Domestic violence Part II PDF

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Domestic Violence II Malaysian...

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Domestic violence Part II (English law)

DOMESTIC VIOLENCE •

No agreement over the correct terminology to be used to describe violence that takes place between adults in a close relationship.

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Current definition used by the Government: “any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality.”

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https://www.gov.uk/guidance/domestic-violence-and-abuse

Protective orders 2 types of relief under the Family Law Act 1996: •

Occupation order: regulates who is entitled to occupy the family home.

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Non-molestation order: restrains the defendant from interfering with the claimant.

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Orders under Part IV of Family Law Act 1996 (‘FLA’) (occupation order, non-molestation order, among others) may be made by the Family Court.

1. Occupation Orders •

An occupation order can remove an abuser from the home and give right to the victim to enter or remain in the home.

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There are 5 different sections, which apply to different groups of applicants.

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Section 33 Family Law Act 1996: married and entitled applicants Who can apply? •

Applicants with beneficial estate or interest, contract or under any law, or home rights.

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“Home rights” (s.30(2) FLA 1996) – another spouse or civil partner (B) has the following rights (“home rights”)—

(a) if in occupation, a right not to be evicted or excluded from the dwellinghouse or any part of it by a spouse or civil partner (A) except with the leave of the court given by an order under section 33; (b) if not in occupation, a right with the leave of the court so given to enter into and occupy the dwelling-house.

In respect of what property? 2 requirements must be fulfilled. •

First, the property must be a dwelling house.

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Second, the home must be or was intended to be the home of the applicant and a person to whom he or she is associated.

Against whom can the order be made? Order can be sought against any person with whom the applicant is associated and with whom the applicant shared or intended to share a home. What factors are taken into account? •

The significant harm test under Section 33(7) Family Law Act 1996.

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The court must first ask what will happen if the court makes no order: is it likely that the applicant or relevant child will suffer significant harm attributable to the conduct of the R?

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If yes, then the court must consider what will happen if the court makes an order: will the R or any relevant child suffer significant harm?

The significant harm test under Section 33(7) Family Law Act 1996, court shall make an order under s.33(3) (discussed below) unless: 

the respondent or any relevant child is likely to suffer significant harm if the order is made; and the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the 2

respondent which is likely to be suffered by the applicant or child if the order is not made. 

If no significant harm will be caused by court’s order, then the court must make the occupation order.

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If yes, then the question is whose risk of harm is greater? If the harm the applicant or relevant child will suffer is greater than the R and any relevant child will suffer than an order must be made.

B v B (Occupational Order) [1999] (CoA) Following repeated violence by H, W left the family's council house with her daughter D (then nine months old), leaving H in the house with his son S from a previous marriage. W and D were given temporary "bed and breakfast" accommodation, but W now applied for (inter alia) an occupation order against H. Reversing the circuit judge, the Court of Appeal said such an order should not be made because of its effect on S, a "relevant child". W and D would certainly suffer "significant harm" if the order was not made (though D's security at her age came mainly from being with her mother), but if it was made then the harm to S would be even greater: he would have to leave his school as well as his home. Lesser harm (no occupational order = W and D suffered unsatisfactory temporary accommodation) Greater harm (occupational order = H and S would have to leave the house. S would also have to leave his school) Court of Appeal chose the lesser harm than the greater harm.

Wording of the test Broadly defined to include ‘any child whose interests the court considers relevant’: s 62(2) Family Law Act 1996. Does not need to be the biological child of either the applicant or the respondent. What is harm Section 63(1) Family Law Act 1996. Defined as including ‘ill-treatment and the impairment of health’ for person aged 18 years old and above (includes emotional health). Also involves ill-treatment or the impairment of health or development of child (under 18). Ill-treatment ‘forms of ill-treatment which are not physical and, in relation to a child, includes sexual abuse’. What is significant harm? 3

No definition under Family Law Act 1996. Booth J in Humberside CC v B [1993]: it was harm that was ‘considerable, noteworthy or important’. On the facts, interim care order granted to LA in respect of a small child B who had been neglected and possibly abused, currently living with an aunt A. But B appealed (by her guardian ad litem) and her appeal was allowed. As there was no proper consideration of whether B's welfare required them to make an order. Chalmers v Johns [1999]: Court of Appeal rejected an argument that walking one and a half mile to school for the mother and child was ‘significant harm’. Exceptional harm must be shown.

What does ‘attributable’ mean? Must be shown that the significant harm will attributable to the conduct of the R. B v B (Occupational Order) [1999] (CoA) (above): the mother was able to show that it was her husband’s extreme violence that had forced her to leave the house, therefore the significant harm was attributable to her husband’s conduct. G v G (Occupation Order: Conduct) [2000]: conduct is attributable to the R (husband) even if it is unintentional conduct. The court focuses on the conduct of the R, not his intentions. On the facts, parties divorced but still lived together, and the strain of divorce was causing significant harm to both the wife and the children. What does ‘likely’ mean? Unclear what ‘likely’ means. ‘Likely’ in Section 31 of the Children Act 1989 (care order and supervision order) has been defined by the House of Lords to signify ‘a real possibility’. Similar interpretation is given to the term here. Newham London Borough v AG [1993]: it requires a ‘real possibility’ that the harm will occur, ‘a possibility that could not sensibly be ignored’. Re H and R (Child Sexual Abuse: Standard of Proof) [1996] (HL): it was held that mere suspicion that something occurred in the past was an insufficient basis on which to find there is a future likelihood of abuse. Re H and R (Child Sexual Abuse: Standard of Proof) [1996] (HL) Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still been found.

