Domestic Violence Flashcards
How many orders can the Family Law Act 1996 provide for?
Non - molestation
Occupation orders
What type of people do the FLA 1996 protect?
Associated persons
Where is the non molestation section
Section 42
Where is the occupation order section
Section 33 - 38
Where is Molestation order defined?
Section 42(1)
molestation order as an order “prohibiting a person (`the respondent’) from molesting another person who is associated with the respondent, and (b) prohibiting the respondent from molesting a relevant child”.
What can the molestation order do?
Section 42(6) A non molestation order may refer to molestation in general or to particular acts of molestation or both.
Vaughan v Vaughan [1973]
Couple split up and like Mr Vaughan hung round the house/office, not being threatening but she was scared, he was just being a pest, this is molestation, this is broad enough.
Judge Stephenson said that molestation included “pester”.
What did Judge Stephenson say in Vaughan v Vaughan
Judge Stephenson said that molestation included “pester”.
Horner v Horner [1982]
Ormrod L.J. said that the molestation covers “any conduct which could be properly regarded as to call for the intervention of the court”.
does not imply necessarily either violence or threats of violence.
Ms Horner was a school teacher, she kicked her husband out and his response was to phone the school repeatedly and attach posters about his wife to the school railings, there was no violence or even threats of violence. There was no doubt that this was molestation.
Johnson v Walton [1990] CA
pre 1996 act (what is the jurisdiction now)
Husband sent wife holiday pictures to newspaper. Molestation even where there is no direct contact.
Held: if done with intent to distress applicant this was clearly molestation. Intent to distress.
Wooton v Wooton [1984]
pre 1996 act what is jurisdiction now
elderly couple, Ms Wooten suffered from epilepsy and would attack her husband, a non-molestation order was granted to stop this from happening.
Held: Intention is not required in cases of physical violence
Is there ambiguity as to whether intent is required?
pre 1996 act
Johnson v Walton [1990] - Intention is required
Wooton v Wooton [1984] - says intention is not required for non molestation order (GRANTED)
post 1996 act
Judge Stephen C v C (Non-Molestation Order: Jurisdiction) (1998) - Intention is required for non molestation order
Bank v Banks (1999) - order not granted because it would have no |practical purpiose” because she did not know she she was doing
criteria for making a non mol order are deliberately focused on the effect of the conduct on the victim as opposed to the natyre
Section 42(5)
when deciding whether to grant an order or not “shall have regard to all the circumstances including the need to secure the health, safety and well-being-
Safety and well-being are not defined in the Act but “health” is defined in s.63(1) to include physical or mental health.
C v C (Non-Molestation Order: Jurisdiction) [1998]
In this case a wife had given information to a newspaper about her husband’s behaviour.
Held: not molestation, it comes “no where near molestation” from the act.
This almost goes against Johnson v Walton.
Judge Stephen said molestation “It implies some quite deliberate conduct which is aimed at a high degree of harassment of the other party, so as to justify the intervention of the court”
Which judges said molestation has to be deliberate?
Judge Stephen C v C (Non-Molestation Order: Jurisdiction)
Wooton v Wooton [1984]
Banks v Banks [1999] 1 FLR 726 (county court)
ZERO PRECEDENT VALUE
elderly couple, wife had various health problems including dementia, when she was home she would spontaneously attack her husband. Husband applied for non-molestation order. Held: not granted because wife could not prevent her condition. This goes against Wooton v Wooton, so there is some sort of mens rea involved.
order not granted because it would have no |practical purpiose” because she did not know she she was doing
Therefore, wgen dealing with a respondent whose actions are caused by a medical condition which impairs his judgment the fact the abuse may be unintentional will not prevent the court from making an order. But if the respondents condition affects his ability to understand the nature of the order, the court may refuse to grant the order on the ground that it will serve no useful ppurpose.
Chechi v Bashier [1999] 2 FLR 489
Involved two brothers, they had a family business and was in dispute with themselves about ownership of a certain piece of land, one brother became violent. Brother who was attacked was granted a non-molestation order. At the hearing, the judge refused to make a non-molestation order because the non-molestation order is for a family act, but in this case it is more commercial. COA held: you could get a non-molestation order because there was some “familiar element”, there is also a commercial element. However, in the end, the court did not give the molestation order because they were as bad as each other. Therefore, even when you can make an order, it might make things worse, so like in this case, you can make the two parties promise, there was a cross undertaking which can be enforceable, but doesn’t hold either party liable.
THE COURTT could have made a non mol but under s47(2) where there has been violence or threatened violence the court is mandated to attach a power of arrest, the court felt that this would give too much power to the petitioner.
Where is molestation defined?
It is undefined as the law Commission recommended in 1992.
Implicit in section 42(5) that molestation may prejudice the health, safety and well being of victims
If molestation is found does the court have discretion?
Yes
Associated person section
Section 62(3) defines associated person.
