Analysis of Family Conflict from a Legal Pointview - Case Study Example

Family law Facts of the case: Although they had lived together as students, Gary wanted to become Caroline’s lover to which she refused, point-blank. She ordered Gary out of the house, and since then, he has been constantly pestering and harassing her much to her consternation, distress and bewilderment. He has created fear in Caroline’s mind that he may still be in the vicinity and may be stalking her, thus causing further mental agony to her. It has been necessary to seek the Court’s intervention to circumvent the possibility of future psychic or violent acts on Caroline’s person. The fact that the defendant is not associated with Caroline in any way is immaterial, from the point of view of her request for the Court’s protection, although it has been seen that the law has a distinctly favourable disposition towards married couples in such instances of grant of injunctions orders since a greater degree of clarity is available in such relationships as compared with lesbianism, homosexuality or other forms of cohabitation among consenting people. The writer’s interpretations: These actions of Gary cannot be termed as physical violence or even threats of violence, but, nevertheless it does constitute molestation, even in the absence of violent acts, or deemed violent actions. In Johnson -v- Walton (1990) FLR 568, the Court ruled that “any conduct which could properly be regarded as such a degree of harassment, as to cause for the intervention of the Court “ could be termed as acts of harassment. In this case, soon as the relationship between Miss W and Mr. J ended, pictures of Miss W in a semi-nude state appeared in the press. According to Miss. W, she was neither aware of, or had agreed to such an act. Nobody, except Mr. J, on the basis of their past liaison, could have gained access to commit such an act. (The Family Law Act 1996. 2006). Again, Vaughan -v- Vaughan (1973) 3 All ER 449 In the decided case of Vaughan v Vaughan, (1973) 3 All ER 449, the ex-husband used to constantly pester his ex-wife, through calls and visits at her residence and place of work. This created a fear psychosis in the mind of the ex-wife and undermined her health. It was held, that although threats or actual physical violence was absent, the ex-husband’s conduct constituted molestation and invoked the Court’s intervention. (The Family Law Act 1996. 2006). Facts to be established: The facts that need to be established to determine the case of molestation: 1. Whether one act is sufficient or should there be a series of actions. It need not be necessary that the acts of molestation need to be repetitive in nature to be an offence 2. Next, the timeframe, during which the molestation was carried out, which the Courts would consider as being reasonable for constituting it as such. In the decided case, Horner v Horner(1982) 2 All ER 495, then Court opined that 'Molesting' covered harassment falling short of violence or threatened violence, which nevertheless called “for the court's intervention“ (Court of Appeal. 1993). 2. The Courts have to determine the level of risk to be attached to such actions, on the part of Gary. In this case, it is seen that, although there has been no physical assaults, or acts of mental or physical violence on the part of Gary, there is every possibility that this may occur in future: 1.Because his overtures have been rejected 2. He has been ejected from the house. 3. Caroline has abruptly severed all contacts with him. Recent Case laws on DVMPA 1976. It is seen in the case of McCann v.Wright (1995) FLR 579, a cohabitant moves out of the house following domestic violence to live with her mother, following which she opted for a non-molestation order against the defendant .The jury did not find it difficult to invoke Section 2(2) of the DVMPA 1976 although later jurist in the case of Duo v. Osborne (1992) 2 FLR 425 and Pidduck v. Molloy (1992) 2 FLR 202 said that the scope of Section 2 be extended to include the aspects of cohabitation and ex-spouses. (Lockton P. 36 -37). Apparently, adjudicatory powers vested with the Courts seem wide but the ground realities are different. DVMPA does not speak about “physical violence” and this, conclusively gives the Courts powers to grant Stay Orders or similar restraining warnings, only to defendants, engaging in mental or psychological violence. Although Lord Scarman had referred obiter in the Richards case that physical violence is a pre-requisite for exclusion orders, apparently Lord Justice Purchas thought otherwise, in Galan v.Galan (1985) FLR 905 and said it was not needed and the mere threat of physical violence is enough. to warrant such orders. (Lockton P. 42). It is therefore seen