The Family Law Act 1996 - Essay Example

The term ‘associated person’ was introduced into Family Law by virtue of Section 42 of the Family Law Act 1996. The section makes provision for a person to obtain a ‘non-molestation’ order against the respondent in domestic, prohibiting him or her ‘from molesting another person associated with the respondent.’1 The associated person referred to is defined by Section 62(3) of the Family Law Act 1996 and covers a broad range of persons who have been or are connected to the complainant in some material respect.2 The significance of this Section is it extends the court’s power to grant non-molestation orders by including a wider group of persons capable of becoming respondents by the inclusion of the term ‘associated person.’ The list of persons caught by Section 62(3) is exhaustive and includes a former or current spouse, a cohabitant or former cohabitant, persons who have merely shared a common household (except by reason of employment benefits or duties, or by reason of a tenancy or some sort), a relation, a fiancé or former fiancé, a person with whom the complainant has had common responsibility for any child or have had a child with or the complainant and the associated person ‘are parties to the same family proceedings (other than proceedings under this part)’.3 Prior to the enactment of the Family Law Act 1996, the definition of a respondent had been more narrowly defined. A claimant had to first discover against whom she could obtain a non-molestation order against and then decide under what statutory provision she could properly utilize for the necessary non-molestation order. Depending on whether the complainant was a cohabitant or spouse the victim of domestic violence could obtain injunctive relief by virtue of three statutory provisions. They were, the Domestic Violence and Matrimonial Proceedings Act 1976, the Domestic Proceedings and Magistrates Courts Act 1978 and the Matrimonial Homes Act 1983.4 The Family Law Act 1996 repeals and replaces those Acts and provides a cohesive remedy for protection against violence within the more liberal definition of the home. Craig Lind observes that the 1996 Act ‘for the first time provides a uniform code of domestic violence remedies available, in the main, in all courts with jurisdiction in family proceedings. It is much more victim and child-centred, concentrating on the harm being suffered within the household, and the remedies available to victims.’5 The 1996 Act followed recommendations made by the Law Commission that the criteria for granting a non-molestation order should be broad rather than specific. The Law Commission went on to recommend that even persons who were engaged in romantic relationships of a sexually intimate nature should be covered by the class of persons for whom or against whom a non-molestation order could be obtained.6 As noted previously, this class of persons does not fall within the category of associated persons Craig Lind, admits that ‘this definition includes a far wider range of applicant.’7 However, Lind feels that in respect of persons involved in romantic relationship are a ‘vulnerable group’ who has ‘been denied protection.’8 Despite reservations, Lind does however recognize the far reaching potential for protection as contained in the definition for the ‘associated person. He goes on to concede that ‘former cohabitants and former spouses are included in the Bill where they were previously largely unprotected. Moreover, former associated persons will also be eligible to apply for non-molestation orders. It will not be necessary for those who seek non- molestation remedies to remain in the violent home.’9 The significance of the term ‘associated person’ is more fully understood by reading it together with the term ‘non-molestation’. While the word molestation lends itself to the idea of some sort of sexual conduct, that is not necessarily the case within the meaning of Section 42 of the Family Law Act 1996. For this reason the word ‘non-molestation’ could function to confuse potential applicants. But when one recalls the wording and interpretation of previous legislation it will become clear that a order granting injunctive relief in terms of non-molestation it is wide enough to include specific as well as non-specific forms of violence. In fact an order is not particular to outright violence. It can operate to circumvent threats of violence as well as actual violence. The non-molestation order also encompasses prohibiting an associated person engaging in intimidating, harassing or even pestering conduct toward the applicant. ‘It can also have very specific instructions in it to suit a particular case - for example, it could order an ex-partner to stop telephoning or pestering the applicant at work.’10 The significance of the broad definition of respondents by the use of the term ‘associated person’ becomes clear when one considers the broad powers of the court to make non-molestation orders under the provisions of the Family Law Act 1996. For instance, the court is now in a position to make an ex-parte non-molestations order which shortens the time for the process to take affect. This is so because once grounds exist for the court to proceed ex parte, service of notice of the trial in respect of a non-molestation application is dispensed with. Before agreeing to proceed with the application ex parte the court must be satisfied that in all the circumstances of the case it is just and convenient to do so. The court will take into consideration, when making the decisions the following questions: 1. Is there a risk of significant harm to the relevant child and/or the applicant? 