Violence in Family 3 & 4

Question 1

3- what is a new topic?

Answer 1

Occupation Orders under the Family Law Act 1996 (s 33 – 41

Question 2

Purpose of occupation orders

Answer 2

They just essentially regulate the family home, regulate who lives in the home, so as u can see

Question 3

possible orders look in stat book but this is just extra added info?

Answer 3

A, someone remains in occ
- excludes party from home party him hoem can stay there or leve
E. read as written make note od e home rights
F) because f twlling u don’t have to appl yo whole house it can apply to bit of a house
So u can require respon to exclude people from certain rooms in a house??
Do tha if money was tight if finances was issue, big house just stay 2 parts of house
G) u can exclude someone from street, block of fats, street coner = excludant

Question 4

what is s.33 3?

Answer 4

s 33(3) – court can make a regulatory order.

Question 5

what does s.33 3 create?

Answer 5

creates whats known as regulatory order and reg either enforcing or taking someones rights stay in house or leave house taken away rights of occ

Question 6

e.g of s.33?

Answer 6

e.g., Enforcement of entitled applicant’s existing right of occupation or restrict the respondent’s use of the property

Question 7

what do these possible orders give the courts?

Answer 7

But these possible orders give courts huge scope to make several orders about the house, so courts can do quite alot

Question 8

what is s.33 5?

Answer 8

• s 33(5) – protective section – prevents home rights coming to an end on death or breakdown of marriage/CP
• prevents evic for both types of rels

Question 9

when is occ used in which type of cases?

Answer 9

Used in DV and non-DV cases- in exam partner being abusive and worrying about where theyre going to live use occ order but can also be in non dv cases too

Question 10

what is meant by more drac?

Answer 10

More draconian than non-molestation orders – last resort-Draconian seen as last resort casue excluding someone from own

Question 11

what do you have to prove for occ order?

Answer 11

do have to prove something to have occ order and usually significant or unusual harm

Question 12

what will court focus on on occ orders?

Answer 12

will focus on needs of party- does applicant ned hom not whats happened, occ orders doesn’t focus on punishing offender

Question 13

what about draconian?

Answer 13

Draconian come s up a lot -recommendation by courts only way to protect d v is by occ orders, recognise its draconian but then do balancing act about needs of d v victims ,

Question 14

what is s.42 4a?

Answer 14

s 42(4A) – duty to consider whether to also make a non-molestation order

Question 15

why would you consider non mol orders too?*

Answer 15

cause if u think about it no molesa might be ienffectvie if parties still living under same roof, court says that when ur considering what any family proceedings, then ur under duty to consider non mol unders,so u have order not to molest , contact applicant and also app aloud to stay in home and respondent stay away, most what we do fall in scope of family proceedings the def of family is def section here

Question 16

what is s.42?*

Answer 16

S42 is only duty to CONSDIER NOT TO MAKE ONE

Question 17

what can s.42 be accomp with?

Answer 17

s.40 provision, so repair and maintence- so can repair respon pay rent on property maintainetc pay gas bill, have to think about dv might be in fear of safety but might be economically disavatnge, not molested stay at home and fincial worries gone works as package together

Question 18

Who may apply?

Answer 18

Must be an ‘associated’ person (but not all associated persons may apply)

• Act distinguishes between ‘entitled’ and ‘non-entitled’ applicants

Question 19

Applications by ‘entitled’ persons- what are the sub categories?

Answer 19

Two sub-categories in s 33

Question 20

What is the 1st cat?

Answer 20

1st cate- people entitled to apply- people who are right to law e.g cowners benefical owners, covers people resulting in constructive trusts , people have some sort of legal rights on own

Question 21

what is 2nd cat?

Answer 21

2nd cat are people who have home rights, so generally law covers everyone entitled person if ur married or in civil partnership to someon1

Question 22

what is meant by house must be a dweling house?

Answer 22

• house must be a dwelling house that it, was, or was intended to be, the home of the applicant and an associated person.

house that was intended to be the home of app and associated person , so got to be present past or future,
e.g so if 1 part buys house for sole occ not dwelling house that would occur if someone splitting up and buy new house ,

• so if it’s a hosue sol occ and theyre excluded as holiday homes and any any sort of second property those are excluded

Question 23

what does a dwelling house tell us?

