Types of Protection Orders

Non-Molestation Orders

Non-Molestation Orders are made under the Family Law Act 1996. These are an Order prohibiting a person from molesting another person. It is a criminal offence if a Non-Molestation Order is breached without reasonable excuse.

The Court has a wide discretion whether to grant or refuse relief sought. The criteria to be considered by the Court are all the circumstances including a need to secure the health, safety and wellbeing of the Applicant (i.e. the person making the application). There must be evidence of molestation going on. The Applicant must need protection.

The Judge must be satisfied that judicial intervention is required to control the Respondent’s (i.e. the person responding to the application) behaviour. Health includes physical and mental health. Molestation involves any form of physical, sexual or psychological molestation or harassment that has a serious impact on the health and wellbeing of the Applicant.

In most cases the Respondent will be given notice of the Hearing and both parties will make representations. However, if a person can show they are at risk of significant harm if an Order is not made immediately then they can apply for a Non-Molestation Order without notice to the Respondent. The Judge will consider this at a Hearing when only the Applicant will attend. If the Judge makes a without notice Non-Molestation Order then there will be a further Hearing. The Respondent will be given notice of the further Hearing and both parties will make representations at that Hearing as to why the Non-Molestation Order should or should not continue.

A Non-Molestation Order can only be granted to protect a person associated with the Respondent or a relevant child. This includes someone they are having or have had a relationship with, a family member or someone they are living with or have lived with.

It may be that an agreement can be reached at Court with the parties giving undertakings. An undertaking is a promise to the Court and is enforceable as a contempt of Court punishable by committal proceedings. If undertakings are given this would avoid the need for there to be a full trial.

Occupation Orders

Occupation Orders are also made under the Family Law Act 1996. An Occupation Order is an Order regarding rights of occupation in the family home e.g. requiring one party to leave, excluding one party from a defined area or the vicinity of the home.

The Court considers the balance of harm test first ‘If it appears that the Applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the Respondent if an Order is not made it is mandatory for the Court to make an Occupation Order unless it appears that the Respondent or any relevant child is likely to suffer significant harm if the Order is made and that harm is as great or greater than the harm likely to be suffered by the Applicant.’

Where the Court determines that the Applicant is not likely to suffer significant harm attributable to the conduct of the Respondent, it enters the discretionary regime. The criteria to be applied by the Court in deciding whether to exercise its powers are all the circumstances including:

  1. The housing needs and housing resources of each of the parties and of any relevant child.
  2. The financial resources of each of the parties.
  3. The likely effect of any Order, or decision not to exercise powers, on the health, safety and wellbeing of the parties and any relevant child.
  4. The conduct of the parties.

The Court will also take into account the existence of alternative accommodation for the other party and may rely on the other party’s greater financial resources.

Where an Occupation Order is sought the Court has the power to enforce obligations on to either party. These obligations include payments towards the rent, mortgage or other outgoings, repair and maintenance.

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Please note the above is for information purposes only and is intended to be a short summary.  It should not be treated as a comprehensive guide and should not be acted on without qualified legal advice.