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Hi all. I'm currently researching a particular practice point and I would be grateful for some professional opinions on the matter.
Under s.42 FLA 1996 a Court has the authority to grant a non-molestation and/or occupation order. After a s.42 application has been issued the Respondent is afforded the opportunity to contest it. If the Respondent does contes the application there are at least two options open to proceedings:
i) Undertakings can be given and accepted. This will dispose of the need for further llitigation but will dent the Applicant the immediate protection of the police.
ii) A final hearing can be set. At this hearing parties will give evidence and the judge will make findings of fact. These proceedings can be stressful for both parties but findings of fact can be adduced in other proceedings.
Both options have advantages and disadvantages.
Increasingly however I note judges are also favouring a third option: continuing a s,42 injunction on no findings of fact and without prejudice to the Respondent. This will dispose of the need for further litigation but will continue to allow the Applicant to contact the police if the Respondent breaches the terms of the injunction.
There is a huge dischotomy in the jurisprudence concerning this practice. Some judges take the view that dispensing with s.42 proceedings in this manner will save time, money and prevent further animosity between the parties (and thus, one assumes, comply with the overriding objective of the FPR). Other judges take the view that there is no legal authority for such an order and that no order can be made without any findings of fact.
My query is which approach is correct? From my own research t date this is a moot point. I am therefore anticipating different views, opinions and arguments being offered. I am thankful for all views put forward and I will be most grateful to those who can present their view logically and with reference to any authorities available. I am conducting this research with a view to publishing. Please note that unless expressly stated to the contrary I shall assume that anyone posting a reply will wish to remain anonymous and note referenced in any published material.
Thank you for your time and response.
Under s.42 FLA 1996 a Court has the authority to grant a non-molestation and/or occupation order. After a s.42 application has been issued the Respondent is afforded the opportunity to contest it. If the Respondent does contes the application there are at least two options open to proceedings:
i) Undertakings can be given and accepted. This will dispose of the need for further llitigation but will dent the Applicant the immediate protection of the police.
ii) A final hearing can be set. At this hearing parties will give evidence and the judge will make findings of fact. These proceedings can be stressful for both parties but findings of fact can be adduced in other proceedings.
Both options have advantages and disadvantages.
Increasingly however I note judges are also favouring a third option: continuing a s,42 injunction on no findings of fact and without prejudice to the Respondent. This will dispose of the need for further litigation but will continue to allow the Applicant to contact the police if the Respondent breaches the terms of the injunction.
There is a huge dischotomy in the jurisprudence concerning this practice. Some judges take the view that dispensing with s.42 proceedings in this manner will save time, money and prevent further animosity between the parties (and thus, one assumes, comply with the overriding objective of the FPR). Other judges take the view that there is no legal authority for such an order and that no order can be made without any findings of fact.
My query is which approach is correct? From my own research t date this is a moot point. I am therefore anticipating different views, opinions and arguments being offered. I am thankful for all views put forward and I will be most grateful to those who can present their view logically and with reference to any authorities available. I am conducting this research with a view to publishing. Please note that unless expressly stated to the contrary I shall assume that anyone posting a reply will wish to remain anonymous and note referenced in any published material.
Thank you for your time and response.