Answer 23

Telling us that the sharing of the home is IMPORTANT, BECAUSE otherwise anyone could apply

• so must be intention to share property otherwise the law would be too broad, so in order to be entitled need to be associated person with right to occupy

Question 24

So what do you have to do to be entitled person?

Answer 24

so in order to be entitled need to be associated person with right to occupy

Question 25

What can this order be?

Answer 25

- can be fixed or unlimited length – s 33(10) | This occ orders could be fixed etc..

Question 26

how many tests do we consider when making a regulatory order?

Answer 26

consider the two tests that are considered when making a regulatory order:

Question 27

what are the tests?

Answer 27

First: court will consider the ‘balance of harm’ test in s 33(7) (see next slide) – if met, the court will be under a mandatory duty to make the order Second: if the ‘balance of harm’ test does not apply, or is not met, the court will consider whether to make an order at its discretion by considering the general checklist of factors in s 33(6) Two tests are separate

Question 28

section for balance of harm test?

Answer 28

- The Balance of Harm test – s.33(7)

Question 29

what does the balance of harm test do?

Answer 29

balances the harm suffered by each party by the making of the order

Question 30

what is actually said in balance of harm test?

Answer 30

1. Must make an order if not making an order means the applicant (or child) will suffer harm, unless, 2. the respondent (or child) will suffer if the order is made, and the harm suffered here is as great or greater than harm suffered by applicant if no order is made.

Question 31

so what does the balance of harm test essentially asks?

Answer 31

so asks wehther or not appl likely or not to suffer sig harm, is app or child likely ro suffer if harm if order is not made And if order made will respo suffer greater harm,

Question 32

Explanation of s.33(7)

Answer 32

The court must ask itself: If the court does not make an order, is it likely that the applicant (or child) will suffer significant harm attributable to the conduct of the respondent?

Question 33

the answers of 1st q of exp?

Answer 33

If no = significant harm test is not satisfied. | If yes = the court must consider what will happen if it does make an order, will the respondent (or child) suffer harm?

Question 34

the answers of 2nd q of expl?

Answer 34

If the answer is no - the court must make an occupation order. If the answer is yes - then assess whose risk of harm is greater.

Question 35

overall answers for expl?

Answer 35

If harm of applicant greater = order made | If harm of respondent greater = test not satisfied

Question 36

exam q last year? of occ order?

Answer 36

Lasy ear 1 on occ order – students said u have to do harm tesrt under ………….. COME BACK TO SLIDE *

Question 37

what must the court consider?

Answer 37

So, the court must consider two scenarios-what will happen if no order made or is made

Question 38

what are the 2 scenarios?

Answer 38

1. what will happen if no order is made? Will the applicant or any relevant child suffer significant harm attributable to the conduct of the respondent? 2. what will happen if an order is made? Will the respondent or any relevant child suffer significant harm?

Question 39

Is the harm suffered by the applicant greater if the order is not made, then the respondent if the order is made?

Answer 39

Just balancing harm between app and respondent, but u in ther shoes think about u as app applying of occ order and say where corut will say make occ will u suffer har yes but willharm make sufer order be greter a

Question 40

what is not paramount in this?

Answer 40

Note: Welfare of children is not the paramount consideration.

Question 41

What is meant by significant harm?

