| PREFACE |
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| TABLE OF CASES |
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xiii | |
| TABLE OF STATUTES |
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xix | |
| TABLE OF STATUTORY INSTRUMENTS |
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xxvii | |
| TABLE OF FORMS |
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xxxi | |
| TABLE OF ABBREVIATIONS |
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xxxiii | |
| CHAPTER 1 INTRODUCTION — HOW TO USE THIS BOOK |
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1 | (18) |
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Step One: Is the victim 'associated'? |
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2 | (8) |
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2 | (2) |
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4 | (1) |
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5 | (1) |
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6 | (1) |
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Non-cohabiting couples [prospective change] |
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7 | (1) |
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8 | (1) |
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9 | (1) |
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Step Two: Is the victim 'entitled' |
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10 | (5) |
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13 | (2) |
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General note as to procedure and jurisdiction |
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15 | (4) |
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Applications under Part IV of FLA 1996 may be 'free-standing' or made within family proceedings |
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15 | (1) |
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15 | (1) |
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Orders under the FLA 1996 and injunctions are granted to protect a legal right |
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16 | (1) |
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Jurisdiction of county courts and family proceedings courts |
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16 | (1) |
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Injunction powers of the High Court under the Supreme Court Act 1981 and of county courts under the County Courts Act 1984 |
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17 | (1) |
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Injunctions for protection under the PHA 1997 and under the general law of torts |
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18 | (1) |
| CHAPTER 2 NON-MOLESTATION ORDERS UNDER THE FAMILY LAW ACT 1996 |
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19 | (6) |
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19 | (3) |
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19 | (1) |
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Who may apply for non-molestation orders? |
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20 | (1) |
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Is the applicant eligible (being associated with the proposed respondent) for a non-molestation order? |
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20 | (1) |
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Exclusion orders in respect of a defined area around a home or place of work |
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21 | (1) |
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Own motion non-molestation orders |
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21 | (1) |
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Duration of non-molestation orders |
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22 | (1) |
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22 | (1) |
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23 | (2) |
| CHAPTER 3 OCCUPATION ORDERS |
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25 | (24) |
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25 | (4) |
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If the client is an associated person with proposed respondent, is the client eligible for an occupation order (or for a non-molestation order under s 42)? |
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25 | (1) |
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Expiration of s 30 matrimonial home rights on death or divorce |
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25 | (1) |
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What criteria apply for the grant of an occupation order? |
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26 | (3) |
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Types of occupation orders in detail |
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29 | (13) |
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29 | (3) |
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32 | (3) |
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35 | (4) |
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39 | (1) |
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40 | (1) |
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Penal notice incorporated in an occupation order |
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41 | (1) |
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Power of arrest attached to occupation order |
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41 | (1) |
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42 | (1) |
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Supplementary orders providing for maintenance, repair, mortgage or rent payments and care and use of furniture, available for orders under s 33, s 35 or s 36 |
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42 | (1) |
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Suggested draft order/checklist in Part IV of the Family Law Act 1996 |
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43 | (4) |
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47 | (2) |
| CHAPTER 4 PROTECTION FROM HARASSMENT ACT 1997 |
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49 | (18) |
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49 | (1) |
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49 | (1) |
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50 | (1) |
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50 | (3) |
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No general remedy for invasion of privacy |
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51 | (1) |
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Factual basis of an actual or threatened tort needed for grant of an injunction |
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52 | (1) |
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Orders to exclude the defendant from an area surrounding the plaintiff's home and place or work |
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52 | (1) |
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Harassment under PHA 1997 |
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53 | (3) |
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The ingredients of and civil remedies against the statutory tort of harassment |
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53 | (1) |
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Definition of 'harassment' |
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54 | (1) |
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Threatened repetition of a single harassing act |
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55 | (1) |
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55 | (1) |
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Harassment amounting to nuisance |
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56 | (1) |
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Harassment at the plaintiff's place of work: interference with a contract of employment |
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57 | (1) |
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Personal injury by molestation |
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58 | (1) |
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58 | (1) |
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Removal of an obstreperous adult from the family home |
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58 | (1) |
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Warrant for arrest for breach of injunction forbidding harassment |
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59 | (1) |
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59 | (1) |
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Specimen clauses for forbidding tortious personal molestation |
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59 | (1) |
