Full and in-depth notes on domestic violence and relevant orders. A highly detailed approach to understanding and answering exam questions. Contains extensive but easily comprehensible detail.
Types of orders:
Non-molestation orders: For the protection of parties and any children. These can be applied for by a
wide range of ‘associated persons’
Occupation orders: exclude the other party from the home, a specified area. They are applied to spouses
and cohabitants but sometimes other associated parties can apply for them.
Who can apply:
S62 FLA state that a person is associated with another if:
They are / have been married to each other (or CP’s)
They are cohabitants / ormer cohabitants
They live of have lived in the same household, otherwise than by reason of one of them being the
other’s employee, tenant, lodger or boarder.
They are relatives of the applicant or of the applicants former or current spouse, CP or cohabitant
They have agreed to marry or enter into a civil partnership with one another (whether or not that
agreement has been terminated – if it has been terminated the applicant must apply within 3 years of
the termination) or they have or have had an intimate personal relationship with each other which
was of significant duration.
In relation to a child, they are both parents or have, or have had, PR
They are parties to the same family proceedings.
Children – under 18 – can apply for non-mols and non-occ in their own right – but if they are under 16
they require leave from the court
Non-molestation orders: - s42
S42 FLA
Order prohibiting the respondent from molesting the applicant / child.
Molestation covers a wide range of conduct.
Court can grant a NM on the application of any associated person within family proceedings, or the
applicant can make an application under the FLA.
Factors the court will consider:
S42(5) – court must have regard to all circumstances – including child’s wellbeing.
Duration:
S42(7) states the order can be made for specified period or until a further order.
Occupation orders – s33 and 35-38
The status of the applicant will determine:
a. Whether the proposed applicant can apply for an order
b. The provisions of any order granted
c. The factors that the court will take into account in deciding whether to grant any order; and
d. The duration of the OO.
Different types of applicants:
Applicant has an existing right to occupy the house – s33:
Entitled beneficial interest / contract or statutory entitlements (e s30 FLA).
The home must be / have been /been intended to be the home of the applicant and R.
This means – any associated person can apply under s33 where they have an existing right to occupy the home
Once the applicant has established they have an existing right to occupy the home then a OO can be applied
for.
, The order may relate to:
a. Make R permit A into the home and remain in the home
b. Regulate the occupation of the home for A or R
c. Prohibit / suspend / restrict R’s access to the home
d. Require R to leave the home
e. Exclude R from a defined area in which the home is located.
The court will need to consider – s33(6)
Respective housing need of parties
Financial resources of parties
Effect of order or effect of no order
Safety and welfare of any child
Conduct of parties in relation to each other.
S33(6) is subject to the ‘balance of harm’ test contained under s33(7) if the court thinks A or any child is
likely to suffer significant harm from R if an order is not made, then the court shall make the order unless it
appears to the court that:
a. R or any child is likely to suffer significant harm if the order is made, and
b. The harm they will suffer is as great or greater that the harm the A and any child is suffering due to R.
Duration:
Can be made for specified period, until the occurrence of an event or until a further order is made.
Process:
Court considers s33(6)
A shows they will suffer significant harm due to R before s33(7) test is applied.
If significant harm is not established – court makes an order or no order based on s33(6) factors alone.
If significant harm is established – court applies s33(7) test
If the test favours A – court must make an order
If the test does not favour A – court applies s33(6) factors to determine whether an order be made or not.
Applicant has no existing right to occupy the home and R does have a right to occupy – s35 and s36:
When A is a former spouse or former CP – s35:
Under s35 –
The A must be the former spouse of R.
R must be entitled to occupy the home
Home must be / have been / intended to have been matrimonial home.
Once these are satisfied, A can apply for an OO.
Any order granted under s35 must contain an ‘occupational provision’ stating:
a. If the A is in occupation, the A has a right not be excluded from the home or part of it by R for a
specified period and that the R is prohibited from excluding the A during that period.
b. If the A is not in occupation, the A be given the right to enter / occupy the home and R must permit
the A to this right.
In addition, the order may contain ‘exclusion provisions’:
a. Regulating occupation of either party in the home
b. Prohibiting, suspending, or restricting R’s right to occupy
c. Requiring R to leave the home or part of it
d. Excluding R from a defined area in which the home is located.
The court will consider all the circumstances when making ‘occupational provisions’, including:
Respective housing needs of parties and any child
Financial resources of parties
Effect of an order or of no order
Conduct of parties towards each other
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