#17069 - Family Law Domestic Violence - Family Law

Domestic violence is not limited to physical abuse

Recognised in 1960s

• Area of social trouble

• rise of feminism and female autonomy

• overwhelming woman suffer from domestic violence than a much greater weight than man, physical violence impact greater on woman

• contained in very piecemeal and haphazard legislation

Not much access to law although different remedies(criminal law) available

Court also had powers to make orders under inherent jurisdiction and under tort laws

Clear coherent legislation needed- usually still love person so do not want them in jail, victim usually protect them, prosecution, need a special family problem solution without bringing in criminal law

Family Law Act 1996 Part 2

Non-molestation(騷擾)orders under the Family Law Act 1996(FLA) prohibit a person from molestating a person they are associated with, or a relevant child

• Restrain order: named person is not allow to molest ie. Contact, visit

• FLA 1996 did not define molestation

• See as conducts that harasses or threatens A

• Who can apply:

  • Must show associated persons S62(3)

    • G v F (Non-Molestation Order: Jurisdiction): If it is unclear whether the relationship falls within these categories, it should be treated as if it does

  • Courts may make such orders of their volition意志 but they seldom do

  • Child under 16 may apply but must obtain leave(permission) from court S43 FLA1996

• Courts will consider S42(5) whether to exercise its power, if so, in what manner, the court shall have regard to all circumstances including the need to secure the health, safety and well-being

  • (a) of the applicant

  • (b) and of any relevant child

• Order can be wide and can prohibit many types of conduct

  • But conducts must be threatening or harassment

  • Cannot use to remove someone from home (do not act as backdoor)

  • When someone is removed through occupation orders, non-molestation order may specify that they cannot come in certain specified area where victim is located

• Consequences of breach:

  • S42A- Criminal Offence if breach without reasonable excuse

    • More robust to attain criminal consequences on top of civil consequences which are long process

  • Person must be aware of existence of order

  • Cannot be dealt with both criminal and civil proceedings

  • Police have power of arrest and person can be prosecuted

    • Police actually used caution and CPS did not prosecute not much actual protection

    • Formerly, victim had to bring contempt of court action 蔑視法庭

    • Undermines victim autonomy and fail to appreciate the nature of domestic violence

    • Can be strengthened by extending penalties in civil proceedings

  • Breach of molestation order is a criminal offence, but if criminal proceedings are not taken, breach can be dealt with in the civil courts as a contempt of court

  • Civil court: custodial sentence, maximum 2 years

    • Should not be distinctly different from criminal offence of Harassment

    • If violence, imprisonment

  • Criminal court more extensive- can impose fines, imprisonment, community sentence, rehabilitation orders

  • Sentence imposed for breach of order should be primarily concerned with ‘ensuring that the order is complied with and achieve protection it aimed to achieve’

  • Sentence also depend on original conduct, severity of breach, nature of breach

• Protection from Harassment Act 1997

  • S1

    • (1)A person must not pursue a course of conduct-

      • (a) Which amounts to harassment of another,

      • (b) Which he know or ought to know amounts to harassment of the other

    • (2) The person (whose course of conduct is in question) ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other

  • Parties do not need to be related or have any relationship with each other ie. Quasi-family situation: ex’s current partner, non-direct relatives

  • Both criminal and civil proceedings

  • fine or jail upon summary conviction and also civil claim S3

  • S4 putting people in fear of violence but must be a course on at least 2 occasions

  • S5 Restraining order

• Domestic Violence, Crime and Victims Act 2004

  • New provision affect sanctions for breach and not criteria for initially making the order

  • Victims choose to take criminal proceedings more

  • But criminalising breach of non-molestation order discouraged victims to apply the order, although it intended to increase level of protection to victims

  • Seeking an order is expensive and reduction in availability of legal aid

Occupation orders regulate the occupation of property

1. Can be used to remove an abuser from the home

2. Give right to victim to enter and remain in home

3. Or both

Depend on

• Relationship

• Entitlement to home

S33- Person may apply to court for an order

• If a person is

  • Entitled to occupy a dwelling-house as a beneficial or has the right to remain in occupation; or

  • Has home rights in relation to the house (if married, have home rights in any property own by spouse)

• The dwelling house

  • Is or at any time has been the home of the person entitled and another associated person; or

  • Was at any time intended by the person entitled and any such other person to be their home.