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Menu for specimen clauses for molestation injunctions in torts |
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60 | (1) |
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Duration of injunction against, or undertaking about, torts |
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60 | (1) |
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60 | (2) |
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62 | (1) |
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Criminal penalty for breach of injunction |
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62 | (1) |
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63 | (1) |
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Comparison of the PHA 1997 and Part IV of the FLA 1996 |
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63 | (4) |
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63 | (1) |
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64 | (1) |
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64 | (1) |
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64 | (1) |
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65 | (1) |
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65 | (1) |
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65 | (2) |
| CHAPTER 5 PROCEDURES FOR PERSONAL PROTECTION ORDERS |
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67 | (18) |
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Applications for personal protection orders and injunctions |
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67 | (4) |
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Family proceedings court or county court? Choice of venue when starting proceedings under FLA 1996, Part IV |
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67 | (1) |
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Transfer of proceedings between courts |
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68 | (1) |
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Standard form of application for non-molestation or occupation order |
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69 | (1) |
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Evidence in support required for application for FLA 1996, Part IV order or injunction against torts |
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70 | (1) |
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General requirements appropriate for evidence in support of application |
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70 | (1) |
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Special requirement where application begun without notice |
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70 | (1) |
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Special requirement for permission for child under the age of 16 to apply for a non-molestation or occupation order |
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71 | (1) |
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Special requirement where applicant relies on agreement to marry |
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71 | (1) |
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Applications without notice, informal notice and abridged and substituted service |
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71 | (7) |
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The power to grant an initial order without notice |
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71 | (1) |
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Criteria for applications without notice |
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72 | (1) |
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73 | (2) |
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When may an occupation order which ousts the respondent from his home be made without notice? |
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75 | (1) |
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Mode of application begun without notice |
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75 | (1) |
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Grounds for application without notice required to be set out in statement in support |
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75 | (1) |
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Ensuring issue and service of correct forms after grant of order without notice |
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75 | (1) |
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76 | (1) |
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Return date for hearing on notice where order granted without notice |
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76 | (1) |
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Abridged time for service |
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76 | (1) |
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77 | (1) |
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Evidence in support of without notice (ex parte) applications |
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77 | (1) |
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78 | (3) |
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78 | (1) |
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Announcement of a power of arrest granted without notice |
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78 | (1) |
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78 | (1) |
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Service or notification of orders required to make orders enforceable |
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79 | (1) |
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Undertakings: availability |
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79 | (1) |
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Undertakings: practice and the Prescribed Forms |
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80 | (1) |
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Delivery of a form of undertaking |
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80 | (1) |
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Interlocutory injunctions, free-standing injunctions and declaratory orders, in county court actions |
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81 | (4) |
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Power to grant and enforce an injunction against a person aged at least 18 and less than 21 |
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82 | (1) |
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Power to grant and enforce an injunction against a person aged less than 18 |
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82 | (1) |
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Power to enforce an injunction against a person who is mentally disordered |
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82 | (1) |
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Suitability of injunction as remedy against person aged less than 18 or mentally disordered |
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82 | (1) |
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Procedure where the defendant is a minor or mental patient |
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83 | (2) |
| CHAPTER 6 TRANSFER OF TENANCIES |
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85 | (12) |
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85 | (1) |
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Applicants for transfer of tenancy |
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86 | (2) |
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87 | (1) |
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88 | (1) |
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88 | (2) |
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90 | (3) |
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Protected tenancy, secure tenancy, assured tenancy, assured agricultural occupancy |
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91 | (1) |
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Statutory tenancy within the meaning of the Rent Act 1977 |
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92 | (1) |
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Statutory tenancy within the meaning of the Rent (Agriculture) Act 1976 |
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93 | (1) |
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93 | (1) |
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94 | (1) |
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Date when order takes effect |
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94 | (1) |
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95 | (2) |
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95 | (1) |
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95 | (1) |
