exhaustive definition of domestic violence or abuse. Some types of violence are directly physical and may include:
· Damaging property.
Some types of abuse are not physical, such as:
· Controlling behaviour, such as:
· isolating someone from sources of support;
· reducing their independence;
· trying to control their behaviour; or
· exploiting them.
· Coercive behaviour, such as trying to harm, punish or frighten someone by use of:
· Humiliation; or
What can the law do?
Some forms of domestic violence are criminal offences that can, and generally should, be reported to the police. The police can issue a Domestic Violence Protection Notice or apply for a Domestic Violence Protection Order.
In addition, the law enables those subject to domestic violence to apply for injunctions to protect themselves. These orders are called non-molestation orders and occupation orders.
A non-molestation order is used to stop someone (called "the respondent") from://
· Using or threatening violence against another person (called "the applicant").
· Using or threatening violence to a child.
· Molesting a person in any way.
Molesting can include:
Behaviour that harms, troubles, vexes, annoys or inconveniences an associated person or any relevant children.
Molestation can be direct and includes a range of behaviour, such as:
· Physical harm.
· Verbal abuse or threats.
· Pestering another person.
Molestation can also be committed indirectly, including:
· In writing or through social media.
· Through a third party.
· Persistent abusive text message, phone calls or messages on social media.
Molesting can also include pushing, punching, slapping, hair pulling, throwing objects and spitting.
A non-molestation order can also be used to keep a person away from a particular place such as the area around a home or a workplace.
For an application to be successful there must be evidence:
· Of the behaviour complained of.
· That the applicant or a child are in need of protection.
· That an order is needed to control the behaviour of the respondent.
An order only becomes effective when it has been served on the respondent.
Typically, a non-molestation order is made for six to twelve months but it is possible to apply for further orders.
Breaching a non-molestation order is a criminal offence punishable with up to five years imprisonment or as a contempt of court.
An occupation order determines who will live at the family home. An occupation order can sometimes be used to exclude someone completely from a property or can set out rules to enable a property to be shared.
Granting an order depends on the relationship of the parties and their rights to occupy the property in question.
For an application to be successful the so-called "balance of harm" test must be applied. Essentially the judge will consider whether the applicant or any child is likely to suffer significant harm due to the conduct of the respondent if the occupation order is not made. The test includes the need to consider whether making an occupation order will cause greater harm to be suffered by the respondent and any child.
If the judge does not find sufficient reason under the balance of harm test, an application might still be brought. In deciding whether or not to make an occupation order the court will consider all the circumstances of the case, including the:
· Housing needs of the parties.
· Financial resources of the parties.
· Likely effect of any decision by the court not to exercise its powers on the health, safety or wellbeing of the applicant and any child.
· Conduct of the parties to each other.
Occupation orders are intended to determine temporary living arrangements to give the applicant and respondent time to organise where they will live and how they will divide their property.
An occupation order can be made for a period of up to six months but it is possible to apply for further orders.
Sometimes it is thought safer for an order to be made swiftly and without the other person being aware of the application. These are known as "without notice" or "ex parte" orders. The court will always arrange a further hearing so that both parties can have their say once the immediate urgency is taken out of the situation and the vulnerable person or people protected.
Who can apply for non-molestation and occupation orders?
Non-molestation and occupation orders are only available to certain categories of people known as "associated persons". These are people between whom there is or has been a relationship. The relationship does not necessarily need to have been intimate and includes:
· People living in the same household.