Family Law Injunctions: Avoiding the Mistakes

Hello. Welcome, everybody. My name's after my mood on my solicitor Onda lecturer today that I'm going to be talking to you about the procedure in family law injunctions. Andi really looking at somebody shoes into fires, avoiding somebody. Mistakes. So this is a bite size session. Don't be doing through data law as of May 2000 on 17 on over the course of the next 20 minutes, I'm going to be taking you through somebody aspect, surviving the procedure when it comes to applying for family injunctions and along the way really looking at somebody pitfalls and problems that we sometimes encountered too, so as to ensure that when you are dealing with these matters, you are able to minimize doors mistakes. So the slider prepared were really set up the procedure for you and therefore the aim is to elaborate on these concepts off the 20 minutes. So let's put this into context, thereby saved you instructed by a client who is seeking certainly, say a normal estacion order under Part four of Family Law Act of 1996 and possibly also a on occupation order. Now, with normal estacion orders, those are easier to obtain insofar as if they are going to be sore tunnel without notice basis than occupation orders are. Occupation orders are, by their very nature, draconian in nature and therefore much more difficult to obtain on a without notice basis. Of course, even with a normal station order, one must assume that if you make the application, we don't notice you will get it. And one of the mistakes I would suggest to start off with that lawyers sometimes do make is that they assume that if they made an application without notice for a non molestation, orders of the court were granted. And of course, that's not the case. The court has to weigh up the evidence to court. Look to see whether the criteria are met for the Pepsi's off anomalous station order under Section 42 subsection five family work. And this is what a judge is obliged to consider, or the circumstances of the case giving particular regard to the need to secure the health, welfare and safety of parties and any Children so very important to bear that in mind when he are taking instructions for important and to ensure that last interview declined, you advised him about water. Possible options. It may be that some clients do not wish to pursue in order. Doing may wish. Maybe a morning like to be sent toothy the other party. It may be that the police have not yet been involved in there, for the police need to be notified to see what action, if any, they are able to take in all circumstances. And therefore it's very important to look at what the alternative steps are that can be taken to ensure that protection can be provided for the client. Indoor circumstances linked him with that very important to also look at what support can be provided whether or not to do his assistance. Beef I did. You will come provided, he say counseling through. Maybe a refuge center, for example, through medical support, may be need for medical intervention, for example, so one of those things need to be considered from a lawyer's perspective. Of course, we will be dealing with the obtaining of the order. But of course there are audio that matters on issues which don't need to be addressed, and the client needs to be advised about whether it's through counseling through support through to say the GP, for example, for the police on so forth, then it's important to ensure that your funding is putting place. If your client is going to be paying que privately and of course, this is where you'll have money on account and it would be necessary to ensure that matters progressed as swiftly as it can, it may be that some of you will be seeking to utilize public funding. And if that's the case, and this is where you need to ensure that you are aware off these situations, where you may be in a position to be up to exercise delegated functions what used to be called devolved powers. So, for example, is this a case where, if you are going to be exercising devolved powers custom Sorry, a delegate functions usted and pursue on order that same day? Are you satisfied at the criteria? Under Section 42 all the family work tonight night six for the purpose of anomalous station old were likely to be met. Is it a case where warning letter may have sufficed, for example, or should that be sentenced that instead of you exercising delegated functions on placing an order them And then, is this a case where the police have been informed on? Are they able to take adequate? Actually, if not, why not? Which then necessitating necessitates you haven't to perceive in order in no second chances. And also is this a case where there is in fact a need for without, nor disorder. So I ate to satisfy Section 42 subsection five off the Family Law Act from 1996 for example, Is this a case where there was a risk of immediate harm if the order is not made immediately? For example, where is this a case where the applicant is likely to be deterred for implying if the order is not going to be sort that same day, for example, he's just a case where the respondent is evading service. So if you can satisfy any of those factors under Section 42 subsection five, then that may justify one going for the order without notice and therefore excites and delicate functions. And so far, the funding is concerned so as to be to perceive that indoor circumstances. This is where you do need to look at the police involvements off example, is their domestic funds Protection notice has been issued, which then provide some short term protection or is there domestic violence protection order in place? For example, are there bell