These are the notes that I took as part of my Family Law module and used to revised for the assessment, in which I scored a good First Class mark. The notes are easy to follow and well structured, with cases and academic commentary highlighted throughout.
A suggested approach
- What is the order being sought?
- Who can seek that order?
- What is the criteria for granting that order?
- What is the effect of the order? What happens if it is breached?
Legal Aid, Sentencing and Punishment of Offenders Act 2012
Do esti iole e ea s a i ide t of threate i g eha iour, iole e or a use hether ps hologi al, ph si al,
se ual, fi a ial or e otio al et ee i di iduals ho are asso iated ith ea h other
Two types of order
- Non-molestation
- Occupation
Definitions of associated persons in s.62
- To apply for either order, must be associated with respondent
o Ss.3 eg marriage, co-habitant
o Excludes eg tenants and employees
o Anomalies eg tenants can sue each other but if one is subletting to the other, cannot.
o Bf,Gf added in 2004 by Domestic Violence, Crime and Victims Act 2004 i ti ate perso al
relatio ship of sig ifi a t duratio
But what is intimate? What is significant?
o G v G (Non-Molestation Order: Jurisdiction) [2000] 2 FLR 533 (also known as GvF)
Woman applied to magistrates for non-molestation order. Refused, held no jurisdiction as
parties not associated.
Not in stable relationship, no children and each had own home.
Wo a said did t li e together just sta ed together 5ish ights a week.
Man said lived together and agreed to marry.
Woman on appeal said that only said not living together to preserve state benefits.
Court gave purposive interpretation and said should not refuse jurisdiction unless facts
plai l i apa le of oming within the Act.
Wall LJ referred to Crake v SBC [1982] 1 All ER 498
o Signposts for associated. Three here, having sex, stable relationship and
financial assistance being provide.
- Relevant child: ss.2- any child whose interests court consider relevant. Eg covers foster children, step
children etc.
o However must obtain leave of court under s.43(1) satisfying s.43(2).
If other family proceedings eg occupation order being granted, court can grant molestation order on its own motion
(s.42(2)(b)).
Non-molestation orders
- Court can make order by person associated with respondent whether or not other family proceedings have
been instituted(s.42(2)(a)) or by court on its own motion during other family proceedings (s.42(2)(b)).
- Consider s.62 definition of associated persons.
- What is molestation?
o Not defined by Family Law Act 1996 (but the order defined in s.42)
o George v George [1986] 2 FLR 347:
Husband sent abusive letter which constituted molestation and shouted obscenities in front
of children to her which constituted harassment (and hence molestation.)
o C v C (Non-molestation order: Jurisdiction) [1998] 1 FLR 554
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, Husband applied for order to stop wife publishing allegations about him in papers. Court
held nowhere near molestation. Privacy and protecting reputation not molestation. Other
legal avenues for this.
Also held molestation deliberate conduct aimed at high degree of harassment.
Johnson v Walton – sending semi-naked photos of his former girlfriend to the press
was molestation
Difference between this and C? Press involvement here was aimed at humiliating
the woman whereas in C the conduct was to explain her version of events rather
than disgracing her husband
o Pestering in Vaughan v Vaughan 1973 (although husband knew wife was frightened).
o Horner v Horner 1982: a o du t that ould e regarded as su h a degree of harass e t as to all
for the i ter e tio of the ourt.
- What is domestic violence? (form of molestation)
o Yemshaw v LBH [2011] UKSC 3:
Wife claiming not intentionally homeless but had been forced to leave home from DV. But
husband had never hit her.
SC adopted wide definition. Hale said does t o l cover physical acts but any other form of
a use hi h dire tl or i dire tl a gi e rise to the risk of har .
[very wide scope]
- What is the criteria?
o s.42(5) …regard to all ir u sta es i ludi g eed to to se ure health, safety a d well ei g of
applicant and any relevant child.
o Health: physical or mental (s.63(1))
Banks v Banks [1999] 1 FLR 726: Court did not make order. Husband wanted order because
wife suffered from dementia and manic depression. Court held aggression result of illness
and hence would not be able to obey the order.
P v P (Contempt of Court: Mental Capacity) [1999] 2 FLR 897: Wife did get an order despite
hus a d ei g se erel disa led. Death, partiall sighted a d did t u dersta d legal
system. But did understand not aloud near wife and could go to prison.
Court held no need for full understanding but sufficient understanding.
- If granted:
o S.4 6 … if granted can refer to molestation in general or particular acts, or both.
o S.42(7)... for specified period or until further order.
o APPLY CASE
- Consequences of breach?
o DVCVA amended s.42 to make Criminal offence to breach.
s.42A(1): if a non-molestation order is breached without reasonable excuse, the person
subject to the order is guilty of a criminal offence
HENCE NO REASON TO ATTACH POWER OF ARREST.
Occupation order
- Not limited to forcing someone to leave. Usually why people apply but can also regulate occupation of the
home eg if big house, can limit to certain rooms.
- If apply, must choose which provision to apply under. Depends on relationship and interest in the home.
Each has different tests, powers and durations.
o Section 33
Entitled (own house) or spouse of owner
o Section 35
non-entitled former spouse of owner
o Section 36
non-entitled cohabitant or former cohabitant of owner
o Section 37
neither spouse entitled
o Section 38
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