• (4) An order under this section may declare that A is entitled as mentioned in ss(1)(a)(i) or has home rights

• (5) If A has home rights and R is the other spouse, an order can be made during the marriage may provide that those rights are not brought to an end by-

  • (a) the death of the other spouse; or

  • (b) the termination (otherwise than by death) of the marriage

Person entitled if they are registered owners or have some other kind of proprietary interest in the home

Beneficial interest under a trust, estoppel, estate contract (in equity)- difficult to prove and insufficient time to apply for court to prove property interest and domestic violence case S v F (Occupation Order)- not enough time to determine if applicant had all necessary evidence to prove S33 interest so used S35 instead but lower level protection

Moore v Moore (2004) interest must be substantial- property must be residential house and intended to be home of the parties

Declaratory Orders: Court declare that applicant has right to occupy the property simple confirm not exclude

Used to forestall(壟斷) attempts by R to oust(淘汰) A

Defensive move to acknowledge right to remain (S33 (4)-(5))

Regulatory orders under S33(3)

• Two stage test for courts to consider to grant

  • Balance of harm test S33(7)- If satisfied in favour of A or relevant child, court have a mandatory duty to make order

  • If not satisfied, court have discretion to still make the order with S33(6) factors

  • Chalmers v John (1999): If S33(7) is met, court must make order but can decide the terms and duration, if not, the n courts have discretion

• (a) enforce A’s entitlement to remain in occupation as against R

• (b) require R to permit A to enter and remain in the house or part of the house

• (c) regulate occupation of the house by either or both parties

• (d) if R is entitled for occupation rights, court can prohibit, suspend or restrict his right to occupy

• (e) if R has home rights and A is the spouse, can restrict or terminate those rights

• (f) requires R to leave to house or part of the house

• (g) exclude R from a defined area in which the house is included (only in extreme circumstances)

Balance of Harm test S33(7)

• If A (or relevant Child) is likely to suffer significant harm attributable to conduct of the respondent, and court did not make order under S33(3), court should make order unless

  • (a) R or relevant Child is likely to suffer significant harm if the order is made; and

  • (b) The harm likely to be suffered by R or RC in that event is as great or greater than the harm attributable to conduct of R which is likely to be suffered by A or AC if order is not made (ie. R cannot find property to satisfy special needs)

• Relevant Child S62(2)- any child court considers- does not need to be biological child

• Harm S63(1)- ill treatment & impairment of health incl. emotional/ physical violence

• Significant

  • Humberside CC v B (1993)- considerable/ worthy/ important

  • Chalmers v John (1999)- Walking 1.5 miles to school for mother and child X

• Attributable: must be caused by R’s actual or likely conduct, even unintentional ie. Mental illness

  • G v G (Occupation Order: Conduct) [2000]-unintentional normal tensions as part of separation not exceptional

  • Re L (Children) [2012]: Failed- caused by both parties

  • S31(2) CA 1989- real possibility

  • B v B (Occupation Order) [1999]: harm from unsatisfactory new accommodation A fled to in order to escape R = harm attributed to R

    • R’s violence (conduct)A fled with baby and housed unsatisfactorily (A’s harm) and lived in flat with disabled son as sole carer

    • Court acknowledged A’s harm and R’s attributable conduct but if order R and son have to leave- local authority no obligation to house R and son have no school(R’s harm)

    • R’s harm greater so no order made to A

  • Fairly difficult to get exclusion orders under this section (Court sees as draconian惡棍) unless exceptional circumstances not necessarily violence but must be strong at best dual occupation- artificially high bar

    • Re Y (children) (Occupation Order) [2000]: Occupation order not necessary as house was big enough for both parties to share and mutual undertakings (discretion to regulate occupation not to exclude) could be used to control behaviour

    • Re L (children) [2012]: ‘Nothing in S33(6) to limit the discretion to make an occupation order to cases where there had been physical violence…equally no authority establishing spouse can only be excluded from...