Family Non Molestation Order And Occupation Order Notes

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SRA Code of conduct: Outcome 11.1/ IB11.7

Law Society Guidance: Paras 19; 20; 21 & 22

Resolution Guidance

Family Law Protocol Part 1: Para 1.10.3

• Which orders does need to apply for ie. which sections?

  • S.42 FLA- non-molestation order, s.62 Associated person (p.387)

  • Occupation Order (p.258)

  • Check the flowchart

  • S.42 non-molestation order (“associated person”- cohabitant under s.62)

  • S.33 entitled applicant- occupation order “Get out” & “keep out” exclusion provision

• How to apply?

  • FL401

• On notice or without notice?

  • S.45 ex parte (without notice) (p.385)

  • Without notice- she satisfies the requirements of s.45 and needs protection so needs interim orders now and final orders at on notice hearing

• Power of arrest?

  • S.47- only applies to Occupation order (s.42A criminal offence if breach NMO)

• Any other ancillary order?

  • Rent payment/ mortgage payment aftr move out (s.40)

  • Means and merits test

  • S.46 undertakings (against injunction order under the same terms, no power of arrest attached, still enforceable promise)

  • S.40 Ancillary order- n/a here

• Legal Aid?

  • Legal Aid still available for NMO and DO- means & merits

S.42 Non-molestation factors

• Genuine need to secure health, safety and wellbeing of the applicant

• Genuine need to secure health, safety and wellbeing of children

• All the circumstances s.42(5)

• P.251/ 384

s.33 approach

1. Applicant (A) has to show likelihood of significant harm owing to the R’s conduct

2. The court will decide whether the R will suffer more [Balance of Harm Test in s.33(7)], so

3. You must set out and apply the s.33(6) factors ie. all the circumstances of the case including s.33(6)(a)-(d) AKA “core criteria”

4. CONCLUDE in whose favour has the BH test been made out?

   1. If court decides BH test IS made out in A’s favour= court MUST make order

   2. If BH test is NOT made out, court has discretion to make order revisiting the s.33(6) factors ie. “all the circumstances of the case”, including s.33(6)(a)-(d) core criteria (p.252/ 378)

• S.33(7) Balance of harm test

  • Is A (or child) likely to suffer significant harm attributable to R’s conduct if order NOT made?

  • Is R (or child) likely to suffer significant harm if order IS made? AND Is the harm suffered by R (or child) as great/ greater than the harm suffered by A (or child) attributable to R’s conduct

  • WHO WILL SUFFER MOST?

• Core criteria

  • Respective housing needs and housing resources

  • Respective financial resources

  • The likely effect of any order, or decision not to make an order, on H S and W of the parties and children

  • Conduct of the parties

s.45- without notice

NMO and OO can be made WN where the Court...

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