Answer 41

``` s 63(1) FLA 1996 – definition of ‘harm’ -No definition of ‘significant’ - look in stat books ``` -subjective- depends on how fragile v is

Question 42

What if test not satisfied?*

Answer 42

However, if the test is not satisfied, the court may still make an order- If test not satisfied court can still make order, so court looks and balance of harm est if not satisfied wont make order,

Question 43

what secs are rel factors in?

Answer 43

Relevant factors are those in s.33(6)

Question 44

what does court say about s.33 6?

Answer 44

Good when talking about general order but court doesn’t say court can make discretionary order under s.33 6 So just considers all those factors, again children not paramount consideration

Question 45

what happened in | S v F (Occupation Order) [2000]?*

Answer 45

Svf –- order made to facilitate son remaining at school mother she had baby and fathe togeth and father had son from previous rels . mother left home with baby and applied for occ order, so court balance of harm test, will mother suffer sigg harm if order not made, will harm be greater and -yes bc son had moved house several times several years, mother would move easy but father and son wouln't, so order occ father and son on basis that sons life would be disrupted too mch It was sifngact in that case cous son had moved several times mother retained a house>>>.???

Question 46

what happened in l v l?

Answer 46

L v L [2012] - children harmed by arguing parents – just case of arguing parents and held wasn’t in best interest of child stay then so exclusion on husband bc children being harmewd?????

Question 47

what happened in l v l?*

Answer 47

L v L [2012] - children harmed by arguing parents – just case of arguing parents and held wasn’t in best interest of child stay then so exclusion on husband bc children being harmewd?????

Question 48

4,- Applications by ‘non-entitled’ person?

Answer 48

lack existing legal or beneficial interests or home rights

Question 49

how many types of non entitled app are there?

Answer 49

Two types of non-entitled applicants

Question 50

what are the 2 types of non entitled?-ignore one of them

Answer 50

1. Those who seeking an order again a respondent who is also not-entitled (here, the court is only adjusting occupation rights between the parties themselves, both of whom may be subject to almost immediate ejection at the hands of a third party) – s 37/s 38. * * These fall outside the scope of our module** 2. Those who are seeking an order against a respondent who is entitled to occupy the property – s 35/s 36. * *These rules fall within the scope of our module and details are on the following slides**

Question 51

what type do we only do?

Answer 51

We only do with 1 type, so anything dealing with s.3738 is outside scope of module

Question 52

what should we note?

Answer 52

Note: anything about 37 38 outside 35 36 38 together textbook not to completely ignore 37 38

Question 53

Under (2) above only the following may apply for an order:

Answer 53

Former spouse or civil partner (s.35) | Cohabitant or former cohabitant (s.36)

Question 54

what are these good example of?*

Answer 54

This is good example of why shouldn’t get divorced until financial roders gone thru bc if ur still divorced gives bit leverage to financial orders, once ur divorce comes through u r former spouse therefore have to go s 35

Question 55

what about cohab?

Answer 55

So if c former house read as written either it was or was intended to be Cohabtatn talks in present tense so just for pratical reasons it doesn’t make much difference but if u get a disucsion q on this need to point out this present tense and this is could have been past tense was or was intded to be????

Question 56

what about s.33?

Answer 56

**Less favourable treatment here than under s.33

Question 57

what is s.35 in all?

Answer 57

s.35 – former spouse or civil partner with no existing right to occupy

Question 58

Mandatory Orders (Occupational Rights Orders):?

Answer 58

Court has an option to create a mandatory order- read what they are, these mand orders are giving applicant right to occupy and remain prop, so no point giving someone order proper without giving right to it, note this section applies to appl who is in occ ie. Living there and this is applciati not in app

Question 59

what are the rights?

Answer 59

1st right not be excluded 2nd right to enter

Question 60

what are the rights in other words?

Answer 60

1 is when applicant living there and 1 where app isn’t lving there

Question 61

when is eviction of respons pointless?

Answer 61

So if ur thinkin of evicting a respondant so essentially point trying to make is that eviction of the respons is pointless without mad order cos u can evict the respn but respon may be able to stop app from occupying prop so what ur doingur evicting repson and giv app right tos tay in prop, remember the don’t have right

Question 62

when deciding to make an order what must the court take into account?

Answer 62

When deciding to make an order the court must take into account the factors in s.35(6)

Question 63

how does the ct decide?

