Domestic Violence

scott.james.smit
Flashcards by scott.james.smit, updated more than 1 year ago
scott.james.smit
Created by scott.james.smit over 8 years ago
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(Family Law) Flashcards on Domestic Violence, created by scott.james.smit on 04/25/2013.

Resource summary

Question Answer
What is the meaning of 'harm' re the FLA? 'Ill treatment and impairment of health' FLA 1996 63(1)
what is the definition of 'significant harm' re the FLA? 'Considerable, noteworthy or important' Humberside CC v B
Humberside CC v B Definition of significant harm; 'considerable, noteworthy or impotant'
What is the definition of 'attributable' re the FLA? B v B as a result of. G v G need not be intentional
B v B Definition of 'attributable'; as a result of
G v G States that attributable harm need not be intentional
What is the definition of 'likely' re the FLA? A real possibility Childrens' Act 1989 s31
What happens if the significant harm test is satisfied? The court must grant the order, if not, the court must consider the general factors set out in s33(6)
Chalmers v Johns States that the court should be careful in granting OOs as they 'override property rights and should only be awarded in exceptional circumstances'
Re Y (children) OOs should be seen as a last resort
What orders can be made under s33 FLA? 1) declaratory orders 2) orders under s33(3) 3) s40 orders
what are declaratory orders? ss33(4)&(5) they simply allow the court to declare that the party had no right to remain in the property
what are orders under s33(3) FLA? (a)&(b) enforce applicant's existing rights (c) regulates the rights of both parties (d)-(g) prevent R from enforcing his rights the strongest OO a court can give is to compel R to leave dwelling house
What are s40 orders under the FLA? provides 4 kinds of supplemental orders 1) either party can be ordered to pay rent 2) either party can be ordered to maintain/repair house 3) party who is to remain can be required to make payments to party who is to be removed 4) orders can be made to deal with disputes over use and care of furniature
who can apply for orders under s35 FLA ex spouse or ex civil partner with no existing right to occupy Only persons where A has no right to occupy P, but R does.
in respect of what property orders under s35 FLA ex spouse or ex civil partner with no existing right to occupy only in respect of dwelling house that was actually or intended to be the home for A&R
what orders are available orders under s35 FLA ex spouse or ex civil partner with no existing right to occupy similar to s33. Mandatory Orders: if order is made, A must be given right to remain in P and R must be prohibited from evicting Discretionary orders: any other order under s33(3)
what factors are taken into account? orders under s35 FLA ex spouse or ex civil partner with no existing right to occupy The shorter the marriage and longer the time that has elapsed, the harder it is for the A. if no mandatory order, then discretionary order (SHT)
Duration of an order orders under s35 FLA ex spouse or ex civil partner with no existing right to occupy CANNOT exceed 6 months
Who can apply? orders under s36, one cohabitant or former co habitant with no existing right to occupy A who is not entitled to occupy P and who is the cohabitant, or a former co habitant of R
in respect of what property? orders under s36, one cohabitant or former co habitant with no existing right to occupy P that was or was intended to be the house of A&R
what orders can be made? orders under s36, one cohabitant or former co habitant with no existing right to occupy exactly the same as under s35
what factors are to be taken into account? orders under s36, one cohabitant or former co habitant with no existing right to occupy court must consider general factors in s33(6) and in ADDITION s36(6) Court will ask significant harm QUESTIONS in s33(7) SHQ do not compel court to make an order Hard to justify SHQ over SHT
Duration of an order orders under s36, one cohabitant or former co habitant with no existing right to occupy s36 CANNOT exceed 6 months in duration can be extended ONCE
Who can apply? Orders under s37, neither spouse nor civil partner entitled to occupy unusual for neither party to be entitled to occupy. may relate to squatters
In respect of what property? orders under s36, one cohabitant or former co habitant with no existing right to occupy orders are only available in respect of property that was or was intended to be the home of the A&R
what can the order contain? Orders under s37, neither spouse nor civil partner entitled to occupy s37(3) more limited than 33,35,36 because neither part is entitled so they have no rights to be restricted
what factors are to be taken into account? Orders under s37, neither spouse nor civil partner entitled to occupy s33(6) general factors and (7) SHT
duration Orders under s37, neither spouse nor civil partner entitled to occupy period not exceeding 6 months can be extended any number of times
who cannot apply for an occupation order? A person who does not fall into the sections Relatives and cohabitants cannot apply unless they are entitled to occupy.
