2. Domestic Abuse

Question 1

governing legislation for domestic abuse

Answer 1

domestic abuse act 2021

Question 2

the two types of order available

Answer 2

1. non-molestation orders
2. occupation orders

Question 3

what is an occupation order?

Answer 3

excludes the other party from occupation of the home. can extend to excluding party from a specified area around the home

Question 4

who is an ‘associated person’? s62

Answer 4

a) they are / have been married to each other, or they are / have been civil partners
b) cohabitants or former cohabitants
c) live or have lived in the same household (otherwise than by reason of being the other’s employee, tenant, lodger, or boarder)
d) they are relatives (immediate / close)
e) they have agreed to marry / enter into a civil partnership (whether or not the agreement has been terminated)
f) re a child, they are both parents or have parental responsibility
g) parties to the same family proceedings

Question 5

what is a non-molestation order?

Answer 5

an order prohibiting the respondent from molesting the applicant / child. covers not only violence & threats of violence, but also pestering.

Question 6

to whom can the courts grant a non-molestation order to?

Answer 6

• any associated person; or
• free standing application under FLA 1996

Question 7

what must the courts have regard to when considering whether to grant a non-molestation order?

Answer 7

s42(5) to all circumstances, including the need to secure the health, safety and well-being of the applicant and any child.

Question 8

how long does a non-molestation order last for?

Answer 8

s42(7) for a specified period or until further order.
can be made for an indefinite period

Question 9

what are the potential outcomes of an occupation order?

Answer 9

• require respondent to permit the applicant to enter and remain in the home / part of the home
• regulate occupation of the home by either / both parties
• prohibit, suspend, or restrict the respondent’s exercise of their right to occupy the home
• require the respondent to leave the home
• exclude the respondent from defined area in which the home is situated

Question 10

under s30 FLA, does the death of the respondent terminate right of occupation?

Answer 10

yes- unless there is a provision to the opposite effect

Question 11

what factors may the court consider in granting an occupation order per s33(6)?

Answer 11

• respective housing needs and resources of the parties, any child
• respective financial resources of the parties
• likely effect of any order / decision by court not to make such an order on h&s or wellbeing of the parties and relevant child
• ## conduct of the parties in relation to each other and otherwise

Question 12

what qualifies the s33(6) occupation order factors?

Answer 12

s33(7) the balance of harm test

Question 13

what is the balance of harm test? s33(7)

Answer 13

if it appears to the court that the applicant / any child is likely to suffer significant harm attributable to the conduct of the responded inf an occupation order is not made, then the court shall make such an order

Question 14

exceptions to the balance of harm test

Answer 14

• respondent / any child is likely to suffer significant harm if the order is made;
• the harm likely to be suffered by the respondent or child is as great/greater than 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.

Question 15

chalmers v johns

Answer 15

applicant must show they would suffer significant harm attributable to respondent’s conduct before the court applies the balance of harm test

Question 16

what if significant harm is not shown before court applies the test?

Answer 16

case determined on the basis of the s33(6) factors alone

Question 17

BvB (Occupation Order)

Answer 17

• wife moved out of family home with daughter due to husband’s violence.
• wife rehoused by LA
• husband remained in the family home with son from a prev relationship
• BH test -> wife refused the OO
• son would suffer greater harm, as the husband would not be entitled to being rehoused.
• son would also need to change schools

Question 18

does violence have to have taken place for an OO to be granted?

Answer 18

grubb v grubb -no.
- husband was verbally abusive and domineering. both parties suffered from stress
- husband was in a position to arrange alternative accommodation for himself easily
– OO made for 3 months

Question 19

Dolan v Corby

Answer 19

• courts upheld OO against C who had been verbally abusive

Question 20

Re L (children)

Answer 20

• no physical violence
• children were suffering significant harm caused by arguments- not attributable solely to husband
• BH test not made out
• court made an occupation order after applying 33(6)

Question 21

how long does an OO last for?

Answer 21

may be for a specified period until the occurrence of a specified event (e.g conclusion of financial remedy proceedings following divorce) or until further order; or

can be for an indefinite period

Question 22

what if applicant has no existing right to occupy, and respondent has such a right?

Answer 22

• applicant must be former spouse or former civil partner.
• home must be, or have been intended to be the family home

Question 23

to whom does s33 apply to ?

Answer 23

Applicant has an existing right to occupy the home by virtue of beneficial estate, interest, contract or statutory entitlement.

home intended to be home of the applicant

Question 24

to whom does s35 apply to ?

Answer 24

a former spouse or former civil partner who has no existing to occupy the home, and respondent has such a right

Question 25

who can apply for an OO under s35?

Answer 25

the former spouse of the respondent. the respondent must be entitled to occupy the home (beneficial estate, interest, contract or by statute) the home must be, or have been intended to be, the family home

Question 26

which provision must a s35 order contain?

Answer 26

if the applicant is in occupation, they have a right not to be excluded from the home or part of it from R for a specified period and prohibiting the respondent from excluding the applicant during that period if applicant is not in occupation, that they be given a right to enter and occupy for a specified period and requiring R to permit the exercise of that right

Question 27

what exclusion provisions may be included in a s35 OO ?

Answer 27

a) regulating occupation of the home by either party b) prohibiting, suspending or restricting R's right to occupy c) requiring R to leave the home / part of it d) excluding R from a defined area in which the home is situated

Question 28

factors the court must consider when deciding to make an OO under s35?

