DOMESTIC ABUSE Flashcards
(42 cards)
Domestic Abuse under which Act?
FAMILY LAW ACT 1996 (Part IV)
What is the Family Act 1996 VI is about?
General: Provides civil remedies for domestic abuse.
Is domestic abuse only physical violence?
Domestic abuse is broader than physical violence. Links to CA 1989 s.1(3)(e) and PD12J.
What is the order aim to “Prohibit respondent from ‘molesting’ applicant or relevant child”?
Non-Molestation Orders (NMOs) – s.42 FLA 1996
What is ‘Molestation’?
No statutory definition; case law (Horner v Horner; Vaughan v Vaughan) indicates serious harassment, pestering, intimidation, or interference.
Does not require violence.
What is ‘Associated Persons’ and the sections are?
(s.62(3) & s.63(1) FLA 1996)
Applicant & Respondent must be ‘associated persons’ (s.62(3)).
Key categories: spouses/ex-spouses, CPs/ex-CPs, cohabitants/ex-cohabitants, certain relatives, parties to other family proceedings, those in/had intimate personal relationship of significant duration. Check facts against categories.
Test for Granting an NMO?
(s.42(5) FLA 1996):
Court considers all circs including need to secure health, safety & well-being of applicant/relevant child.
Duration of NMO?
(s.42(7) FLA 1996):
An NMO can be made for a fixed period (e.g., 6 or 12 months) or “until further order” (indefinitely, though less common for initial orders).
-> Specified period or until further order.
an NMO without the respondent being present or notified named?
Ex Parte Orders (Without Notice Orders) (s.45 FLA 1996)
When can Ex Parte Orders (Without Notice Orders) (s.45 FLA 1996) be made
if it considers it “just and convenient” to do so (s.45(1)).
Court consideration of NMO:
Court considers s.45(2) criteria: risk of significant harm, applicant deterred, respondent evading service.
=> specific factors (s.45(2)):
(a) any risk of significant harm to the applicant or a relevant child if the order is not made immediately;
(b) whether it is likely the applicant will be deterred or prevented from pursuing the application if an order is not made immediately; and
(c) whether there is reason to believe the respondent is aware of the proceedings but is deliberately evading service.
What if Breach of an NMO?
Breach of NMO = criminal offence (s.42A FLA 1996); also contempt. Due to s.42A, no separate power of arrest attached to NMO itself.
(punishable by imprisonment for up to 5 years and/or a fine. It is also a civil contempt of court.)
Whats the name of the order that “orders regulate who can live in, enter, or be excluded from the family home”?
Occupation Orders (OOs) – FLA 1996
What is in general, the OOs for?
OOs regulate occupation of the family home; can include ouster. More draconian than NMOs.
If Applicant IS Entitled to Occupy, see section?
s.33 FLA 1996
Definition/ apply for - Applicant IS Entitled to Occupy?
applies when the applicant has an existing legal or beneficial right to occupy the home
(e.g., they are a legal owner, a tenant, or have “home rights” under s.30 FLA 1996 as a spouse/civil partner)
AND the respondent is an ‘associated person’.
Types of Orders the Court Can Make for Occupation Orders to those Applicant IS Entitled to Occupy?
(a) Declaratory Order;
(b) Enforcement Order;
(c) Order to Permit Entry;
(d) Regulatory Order;
(e) Prohibitive/Restricting/Suspending Order;
(f) Order to Permit Applicant Entry (if R ousted under (e));
(g) Exclusion Zone Order
s.33 apply only if:
s.33 applies if applicant entitled & R associated. Know types of orders in s.33(3)(a)-(g)
Declaratory Order means?
Confirms applicant’s existing right to occupy. E.g., “Court declares A has right to live here.”
Enforcement Order means:
Enforces applicant’s right to remain against respondent. E.g., “R must not stop A from staying.”
Order to Permit Entry means?
Orders respondent to allow applicant entry/return. E.g., “R must let A back into the home.”
Regulatory Order means?
Sets rules for shared occupation if both remain. E.g., “A uses upstairs, R uses downstairs.”
Prohibitive/Restricting/Suspending Order means?
Limits respondent’s own right to occupy; can include an “ouster” (requiring respondent to leave). E.g., “R must leave the home.”
Order to Permit Applicant Entry (if R ousted under (e)) means:
Confirms A can enter/stay in area R is excluded from