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Held: A care order could only to be made if the need was proved on the facts, however strong is the suspicion. ‘Likely’ does not mean more probable than not. It means a real possibility, a possibility that cannot sensibly be ignored. What if the risks of significant harm are equal? •

If the harm likely to be suffered by the A is equal to that of the R, then an order does not have to be made.

* Important to note that if the significant harm test is not satisfied that does not mean that an order cannot be made: Chalmers v Johns [1999] (above).

General factors: •

If the significant harm test is satisfied then the court must make an order.

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If it is not, then the court must consider the general factors under Section 33(6) of Family Law Act 1996.

(a) the housing needs and housing resources of each of the parties and of any relevant child; (b) the financial resources of each of the parties; (c) the likely effect of any order, or of any decision by the court not to exercise its powers for the court’s order under s.33(3), on the health, safety or well-being of the parties and of any relevant child; and (d) the conduct of the parties in relation to each other and otherwise. Courts have been reluctant to grant occupation orders. Thorpe LJ in Chalmers v Johns [1999]: when considering the general factors a judge should bear in mind that an occupation order ‘overrides proprietary rights and…is only justified in exceptional circumstances’. •

G v G (Occupation Order: Conduct) [2000]: to succeed, an applicant must show that more tensions exist than normally surround a family during a divorce.

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Sedley LJ in Re Y (Children) (Occupation Order) [2000] (CoA): occupation orders should be seen ‘as a last resort in an intolerable situation’.

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On the facts, it was difficult to rehouse the husband in this case because of his special accommodation needs associated with his disability.

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Held: that an occupation order was not needed. The house was large enough to share, and mutual undertakings made by the parties seemed to have brought their behaviour under control. "The purpose of an occupation order is not to used publicly-funded emergency housing as a solution to domestic strife". 5

It is however wrong to state that an occupation order is only available when there is serious violence. •

S v F (Occupation Order) [2000]

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The children were residing with the mother, who had decided to leave London to live in the country. One son wished to remain in London as he had exams in school.

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The court was willing to make an occupation order granting the father the right to live in the matrimonial home in London so that he could provide a house for his son for the completion of his studies while his mother moved to the country.

Section 33: married and entitled applicants What orders can be made? •

Declaratory orders under section 33(4) Family Law Act 1996: enable the court to declare that a party has the right to remain in the property.

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Orders may forestall any attempt by the R to bring court proceedings to evict the applicant.

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Orders under Section 33(3) FLA 1996.

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Orders under Section 40 FLA 1996 (Additional provisions that may be included in certain occupation orders) (e.g. the repair and maintenance of the dwelling-house)

Section 33(3) FLA 1996 •

An order under this section may—

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(a) enforce the applicant’s entitlement to remain in occupation as against the other person ( “the respondent”);

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(b) require the respondent to permit the applicant to enter and remain in the dwelling-house or part of the dwelling-house;

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(c) regulate the occupation of the dwelling-house by either or both parties;

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(d) if the respondent is entitled as mentioned in subsection (1)(a)(i), prohibit, suspend or restrict the exercise by him of his right to occupy the dwelling-house;

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(e) if the respondent has [home rights] in relation to the dwelling-house and the applicant is the other spouse [For civil partner], restrict or terminate those rights;

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(f) require the respondent to leave the dwelling-house or part of the dwelling-house; or

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(g) exclude the respondent from a defined area in which the dwellinghouse is included.

Duration: An order under section 33 can be of fixed or unlimited length, until the court next hears the matter: s. 33(10) FLA 1996.

2. MOLESTATION ORDER

What is Molestation Order? A Non-Molestation Order prevents the Respondent from using or threatening violence against you (and if applicable your child/children) or intimidating, harassing or pestering you. This is to ensure the health, safety and well-being of yourself (and if applicable your child/children). A breach of a Non-Molestation Order is an arrestable offence. Upon conviction (s.42A(5) FLA 1996):a) on indictment, to imprisonment not exceeding 5 years, or a fine, or both; b) on summary conviction, to imprisonment not exceeding 12 months, or a fine not exceeding the statutory maximum, or both.

