Friday 23 May 2008

Domestic Abuse

Generally covers cases of personal violence, threats, intimidation and harassment. Court Action is not the only remedy, a solicitor letter warning the perpetrator to desist from his behaviour or face court action may act as a deterrent.

Under FLA 1996 there are two types of orders available:

a) Non-molestation order (s42): for the protection of parties and children. Prohibits the respondent from molesting the applicant or a child. Also covers pestering and harassment. Can be granted on application by any associated person or a free standing applicant. S42 (5) specifies the court needs to consider the health safety and well-being of the applicant and any child. An order will be granted if the applicant can show a genuine need for protection. Orders can be made for specific period or until further orders/indefinite s42 (7).

b) Occupation orders (s33 and 35-38): excludes the other part from occupation of the home/specified area. Both spouses and cohabitants can apply. ‘Associated persons’ are defined under s62. Under s33 an applicant has an existing right to occupy the home if she is entitled to occupy by virtue of a beneficial estate, interest, contract statutory entitlement. The home must have been intended to be the home of the applicant and the person with whom she associated (Resp). Where the above requirement is met, the applicant can apply for an occupation order which may:

  • Require the resp to allow the applicant to enter and remain in the home or part of the home.
  • Regulate the occupation of the home by either or both parties.
  • Prohibit, suspend, restrict the respondent exercise of his right to occupy the home.
  • Require the respondent to leave the home.
  • Exclude the respondent from a defined area.

Factors the court must consider (s33(6)) including circumstances:

  1. Housing needs and resources of the parties and any child.
  2. The financial resources of the parities.
  3. The likely effect of making an order or not making an order on the health, safety of the parties and child.
  4. The conduct of the parties.

S33 (6) is subject to the ‘balance of harm’ test: an order shall be granted where it appears the applicant or any child is likely to suffer significant harm attributed to the respondent conduct, unless:

  • The respondent or a child is likely to suffer significant harm if the order is made; and
  • The harm suffered by the respondent or child is greater or greater than the harm suffered by the applicant.

Emergency Application (s45) under FLA 1996 makes it possible to protect the applicant either on the same day or the day after. Allowing the court to make both non-molestation and occupation order without notice to the respondent. Where it considers it to be ‘just and convenient’. Taking into account:

  • Risk of significant harm to applicant if order not made immediately.
  • Likelyhood of applicant being deterred/prevented from making an application if order not made immediately.
  • Whether there is a reason to believe respondent is avoiding service and delay will prejudice applicant.

The courts are generally reluctant to grant orders where the respondent has been given no notice.

NOTE: ANY ORDER MADE WITHOUT NOTICE IS TEMPORARY, THE SOLICITOR MUST OBTAIN A HEARING DATE FOR FINAL

Undertaking (s46): a full hearing can be avoided by the respondent giving an undertaking, i.e. a promise to the court. The applicant often accepted the undertaking since it was made voluntarily & therefore more likely to be complied with.

However the court will not accept an undertaking on an application for a non-molestation order where the respondent has previous used or threatened violence.

Procedure: Under part IV of the FLA 1996 solicitor can bring an application either at the family proceedings court can not deal with cases where there is a dispute order applicant right to occupy the house (s59). This can only be deal with at the county court. But only in divorce county court or family hearing centres. Any application made by an under 18 must be commenced at the High Court.

Note: Occupation orders can’t be dealt with by the Family Proceedings Court.

Obtaining a non-molestation, occupation order without notice:

  • Grant Emergency Legal Representation but only if applicant or child is in immediate danger of significant or imminent danger. Before application will be brought before the court.
  • Telephone the court to make an appointment before the judge/magistrate if necessary.
  • Telephone a process server to attend court to serve it on the respondent.
  • Draft a FORM FL401 & a statement detailing the respondents behaviour and both parties housing & financial needs. Why without notice?

Obtaining a non-molestation or an occupation order on notice

  • Grant Emergency Legal Representation.
  • Draft a FORM FL401 & a statement detailing the respondents behaviour and both parties housing & financial needs. Sworn to be true. Notice of issue of Legal Representation. Where the application is ancillary to a divorce under Legal Help, a notice of acting must be included.
  • File the application in duplicate.
  • On filing the court fixes a hearing date which will be inserted in a notice of proceedings (FL402). The respondent must be given two clear days notice of this date.
  • Prepare the draft order(s)required on FORM FL404 or FORM FL404a.

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