Domestic Violence & Ex-Parte’ Applications: Getting the affidavits right
Byron James, a pupil at 29 Bedford Row, highlights some of the key points in drafting affidavits for ex-parte domestic violence applications
Domestic Violence & Ex-Parte' Applications: Getting the affidavits right
Byron James, Pupil, 29 Bedford Row
Many practitioners working in family law will come across emergency applications for injunctions under Part IV of the Family Law Act 1996 ("FLA 1996") at the most unexpected and inconvenient times. As time is almost always of the essence in such emergency applications it is hoped that this article will provide the reader with a good reminder of the basic points required for the most important part of the application: the affidavit.
The affidavit provides the basis upon which an ex-parte application is made  . The affidavit performs a strange bifurcated role in the proceedings, straddling both fact and law: more is demanded of it than mere story telling.
The drafting of the affidavit therefore requires some skill. The factual element must reflect what the applicant perceives to have happened, preferably in language that they themselves would use. However, it must also be persuasive and meet the requirements of the FLA 1996 (as amended) and the Family Proceeding Rules 1991 ("FPR 1991").
Types of molestation
Applications for non-molestation orders need not be restricted solely to acts of violence and are extended to all acts of 'molestation'. There is no statutory definition of what molestation includes so you must look to case law for guidance (C v C  1 FLR 554; Walton v Johnson  1 FLR 350) Also helpful is s. 42 (5) FLA 1996 which states that the court will have regard to all the circumstances that go toward securing the health, safety and well being of the applicant, relevant child or any other person that the order is being sought to protect.
There is, therefore, a great deal of discretion afforded to the court in determining what constitutes molestation and, consequently, whether an application should succeed. This should not be troublesome in a case involving clear acts or threats of violence. However, where the molestation complained of is more indirect in its effect on the applicant, success could prove more problematic. For example, if a respondent is handing out leaflets containing marital secrets then there is a real question as to what extent this qualifies as molestation (C v C above). It would normally be argued as molestation in the form of harassment, but there is clearly potential for this to fail. A good rule to bear in mind as part of the drafting is the less actual violence, or direct fettering with the applicant's person, there has been, the more detail will be needed to explain exactly why the order should be granted. The behaviour of the respondent should be clearly defined, causally linked to the applicant's reaction, which should of course be given as much detail as possible too.
The importance of the affidavit in such a situation is that if one is making an application before the 'district judge of the day', as is likely, it will be almost impossible to enter into much by way of oral argument and persuasion. The hard work must be done before the hearing, with a suitably drafted affidavit that can address these potential concerns.
Reasons for making the application ex-parte
It is a requirement of rule 3.8 (5) of the FPR 1991 that a reason must be expressly stated for why the application is being made ex-parte rather than inter-partes. The language of the test set out at s.45 (2), FLA 1996 should be closely used when drafting this paragraph:
"In determining whether to exercise its powers under subsection (1), the court shall have regard to all the circumstances including—
(a) any risk of significant harm to the applicant or a relevant child, attributable to conduct of the respondent, if the order is not made immediately;
(b) whether it is likely that the applicant will be deterred or prevented from pursuing the application if an order is not made immediately; and
(c) whether there is reason to believe that the respondent is aware of the proceedings but is deliberately evading service and that the applicant or a relevant child will be seriously prejudiced by the delay involved—
(i) where the court is a magistrates' court, in effecting service of proceedings; or
(ii) in any other case, in effecting substituted service."
Therefore if your application cannot be based upon significant harm then it must be clearly stated that either the respondent is likely to evade service if aware of the proceedings, or more likely, that the applicant will be deterred from making the application if it is not done so immediately. The extent to which this is true will depend upon the applicant, but clear reference must be made under at least one of these heads.
Terms of the non-molestation order
A further part of the affidavit that should be given due consideration are the terms of the injunction being sort which can be dealt with in both the FL401 application form and in the body of the affidavit. The provisions of an injunction can be generally put or drafted specifically to cover any act of molestation. See FLA 1996, s 42(6):
"A non-molestation order may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both".