conditions, for example, which have the effect of keeping the potential respondent away from the applicant on before indoor circumstances? It may not proof prudent and necessary, inappropriate to exercise delegated functions. Now, insofar as the application itself. D paperwork, that's completely is the FL for the one. The application for the anomalous station occupation order come onto this form shortly on also a statement in support that would need to be put together also, if the client is, of course publicly funded and a copy of the funny certificate of available, if not certain, this would then be sent into court at a later date on also denotes of issue of certificate as well as ensuring that motes of acting is done. As for the fee, there is no fee power. One has not been the case now for a few years, and therefore there wouldn't be a fee that would need to be sent insofar as set. The application is concerned now. As for the actual application form itself to form F l four and one very important to bear in mind that this form has recently changed. In fact, as recently as last month, it's a very important for you to ensure that you are using the F R 41 form as from April 2000 and 17 and just going through some of the elements off the form itself near the top of the four. On the first page, one would need to indicate as to details off the name of the applicant, their address telephone number on, uh, date of birth, as well as details of their solicitor knife. Of course, they do not wish to put their address on this form because, of course, this will be served upon the respondent. Then they can keep the address withheld, but it's important for them to ensure that day complete the confidence you contact. It has formed a form C eight. I would have put their details on the in. That form would then be far that caught on data. Core office will be in a position to be able to contact them. We need to be indoors. Circumstances so very important to bear that in mind. As for the respondent, you would be putting details of through the respondent ease and name, address and date of birth on. One of the mistakes that sometimes lawyers make is on the front page of the form. Question 31 would need to take the box insofar as the orders dinner being sort. So even if say, you are seeking a only a number of station or without notice but the occupational, there's been sort that on the return date that is still very important. Tick both boxes, both the normal station and occupational indoor second stances. And if you are seeking the order to be made on the without notice basis than on the front page at the bottom, very important to ensure that one sets out the ticks, the Box T indicate the fact out there are seeking the order without notice. Later, with distinct and support, one would do to set out the basis upon which dealing vice to court to be satisfied that they should exercise their discretion to grant the order without notice. And that's where there needs to be specific reference to Section 42 subsection So Section 45 subsection to the Family Law Act of 1996 to justify why the order is being sought without notice. Not now. It, insofar as continuing to form, is concerned. At the next page form. Question four asks about the relationship to respondent. Where is the person to be served with the application? And this is where they are 15 boxes. It's very important. Shoulder declined. Takes one of these boxes to indicate that they are, in fact, somebody who is associate ID with the respondent that this is where you need to satisfy the court. Therefore, that declined comes within Section 62 or 63 of the funding. What on the various categories of this off associated persons, for example, are people who are married, for example, of several partners or were married. There were several partners, or if they were cohabiting or are cohabiting, they live in the same household. Relatives agree to marry the great if former civil partnership to have prevent responsibility for child they have or have had on intimate personal relationship of significant duration. If they are a natural parent or grand parent of a child is adopted place for adoption or they are part is the same family proceedings. So as long as the company in one of these categories than they will be associate ID on Day four, they will be up to bring the claim. If they're not associated with in section 62 63 then the family will act would not be into a system instead, if they're having problems, would say their neighbors or maybe work colleagues. So otherwise it may be that they need to take advantage of the protection from Harassment Act of 1997 sides to seek relief and protection through that. Now, as for a form you also need is set out in their in paragraph five, the application for the number of station order in terms of briefly the order that's required in efforts very important. This set out if it's an occupational doctor seeking the needs to set out the address of Dwelling House, which the application relates to, and this is where it's very important. Bear in mind that the occupational that can only be made in relation to the home, which was the family home. I wonder if they were occupying or intends to occupies the family home. So it's not possible. Therefore, to obtain on occupational in relation to, say, the business property, for example, or, say an additional property tohave, it must have been the family home Order property which was intended to be occupied as thief family home, also under former fr For the one, sometimes people get wrong the category of applicants that they applying under for the purposes off the occupation order. Now this is where you need to be applying under whether it's under