2. If the order is not made immediately is it likely to interfere with the applicant’s desire to proceed? 3. Is the respondent or associated person deliberately avoiding service of the inter partes process?11 The dynamics of the modern household has changed dramatically over the years. The Law Commission obviously saw a need to address these changes by recommending legislative measures of recognizing the wider range of family or household members requiring protection from one form of violence or another within the household. It is true that not all married couples who have children remain together in the same household. The divorce statistics clearly point to changing trends in marital status. Just as common nowadays, not all couples who have children live together and not all couples who live together have children. ‘And some households consist of more than two adults, who may or may not share sexual intimacy. The variety is almost infinite. ‘The most that can be said with any certainty, in an attempt to define the family, is that it usually involves significant emotional and material relationships between people (whether adults or children) born of a genetic, social, legal or sexual connection.’ 12 Recognizing the potential for a wider class of victims and respondents the Law Commission introduced the concept of the ‘associated person’. But as times continue to change and domestic dynamics continue to change it has become apparent that there is an increased need for further expansion for the definition of ‘associated person.’ In January 2004 the Official Report of the Grand Committee on Domestic Violence, Crime and Victims Bill (HL) discussed a further extension of the meaning of ‘associated persons’. 13 As a result the Family Act 1996 has been amended by the Domestic Violence Crime and Victims Act 2004. Although the Act has not yet come into affect, it is anticipated that it will be implemented in short order. The 2004 Act will include amendments to the Family Law Act 1996 that will make a breach of a non-molestation order a criminal offence with the offender facing arrest and imprisonment. Further expansions on the definition of ‘associated person’ will include same-sex couples under the umbrella of cohabitants. Non-cohabiting couples and cousins will also be caught by the definition of ‘associated person.’14 The reality is that the word family has come to mean different things to different people and the term ‘associated person’ is designed to pay tribute to this diversity. In the words of Craig Lind, ‘this diversity in family reality has gradually entered the culture of legal regulation.’15 In the last thirty or so years family law has seen a metamorphosis of mammoth proportions. As a result the family law culture is now shifting attention in such a way that the married couple is no longer the only protected family. Lord Denning made a poignant observation when he said Bernard v Josephs [1982] 3 All ER 162 ‘in my opinion in ascertaining the respective shares, the court should normally apply the same considerations to couples living together (as if married) as they do to couples who are truly married.’16 Lord Denning’s observation is reflective of the changing societal attitudes toward all types of domestic relationships as a basis for the modern family. Traditional attitudes are being displaced and replaced and that accounts for the replacement and displacement of legislation. Family law has now become ‘domestic relations law.’ 17 Family law principles have been more liberally applied in questions relating to property matter. The courts have used judicial discretion when dividing property among unmarried couples, although there have been some inconsistencies reflecting the unwillingness of the courts to adhere to a cohesive rule of law. As a result the Law Commission has been moved to redefine the dynamics that shape the law of property.18 The Family Law Act 1996, is also a result of the Law Commission recognizing the plight to modern family and the need to extend the definition of those who need protection and against whom. That is the rationale for the new ‘associated person.’ Bibliography Bernard v Josephs [1982] 3 All ER 162 Cretney, S.M. and Masson, J.M. Principles of Family Law. (2002) Sweet and Maxwell. London Domestic Violence, Crimes and Victims Bill 2004 Family Law Act 1996 Chapter 27 Harpum, C (1995) Cohabitation Consultation Family Law 657 Lind, Craig. Family Law Redefinition Under the Family Law Bill 1996. [1996] 2 Web JCLI http://webjcli.ncl.ac.uk/1996/issue2/lind2.html#bk4 Viewed December 2, 2006 Official Report of the Grand Committee on Domestic Violence, Crime and Victims Bill (HL) http://www.publications.parliament.uk/pa/ld200304/ldhansrd/vo040119/text/40119-22.htm Viewed December 2, 2006 Policy and Practice. http://www.womensaid.org.uk/landing_page.asp?section=00010001000900050002#Non-molestation Viewed December 2, 2006 Reece, Helen (2006) (69)5 Modern Law Review 770 The Law Commission Report 207 of 1992 Family Law: Damestic Violence and Occupation of the Family Home (London: HMSO) Wadlington, W (1994) Cases and Materials on Domestic Relations (3rd ed) Westbury, NY: Foundation Press Ward, Richard, (2005) 155 NLJ 1150 Read More