Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Family Law > Violence in Family 3 & 4 > Flashcards

Violence in Family 3 & 4 Flashcards

You may prefer our related Brainscape-certified flashcards:
Civil Procedure 1L flashcards MBE flashcards MPRE flashcards
1
Q

3- what is a new topic?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Purpose of occupation orders

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

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

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

what is s.33 3?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

what does s.33 3 create?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

e.g of s.33?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

what do these possible orders give the courts?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

what is s.33 5?

A
  • 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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

when is occ used in which type of cases?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

what is meant by more drac?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

what do you have to prove for occ order?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

what will court focus on on occ orders?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

what about draconian?

A

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 ,

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

what is s.42 4a?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

why would you consider non mol orders too?*

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

what is s.42?*

A

S42 is only duty to CONSDIER NOT TO MAKE ONE

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

what can s.42 be accomp with?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Who may apply?

A

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

  • Act distinguishes between ‘entitled’ and ‘non-entitled’ applicants
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

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

A

Two sub-categories in s 33

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What is the 1st cat?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

what is 2nd cat?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

what is meant by house must be a dweling house?

A
  • 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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

what does a dwelling house tell us?

A

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
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

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

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What can this order be?

A
  • can be fixed or unlimited length – s 33(10)

This occ orders could be fixed etc..

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

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

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

what are the tests?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

section for balance of harm test?

A
  • The Balance of Harm test – s.33(7)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

what does the balance of harm test do?

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

what is actually said in balance of harm test?

A
  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.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

so what does the balance of harm test essentially asks?

A

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,

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Explanation of s.33(7)

A

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?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

the answers of 1st q of exp?

A

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?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

the answers of 2nd q of expl?

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

overall answers for expl?

A

If harm of applicant greater = order made

If harm of respondent greater = test not satisfied

36
Q

exam q last year? of occ order?

A

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

37
Q

what must the court consider?

A

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

38
Q

what are the 2 scenarios?

A
  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?
39
Q

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

A

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

40
Q

what is not paramount in this?

A

Note: Welfare of children is not the paramount consideration.

41
Q

What is meant by significant harm?

A 
s 63(1) FLA 1996 – definition of ‘harm’ -No definition of ‘significant’
- look in stat books

-subjective- depends on how fragile v is

42
Q

What if test not satisfied?*

A

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,

43
Q

what secs are rel factors in?

A

Relevant factors are those in s.33(6)

44
Q

what does court say about s.33 6?

A

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

45
Q

what happened in

S v F (Occupation Order) [2000]?*

A

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»>.???

46
Q

what happened in l v l?

A

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?????

47
Q

what happened in l v l?*

A

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?????

48
Q

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

A

lack existing legal or beneficial interests or home rights

49
Q

how many types of non entitled app are there?

A

Two types of non-entitled applicants

50
Q

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

A
  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**
51
Q

what type do we only do?

A

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

52
Q

what should we note?

A

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

53
Q

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

A

Former spouse or civil partner (s.35)

Cohabitant or former cohabitant (s.36)

54
Q

what are these good example of?*

A

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

55
Q

what about cohab?

A

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????

56
Q

what about s.33?

A

**Less favourable treatment here than under s.33

57
Q

what is s.35 in all?

A

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

58
Q

Mandatory Orders (Occupational Rights Orders):?

A

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

59
Q

what are the rights?

A

1st right not be excluded 2nd right to enter

60
Q

what are the rights in other words?

A

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

61
Q

when is eviction of respons pointless?

A

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

62
Q

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

A

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

63
Q

how does the ct decide?

A

Court decides by using s.35 6

64
Q

which are similiar?

A

A-d similar read as written on slide

65
Q

what is it essentially looking at?

A

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

66
Q

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

A

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

67
Q

what can a court make?

A

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

68
Q

what two tests must the court apply?

A

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

69
Q

what are the two tests for non entitled??

A
  • s 35(6) (a)-(e) –
    • the balance of harm test – s.35(8)
      If the test is satisfied the court must make an order.
70
Q

why must they consider balance harm test again?

A

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

71
Q

how long do these orders last?

A

Orders last 6 months (but applicant can reapply)

72
Q

why are these orders short?

A

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

73
Q

what is s.36/

A

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

74
Q

what is meaning of s.62 1 a?

A

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

75
Q

what are the orders same as?

A

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

76
Q

what under s.36 3?

A

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

77
Q

what does s.36 4 cover?

A

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

78
Q

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

A

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

79
Q

what about the general factors?

A

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

80
Q

what dont we cover in this mod?

A

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

81
Q

what happens when considering the making of a disc order?

A

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

82
Q

what about same wording?

A

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

83
Q

how long do discretionary orders last?

A

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

84
Q

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

A
  • 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
85
Q

Enforcement of orders?*

A
  • 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

Family Law (21 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions