Exclusion orders Flashcards
what do we first need to understand?
what a home is. seen in section 22. specifically quite broad. captures a right to be in most places.
does not include a place for 1 spouse to live in.
does the right still exist if they seperate?
yes it does. cases have found that it is unfair to expect them to live in the same house while they are being abused.
what if they sell the house?
the non entitled spouse will still have occupancy rights to live there.
can another spouse be excluded from the home if they own the home?
yes they can, even if both partners own the home.
case for it being a high bar to overcome for conduct to exclude someone from the house?
bell v bell.
showed that the conduct for exclusion orders need to be very bad for there to be an exclusion order granted.
also said that they need to have a molestation order in place first but this was further abolished as they would need to get attacked first.
overturned the decision in … and said that there does not need to be a molestation order.
brown v brown
overturned in bell v bell
which case demonstrated the test whether there should be an order granted?
mccaferty v mccaferty
showed 4 reasons.
- what was the nature of the conduct?
- would the conduct repeat if cohabitation continued?
- would it be damaging to mental or physical health to child or applicant?
- is the order necessary for the protection for future mental health or physical health?
