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Friday July 1, 2022
What does the court look at when making a domestic abuse injunction?
A judge being asked to decide whether a domestic abuse order should be made has to apply different ‘tests’ depending on the type of order that is being applied for and, in the case of occupation orders, how a person is applying for an order. This area can be quite complicated and our specialist domestic abuse solicitors can help guide you through the process.
When the court is deciding whether to make a non-molestation order the Family Law Act 1996 says the court shall have regard to all the circumstances including the need to secure the health, safety and well-being of the person applying for the order and any relevant child.
‘Molestation’ is not defined but through previous cases different examples have been given and it covers everything from violence to pestering/harassing someone.
‘Health’ is defined as meaning both physical and mental health so the court will accept a wide range of ‘impacts’ upon a person.
‘Without notice’ applications
Applications for non-molestation orders can be made on notice to the other person or in certain circumstances they can be made without telling the other person an application has been made. This is known as ‘without notice’, it is not normal practice and the court must consider it carefully. If a without notice, urgent application is made the court must also consider:
(a)any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately,
(b)whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately; and
(c)whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay in effecting substituted service.
If the court grants an application on a without notice basis then it must give the person the order has been made about, called the respondent, the opportunity to make representations about the order as soon as is ‘just and convenient’ at a full hearing known as the ‘Return Hearing’ which will be listed within 7 to 10 days.
Occupation orders are a complicated area of law and what the court will look at will depend on which set of circumstances allow you to apply for an occupation order. There are a number of ways a person qualifies to apply for an occupation order:
There are two different tests that can be used if an application is made to the court for an occupation order when the applicant is a legal owner or tenant, has a beneficial right or a matrimonial home right.
One test is the ‘balance of harm’ test, this is used by the Court to decide whether an order should be made. The Judge dealing with the application has to balance the harm suffered by the person applying for the order and any relevant child, and whether or not they are likely to suffer significant harm if they don’t make an order, against the harm suffered by the respondent and any relevant child if the order is made and whether the harm the respondent would suffer would be significant. If a Judge finds that if an order is not made the applicant will suffer significant harm it must make an order unless the harm suffered by the respondent is greater than that of the applicant.
The other test the Court can look at is whether the court should use it’s discretion to make an order, it does not require someone to show there has been significant harm, but the court must have regard to all of the circumstances including:
In this situation the court will look at the following when deciding whether to make an order:
If the court is being asked to make an order that says who will live in the house, who is restricted from the house/part of the house or who has to leave the house the Judge listening to the application will also have to look at whether there is a risk of significant harm in a similar way to the ‘balance of harm’ test.
In deciding whether to make an order in these circumstances the court shall have regard to:
There is a ‘balance of harm’ test but the court can still decide whether to make an order and doesn’t have to make an order just because significant harm has been found.
This is very rare as most people applying belong in the other groups above but if a court is being asked to make an order the ‘balance of harm’ test will apply when deciding whether or not to make an order. It is slightly different depending on whether you are married but our experienced solicitors can offer tailored advice.
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