Domestic Abuse Notes

Domestic Abuse 1) Can the victim of domestic apply to court? Must be an 'associated person' - s.62(3) Part IV Family Law Act (FLA) 1996 a) They are or have been married to each other; b) They are or were civil partners of each other; c) They are cohabitants or former cohabitants; Defined - Cohabitants are two persons who, although not married to each other, are living together as husband or wife or if the same sex, in an equivalent relationship - FLA 1996 d) They are or have lived in the same household (other than being the other's employee, tenant, lodger or boarder; e) They are relatives; Defined - A relative is: - s.63(1) FLA 1996 1) The father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, granddaughter or grandson of a person against whom the order is sought or one of the listed person's spouse / former spouse / civil partner / former civil partner 2) The brother, sister, uncle, aunt, niece or nephew or first cousin (full blood or half blood) of a person against whom an order is sought or one of the listed person's spouse / former spouse 3) If the parties are cohabitants, any person who would have been included in 1 or 2 had the parties been married f) They have agreed to marry each other (as long as this agreement was not terminated more than 3 years before the application for the order; g) They have agreed to enter a civil partnership (as long as this agreement was not terminated more than 3 years before the application for the order; h) They have or have had an intimate personal relationship with each other which is or was of a significant duration i) In relation to a child both are either: 1) The parent of the child; or 2) Or have / have had parental responsibility for the child; j) They are parties to the same family proceedings (other than proceedings under Part IV FLA 1996 itself) 2) What orders can the applicant apply for? Non-molestation order; - s.42 FLA 1996 Occupation order; or - s.33-38 FLA 1996 Both 3) Non-molestation order 1) What is the scope of a non-molestation order? Molestation is not specifically defined but is designed to ? Protect the applicant from the respondent intimidating, harassing or pestering them or instructing anyone else to do so 2) Is the client able to apply? a) The applicant must be 'associated with the respondent' - apply s.62(3) FLA 1996 from above b) The property must be a 'dwelling house' - I.e. it must be a residential rather than business property 3) When can a non-molestation order be applied for? a) As a freestanding application under FLA 1996 b) As part of existing family proceedings c) The court's own motion in family proceedings 4) Has the applicant satisfied the test? - s.42(5) FLA 1996 The court must have regard to all the circumstances of the case including the need to secure the: a) Health; b) Safety; and c) Wellbeing of the applicant and / or any relevant child. * Therefore if the applicant can show a genuine need for protection, the order will be granted 5) What is the form and length of the order? - s.47(2) FLA 1996 The order may be for a specified period or until further order (i.e. infinite) 6) If the order is granted, how will it be worded / what may the terms be? 1) "Not to use or threaten violence against the applicant / child or encourage or in any way suggest that any other person should do so"; and 2) "Not to intimidate, harass or pester the applicant / relevant child or encourage or in any way suggest that any other person should do so"; 4) Occupation orders 1) What is the scope of an occupation order? They are designed to regulate occupation of the home and can exclude the offending party from the property, areas within the home, or a specified area around the home 2) Is the client able to apply? a) The applicant must be 'associated with the respondent' - apply s.62(3) FLA 1996 from above b) The property must be a 'dwelling house' - I.e. it must be a residential rather than business property 3) When can a non-molestation order be applied for? a) As a freestanding application under FLA 1996 b) As part of existing family proceedings c) By the court of its own motion in family proceedings 4) What is the status of the applicant and the respondent in relation to the property? a) Who is entitled to occupy the property? b) What is their relationship to one another? 5) Using answers to 4) which section of the FLA 1996 should the applicant apply under? a) The applicant is entitled to occupy the property - s.33 FLA 1996 applies * This is irrespective of whether the respondent is also entitled to occupy the property * This section has the widest scope b) The applicant is not entitled to occupy the property but the respondent is - s.35 + s.36 FLA 1996 apply Applicant is the former spouse / former civil partner - s.35 FLA 1996 Applicant is a cohabitant or a former cohabitant - s.36 FLA 1996 c) Neither the applicant nor the respondent is entitled to occupy the property - s.37 + s.38 FLA 1996 apply Applicant is a spouse / former spouse / civil partner / former civil partner and neither party is entitled occupy the property - s.37 FLA 1996 Applicant is a cohabitant or a former cohabitant and neither is entitled to occupy the property - s.38 FLA 1996 6) Applicant is entitled to occupy ? s.33 FLA 1996 1) The applicant must establish their entitlement to occupy a dwelling house which can be: s.33(1) a) A beneficial estate or interest (sole or joint owner of the property) b) A contractual right of occupation e.g. a tenancy agreement c) A statutory right of occupation d) Spouse's right to occupy the family home under s.30 FLA 1996 2) The applicant must be able to show the property was an actual or intended home for both the applicant and respondent - s.33(1) 3) Is the 'balance of harm' test satisfied? - s.33(7) * This should be considered first - Chalmers v Johns 4) The factors in s.33(6) must be considered second MANDATORY ? If the applicant or child is likely to suffer significant harm attributable to the conduct of the respondent if the occupation order is not made, the court shall (must) make an occupation order unless it appears to the court: a) The respondent or any child is likely to suffer significant harm if the order is made; and How s.33(6) should be considered a) If the factors under s.33(7) are satisfied, the order will be granted, and s.33(6) will be considered to determine what type of order to make b) The harm likely to be suffered by the respondent or child is as great or greater than the harm attributable to the conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made b) If the factors under s.33(7) are not satisfied, the order will not be automatically granted, and the court has discretion whether to make an order on the basis of the factors in s.33(6) Apply s.33(6) which states that in deciding whether to grant the occupation order, the court must take in account all the circumstances including: a) The housing needs and resources of the parties and the children (i.e. the availability of alternative accommodation) b) The financial resources of the parties (i.e. whether either of the parties can afford to re-house themselves) c) The likely effect of the order or lack of an order on the health, safety and well being of the parties or any child d) The conduct of the parties in relation to each other or otherwise (trivial conduct will not be included) 5) If the court makes an occupation it may encompass any of the following provisions: - s.33(3) FLA 1996 a) Enforce the applicant's entitlement to remain in occupation as against the respondent; b) Require the Respondent to permit the Applicant to enter and remain in the home or part of it; c) Regulate the occupation of the home by either or both parties; d) Prohibit, suspend or restrict the exercise by the Respondent of his / her right to occupy the home; e) Restrict or terminate the Respondent's home rights; f) Require the respondent to leave the home or part of it; or g) Exclude the respondent from a defined area around the home 7) Applicant is a former spouse / civil partner and is not entitled to occupy ? s.35 FLA 1996 6) What is the form and length of the order? The order may be for a specified period or until further order (i.e. infinite) - s.33(10) 1) The applicant must show that: - s.35(1) a) They are the former spouse or former civil partner of the respondent b) The respondent is entitled to occupy the property and the applicant is not entitled to occupy 2) The applicant must be able to show the property was an actual or intended home for both the applicant and respondent - s.35(1) 3) Is the 'balance of harm' test satisfied? (s.33(7)) - s.35(8) MANDATORY ? If the applicant or child is likely to suffer significant harm attributable to the conduct of the respondent if the occupation order is not made, the court shall (must) make an occupation order unless it appears to the court: a) The respondent or any child is likely to suffer significant harm if the order is made; and b) The harm likely to be suffered by the respondent or child is as great or greater than the harm attributable to the conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made 

Buy the full version of these notes or essay plans and more in our Family Notes.