Core issues with OO. Conduct Previously, conduct not referred to, stated should be granted solely by considering parties needs (no fault scheme) P disagreed, FLA therefore does not sit well with sections dealing with divorce
Core issues with OO. Property Interests Co habs and former spouses treated differently if they have PIs. Co habs with PI treated the same as married couples Some argue PIs irrelevant PI carry with them responsibilities
Ex parte Non molestation orders and Occupation orders under the FLA 1996 most often used where there is an immediate need for protection of V and any delay may endanger V further Effective once served upon R s45(2)
What is an undertaking A promise made by R in clear terms, formally in court
How is an undertaking enforced? s46(4) can be enforced as if it were an order of the court
Restrictions on the Court Re undertakings s46(3), court shall not accept an undertaking if a power of arrest would be attached to the order
How long can a non molestation order last? there is no time limit
Powers of arrest s47(1) creates a strong presumption in favour of attaching a poa on nearly all OO as it is rare for one to be granted where there is no use of violence. if no poa attached, V will have to apply to court for warrant of arrest
can an order be made against a person who cannot control their actions? Prior to FLA- Banks v Banks GvG
what is the punishment for breaching an order if OO breached, person liable for contempt of court may involve imprisonment or a fine where the breach is violent, an immediate custodial sentence should be awarded (Wilson v Webster)
Banks v Banks Seen as innapropriate to make a non mol order against a woman suffereing from manic depression and therefore unable to control her behaviour. Reason being that it would be wrong if she were found guilty of contempt of court
Wilson v Webster Where a breach of an OO is violent, and immediate custodial sentence should be awarded.
G v G(occupation order: Conduct) Submitted that a non mol order can be made even where conduct is unintentional of the view, why should the victims rights be put below the abusers?
why has there been a reduction in the use of civil remedies? s42A has deterred applicants Police now taking DV more seriously and prosecuting DV cases with greater vigour Decrease in number of solicitor firms doing publically funded work
How are the non molestation orders enforced? FLA S42A, inserted by DVCVA 2003 -offence for a person to do something he is prohibited from doing by a non mol order without reasonable excuse -only guilty of an offence if they were aware of the order at the time -Prosecution has the BoP
What proof is required under the PHA 1997 s1 3 elements: 1) must be proved that D harassed V 2) offence can only be committed by a course of action 3) A theme is required which connects behaviour to a course of conduct
Harassment under PHA No definition within the Act, therefore give it its normal meaning No need to show that there was any violence nor that any psychological injury was suffered
Response to s42A -people complained that it disempowered victims -some argue that 42A is the reason for the decline in proceedings
Course of Conduct under the PHA must occur on at least 2 occasions 2 incidents separated by 4 months is not a course (Lau v DPP) All depends on nature of threat theme required (R v Hills)
Lau v DPP Course of Conduct under PHA 2 incidents separated by 4 months is not a course
R v Hills 2 incidents of violence separated by 6 months in between couple had co habited and had sexual relations CA HELD: no course of conduct, Act not for people living together
What should happen if a non molestation order is breached? If breached by violence then S42A should be used In deciding what sentence is appropriate, court should focus on the act which caused the breach, not the initial reason for awarding the order; Cambridge CC v D
Cambridge CC v D Non mol order made after serious violence In breach, D wrote love letters CA overturned a sentence for 12 months saying that it was excessively harsh
R v Colohan schizophrenic D argued that Jury should consider whether a reasonable schizophrenic person would be aware that his/her conduct was harassing Rejected, simply consider conduct of ordinary reasonable person
Defences to PHA s1(3) most likely is that course was reasonable
what is an occupation order? an occupation order can remove an abuser from the house and give a right to the victim to enter or remain in the property
How many groups of applicants for OOs are there and who can they apply against? There are 5 groups of applicant and they can only apply against a person to whom they are associated...
Who can apply for an OO? FLA s33, s35, s36, s37, s38 1) married and entitled applicants 2) ex spouses or ex civil partners with no existing right to occupy 3)One cohabitant or former cohabitant with no existing right to occupy 4)Neither spouse nor civil partner entitled to occupy 5)Neither cohabitant nor former cohabitant entitled to occupy
s33- married and entitled applicants (OO) Who can apply? nearly all spouses or civil partners are entitled as they will have home rights, includes registered owners and those with a BI
s33- married and entitled applicants (OO) What property order can be sought? two grounds: 1) property is a dwelling house 2) the home must be or was intended to be the home of A and a person to whom she is associated
s33- married and entitled applicants (OO) Against whom can the order be made? order can be sought by A against any person with whom she is associated and with whom she has shared or intended to share a home.
s33- married and entitled applicants (OO) What factors will be taken into account? Significant Harm Test (s33(7)) BvB
Problems with DV and housing law There is a lack of support for battered women's refuges run by voluntary agencies on tight budgets shelters are short term housing would be long term
DV and criminal law Rape used to be common law rule that man could rape women within marriage RvR abolished rule and he can now be quilty
BvB -married couple with 2 kids, H's son and a baby of their own -H was extremely violent so W&B moved out to temp accom. -H&S still in flat -Court considered SHT -Made no order on grounds that harm to H&S would be greater re sons education etc.
