Non-molestation and occupation orders: protection from domestic abuse

A non-molestation order can protect an applicant or relevant child from behaviour including:

• violence or threats;
• harassment or intimidation;
• unwanted contact;
• attending the applicant’s home or workplace;
• abusive communications;
• stalking or monitoring; and
• other forms of domestic abuse.

The wording of the order will depend on the behaviour alleged and the protection required.

Breach of a non-molestation order can be a criminal offence.

An occupation order regulates occupation of the family home.

Depending on the circumstances, it may:

• require someone to leave the property;
• permit someone to return;
• decide which parts of the property each person may use;
• prevent someone entering the home or a surrounding area; or
• impose related obligations concerning the property.

Occupation orders do not permanently determine ownership of the property. The court considers statutory factors which vary according to the parties’ legal rights and relationship to the home.

The applicant must normally be an “associated person” of the respondent under the Family Law Act 1996.

This can include certain:

• current or former spouses or civil partners;
• current or former cohabitants;
• relatives;
• people who have agreed to marry;
• parents of the same child; and
• parties to relevant family proceedings.

The qualifying relationship should be checked before an application is prepared.

Form FL401 is used to apply for a non-molestation order, occupation order or both.

The application must be supported by a witness statement explaining:

• the relationship between the parties;
• the relevant history;
• the most recent incident;
• earlier significant incidents or patterns of behaviour;
• the effect on the applicant and any children;
• police, medical or social-services involvement;
• existing orders, bail conditions or proceedings;
• the protection required; and
• why the proposed terms are necessary.

The statement must contain the required statement of truth and be signed by the applicant.

There is currently no court fee for making the application.

An application may be made without first notifying the respondent where the statutory criteria are met.

The supporting statement must explain why notice has not been given. Relevant circumstances may include:

• an immediate risk of significant harm;
• a concern that the applicant may be deterred from pursuing the application;
• a risk that the respondent may evade service; or
• a concern that advance warning may undermine the protection sought.

The court decides whether it is appropriate to proceed without notice.

If an order is made without notice, a further hearing will normally be arranged so the respondent has an opportunity to answer the application.

The applicant must provide full and frank information, including material facts that may not support their application.

Relevant evidence may include:

• police incident or crime references;
• photographs;
• medical evidence;
• messages, emails or call logs;
• recordings where lawfully obtained;
• witness evidence;
• domestic-abuse-service records;
• social-services records; and
• existing orders or bail conditions.

An applicant should not delay an urgent application solely because every supporting document is not yet available. However, the statement must remain accurate and should distinguish between facts, recollection and information received from others.

The applicant must not personally serve the application or order on the respondent.

An unrepresented applicant may ask the court to arrange service. Alternatively, service may be carried out by an authorised process server or another permitted method.

Proof of service is important because enforcement may depend on showing that the respondent was served with the order or informed of its terms.

Where an occupation order concerns rented or mortgaged property, documents may also need to be served on the landlord or mortgage lender.

Where an applicant needs to keep their address or contact details private, Form C8 may be required.

Care must also be taken to remove confidential information from:

• Form FL401;
• the supporting statement;
• exhibits;
• correspondence; and
• documents served on the respondent.

• failing to establish a qualifying relationship;
• providing conclusions without describing the behaviour;
• omitting the most recent incident;
• failing to explain the effect on any children;
• applying without notice without explaining why;
• withholding a material fact from the court;
• confusing an occupation order with permanent property ownership;
• requesting terms that are too vague to enforce;
• revealing a confidential address;
• attempting to serve the respondent personally;
• failing to retain proof of service; and
• assuming an application guarantees that an order will be made.

Price Family Law can provide practical support with:

• identifying the relevant application route;
• preparing or reviewing Form FL401;
• structuring the supporting witness statement;
• preparing a chronology of incidents;
• organising supporting evidence;
• identifying the protective terms requested;
• preparing for an urgent or return hearing;
• preparing a position statement;
• organising the court bundle; and
• preparing the client to present their application.

Where urgent protection, legal aid or regulated legal advice may be appropriate, the client may be referred to a solicitor or specialist domestic-abuse service.

Support preparing an FL401 application or supporting statement is available as a One-Off Fixed Fee Service.

The fee is confirmed after assessing:

• whether one or both orders are sought;
• whether the application is urgent or without notice;
• the number and complexity of the incidents;
• the volume of supporting material;
• any related children proceedings; and
• the deadline and agreed scope.

There is currently no court fee for applying for a non-molestation or occupation order.