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Family Law Domestic Violence Notes

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This is an extract of our Family Law Domestic Violence document, which we sell as part of our Family Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.

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Family Law Domestic Violence PQ

Domestic violence is not limited to physical abuse
Recognised in 1960s
 Area of social trouble
 rise of feminism and female autonomy
 overwhelming woman suffer from domestic violence than a much greater weight than man, physical violence impact greater on woman
 contained in very piecemeal and haphazard legislation
Not much access to law although different remedies(criminal law) available
Court also had powers to make orders under inherent jurisdiction and under tort laws
Clear coherent legislation needed- usually still love person so do not want them in jail, victim usually protect them, ↓prosecution, need a special family problem solution without bringing in criminal law
Family Law Act 1996 Part 2
Non-molestation(騷擾)orders under the Family Law Act 1996(FLA) prohibit a person from molestating a person they are associated with, or a relevant child
 Restrain order: named person is not allow to molest ie. Contact, visit
 FLA 1996 did not define molestation
 See as conducts that harasses or threatens A
 Who can apply:
 Must show associated persons S62(3)
 G v F (Non-Molestation Order: Jurisdiction): If it is unclear whether the relationship falls within these categories, it should be treated as if it does
 Courts may make such orders of their volition 意志 but they seldom do
 Child under 16 may apply but must obtain leave(permission) from court S43 FLA1996
 Courts will consider S42(5) whether to exercise its power, if so, in what manner, the court shall have regard to all circumstances including the need to secure the health, safety and well-being
 (a) of the applicant
 (b) and of any relevant child
 Order can be wide and can prohibit many types of conduct
 But conducts must be threatening or harassment
 Cannot use to remove someone from home (do not act as backdoor)
 When someone is removed through occupation orders, non-molestation order may specify that they cannot come in certain specified area where victim is located
 Consequences of breach:
 S42A- Criminal Offence if breach without reasonable excuse
 More robust to attain criminal consequences on top of civil consequences which are long process
 Person must be aware of existence of order
 Cannot be dealt with both criminal and civil proceedings
 Police have power of arrest and person can be prosecuted
 Police actually used caution and CPS did not prosecute→ not much actual protection
 Formerly, victim had to bring contempt of court action 蔑視法庭
 Undermines victim autonomy and fail to appreciate the nature of domestic violence
 Can be strengthened by extending penalties in civil proceedings
 Breach of molestation order is a criminal offence, but if criminal proceedings are not taken,
breach can be dealt with in the civil courts as a contempt of court
 Civil court: custodial sentence, maximum 2 years
 Should not be distinctly different from criminal offence of Harassment
 If √ violence, √ imprisonment
 Criminal court more extensive- can impose fines, imprisonment, community sentence,
rehabilitation orders
 Sentence imposed for breach of order should be primarily concerned with 'ensuring that the order is complied with and achieve protection it aimed to achieve'

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