Domestic Abuse Flashcards
Overview of the legislation
Focus on civil remedies in this module.
* Primary piece of legislation until now: Family Law Act 1996.
* New legislation: Domestic Abuse Act 2021.
* DAA 2021 s.1: definition of domestic abuse – this
is in force.
* DAA 2021 introduces new civil injunctions – DAPNs and DAPOs – these parts of the statute are not currently in force – see end of Chapter for info but not examinable.
What is domestic abuse?
- Defined at s.1 DAA 2021.
- s.1(2) DAA 2021- domestic abuse if:
- personally connected; and
- behaviour is abusive.
- s.2(1) defines personally connected – see list of different types of relationship.
- s.1(3) defines abusive behaviour. Includes:
- physical or sexual abuse
- violent or threatening behaviour
- controlling or coercive behaviour
- economic abuse
- psychological, emotional or other abuse.
Can consist of single incident OR course of conduct.
Types of Order
- Nonmolestationorder:
- Protects applicant and children
- Occupation order:
- Regulates occupation of the home.
- Can include respondent’s exclusion from the home or even from coming within a certain distance of the home.
Practical aspects
- Ordersappliedforinanemergency–you will need to act quickly (in very urgent cases applying without notice).
- Funding:
- Can you client afford to pay your fees? Give them a fee estimate before making an application to court.
- Legal Aid? Does your client qualify?
Non molestation Order - s42
Molestation - broadly interpreted
◼ Covers wide range of conduct
Orders are prohibitive in nature
Applicant must be associated with the respondent – s62 FLA 1996
s.42(5)
all the circumstances of the case :
Including the need to secure:
-health
-Saftey
-Well-being of the applicant and /or any relevant child
Non-Molestation Orders
Evidence
-Statement
-Medical
Non- Molestation Orders
Form/ Length of Order
-Open or specified length
-Should cover all types of behaviour
Occupation Orders:
WIDE RANGE OF ORDERS:
* Orders to exclude the Respondent from home and/or surrounding area
* Orders to secure the right to return to the property
* Orders to prevent the Respondent from returning to the property
Occupation orders: Step 1
in the process:
The A must be associated with R
s.62 FLA 1996
Occupation Orders: step 2
in the process:
which section governs my client’s situation?
this determines what criteria will be applied by the court?
Occupation Orders:
Apply under correct section as determined by:
1. whether applicant is entitled to occupy the property ; and
2.Their relationship with the respondent.
Step 3: Occupation order
Is or was
The actual or intended home
of the applicant and respondent
s.33
Only the applicant needs to be entitled
- Beneficial interest - joint owners
-Contractual right - Tenancy agreement
-Statutory right
-Home right s.33(1)(a)(ii)
s.33 (7) Mandatory to make an order where:
-A/ Child is at risk of significant harm if an order is NOT made.
-Respondent cannot show that s/he will suffer greater harm if order is made,