Given the changes to the FLA 1996 made by the Domestic Violence and Criminal Victims Act 2004 ("DVCVA 2004"), it is to be actively encouraged for terms to be drafted in specific form. This is largely to help with enforcement and the fact that most non-molestation orders are now likely to be enforced in a criminal court where the certainty provided by specific drafting could be crucial to a conviction. It is therefore to be encouraged for an injunction to contain provisions protecting chattels, dwellings (independent of occupation orders) and against the thousand different ways in which molestation may manifest.
A non-molestation order may be made for a specified period or until a further order is made (FLA 1996, s 42(7)). The length of the order will largely depend upon the extent to which the terms of the order affect the respondent. If the order can be broken unwittingly by the respondent in the course of his day to day life then the court will be extremely keen to bring the order back to court as soon as possible. If the order only has an impact upon the respondent if he actively seeks to break it, then the court will be more minded to grant it for a longer, or indefinite, period of time.
The two tests
There are two tests to which the court must have regard when deciding whether to grant an occupation order.
The first is known as the 'balance of harm test' because it requires the court to balance the harm caused to the applicant, respondent and any relevant children if the order were or were not to be made. If the applicant is entitled  to occupy the dwelling house  or a spouse or former spouse of the respondent and there would be a risk of the applicant or relevant child suffering significant harm, attributable to the respondent, if the order was not made, greater than any harm caused to the respondent or relevant child if the order were made then the court have a duty to grant the order (FLA 1996, s 33(7), s 37(4)). If the applicant is not entitled to occupy the property and a cohabitant or a former cohabitant then the court must simply 'have regard' to the balance of harm test (s 36(7)(b); s 38(4)(e)). If the applicant is associated in some other way to the respondent and not entitled to occupy the property then they are unable to make an application for an occupation order.
The second test is usually referred to as the 'core criteria', which the court may have regard at any time when granting an occupation order, even if they have found against the applicant on the balance of harm test. The content of the core criteria depend upon the applicant's entitlement to occupy the property and their relationship with the respondent. If the applicant is entitled to occupy the property then the core criteria are (S 33(6)) :
(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 under subsection (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.
If the applicant is not entitled but a spouse or former spouse of the respondent then the court may have regard to some additional factors including the length of time since the parties lived together, the length of time since the marriage was formally ended and any ongoing ancillary relief applications or disputes as to the ownership of the property (s 35(6)). If the applicant is not entitled but a cohabitant or former cohabitant of the respondent then the court may also have regard to the nature and length of the parties' relationship, whether there are or have been any relevant children, the length of time since the parties' relationship came to an end and whether there are any ongoing Schedule 1, Children Act 1989 maintenance applications (36(6)).
Application of the two tests to the affidavit
In an ex-parte hearing most tribunals will be extremely unlikely to hear legal argument and they will refuse to remove a respondent from a property in which they live, irrespective of the facts of the situation (see B. James, "Controlled Abuse"  NLJ 157 at 930) This means that there will be certain situations where it may seem as though there is little point in dwelling upon the tests in the affidavit. I would suggest that, if there is time, the applicant's best case should always be made out; at the very least it will assist both the applicant and the advocate at the return hearing.
If the respondent is not in occupation of the relevant property it should be clearly stated; if this is not included, as explained above, the court are unlikely to grant the occupation order without amendment. If the respondent is living elsewhere it also makes sense to give as much detail as possible of their current housing provision. As one will note from both the core criteria and the balance of harm test, the suitability of the respondent's current accommodation will be decisive in whether an order is granted. Furthermore it could have a direct impact upon the duration of the order, and the urgency with which the court will seek an early return date.
The balance of the core criteria in favour of the applicant should be made out clearly in the affidavit, these can be stated factually without need for legal argument. The extent to which the factors under the core criteria in the applicant's favour should be contrasted with the converse criteria of the respondent is simply a matter for the author; bearing in mind that it is an ex-parte hearing and the court will undoubtedly give little weight to any words that the applicant purports to put into the mouth of the respondent.
Terms of the occupation order
The most important distinction to bear in mind in respect of the terms of an occupation order is between declaratory and regulatory orders: the former creates an entitlement for the applicant to occupy the property, the latter regulates the occupation of the dwelling home.
If the applicant is not entitled to occupy the property it is absolutely crucial to remember to seek a declaratory order under FLA 1996, s 35(4) or s 36(4). If this is not sought then whatever regulation of the dwelling home is irrelevant because the applicant will have no right to enter the property and remain inside. A declaratory order cannot be sought if neither party is entitled to occupy the property.
