Accusations Of Domestic Abuse - Advice To Help You Navigate Your Way Through The Family Court System
Many of us look forward to the holiday season: It is a time to come together and celebrate with family and friends. Sadly, Christmas can also be the source of significant conflict and arguments for many people and their families.
If allegations of domestic abuse are being made against you, your ex-partner may make an application to your local Family Court for either an Occupation order (OO) or Non-molestation order (NMO) or both. If this happens, it is vitally important you seek legal advice as soon as possible.
Non-molestation orders
A Non-Molestation Order is designed to prevent someone from carrying out physical, sexual or psychological abuse. It is also designed to prevent behaviour such as pestering or harassment. Physical violence does not have to be present. If your partner has applied for this type of order then they need to show that your behaviour is ongoing and is having an impact on the safety and wellbeing of any children involved. They also need to show that you are an ‘associated person’ to them. The legal definition for this is broad but, in essence, if you have been in a relationship and lived with your partner, you will fall into this category.
Generally speaking, you will be notified if your partner has made this kind of application before a decision is made. However, if your partner’s allegations against you are serious enough there are occasions when the court will make a non-molestation order without you knowing. This is referred to as a ‘without notice’ application. This means that your partner asked the court to make the non-molestation order urgently because they require immediate protection from you. If you receive a ‘without notice’ application, you must abide with the order from the moment you receive it. You will have the opportunity to explain your side of the story. The court will simply make the non-molestation order and list what is known as a ‘return date’ for you to attend court and respond to the allegations. If you do not attend the hearing that is listed, an order will still be made.
If the Non-Molestation Order that has been made against you is not urgent, you should still attend court to let the Judge know if you agree to the non-molestation order being made or not.
If you don’t agree to the order, you can ask the Court to accept ‘undertakings’ from you. This is a promise to the Court that you will not do certain things. For example, you could agree that you will not contact your partner by telephone if this is applicable. The ‘undertaking’ can be provided on the basis of no admissions, therefore you do not have to accept what is being alleged against you. To enforce an undertaking against you, your partner would need to return the case to Court. The Court can also ask your partner to provide cross-undertakings if it is the case that you are both making allegations about one another’s behaviour. Undertakings, if appropriate, can avoid the need for a non-molestation order to be made altogether.
If you don’t want to give an undertaking, or they are deemed inappropriate, the court will make directions for a final hearing. You will be given the opportunity to file your own witness statement in response to your partner’s allegations and a final hearing will be listed. At this hearing, the Court will consider your evidence and your partner’s evidence before deciding whether to make the non-molestation order or not.
The consequences of breaching a non-molestation order are serious. Your partner can call the police and have you arrested immediately. In serious cases, you may also be fined and possibly imprisoned. That is why you should comply with the non-molestation order even if you do not accept the terms of it, particularly if you are in the process of challenging it.
Occupation orders
An Occupation Order is a type of injunction that sets out who can live in the home, or how it should be shared for a set period of time. It is a very serious order and is only made when absolutely necessary. An occupation order can prevent you from entering a property or restrict your usage of the property, even if you are the legal owner. The Court also has the power to order that you should continue to pay the mortgage during the time the occupation order is in place.
Much like with a Non-molestation order, your partner would need to show that you are an ‘associated person’. You are likely to be an associated person if you have lived together.
In deciding whether to make an Occupation Order the Court will consider whether your partner and any children will suffer significant harm from you if the order is not made. This is a subjective exercise, and depends entirely upon why your partner says s/he needs an Occupation Order.
Breaching an Occupation Order is not a criminal offence unless your partner has asked for the court to attach a power of arrest to the order. Your partner may ask for this to be attached if they are concerned about the threat of violence from you. Breaching an occupation order with a power of arrest could lead to a large fine or possibly even imprisonment.
If an Occupation Order does not have a power of arrest attached to it then your partner can still apply for a warrant of arrest. They will need to provide evidence of you breaching the Occupation Order to be successful with this.
If you receive an application for an Occupation Order from your partner you should think about taking independent legal advice given the consequences are so serious.
Next steps
The above orders offer short-term solutions to (potentially) long-term problems. If you find yourself on the receiving end of such applications then you may want to think about next steps such as arrangements for children, initiating divorce proceedings, and / or separating family finances. Irwin Mitchell has a team of specialist family lawyers who can advise on all manner of family law issues.
Please always remember that if you are in an emergency situation yourself, you should call the police.
