As mentioned in last week’s article on protection orders, an occupation order can be made in addition to a protection order as a means of adding further protection to the abused person. These orders may provide a form of reassurance that the applicant will not be left without a place to stay if their alleged abuser lives within the home or even solely owns the home. An occupation order can be obtained on its own by an independent application to the Court or as part of an application for a protection order.
What is an occupation order and how do I obtain one?
An occupation order is an order made by the Court under the Domestic Violence Act which gives the abused person the right to live in or occupy the home. The order will state the duration of the occupation and depending on the requirements of the situation the order will have certain conditions attached.
The Court will only make this order if it is satisfied that the order is necessary for the protection of the abused person. In circumstances where the occupation order is not considered necessary for the protection of the abused person, the Court may also grant it if to do so would be in the best interest of a child. For example, if the abused person and the alleged abuser are in a co-habiting relationship, have children, and the abused person is the main care giver, though the abused person may not need the home for their protection, as this is the children’s home it may be best for the children to stay in their home for stability rather than being uprooted to move with the abused caregiver.
Who may make the application to the Court?
The persons who may apply are much broader than for a protection order. However, in most circumstances it will be the same individual applying for the protection order.
The abused person or any person on their behalf may make the application.
Can I get this order without telling my abuser beforehand?
Due to the fact that most cases involve a protection order and some form of violence or threatened violence, an occupation order may be made without the knowledge or presence of the alleged abuser, this is known as an ‘ex parte’ application. The availability of this process assists in securing the safety of the abused person. Like protection orders, this order will be an interim order and will have a date for a hearing at which the alleged abuser can be heard and the order can either be discharged or made final. The order must be personally served on the alleged abuser.
For an order interim order to be made, the Court must be satisfied that the alleged abuser has used violence against the abused person or caused mental or physical injury and summoning the alleged abuser to Court could expose the abused person to physical injury.
This can be compared to the protection order, which can be obtained ‘ex parte’ if proceeding on summons would result in a risk to the abused person’s personal safety or serious hardship.
It is important to note that although a threat of violence and a risk of mental injury is sufficient to obtain an ‘ex parte’ protection order, it is not sufficient to for an ‘ex parte’ occupation order. There must be actual violence or injury and the risk of further physical injury.
I obtained an occupation order, what does this mean?
Obtaining an occupation order gives the abused person the right to occupy the home to the exclusion of the alleged abuser. In other words, the alleged abuser must leave the home for the duration of the order.
You will see that in conjunction with a protection order the abused person will be protected by orders prohibiting the alleged abuser from being in close proximity to them, as well as, providing security of shelter to the abused person.
Other key points
Imagine an alleged abuser receiving an occupation order and, in an attempt, to torment and frustrate the abused person they follow the order and leave the home but make the home inhabitable. To prevent the alleged abuser from using loopholes to torment the abused person the occupation order may be accompanied by orders in relation to the use of furniture, household appliances, and other household effects preventing the alleged abuser from removing any of these items from the home.
Before a Court will make a final occupation order any other person who may have an interest in the home must be given notice of the application for an occupation order. So, for example, if the home is rented, the landlord must be made aware or if the home is also owned by one of the parties’ parents, they must be made aware and will have a chance to attend the hearing and be heard. (Not applicable for an interim ‘ex parte’ order.)
As with protection orders, any party may appeal the Court’s decision to grant or not grant an occupation order.
Though there are no stipulated offences for an alleged abuser refusing to leave the home, as the occupation order will invariably be granted along with a protection order, refusing to leave will breach the protection order and will result in the consequences as listed in last week’s article.
In concluding, in many instances of domestic violence an occupation order will prove necessary as an additional level of protection and security along with a protection order. Occupation orders can give an abused person who may fear being kicked out of the home and having nowhere to go some hope and courage to take action to get out of the hands of their abuser.
Deniece A. Beaumont Walters | Attorney-at-Law | DBW Legal
This article is for general information and educational purposes only and does not constitute legal advice. If you require legal advice Deniece can be contacted at law@dbwlegal.com or 876-277-2022 to set up a consultation.