Domestic abuse
Outcomes
1. Advise a client on what courses of action to take following incidents of domestic abuse.
2. Advise a client on the law and procedure to be followed to obtain an order under the Family
Law Act 1996 and the likely outcome of such application
3. Draft the documents necessary to obtain an order under the FLA 1996.
Protection under PT IV FLA 1996
Types of order available Non-molestation orders:
for protection of parties and any of their children and can be applied for by a wide
Filing Form FL401 range of associated persons under s.62
Occupation orders:
Excludes the other from the property and occupation of the home. It can be
extended to exclude a party from a specified area surrounding the house if
necessary.
Þ Applied for by married or cohabitants
Þ Only applied for by associated persons in limited circumstances
Who can apply? Associated persons s.62 FLA
a) They are or have been married to each other, or they have or are Civil
partners of each other
b) Cohabitants or former cohabitants
c) Live or have lived in the same household, otherwise than by reason of
one of them being the employee, tenant, lodger or boarder.
d) They are relatives- immediate, grandparents, cousins, aunts etc- includes
step-parents and children
e) They have agreed to marry or enter into CP with one another- whether or
not that agreement has been terminated, or had intimate personal
relationship for a significant duration
f) In relation to a child, they are both parents or have had PR
g) They are parties to the same family proceedings
Children under 18 can apply for non-molestation/ and or occupation orders in their
own right
Þ Under 16 can apply but require leave of the court, will be allowed only if
the child has sufficient understanding of the situation- s.43
, Non-molestation Orders s.42 FLA 1996
2 clear day’s notice for application
• Is possible for emergency ex-parte under s.45 for same day or next (see further notes)
Court can grant an order prohibiting the person in question from molesting the application or child
Molestation: Violence, threats of violence or sexual violence and persistent pestering.
Application:
can be made by any associated person under s.62 and can be a free-standing application or alongside existing
proceedings.
Court considers- s.42(5)
Þ Have regard to all of the circumstances of the case, including the need to secure the health, safety and well-being
of the applicant or any child.
Þ If the applicant can show a genuine need for protection in the circumstances, likely to be granted
Duration of Non-molestation orders s.42(7)
Þ Can be made for a specified period or until further order
Þ Can have one for an indefinite period (Re B-J Power of arrest)
Occupation orders ss.33, 35-38 FLA 1996 (pg 263 flowchart)
Always attach powers of arrest with this under s.47
Applicant has an The home in question must be, or have been intended to be the home of the applicant and the
existing right to respondent.
occupy the house- Any person under s.62 can apply where there is an existing legal right to occupy the
s.33 home
Þ Legal or beneficial right
The applicant can apply for an order which may:
Þ Require the respondent to permit the application to enter and remain in the home
Þ Regulate the occupation of the home by either or both parties
Þ Prohibit, suspend or restrict the respondent’s right to occupy the home
Þ Require the respondent to leave the home
Þ Exclude the respondent from a defined area in which the home is situated
Factors the court take into consideration:
1. Balance of harm test s.33(7)
If it appears to the court that the applicant or any child is likely to suffer
significant harm attributable to the conduct of the respondent if an occupation
order is not made, then the court shall make such order unless it appears to the
court that:
(a) The respondent or any child is likely to suffer significant harm if the order is made;
and
(b) The harm is 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
(c) Chalmers v Johns- the applicant must show that she would suffer significant harm
attributable to the respondent’s conduct before the court applies the balance of harm
test. Where such harm is not shown, the case will be determined under s.33(6)
alone
If the balance of harm test is shown- they must make an order
Outcomes
1. Advise a client on what courses of action to take following incidents of domestic abuse.
2. Advise a client on the law and procedure to be followed to obtain an order under the Family
Law Act 1996 and the likely outcome of such application
3. Draft the documents necessary to obtain an order under the FLA 1996.
Protection under PT IV FLA 1996
Types of order available Non-molestation orders:
for protection of parties and any of their children and can be applied for by a wide
Filing Form FL401 range of associated persons under s.62
Occupation orders:
Excludes the other from the property and occupation of the home. It can be
extended to exclude a party from a specified area surrounding the house if
necessary.
Þ Applied for by married or cohabitants
Þ Only applied for by associated persons in limited circumstances
Who can apply? Associated persons s.62 FLA
a) They are or have been married to each other, or they have or are Civil
partners of each other
b) Cohabitants or former cohabitants
c) Live or have lived in the same household, otherwise than by reason of
one of them being the employee, tenant, lodger or boarder.
d) They are relatives- immediate, grandparents, cousins, aunts etc- includes
step-parents and children
e) They have agreed to marry or enter into CP with one another- whether or
not that agreement has been terminated, or had intimate personal
relationship for a significant duration
f) In relation to a child, they are both parents or have had PR
g) They are parties to the same family proceedings
Children under 18 can apply for non-molestation/ and or occupation orders in their
own right
Þ Under 16 can apply but require leave of the court, will be allowed only if
the child has sufficient understanding of the situation- s.43
, Non-molestation Orders s.42 FLA 1996
2 clear day’s notice for application
• Is possible for emergency ex-parte under s.45 for same day or next (see further notes)
Court can grant an order prohibiting the person in question from molesting the application or child
Molestation: Violence, threats of violence or sexual violence and persistent pestering.
Application:
can be made by any associated person under s.62 and can be a free-standing application or alongside existing
proceedings.
Court considers- s.42(5)
Þ Have regard to all of the circumstances of the case, including the need to secure the health, safety and well-being
of the applicant or any child.
Þ If the applicant can show a genuine need for protection in the circumstances, likely to be granted
Duration of Non-molestation orders s.42(7)
Þ Can be made for a specified period or until further order
Þ Can have one for an indefinite period (Re B-J Power of arrest)
Occupation orders ss.33, 35-38 FLA 1996 (pg 263 flowchart)
Always attach powers of arrest with this under s.47
Applicant has an The home in question must be, or have been intended to be the home of the applicant and the
existing right to respondent.
occupy the house- Any person under s.62 can apply where there is an existing legal right to occupy the
s.33 home
Þ Legal or beneficial right
The applicant can apply for an order which may:
Þ Require the respondent to permit the application to enter and remain in the home
Þ Regulate the occupation of the home by either or both parties
Þ Prohibit, suspend or restrict the respondent’s right to occupy the home
Þ Require the respondent to leave the home
Þ Exclude the respondent from a defined area in which the home is situated
Factors the court take into consideration:
1. Balance of harm test s.33(7)
If it appears to the court that the applicant or any child is likely to suffer
significant harm attributable to the conduct of the respondent if an occupation
order is not made, then the court shall make such order unless it appears to the
court that:
(a) The respondent or any child is likely to suffer significant harm if the order is made;
and
(b) The harm is 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
(c) Chalmers v Johns- the applicant must show that she would suffer significant harm
attributable to the respondent’s conduct before the court applies the balance of harm
test. Where such harm is not shown, the case will be determined under s.33(6)
alone
If the balance of harm test is shown- they must make an order