that in this case of Caroline, the non-molestation order would be issued at the discretion of the Court. However it has been seen that the Courts would be entirely circumspect while issuing such orders since it is now almost customary to use such orders for the parties discordant behaviour, rather than for their protection .In such cases the Courts may even refuse to issue such orders as is seen in the case of Chichi v.Bashier (1999) 2 flr 489 What orders are available to Caroline? The applications, in the case of molestation could be of two types – ex parte basis in which the applicant presents the case, without the knowledge of the other party and secondly, with the knowledge of the other part. In the case of ex parte application, Caroline could serve the application without the knowledge of Gary. However, the Court may serve notice to Gay for a second hearing. If however, Gay does not attend, the ex-parte order would be passed. In the second option, Caroline could serve an application to Gary, through the Court, to attend the Court Hearing. If he challenges this application, the Court would take up the case at a fixed hearing. At a later date It may be necessary for both Gary and Caroline to attend“full statement evidence” (Guide to injunction). Caroline could serve an ex-parte application for non-molestation to Gary. In this case, Caroline has to apply for a non-molestation order which could be termed to be an order that could circumvent a person from causing mental or physical harm to another, or causing trouble, which may include, in its scope and content, the deliberate and wilful harassment or pestering of another, or threatening or harassing another in order to cause mental or physical distress to another. (What is a non-molestation Order). A non molestation order can be granted, interalia, to prevent Gary from pursuing the harassment, pestering and intimidation, if any of Caroline. (Guide to injunction). However, it is necessary that molestation by Gary needs to be proved beyond reasonable doubt. The three aspects that have to be considered by the Courts would be: 1. Caroline has actually been molested by Gary 2. She is in need of protection 3. The judge needs to be convinced that judicial intervention has to be enforced to control Gary’s behaviour towards Caroline. (Guide to injunction). The procedure for this is that the application has to be made enclosing the following: 1. Application for the injunction. 2. Claim Form 3. Particulars of Claim 4.Statement 5. Court Fees (as applicable). This application has to be made by Caroline, with the County Court. (Married Couples/Unmarried Couples & Divorced Couples/Others). How could it be enforced? The order received by Caroline is verdicted by the County Court and is valid for 6 months from its date. It would have a time frame established by the Court, and any further extension needs to be done by making a fresh application to the Court. Once the Court determines the case, it is enforceable on Gary, If he does not abide by it, further actions, as deemed necessary by the Court, including the possibility of his arrest or detention, are available to the Court to settle this suit. Guide to injunction: Non-molestation order & Occupation Order: Non-molestation order. Bibliography Court of Appeal. (1993). Khorasandjian v. Bush (1993) 3 All ER 669. Last accessed 08 January 2008 at: http://www.a-level-law.com/caselibrary/KHORASANDJIAN%20v%20BUSH%20%5B1993%5D%203%20All%20ER%20669%20-%20CA.doc Guide to injunction. Non-molestation order & Occupation Order. Non-molestation order. Last accessed 08 January 2008 at: http://www.wolferstans.com/family/GUIDE_INJUNCTIONS.pdf Lockton, Deborah. Domestic Violence. Statutory Applicants: The Domestic Violence and Matrimonial Proceedings Act 1976. P. 36 -37. Last accessed 10 January 2008 at: http://books.google.com/books?id=4y_eNZk170AC&pg=PA36&lpg=PA36&dq=mccann+v+wright&source=web&ots=g6bAhWi9YP&sig=4kuTgToyv0vn3TzrRyj_aH0Ytjw#PPA41,M1 Lockton, Deborah. Domestic Violence. Statutory Applicants: The Domestic Violence and Matrimonial Proceedings Act 1976. P. 42. Last accessed 10 January 2008 at: http://books.google.com/books?id=4y_eNZk170AC&pg=PA36&lpg=PA36&dq=mccann+v+wright&source=web&ots=g6bAhWi9YP&sig=4kuTgToyv0vn3TzrRyj_aH0Ytjw#PPA41,M1 Married Couples/Unmarried Couples & Divorced Couples/Others. [online]. Compact Law. Last accessed 08 January 2008 at: http://www.compactlaw.co.uk/freeinfo/injunctions/injunf2.html The Family Law Act 1996. (2006). Case Study 2. Last accessed 08 January 2008 at: http://www.jsboard.co.uk/family_law/trainingpack/mf_01_cs.htm What is a non-molestation Order. [online]. Compact Law:. Last accessed 08 January 2008 at: http://www.compactlaw.co.uk/freeinfo/injunctions/injunq12.html Read More