You have to be an associated person to apply for a non molestation order.
Where is “relevant child” defined?
Under section 62(2)
can a child apply for a non mol order?
Yes no age limit
How can a child apply for a non mol?
A child under the age of 16 needs the lead of the court (section 63(1)).
In section 43(2), leave cannot be granted unless the child has sufficient understanding to make the proposed application (this is reference to the Gillick competency)
An adult may make an application for the ‘relevant child’, defined in section 62(2)(a) a child who lives with or reasonably expected to live with the applicant or respondent. 62(2)(b)
Section 60
allows for a third party to make an application on behalf of those who are thought to be molested. Although never been brought into force.
Legal definition of ‘cohabitants’ section
Section 62(1)(a) of the 1996 Act
Legal definition of ‘relatives’ section meaning
Section 63(1)
Gillick competence requirements
1) the young person will understand the professional’s advice;
2) the young person cannot be persuaded to inform their parents;
3) the young person is likely to begin, or to continue having, sexual intercourse with or without contraceptive treatment;
4) unless the young person receives contraceptive treatment, their physical or mental health, or both, are likely to suffer;
5) the young person’s best interests require them to receive contraceptive advice or treatment with or without parental consent.
Section 60
Section 60 of the Act potentially allows both non-molestation orders and occupation orders to be made on the application of a third party.
G v F (Non-Molestation Order: Jurisdiction) [2000]
LEADING CASE
Unmarried couple had their own flats but evidence showed that they lived together and spent nights together.
While every associated person on that list can attain a non molestation order only certain people can get occupation orders, since there had been a sexual relationship between the parties and there was evidence that they lived in the same household part of the time and operated a joint bank account, there was sufficient evidence to demonstrate that they had been cohabitants within section 62(3)(b) of the Act of 1996 and therefore “associated persons” for the purpose of section 42;
Wall J said that “where domestic violence is concerned [judges] should give the statute a purposive construction”.
Law Commission stated that the trend in family law is providing protection from harm rather than punishment. Thus intentional behaviour does not matter.
THEREFORE COURTS WILL BE GENEROUS WITH INTERPRETATIONS OF PEOPLES LIKE INTIMATE COUPLES.
Can non-cohabiting but intimate relationships obtain an order?
Section 62(3)(ea) yes they can.
It is not clear how ‘intimate personal relationship of Significant duration’ will be interpreted. The Explanatory Notes 2004 to the amending Act states that “it will be for the court to decide on whether the relationship meets the criteria… This covered a relationship which is intimate but which is not sexual.
Who cannot apply for a non mol order?
Section 62(6) a “body corporate” cannot apply.
When should a non mol be made?
Section 42(2)(a) - if an application for the order has been made (whether in other family proceedings or without any other family proceedings being instituted) by a person who is associated with the respondent; or you can go to court solely to get your order
Section 42(2)(b)) -where judge observes signs of molestation, the judge can decide to make a non molestation order, but this is rare. The idea if where a party is too scared to ask for one.
Duration of non mol
S.42(7)
M v W (Non-Molestation Order: Duration) [2000]
HC
The High Court said that the default of the non mol duration should be a specified period as unfair for someone to have an order to have over their head indefinitely, unless there is special circumstances.
Changed by CA in Re B-J
Re B-J (A Child) (Non-Molestation Order: Power of Arrest) [2000] 2 FCR 599 (CA)
Held: M v W is wrong, it is fettering the discretion of the courts, limitation is not on place of the act, therefore still up for the court to decide if it is indefinitely or not. Here they set it for an indefinite period.
Breach of non molestation order section
Section 42A section 1
1 created a criminal offence of breaching a non-molestation order. The offence says: only if you breach the order without reasonable excuse
R v Richards EWCA
Husband’s non mol was not to visit ex-wife’s home or whithin 25m of the house. Husband convicted of offence under section 42A, not to visit ex’s home, defence: wife was alcoholic, concerned about his children. Held: he did have a reasonable excuse.
R v Briscoe [2010] EWCA
Sentenced to 6 months for two breaches of non-molestation order, one was knocking on the door and one for leaving messages on her answering machine. COA held: he never should have been sent to prison imprisonment should be retained for cases of significant treat or harm. Before that, the court was willing to send someone to prison for minor issues.
=breach of non mol orders should not be for minor issues.
R v N(Z) [2016] EWCA
Harassment needs to be an ‘oppressive’ element, not just alarming, just sending emails to husband does not constitute so conviction was quashed.
R v R [2014] EWFC
A wife applied for an ex parte against husband. There wasn’t a hearing for 5 months. In these 5 months the husband had been convicted under section 42A, he contacted wife when he shouldn’t have, the court decides that the ex parte order shouldn’t have been made anyway. At the interim hearing the molestation order was quashed as shouldn’t have been made, but conviction could not have been quashed. But he had been convicted and the conviction was sound.