Lecture notes
domestic violence
very in-depth and clear lecture notes from student at city university of London studying family law. I personally revised from these notes and achieved a 2:1 in this module.
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By: leahsynge1 • 8 months ago
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Domestic ViolenceTHE NOTION OF DOMESTIC VIOLENCE
Legal Aid, Sentencing and Punishment of Offenders Act 2012
Sch 1, S.12: any incident of controlling, coercive or threatening behaviour, violence or abuse
(whether psychological, physical, sexual, financial or emotional) between individuals who are
associated with each other.
LEGISLATION (CIVIL REMEDIES)
Part IV Family Law Act 1996 as amended by…
Domestic Violence, Crime and Victims Act 2004
Forced Marriages (Civil Protection) Act 2007
Crime and Security Act 2010
PART IV FAMILY LAW ACT 1996
Non-molestation orders
Occupation orders
NON-MOLESTATION ORDERS
S.42(1) FLA 1996: prohibit the respondent from molesting another person who is associated with the
respondent and/or a relevant child.
S.62(3) FLA 1996:
(Former) spouses/ civil partners
(Former) (opposite-sex/same-sex) cohabitants
Persons who live/ have lived in the same household otherwise than by reason of one being
the others employee/ tenant/ lodger/ boarder
Relatives
(Formerly) engaged couples/ parties to a (terminated) civil partnership agreement (can only
bring a claim within 3years)
Persons who have (had) an intimate personal relationship of significant duration
Persons who are both parents/ have parental responsibility for the same child
Parties to the same family proceedings
If in doubt, the court will treat the person as ‘associated’ G v F (Non-molestation Order:
jurisdiction) 2000- purposive approach of cohabiting, the most generous approach must be
given.
S.62(2): ‘relevant child’
Any child living with/ who might be expected to live with either party to the proceedings
Any child in relation to whom an order under the Adoption and Children Act 2002 or the
Children Act 1989 is in question in the proceedings.
Any child whose interests the court considers relevant
‘Molestation’ is not defined in statute, it is given a wide meaning upon a case by case interpretation.
, C v C (Non-molestation Order: jurisdiction) 1998- conduct must be clearly harassing so that the
intervention of the court is called for.
Johnson v Walton 1990- any behaviour intended to cause distress.
S.42(5) FLA 1996: the criteria for granting non-molestation orders involves courts considering all
circumstances of the case, including the need to secure health, safety and well-being of the
applicant and any relevant child.
Orders without notice (ex parte orders)
S.45(1): order without the respondent being given notice of the proceedings. (At the first hearing
only, the applicant will be present, the respondent will not be present or notified).
S.45(2): risk of significant harm to the applicant or any relevant child, likelihood of applicant being
deterred from pursuing the application, respondent aware of proceedings but deliberately avoiding
service.
S.45(3): respondent is given the opportunity to make representations as soon as is convenient.
Terms and duration of the order
S.42(6): molestation in general and/ or specific acts of molestation
S.42(7): for a specific period or until further order
Variation and discharge
S.49: on the application of the respondent or applicant
Undertakings (promises to the court)
S.46(1): court may accept an undertaking instead of making an order
S.46(4): enforceable as if they were court orders
S.46(3A) must not accept an undertaking where respondent has used/ threatened force against the
applicant and/ or a child or when NMO is necessary so that a breach may be punishable as a
criminal offence
Breach of an order
Civil proceedings for contempt of court, contemnor may be ordered to pay a fine or serve a prison
sentence
Rafiq v Muse 2000- imprisonment for breaches of NMO
H v O (Contempt of Court: Sentencing) 2004- more deterrent punishment needed
Criminal offence of breaching a NMO
S.42A(1): Since 1st July 2007, breach of a NMO is a criminal offence
Amendments to Part IV Family Law Act 1996
Extended categories eligible to apply for remedies
Made a breach of a non-molestation order a criminal offence
Restricted the use of undertakings instead of orders
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