Answer 28

(a) the respective housing needs and housing resources of the parties and any child; (b) the respective financial resources of the parties; (c) the likely effect of any order, or of any decision by the court not to make such an order, on the health, safety or well-being of the parties and any relevant child; (d) the conduct of the parties in relation to each other and otherwise; (e) the length of time that has elapsed since the parties ceased to live together; (f ) the length of time that has elapsed since the marriage ended; and (g) the existence of any pending proceedings between the parties under s 23A or s 24 of the MCA 1973 and Sch 1 to the CA 1989 (financial orders relating to children), or relating to the legal or beneficial ownership of the home (s 35(6)).

Question 29

how long does an OO made under s35 last for?

Answer 29

must be for a specified period not exceeding 6 months can be extended for a further specified period not exceeding 6 months order ceases to have effect on the death of either party

Question 30

to whom does s36 OO apply to?

Answer 30

the cohabitant / former cohabitant of the respondent. R must be entitled to occupy the home (by virtue of beneficial estate, interest, contract, or statute)

Question 31

factors court must consider when making an OO under s36

Answer 31

(a) the respective housing needs and housing resources of the parties and any child; (b) the respective financial resources of the parties; (c) the likely effect of any order, or of any decision by the court not to make such an order, on the health, safety or well-being of the parties and any relevant child; (d) the conduct of the parties in relation to each other and otherwise; (e) the nature of the parties’ relationship, and in particular the level of commitment involved in it; (f ) the length of time that they have lived together as spouses or civil partners ; (g) whether there are or have been any children who are children of both parties, or for whom both parties have or have had parental responsibility; (h) the length of time that has elapsed since the parties ceased to live together; and (i) the existence of any pending proceedings between the parties under Sch 1 to CA 1989 (financial orders relating to children), or relating to the legal or beneficial ownership of the home (s 36(6)).

Question 32

what should the court consider when considering to make an exclusion provision under s36?

Answer 32

whether the applicant or any relevant child is likely to suffer significant harm, attributable to conduct of R if the exclusion provision is not made whether the harm likely to be suffered by R or child is as great or greater than the harm attributable to the conduct of R which is likely to be suffered by applicant or child if provision is not included

Question 33

effect of a s 36 OO

Answer 33

same as that of s30(3-6) mortgagee or landlord must accept payments made by the applicant

Question 34

how long do OO's last for?

Answer 34

specified period not exceeding 6 months can be extended once for a further period, not exceeding 6 months

Question 35

what if neither party has a right to occupy the home? ss37, 38

Answer 35

s33, 37 enables one spouse/civil partner or former spouse/civil partner to obtain OO in relation to a home in which they both live or lived together, but neither has a right to occupy

Question 36

how long can a ss37, 38 order last?

Answer 36

for a specified period not exceeding 6 months can be extended on one/more occasions for a specified period not exceeding 6 months

Question 37

what does s40 enable the court to do?

Answer 37

to make an ancillary order dealing with matters such as payment of mortgage or other outgoings and payment for repair/maintenance of the home can grant party use of furniture / other contents of the home

Question 38

under which section of FLA can a court make a non-molestation order and OO without notice

Answer 38

s45

Question 39

factors courts will consider when making an emergency s45 application

Answer 39

any significant risk of harm to applicant / child if the order is not made immediately whether it is likely that the applicant will be deterred or prevented from pursuing the application if the order is not made immediately whether there is reason to believe R is evading service and delay in effecting service will seriously prejudice the applicant or child

Question 40

are without order notices temporary or permanent

Answer 40

temp only

Question 41

what is an undertaking? s46

Answer 41

R makes a promise to the court on similar terms to the proposed order. avoids a court order being made against R

Question 42

when can a court accept an undertaking?

Answer 42

s46- where it has power to make an OO or non molestation order.

Question 43

can a power of arrest be attached to an undertaking

Answer 43

no

Question 44

when will a court refuse an undertaking on an application for a non molestation order

Answer 44

where R has used or threatened violence; or non-molestation order is necessary so any breach can be punishable under s42A as a criminal offence

Question 45

where are applications for non-molestation and occupation orders made to?

Answer 45

family court

Question 46

effect of breaching a non-molestation order? s42A FLA

Answer 46

criminal offence - up to 5 years imprisonment or indictment committal for contempt of court can be charged and brought before criminal court

Question 47

effect of breaching an OO

Answer 47

s47 FLA - if R has used or threatened violence, power of arrest shall be attached to OO -> arrest R without warrant if they have reasonable cause to suspect R being in breach of any terms

Question 48

what if the court has not attached a power of arrest

Answer 48

applicant can apply for warrent of arrest. will need to give evidence that there are reasonable grounds for believing R has breached the order

Question 49

which ECHR may be raised when issuing non-molestation order or OO

Answer 49

art 6/8

Question 50

what is s3 PHA

Answer 50

where a person pursues a course of conduct that amounts to harassment of another and which they know or ought to know amounts to harassment of the other.

Question 51

remedy for harassment

Answer 51

damages, injunction

Question 52

what if an injunction under PHA is breached?

Answer 52

victim can apply for warrant of arrest

Question 53

definition of controlling behaviour

Answer 53

a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

Question 54

what is coercive behaviour

Answer 54

an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim

Question 55

which statute protects someone from being forced into marriage?

Answer 55

forced marriage civil protection act 2007

Question 56

when can a forced marriage prohibition order etc be made without notice

Answer 56

where it is just and convenient to do so power of arrest can be attached to an order