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95 | (1) |
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95 | (2) |
| CHAPTER 7 ENFORCEMENT |
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97 | (36) |
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97 | (1) |
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Changes introduced by DVCVA 2004 |
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97 | (4) |
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101 | (3) |
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Disobedience of an order as a contempt of court |
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101 | (1) |
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Orders not capable of enforcement by committal |
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101 | (1) |
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Alternatives to applications for committal |
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102 | (1) |
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Application for committal of a person aged less than 18 or who is a mental patient |
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102 | (1) |
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Enforcement powers common to all courts |
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103 | (1) |
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Additional enforcement powers of the High Court and county courts |
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103 | (1) |
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Magistrates' enforcement powers and practice |
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103 | (1) |
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104 | (9) |
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Introduction – The importance of abiding by correct procedure |
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104 | (1) |
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Penal or warning notice on orders capable of enforcement by committal |
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105 | (1) |
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Forms, rules and Practice Direction |
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106 | (1) |
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Service or notification of orders required to make orders enforceable |
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107 | (1) |
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Delivery of a form of undertaking |
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108 | (1) |
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Contempt proceedings where criminal prosecution under way |
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108 | (1) |
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Contempt proceedings for harassment where criminal charges pending or contemnor convicted |
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109 | (1) |
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Issue and service of the 'Notice to Show Good Reason' and evidence in support |
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109 | (2) |
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Dispensation with service of 'Notice to Show Good Reason': committal without notice or waiving formality of service |
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111 | (1) |
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Drafting the 'Notice to Show Good Reason' and affidavit or statement in support |
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111 | (1) |
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Arrest under power of arrest attached to a non-molestation or occupation order under FLA 1996, s 47 |
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112 | (1) |
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Arrest under warrant of arrest for breach of an occupation order or an undertaking to like effect |
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112 | (1) |
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113 | (8) |
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Procedural powers of court when arrested person brought before court under FLA 1996, s 47 |
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113 | (1) |
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114 | (1) |
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Warrant of arrest for breach of an injunction under the PHA 1997 |
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114 | (1) |
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Further arrest where the respondent fails to appear at an adjourned hearing after being released following arrest under a power of arrest |
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115 | (1) |
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Warrant of arrest where the respondent fails to appear at an adjourned hearing, having appeared at the first hearing of a Notice to Show Good Reason, under FLA 1996, Part IV |
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116 | (1) |
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Application by contemnor or respondent who objects to an injunctive order |
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116 | (1) |
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117 | (3) |
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Application to purge contempt |
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120 | (1) |
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Warrant of possession for enforcing an occupation order requiring the respondent to vacate the family home |
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120 | (1) |
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Applications for committal orders: checklists |
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121 | (12) |
| APPENDIX 1 STATUTES |
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133 | (80) |
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Children Act 1989, ss 38A, 38B, 39, 44A, 44B, 45 |
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135 | (8) |
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Family Law Act 1996, Parts IV, V, Schs 4, 5, 7, 9 |
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143 | (60) |
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Protection from Harassment Act 1997 |
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203 | (10) |
| APPENDIX 2 STATUTORY INSTRUMENTS |
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213 | (40) |
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Civil Procedure Rules 1998, SI 1998/3132, Sch 1 |
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215 | (8) |
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Family Proceedings Rules 1991, SI 1991/1247, regs 3.8-3.10, 4.24A, 8.1A |
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223 | (10) |
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Family Proceedings (Amendment No H) 2005 (draft) |
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233 | (2) |
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Family Proceedings Courts (Matrimonial Proceedings etc) Rules 1991, SI 1991/1991, regs 3A, 12A, 12B, 20, 21 |
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235 | (10) |
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Family Proceedings Courts (Matrimonial Proceedings etc) (Amendment) Rules 2005 (draft) |
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245 | (2) |
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Family Law Act 1996 (Part IV) (Allocation of Proceedings) Order 1997, SI 1997/1896 |
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247 | (6) |
| APPENDIX 3 FORMS |
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253 | (36) |
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Form FL401 – Application for a non-molestation order/an occupation order |
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255 | (10) |
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Form FL401 – Application for a non-molestation order/an occupation order (draft) |
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265 | (10) |
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Form FL404 – Order or Direction |
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275 | (8) |
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Form FL404 – Order or Direction (draft) |
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283 | (2) |
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Form FL404a – Non-molestation order (draft) |
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285 | (2) |
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Form FL406a – Record of non-molestation order (draft) |
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287 | (2) |
| INDEX |
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289 | |
Other versions by this Author
