LEGAL PRACTICE COURSE
LEGAL PRACTICE COURSE
Family Law
Workshop 12
Topic(s):
Domestic Violence
Part IV Family Law Act 1996
Learning Outcomes:
By the end of this session you will be able to:
Consider questions relating to occupation and non-molestation orders and give clear and
accurate advice
Understand the process of analysing the client’s concerns and the problems inherent in
allaying those concerns
Session Activities:
Advice to clients about domestic violence
Discussion about the application of Part IV Family Law Act 1996
Materials Attached:
In-Session Tasks
Documents to Be Released:
None
Preparation for Session:
Review chapter 15 CLP
Review notes in connection with Part IV Family Law Act
Post-Session:
Review your notes from this session and ensure you understand how the principles have
been applied to the fact patterns
, In-Session Tasks - Clients 1 to 4
________________________________________________________________________
Client 1
You are advising Joanne Murphy.
She has lived with her boyfriend Phil in rented accommodation for the last 18 months. The
flat is in Phil’s sole name. Ms Murphy is pregnant with Phil’s child. The baby is due in two
months. Phil has recently lost his job and has fallen in with some of his old mates from
school. None of these friends are employed and seem to spend their days hanging about in
the local betting shop and the pub. Phil was upset about losing his job and now seems to be
in a downward spiral of depression and boredom. Last night he hit Ms Murphy when she
tried to talk to him about what was happening. Ms Murphy is sick with worry about what is
going to happen – she has no income of her own and nowhere to go.
She wants to know what she can do, if anything. She does not want to go to court under any
circumstances.
Advise Ms Murphy appropriately and ensure you cover the following points:
1. Does she have grounds to apply for a Part IV order?
2. She doesn't want to go to court. What could you suggest as an alternative?
_____________________
Remember structure first NMO see if associated person
She is a co-habitant [pregnant] falls under s.62= associated person
– Therefore she is an Associated Person
– Plus there is violence
– Non Molestation would be appropriate
– Apply legal test – effect the conduct is having on health + well-being – apply facts…
• Client is pregnant (due in 2 months)/Impacting her health/she has no income/no
where to go as she is pregnant, there will be special consideration
– Non Molestation Order likely to be granted ensure to cover associated person +
apply legal test (applying facts) then can conclude
Deal with the orders separately now occupation order we already know they are an
‘associated person’ then need to see if entitled/not entitled to home
Rented Accommodation is his name
– R is entitled/She is not = section 36 applies s.36 is granted on discretionary basis
• R is entitled (she is not) flat is in his name, she is not on tenancy agreement
– Discretionary Basis – Court will apply Balance of Harm test (break this down clearly)
and the Discretionary Factors
• Set out the legal tests and apply the facts
– Likely to be granted provided legal tests satisfied:
• She is pregnant (deciding factor) so likely to be granted, for her safety + child
For occupation order: (1) see if associated person, (2) entitlement – clearly specify the
applicable section, and if mandatory/discretionary section, (3) set out legal tests (balance of
harm and discretionary factors) and apply facts clearly to legal tests then state if you think
an occupation order will or will not be granted
Wants to Avoid Court
– Warning Letter to Respondent it is a one off incident, so can consider this
– Could ask him for an Undertaking commence legal proceedings but avoid court
hearing by asking him to give an undertaking to court that he will not abuse her or act
in any violent way by way of a promise
– She could leave – obtain council property/refuge/stay with family and friends as
have no money + pregnant, can leave and seek these ways to get re-housed
2
LEGAL PRACTICE COURSE
Family Law
Workshop 12
Topic(s):
Domestic Violence
Part IV Family Law Act 1996
Learning Outcomes:
By the end of this session you will be able to:
Consider questions relating to occupation and non-molestation orders and give clear and
accurate advice
Understand the process of analysing the client’s concerns and the problems inherent in
allaying those concerns
Session Activities:
Advice to clients about domestic violence
Discussion about the application of Part IV Family Law Act 1996
Materials Attached:
In-Session Tasks
Documents to Be Released:
None
Preparation for Session:
Review chapter 15 CLP
Review notes in connection with Part IV Family Law Act
Post-Session:
Review your notes from this session and ensure you understand how the principles have
been applied to the fact patterns
, In-Session Tasks - Clients 1 to 4
________________________________________________________________________
Client 1
You are advising Joanne Murphy.
She has lived with her boyfriend Phil in rented accommodation for the last 18 months. The
flat is in Phil’s sole name. Ms Murphy is pregnant with Phil’s child. The baby is due in two
months. Phil has recently lost his job and has fallen in with some of his old mates from
school. None of these friends are employed and seem to spend their days hanging about in
the local betting shop and the pub. Phil was upset about losing his job and now seems to be
in a downward spiral of depression and boredom. Last night he hit Ms Murphy when she
tried to talk to him about what was happening. Ms Murphy is sick with worry about what is
going to happen – she has no income of her own and nowhere to go.
She wants to know what she can do, if anything. She does not want to go to court under any
circumstances.
Advise Ms Murphy appropriately and ensure you cover the following points:
1. Does she have grounds to apply for a Part IV order?
2. She doesn't want to go to court. What could you suggest as an alternative?
_____________________
Remember structure first NMO see if associated person
She is a co-habitant [pregnant] falls under s.62= associated person
– Therefore she is an Associated Person
– Plus there is violence
– Non Molestation would be appropriate
– Apply legal test – effect the conduct is having on health + well-being – apply facts…
• Client is pregnant (due in 2 months)/Impacting her health/she has no income/no
where to go as she is pregnant, there will be special consideration
– Non Molestation Order likely to be granted ensure to cover associated person +
apply legal test (applying facts) then can conclude
Deal with the orders separately now occupation order we already know they are an
‘associated person’ then need to see if entitled/not entitled to home
Rented Accommodation is his name
– R is entitled/She is not = section 36 applies s.36 is granted on discretionary basis
• R is entitled (she is not) flat is in his name, she is not on tenancy agreement
– Discretionary Basis – Court will apply Balance of Harm test (break this down clearly)
and the Discretionary Factors
• Set out the legal tests and apply the facts
– Likely to be granted provided legal tests satisfied:
• She is pregnant (deciding factor) so likely to be granted, for her safety + child
For occupation order: (1) see if associated person, (2) entitlement – clearly specify the
applicable section, and if mandatory/discretionary section, (3) set out legal tests (balance of
harm and discretionary factors) and apply facts clearly to legal tests then state if you think
an occupation order will or will not be granted
Wants to Avoid Court
– Warning Letter to Respondent it is a one off incident, so can consider this
– Could ask him for an Undertaking commence legal proceedings but avoid court
hearing by asking him to give an undertaking to court that he will not abuse her or act
in any violent way by way of a promise
– She could leave – obtain council property/refuge/stay with family and friends as
have no money + pregnant, can leave and seek these ways to get re-housed
2