R v R abolished rape within marriage
DV and criminal law Assaults Difficulties with areas of stalking and harassment HL extended understanding of ABH and GBH to cover harassing conduct R v Ireland and Burstow (psychological injuries)
R v Ireland and Burstow Held that psychological injuries could amount to ABH/ GBH
problems of arrest with DV and criminal law 1) victim may fail to contact police after assault 2) Police may not make arrest because they do not view DV as a 'proper crime' 3) V may not want person arrested, just removed
Reforming the Criminal proceedure Pro-arrest policies or pro prosecution Rehabilitative Psychological Sentences
Why does the law find DV so difficult? Privacy Difficulties of Proof
Definition of Domestic Violence Home Office Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or seuality
Incidence of Domestic Violence Stats 1 in four women, 1 in six men have been or will be assaulted by a current or former partner
Causes of Domestic Violence 1) Psychopathological explanations 2) Theories about position of women in society 3) The Family relationship
Psychopathological Theories on DV -Caused by an abuser having an under developed personality -Caused by abuser not having ability to deal with conflict or control anger
Theories about the position of women in society as a cause of DV -Attitude of law and state perpetuate abuse - society through the multifarious ways that it allows men to exercise power over women makes it appear more acceptable (patriarchy) - Lack of an effective response by the law means women are unable to find suitable ways to escape (Hester v West marland)
Hester v Westmarland Case demonstrating how there is a lack of effective response by law to allow women a suitable escape from violence
The family relationship as a cause of DV most controversial as places some blame on victim -failure of family relationship leads to DV -poor communication skills etc
when was DV first really noticed? Feminist movements in 1970s
Select committees response to discovery of DV? published a report stating the need for improved assistance for sufferers of DV remedies only available under tort and criminal law
What statutes were passed after select committee report on DV? Matrimonial Homes Act 1967 Domestic Violence and Matrimonial Proceedings Act 1976 Domestic Proceedings and Magistrates Courts Act 1978
What orders are available under the FLA 1996? -Non molestation orders -Occupation orders
what is a non molestation order? An order that one party does not molest the other. not defined within the Act- includes conduct that harasses or threatens the applicant
why are molestation orders seen as odd? because they state that someone cannot commit a crime against another person, some argue that they are merely used as a means to delay treating an act as a crime
who can apply for a non molestation order? Law Commission Report preceding FLA suggested; 'remedies should be limited to those with an emotional tie' Associated persons. Defined in s62(3) FLA
Where can the list of associated persons be found? FLA s62(3)
FLA s62(3)(b) Cohabitants or former partners Defined in s62(1)(a) GvF (non mol order: Jurisdiction) -R stayed with A a few nights a week and she visited him for two nights a week -HELD to be cohabitants -weighting placed on sexual relationship
FLA s62(3)(c) The live or have lived in the same household covers: students living in shared accommodation to elderly people in sheltered housing. sexual relationship not requisite
FLA s62(3)(d) They are relatives Defined in s63(1)
FLA s62(3)(e) They have agreed to marry eachother there are three ways to prove agreement to marry- 1) Evidence in writing 2) Gift of engagement ring from one to the other in contemplation of marriage 3) there was a ceremony entered into by parties in presence of 1 or more persons
FLA s62(3)(g) They are parties to the same family proceedings Family proceedings are defined in FLA s63
on what grounds can a non molestation order be granted? FLA s42(5) This is a wide test allowing court to take into consideration any circumstances it believes relevant its aim is future protection if court fears order will be used as a weapon in parties disagreement it can refuse to grant it
what can a non molestation order contain? CvC (non mol order: jurisdiction) wife making revelations to news papers is NOT grounds for non mol order Johnson v Walton Semi naked photos of gf to press FLA s42(6)
CvC (non molestation order: jurisdiction) CA: H could not obtain non mol order to prevent his former wife making revelations about their relationship to the press. Molestation does not involve simply a breach of privacy but; 'some quite deliberate conduct which is aimed at a high degree of harassment of the other party' H was more concerned with his reputation than anything else
Johnson v Walton Ex Bf intended to send semi naked photos of former gf to the press Held was to count as molestation based on reasoning in CvC as this was to amount to humiliation of his gf
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