Ex Parte Orders made by Courts in Family Law Matter
Updated: Aug 29, 2021
What are Ex Parte Orders?
Sometimes, courts are necessitated by the law to issue orders in which one of the parties is unaware of the proceedings. Such orders can only be given if it is done in the interest of justice. These orders are known as ex parte orders, in which one of the parties is absent altogether. Ex parte injunction petitions are a way for a judge to issue orders that protect a certain vulnerable individual against a party as the defendant is unaware of the proceedings against them.
An ex parte order is sometimes seen as unjust on a fundamental level since the party who has not had the chance to be heard is simply denied this right. This kind of order in Court is frequently requested to be issued against a spouse in a married relationship.
Under what law are Ex Parte Injunctions brought about?
The ex parte injunction petitions are often utilised when violence or harassment is present, and the party applying for the injunction wants it right away. Family Law Act 1996 Part IV deals with ex parte petitions for injunctions (FLA 1996). Preparation of an affidavit in emergency injunction cases is particularly essential, as time is often of importance. The applicant has to ensure that the affidavit has all of the required information, is correctly formatted, and complies with the Act’s requirements, which is imperative. An ex-parte injunction application, like an occupation order application, is made based on the facts and law laid forth in the affidavit of the application.
This affidavit is usually much more than just being a storyteller. It is a very detailed document. Its clarity is essential to convince a judge that an injunction order must be issued against the opposing party even when there is a lack of knowledge of the party about the current proceedings.
There are different kinds of ex-parte injunction orders. Regarding family matters, the three ex-parte orders are the non-molestation order, occupation order, and prohibited steps order.
In this blog post, we will mention in detail each kind of these orders.
What are non-molestation orders?
Essentially, a non-molestation Order is just what the name of it implies. Victims can request this order of domestic abuse by petitioning the Family Court for civil order. The definition of molestation as stated here may apply to a broad range of acts, which include, but are not limited to, physical, emotional, financial, and sexual abuse, as well as control and threatening behaviour, and can also include coercive and controlling behaviour, bullying, and harassment. Physical abuse may last for a short time, or it can go on for a long time. Someone victimised by these sorts of incidents may petition the Court for a non-molestation order against an “associated person.” This “associated person” may also include close relatives, including spouses, ex-spouses, civil partners, ex-civil partners, live-in partners, and previous live-in partners.
When does a non-molestation order go into effect?
A non-molestation order is given when the accuser submits an affidavit to the Court detailing physical and emotional abuse claims. This affidavit must be as specific as possible when describing all the ways the accuser has been physically and emotionally abused, when and where the incidents occurred, and the lasting impact on the accuser and their children. The affidavit has to be as specific as possible. As much proof as possible of all elements of damage caused by the spouse or ex-abusive partner’s behaviour should be presented to the Court by the accuser. Alternatively, the order can also be given if the accuser has documents or proof, such as police reports or medical records that verify previous occurrences. Because the Court has discretion when making orders, it must take all of the above considerations into account, including the impact any order may have on the accuser and their partner’s health, safety, and well-being, their relationship with each other, their individual needs, and their financial and housing resources.
What is the authority under which non-molestation orders are issued?
Non-molestation court orders are given under the Family Law Act 1996 (FLA 1996) and are issued to the defendant, ordering them to not molest any associated persons or related children. Several legal decisions regarding non-molestation court orders guide the decisions in today’s day and age. These decisions are the C v. C  1 FLR 554 and Walton v. Johnson (1990) 1 FLR 350. According to section 42(5) of the FLA 1996, the Court will consider all relevant facts to ensure the applicant’s health, safety, and well-being. There is considerable leeway given to the Court in making decisions about what constitutes molestation. As a result, the application’s likelihood of success depends completely on the judge’s take on the current situation.
What form is used for applying for a non-molestation order?
A non-molestation order request can be made using Form FL401.
More can be read on Non-Molestation Orders here:
What is an occupation order?
The most common goal of an occupation order is to control the family home occupation. It is mainly used to keep a certain individual out of the family home. Apart from this, it is also used to:
· enforce the right to stay in occupancy of the property,
· or to control the property’s occupancy,
· or to ban, stop, or limit the act of occupation in the particular property,
· or to cause the termination of the stay at the property,
· or to keep certain persons out of the specific area that the property is situated in,
· or to make it necessary to get authorisation before entering and remaining in the home.
The applicant can state the specific order from the ones mentioned above when they apply for the occupation order.
When is an occupation order issued?
Three important criteria must be fulfilled before an occupancy order is issued. These include:
· The applicant’s rights over the property, including property ownership, must be established. For example, the applicant may have “Matrimonial Home Rights” even if they are not specifically identified as property owners.
· At some point, this property was meant to be both parties’ residence with their agreement.
· The parties in question must have been spouses, civil partners, or partners, relatives, and those who have agreed to marry, as well as those who have maintained an intimate personal relationship with one another for a substantial period. Thus, they should be ‘associated persons’ according to the terms of Section 62 to 63 of the FLA 1996.
The Court will use the balance of harm test when considering an application for an occupation order under the Family Law Act. The Court should weigh the negative impact that failing to grant the order would have on the applicant or child against the respondent’s damage if the order is issued. Unless it is shown that a respondent would be worse off if an order is granted, the order must be made if there is substantial damage that will befall the applicant if no order is issued. Even if this criterion fails, the Court may nevertheless issue an order if it chooses.
The Court will consider the parties’ housing requirements and financial resources, the probable impact of an order they are likely to receive, including the well-being of their children, and the behaviour of the parties when determining whether to issue an order of occupancy.
According to which legislation does an occupation order take effect?
The occupation order is issued under the FLA 1996 and is quite similar to the non-molestation order. To qualify for an occupation order, one must fulfil additional requirements in different sections of the Family Law Act, including Sections 33, 35, 36, 37, and 38.
What form is to be issued to apply for an occupation order?
An application for an occupation order can be made by using Form FL401.
More can be read on Occupation Orders here:
What is a prohibited steps order?
A prohibited steps order restricts an individual from doing specific actions or taking certain things away from them, such as moving their child out of the country or away from their home and thus keeping the child out of their reach. Regardless of whether the person has parental responsibility for a child, a prohibitive steps order can be issued against them. This order can also be asked for by someone not even a part of the current proceedings. A judge usually gives this order to help someone being abused, for example, protect their family from being separated or from taking the child away from one of the parents. As this relates to a child’s well-being, the Court must be convinced that order would lead to the best course of action for the child, or else it can choose to order nothing at all.
When is a prohibited steps order issued?
When an application is filed against a parent, no matter whether they have parental responsibility or not, a prohibitive steps order can be issued. This order is generally issued to prevent acts such as a parent taking a child out of the country or removing a child from their home. Regardless of the consequences, the courts have the responsibility to determine whether it is better for the child to have an order made or not.
Under what law is a prohibited steps order given?
Children Act 1989 provides that prohibited steps orders are orders that prohibit specific steps from being taken by any person while fulfilling their parental responsibilities to a child, and specific other steps generally described in the order. When evaluating an application for a Prohibited Steps Order, the Court must give primary attention to the child’s well-being and keep in mind the checklist of welfare issues under the Children Act 1989, Section 1(3).
Under what form is a prohibited steps order issued?
To apply for a prohibited steps order, the applicant must complete the C100 form. After issuing the application, the Court will assign a date for the first formal hearing in the dispute settlement process.
Sometimes, filling up these forms for these ex parte family matter-related orders and applying for them can be complicated. At Court Help Limited, we offer paralegal services, and if you need any help, we are just a call away.