Section 33 which is where you claiming that you ever like to occupy the property, or Section 35 where you are stating that your client is formally is now a divorce personal person who has a dissolution of the civil partnership on its one, whereby they are stating that gold they had direct who occupied a family home. They have lost that right now, as a result of the dissolution of the marriage or a civil partnership on the other person still has the right to occupy search. Section 35 Section 36 covers a situation where the president of cohabiting to former cohabit and where they do not have the right to occupy the family home, but the other person does. On end sections 37 is where the person is a spouse of former spouse, where neither they nor the other person has the right to occupy on in Section 38 is where they are. Sexual ethics seminar sick over civil partners of former civil partners. Where in mind, some of them have direct you occupy and section said he uncovers a situation where there call have to your former car pity when neither of them have the right to occupy X. In practice, you find out people applying the sections 33 or 36 in most cases on that. This is what's very important. Therefore, to set out and specify the basis upon which the person has directed occupies off example to their own. The property jointly or in this whole name have the guard right to occupied by virtue of having a beneficial interest on in married or they're super part, in which case they got the right to occupy through marriage or civil partnership. Or are they renting the accommodation, in which case all their tenant, for example, now also very important when you are complete to form to specify whether or not the person actually also seeks an order under section 40 of the Family Law Act. On That's where by section 40 allows the court to make addition and orders, when it comes to, for example, continue to pay the mortgage or dear the bear was on the property and so forth. This will very much depend upon the position surrounding their their financial position. So again, very important when you complete the form to make reference to that as well, Asti form fr for the one. You would also need to do a draft statement in support and get that statement together on when you are getting a statement together. I would suggest that there is some structure that you put together in the statement to ensure that the that the statement flows, it would be much easier for your audience and therefore for the judge or the Magistrates to read this, to ensure that they are clear as to the basis upon which you are seeking the order and for what purpose. It's a very important start off with a statement which such that the parties names and addresses, unless again, the with addresses to be withheld for the reasons We said, set out the orders that you're seeking and in those circumstances, and then set out some background to the party started marriage, for example, of the civil partners. When did they commence their relationship? When did they end the relationship you have on what? And then set out specifically the allegations that one is relying upon safe? There has been violence or threats of violence specified that especially five. What there has been since that position, what the difficulties have bean and then go to the criteria for the order. So in the case of a non molestation orders, I mentioned, it's very important to specify that the court would need to take our order circumstances and therefore you need to specify the X off molestation, whether it's violence, threats, harassing, pestering, interfering with and so Fars occupation orders are concerned. It's very important to set out the basis off the criteria which the court would need to consider. So if you're applying for an occupational in Section 33 for example, on the basis that the president has the right to occupied and it's important, we set out the significant buns Harm test under section 33 subsection seven Onder. If that is not met, then one has to consider section 33 6 in particular, whereby one looks at housing needs resources. Conduct on the effect upon the health, welfare and safety of the parties and the Children was very important and distinctive support is set out whether other steps have been attempted. So whether warning letter was sent what the actual that was what police involvement has bean on really summarising why it's very important to see the order. It is if you are seeking the order without noticed. Understated support needs to set out the basis upon why the order is being sort without notice and to justify this. And as I mentioned, this is where intimate reference to what did he position set out within Section 45 subsection two on. If you are seeking a power off arrest to be attached to the order in the case, often occupational did, and you need to set out the basis upon which your status seeking the court to be satisfied that there has been violence or threats of one's a master Weide. Power off rest should be attached in those circumstances. So the paperwork has put together. And this is where if you are going to be seeking the order without no test, and it's very important to liaise with the court to ensure that the court is aware that the matter needs to be proceeded within dealt with that day. Many courts will then provide a slot at which one would attend court with a view to making the application. Or they would require the parts, too. Come to court and wait until a slut becomes available. So I still don't see the court in those circumstances. The hearing itself may well be one whereby the court may wish to hear further information from the party that may be further or maybe oral