In respect of regulating the occupation of the dwelling home it is possible to exclude the respondent from the whole of the property or just a part of it (s 33(3), 35(5), 36(5), 37(3) and 38(3). If one seeks to secure a zone of safety around a particular part of the property this will depend upon the court being persuaded that it is logistically possible to do so. If such an order is sought, the affidavit should set out clearly how this is possible with, time providing, a floor plan of the property exhibited.
The duration of an occupation order will, like the non-molestation order, largely depend upon the extent to which it fetters the respondent (see above). It is worth highlighting however that there are strict rules in occupation orders relevant to the maximum periods of time which an occupation order can be granted, dependant upon the applicant's entitlement to occupy the property and their relationship with the respondent. If the applicant is entitled to occupy the property then the order may be made for a specified period of time, until the occurrence of a specified event or further order (FLA 1996, s 33(10). If the applicant is not entitled but a spouse or former spouse of the respondent then the order can only be made for 6 months, which can be extended in 6 month periods upon application (s 35(10); s 37(5)). If the applicant is a cohabitant with no entitlement to occupy then the order may, again, only be for 6 months but may be extended only once (s 36(10); s 38(6)).
Given the urgency of most ex-parte applications, some may find the following checklist helpful:
Non – Molestation Orders
- Draft the statement as fully as possible without waffling for pages and pages;
- Use headings relevant to the matters to which the court must have regard, for example "Conduct";
- Remember that any omissions, inconsistencies or obvious errors in the facts could be used by the respondent at the return hearing;
- Give details of the molestation alleged by the applicant, remembering the less actual violence, or direct fettering with the applicant's person, there has been, the more detail will be needed to explain exactly why the order should be granted;
- Make sure you state why the application is being without notice, using the reasons set out in FLA 1996, s 42(5);
- Include in the affidavit the terms of the order which would be appropriate, having regard to both specific and general acts of molestation;
- Include in your affidavit an appropriate duration of the order;
- Remember you do not have to disclose the applicant's address, if it is not appropriate make sure you fill in a C8 form with your FL401 application form;
- Determine the entitlement of the applicant to occupy the property;
- Find out whether the respondent is in occupation of the property;
- Find the appropriate section under which the applicant must apply (depending upon entitlement to occupy and their relationship to the respondent)
- Remember that a non-entitled applicant who is associated in a way other than by being a spouse, former spouse, co-habitant or former cohabitant of the respondent is not able to apply for an occupation order;
- Determine whether the balance of harm test is appropriate to your client, if it is explicitly state why the court should have regard to it in the affidavit;
- List in the affidavit all the factual reasons relevant to the core criteria why the occupation order should be made, if appropriate compare and contrast with the respondent's position under the core criteria;
- Determine whether it is appropriate to prohibit the respondent entering or attempting to enter the property on an ex-parte basis;
- If the Respondent is in occupation, determine whether the applicant would be sufficiently protected by a zone of safety within the dwelling home, if not advise the client to find a place of refuge until the next hearing, and specifically ask for the court for a swift return date;
- Remember the appropriate maximum duration of the order you seek
The nature of an ex-parte hearing places judges in an uncomfortable position. It is an anathema for them to order individuals either to do or not to do something simply on the word of someone else. If argument is needed to persuade a judge to make the order in full or in part you are probably going to be, at least to some degree, unsuccessful. The best applications are those that put as much of the relevant detail into the affidavit as possible, anticipating potential problems and dealing with them in writing, sworn to be true.
 There are occasions when oral evidence can be admissible: these occasions are extremely rare.
 A definition of 'entitled to occupy' is contained at FLA 1996 33(1)(a): "[a person] is entitled to occupy a dwelling-house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain in occupation, or has matrimonial home rights in relation to a dwelling-house"
 A definition of 'dwelling house' is contained at FLA 1996 33(1)(b): "[the dwelling house] is or at any time has been the home of the person entitled and of another person with whom he is associated, or… was at any time intended by the person entitled and any such other person to be their home,
 The same core criteria apply if neither the applicant nor the respondent are entitled to occupy the property but the applicant is a spouse, former spouse, cohabitant or former cohabitant of the respondent (FLA 1996, s 37(4); 38(4))
29 Bedford Row