An order that one party does not molest the other: Section 42 Family Law Act 1996. Molestation is not defined under the FLA but includes the conduct that harasses or threatens the applicant. C v C (Non-molestation order: Jurisdiction) [1998]: the term ‘molestation’ implies ‘deliberate conduct which is aimed at a high degree of harassment… so as to justify intervention by the court’. On the facts, husband sought a non-molestation order to prevent his former wife from giving further information to newspaper reporters that would perpetuate the publication of articles offensive to him. Held: The judge refused to make such an order. Molestation implies some quite deliberate conduct aimed at a high degree of harassment of the other party, sufficient to call for the intervention of the court. The publication of allegations of previous misconduct was not capable of constituting molestation justifying a court order.

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It is less intrusive than an order forcing someone to leave his/her own home and more readily and widely available. (a) Who can apply? •

Section 42 introduces the concept of an ‘associated person’.

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‘Associated person’ is defined in Section 62(3) of FLA 1996 (married to each other, civil partner, cohabitants, etc.)

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Wall J in G v F (Non-Molestation Order: Jurisdiction) [2000]: if it is unclear whether the relationship between 2 people falls within one of the definitions under Section 62(3) of FLA 1996, it should be treated as if it does. (It should be presumed that there were associated persons)

When you apply for a Non-Molestation Order and/or an Occupation Order the Court will consider whether the parties are ‘associated persons’ (Section 62(3) (a) – (g) Family Law Act 1996) 1. They are or have been married to each other; 2. They are or have been civil partners to each other; 3. They are cohabitants or former cohabitants (cohabitants is defined in S 62(1) FLA 1996 as two people who are not married or in a civil partnership but who are living together as if they husband and wife) 4. They live or have lived in the same household; 5. They are relatives (extending as far as first cousins); 6. They have agreed to married (it does not matter if the agreement has terminated) i. Section 44 FLA sets out the evidence a court will accept of an agreement to marry: 1. Evidence in writing: the agreement to marry does not need to be in writing, but there does need to be some written evidence, for example, a wedding invitation; 2. The gift of an engagement ring; or 3. A ceremony in the presence of one or more people who are there to witness the ceremony. 7. They have or have had an intimate personal relationship with each other which is or was of significant duration i. The Court will decide whether the relationship meets these criteria. This covers a long-standing relationship which may, or may not, be a sexual relationship, but which is an intimate and personal one. It does not include long-term platonic friends or ‘one-night stands’. 8. They have entered into a civil partnership agreement (it does not matter if that agreement has been terminated)

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i. The agreement must be evidenced in the same way as an agreement to marry, with the exception that the gift from one party to another does not have to be an engagement ring. 9. They are both parents of a child or they both have or have had parental responsibility of a child. 10. They are parties to the same family proceedings, other than proceedings under Part IV Family Law Act 1996 (Family Homes and Domestic Violence).

(b) On what grounds can the order be granted? •

Section 42(5) Family Law Act 1996.

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This section permits the court to take into account any circumstances that it believes relevant, including the need to secure the health, safety and wellbeing of the applicant and of any relevant child.

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Aim: to focus on the need for protection in the future rather than requiring proof of the fact or threat of violence in the past.

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If the court thinks that the order might be misused or used as a weapon in the party’s disagreements, rather than to provide protection, the court may decline to make the order: Chechi v Bashier [1999]

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2 brothers, 1 applied for a non-molestation against the other in business dispute.

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Held: Although their dispute was not a family one, but they were associated by virtue of being brothers and so the court had jurisdiction to make a nonmolestation order.

(c) What can the order contain? •

Will prohibit one person from molesting the other.

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C v C (Non-molestation order: Jurisdiction) [1998] (above): the Court of Appeal stated that a husband could not obtain a non-molestation order to prevent his former wife from making revelations in the newspaper about their relationship. It was explained that molestation does not involve simply a breach of privacy but ‘some deliberate conduct which is aimed at a high degree of harassment of the other party.

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Johnson v Walton [1990] -

A man sent semi-naked photographs of his former girlfriend to the press. 9

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Held: this constitutes molestation.

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Under s 42(6) FLA 1996, the order can refer to specific acts of molestation, or in general, or both.

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E.g.: persistent telephone calls, prohibiting a person from entering a specified area around a person’s house.

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Order may be made for a specified period or until ‘further order’: s.42(7) FLA 1996.

(d) Can the order be made against someone who is unable to control his or her actions? •

Prior to Family Law Act 1996, case law suggested that only deliberate acts could constitute molestation: Johnson v Walton [1990].

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Current law – Banks v Banks [1999]

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W had mental health issues and was violent towards H.. H applied for nonmolestation order.

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Held: it’s inappropriate to make a non-molestation order against a woman who was suffering from a manic depressive disorder and therefore unable to control her behavior. Violence was a symptom of her illness.

“Relevant Child” This is defined in S 62(2) Family Law Act 1996 and includes any child: •

Who lives with, or may reasonably be expected to live with, a party to the proceedings;

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Who is subject to an adoption order, or Children Act 1989 order (e.g. Section 8 Children Act 1989 order: child arrangements order)

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Whose interests the court considers relevant.

When will an order be made? The test for a non-molestation order is set out in s 42(5) FLA 1996: Section 42 (5) In deciding whether...