evidence, given that maybe further information given saying the former photographs or otherwise on if there is any other evidence, whether it's evidence often above what was in the documentation supplied or 11 and say it's very important for the order itself to reflect this and to specify what was provided so that when they responded, his served on notified out told the basis upon which the court considered the application on that This is where if the order is made without noticed, and this is where the order would then need to be served upon the respondent on that one need to be a personal service application and that this would be effectively ensuring that the order is served upon the respondent personally in that regard. Now, this is where the term personal service is one which one needs to be very clear about what is meant by that. And this is where the actual FL for the Wonder mentioned has recently changed a Zoff April this year to cater for this or that. At the end of the form, you'll see that right at the end to form. It does actually specify the fact that personal service does not mean that that client, who is actually applying for the order, needs to serve the order themselves personally. When he stood, it's on independent person, somebody else who was actually serving the order upon the respond, often by hand indoor circumstances. The reason why that provision has been put in the NFL for the one at the end is to ensure that if one is a litigant in person, for example, they understand that person service doesn't mean that they personally have to serve themselves. But instead Dane struck somebody else's said on their behalf by way of getting the papers handed to the person as opposed to leaving it, saying they last place of work or leaving it a posting it to them, for example, in that regard. So whether the order is made without notice or not, whether there's a return date, it's very important to ensure that the respondent is served personally, as I mentioned on the respondent may well, which to attend to return date, which should be such that it's listed certainly after around 14 days after the without nor disorder was made. If, of course, it needs to be heard sooner than it should be listed sooner. If, of course, there is no without notice order that's been sort of instead, ones applying for a unnoticed hearing, then it may be that is listed before or after 14 days. It does very dependent very much upon the second stances. Now, once the respond has been said, it's very important to ensure that the stent of services filed at court, Sisley specified a manner off service and wonder purse was served on what it was served with. And this is way. If one is using an enquiry agent, for example, they would normally provide you with the statement off service on insofar as deep position with the return date is concerned. If when the respondent does attend to return date and this is where they may attend quarter, they may wish to contest a matter in which case the court need to enable an opportunity to a neighbor submissions to be made or evidence to be given to contest the application. It may be that the respondent is prepared or seeking to give an undertaking to court that if that is the case than undertakings accorded by section 46 of the family Luwak off 1996. Now it's important. Bear in mind that in some situations the court it cannot accept another taken. So under Section 46 3 a off the family watch from 1996 for example, of course, should not be accepting an undertaking if it appears to them that being violence off its violence form of the information that they have, what if the court was prepared to accept an undertaking than by doing so. The advantage of this to the person who is providing the undertaking. This that the animal finds made off act against environment taking, being given on, do not need today for admit to any of the allegations that are made against them. It could potentially therefore save time in in avoiding contested hearing it all circumstances and potentially a stress that clients may put themselves food and having a contested hearing when giving evidence against each other. Breach of an undertaking can be enforced in the same way as though it were in order in that regard, and therefore enable the civil and Family Court then deal with committal proceedings potentially under the contempt of court act in 1981 1 of those things you cannot do have with them undertaken is it is not possible to attach a power off the rest of the so even undertaken his given and accepted by the court in relation to an occupational tiff. Example. Then it is not possible to attach a power off arrest to that undertaking, but you can see the benefits of an undertaking made in that way. Some of the drawbacks in so far as this is concerned. But as I say, one of the key aspects to bay minded in some situations Court cannot accept an undertaking on on instead should be going on making the order so you can see that I have spent some time going through reduced somebody problems in paperwork, for example, when you're preparing paperwork for injunctions and normal station occupation orders and also bear in mind in particular the fact that the FL for the one has recently changed in light of fat, deep position with service. Andi also very important to ensure that when you're completing a paper, it can also distinctive support that you completed in such way to make it more easier for your audience than to know the basis upon which you're seeking. The order source would then be able to sit at your position more precise. Dean clearly in that regard kind of thank you very much for listening and speaking next time. Thank you very much. Bye. For now