Chapter 8 Protection from Domestic Abuse Flashcards
The COA refused the husbands appeal against an occupation order. The husband was defending the wife’s divorce application and it was accepted that the wife should remain in the home pending the financial settlement. The husband ran businesses from the property, which had been in his family for over 100 years. He was worried about the financial consequences of the divorce, even though the wife did not wish to remain in the home once the finances were settled. As the marriage broke down, among other things, the husband refused the wife keys to the house and threatened to lock her out.
The husband argued that the judge had not recognised the seriousness of the order or the unacceptable likely duration of the order due to the ongoing matrimonial proceedings. The COA found that an occupation order was always serious, especially where the husband was being removed from his ancestral home as in this case. Separation was necessary and, as the husband had failed to make proposals for the wife’s accommodation, the only way to achieve separation was to evict the husband from the home. The husband had other accommodation available and massive resources.
Grubb v Grubb (2009)
The parties were married, and they lived with the husbands 6 year old son from a previous relationship and their own born child (Oct 1997). Following an incident of domestic violence, the wife left the family home with the younger child.
The LA had a duty to rehouse the wife. It would have no duty to rehouse the husband if he was excluded from the home because his homelessness would have been caused by his violence. The COA found that the applicant and the younger child would suffer significant harm if an occupation order was not made.
It also found that the older child would suffer significant harm if an order was made because he would have to move home and change schools. This was greater than the harm to the wife and the younger child in waiting to be rehoused if no occupation order was made, so the balance of harm test was not satisfied, and the court did not have a duty to make the order.
B v B (Occupation Order) (1999)
The COA examined how the balance of harm test should apply in practice where an application is made under s33 FLA 1996.
It found that the balance of harm test should be applied first. If the test is satisfied, the court has a duty to make an order. If the test is not satisfied, the court should go on to consider the factors in s33(6) in deciding whether to exercise its discretion to make an order.
The COA also held that occupation orders which override the respondents property rights should only be made in exceptional circumstances.
Chalmers v Johns (1999)
Molestation – someone who pesters another with a sufficient degree of harassment to justify legal intervention (Horner v Horner (1982)). Examples:
• Visiting the wife’s home in the early hours of the morning and late at night abd calling her place of work (Vaughan)
• Repeatedly telephoning the school where the wife worked and hanging insulting posters about her on the school railings (Horner)
• Screaming abuse at the wife when she came to collect the children after contact visits (George v George (1986))
• Searching through a partner’s handbag without her consent
• Sending semi nude photographs of a partner to the newspapers with the intention of causing distress or harm.
Vaughan v Vaughan (1973)
Confirms that a non-molestation order should only be made where the alleged harassment is quite deliberate conduct and serious enough to justify the intervention of the court. Publication of a newspaper article containing details of the applicant’s marriage and relationship with his former wife did not amount to molestation despite the applicants fears that it would damage his reputation.
C v C (Family Division) (1998)
The COA had to consider the appropriate length of a prison sentence when there had been persistent breaches of a non-molestation order (before this became a criminal offence). The COA recognised the lack of case law concerning sentencing for contempt of court and set out some guidelines
Hale v Tanner (2000)
