Case note: Appeal against a non-molestation and occupation order

Unsuccessful appeal against a non-molestation and occupation order.

Summary

The husband (H) was 67 and the wife (W) was in her late 70s. They had had a long marriage: 30 years wed, plus 20 years before cohabiting. There were two adult sons aged 41 and 38.

Throughout the marriage, the family had enjoyed a comfortable lifestyle and the asset pot was valued at several million pounds mainly thanks to H’s business interests. The family home was a substantial seven-bedroom property in Essex owned by H in his sole name.

H became seriously ill and was taken into hospital, where he stayed for over three months.

During this time, W came to the conclusion that the marriage was at an end and she arranged for a letter from her solicitor to be served on H whilst he was in hospital that she was intending to divorce. She changed the locks on the family home and reset the code for the security gates on the family home.

About a month later, H was discharged from hospital. H (unsuccessfully) attempted to gain entry to the family home and then returned to collect his Rolls Royce. The adult sons began to be drawn into the dispute, one siding with W and the other siding with H.

W applied for non-molestation and occupation orders at the same time as she filed for divorce. She alleged that she was genuinely frightened of H and listed a number of poorly-set out historic (pre-2011) allegations of physical violence.

H cross-applied but, at the start of the trial, indicated that he did not intend to seek an occupation order against W on the grounds that the family home was big enough to accommodate them both.

At first instance, the judge found H to neither credible nor honest. She found that W was likely to suffer significant harm and that the making of an order was mandatory in the circumstances.

She made an occupation order under section 33(7) of the Family Law Act 1996 (FLA 1996) and required H to vacate the property (under section 33(3)(f)) to last until completion of the financial proceedings.

She found that it was unlikely that H would adhere to any division of living space within the home. She also made a non-molestation order to last for six months.

H sought permission to appeal on the basis that because there was no evidential basis to justify a finding of significant harm nor any findings that H had perpetrated physical harm or threats of physical harm. Further, the duration of the order was too long and the making of the non-molestation order had been unfounded and unjustified.

Held

Permission to appeal was refused.

The first instance judge had been entitled to make the orders she had made. Mr Justice Baker highlighted that her decision had been based substantially on the assessment of the parties’ evidence. She had had ample opportunity to assess their credibility and her conclusions had been clear.

Although the judge had not made direct findings of the use or threat of violence, Mr Justice Baker emphasised that she had been correct in observing that the FLA 1996 does not require violence to be proved to justify the making of an occupation order under section 33(7).

Although it was correct that usually such orders were made for periods measured in months, Baker J reminded practitioners that section 33(10) does allow the order to be made until the occurrence of a specified event or further order. This had given the judge complete discretion to determine the appropriate duration, having regard to the specific facts in the case.

Given that the judge had accepted the evidence that H continued to drive past and loiter in the vicinity of the property, Mr Justice Baker concluded that she had been entitled to make a decision that the non-molestation order was necessary and she had given a lucid explanation for that decision in her reasons for refusal of permission to appeal.