Answer 63

Court decides by using s.35 6

Question 64

which are similiar?

Answer 64

A-d similar read as written on slide

Question 65

what is it essentially looking at?

Answer 65

Looking at length of time lived togeth, length of time rels been disoled and existence of anyt other oroceedings e.g financial roders

Question 66

what is greater lenght of time or how long rels since split?

Answer 66

What this telling u when length of time> really looking for how long was the rels since split up

Question 67

what can a court make?

Answer 67

A court can also make a discretionary/regulatory order – s.35(5)

Question 68

what two tests must the court apply?

Answer 68

The court must apply two tests (s.35(7) and (8))

Question 69

what are the two tests for non entitled??

Answer 69

- s 35(6) (a)-(e) – - the balance of harm test – s.35(8) If the test is satisfied the court must make an order.

Question 70

why must they consider balance harm test again?

Answer 70

Must consider balance of harm test and if satsifed must make order Balance test exaCTL THE SAME as in s. 33

Question 71

how long do these orders last?

Answer 71

Orders last 6 months (but applicant can reapply)

Question 72

why are these orders short?

Answer 72

There only meant to be short term orders, 6 months these are designed to be short term fixes , so e.g say e.g divorce waiting for financial orders to come thru these will give u a chance, remember excercisng an entitled app from home, unentitled divorced, if they werent good reason not to get divorce before finances

Question 73

what is s.36/

Answer 73

s.36 – cohabitant or former cohabitant with no existing right to occupy

Question 74

what is meaning of s.62 1 a?

Answer 74

s.62(1)(a) – meaning of cohabitant (see last week’s lecture)

Question 75

what are the orders same as?

Answer 75

Same orders as in s.35 (mandatory (s 36(3) and (4) and discretionary s 36(5))-s.36 so u can make mand or giving someone right to occupty prop and then u can exclude someonfrom area which is discretionary it mandatory soemonehas right not be evicted

Question 76

what under s.36 3?

Answer 76

Under s 36(3) a non-entitled cohabitant who is in occupation may apply for an order:

Question 77

what does s.36 4 cover?

Answer 77

s 36(4) covers the converse situation and provide when the cohabitant is not in occupation

Question 78

when consid a man order what must the cts also consider?

Answer 78

When considering making a mandatory order, the court must consider the general factors listed in s.36(6)

Question 79

what about the general factors?

Answer 79

som rep but added factors where looking at into rels etc ,inparticular what is nature of rels and whats there comm level like, married face value cause married this is lot more intrusive than s.35 , obvs what missing infinancial orders udner mca cos of not married

Question 80

what dont we cover in this mod?

Answer 80

An order paragraph 1 d 2under children, don’t cover in this module rights of children for financial hw we do do this one which is arguments over legal and benefical ownership dwelling house which is cohab…frmklgklfl

Question 81

what happens when considering the making of a disc order?

Answer 81

When considering the making of a discretionary order under s 36(5) (same wording as s 35(5)), the court does not apply the balance of harm test – but asks similar questions

Question 82

what about same wording?

Answer 82

Same wording but isn’t balance of harm test but make similar q , more harm or not?? Do in s.3335 not 36 so have read of what it says

Question 83

how long do discretionary orders last?

Answer 83

Orders last for 6 months (extended for one extra 6 month period only) -swift action as response to being homeless.

Question 84

Protection for an applicant in need of immediate (emergency) protection?

Answer 84

- ex parte (both non-molestation and occupation orders)-If do make ex parte its followed quickly by hearing, the other party does have right to have hearin then quick - u can apply for non mol without - court more likely to aware ex parte non-molestation order than occupation order-Cause occupation order seen as proconian , there less likely to order an ex parte occupation order bc occupation orders u have to balance other peoples rights so u need to balance thew ahrm caused by occupation order so if u order ex parte has got devasdting efeets and balance of harm test not been considered so non mol ust saying must not do something but not essentially evicting you from your home - s.45(1) – ‘just and convenient to do so’-It is entirely at courts discretion s.45 1 read as written –this is fro emergency protection remember , and to enforce them then breach of non mol occ order can be imprisoned , in oden days used to attach warrant if brach

Question 85

Enforcement of orders?*

Answer 85

- contempt of court – imprisonment-But not if u breach non mol is a criminal offence don’t need warrant arrest attached to it anymore, - s.42A – breach of a non-molestation order is also a criminal offence (unless reasonable excuse or was unaware of order) - s.42A(2) – must be aware of the order