#17059 - Family Non Molestation Order And Occupation Order - Family Law

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SRA Code of conduct: Outcome 11.1/ IB11.7

Law Society Guidance: Paras 19; 20; 21 & 22

Resolution Guidance

Family Law Protocol Part 1: Para 1.10.3

• Which orders does need to apply for ie. which sections?

  • S.42 FLA- non-molestation order, s.62 Associated person (p.387)

  • Occupation Order (p.258)

  • Check the flowchart

  • S.42 non-molestation order (“associated person”- cohabitant under s.62)

  • S.33 entitled applicant- occupation order “Get out” & “keep out” exclusion provision

• How to apply?

  • FL401

• On notice or without notice?

  • S.45 ex parte (without notice) (p.385)

  • Without notice- she satisfies the requirements of s.45 and needs protection so needs interim orders now and final orders at on notice hearing

• Power of arrest?

  • S.47- only applies to Occupation order (s.42A criminal offence if breach NMO)

• Any other ancillary order?

  • Rent payment/ mortgage payment aftr move out (s.40)

  • Means and merits test

  • S.46 undertakings (against injunction order under the same terms, no power of arrest attached, still enforceable promise)

  • S.40 Ancillary order- n/a here

• Legal Aid?

  • Legal Aid still available for NMO and DO- means & merits

S.42 Non-molestation factors

• Genuine need to secure health, safety and wellbeing of the applicant

• Genuine need to secure health, safety and wellbeing of children

• All the circumstances s.42(5)

• P.251/ 384

s.33 approach

1. Applicant (A) has to show likelihood of significant harm owing to the R’s conduct

2. The court will decide whether the R will suffer more [Balance of Harm Test in s.33(7)], so

3. You must set out and apply the s.33(6) factors ie. all the circumstances of the case including s.33(6)(a)-(d) AKA “core criteria”

4. CONCLUDE in whose favour has the BH test been made out?

   1. If court decides BH test IS made out in A’s favour= court MUST make order

   2. If BH test is NOT made out, court has discretion to make order revisiting the s.33(6) factors ie. “all the circumstances of the case”, including s.33(6)(a)-(d) core criteria (p.252/ 378)

• S.33(7) Balance of harm test

  • Is A (or child) likely to suffer significant harm attributable to R’s conduct if order NOT made?

  • Is R (or child) likely to suffer significant harm if order IS made? AND Is the harm suffered by R (or child) as great/ greater than the harm suffered by A (or child) attributable to R’s conduct

  • WHO WILL SUFFER MOST?

• Core criteria

  • Respective housing needs and housing resources

  • Respective financial resources

  • The likely effect of any order, or decision not to make an order, on H S and W of the parties and children

  • Conduct of the parties

s.45- without notice

NMO and OO can be made WN where the Court considers it “just and convenient” to do so. Take into account all circumstances, including:

1. Risk of significant harm to A or children if not made immediately

2. Will A be deterred from the application if not made immediately

3. Is there a reason to believe R is evading service, and delay will prejudice A or children?

• Court generally reluctant where NO notice given to R, OO rarely granted WN- especially if removing R from their home

• WN orders must have fixed end date, usually c.14 days

• P.259/ 385

Task 1

Hearing without notice applicant for the NMO and OO

• NMO to be granted (based on s.42 factors)

  • Associated person(Gary Knight): cohabitants, share parental responsibility

  • Genuine security and health, safety and wellbeing for the applicant- all circumstances and genuine need for protection

  • He takes hard drugs and becomes violent and dangerous

  • He removes her from their home and sold some of her family jewellery

  • He has pushed her down a flight of steps and caused her miscarriage (child destruction- killing unborn baby by attacking her)

  • 14 May: She has been attacked by him in their home, hitting her in her face.

  • He smashed furniture and crockery at home.

  • He knocked her down to the ground and punches to the head and body, he threw water in her face, pulled her up by her hair and punched again causing face and mouth to bleed.

  • She ran out of the house and he continued...