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September 25, 2009
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
Judgment
Lord Justice Wilson:
I give reasons for my refusal, announced at the end of the hearing in the afternoon of 23 September 2009, of a husband’s application for permission to appeal against an occupation order made by Her Honour Judge Hughes QC in the Principal Registry of the Family Division on 31 July 2009. Her order was that the husband should vacate the matrimonial home at Mayes House, East Grinstead, Sussex, by 28 August 2009 and thereafter should not, otherwise than with the consent of the wife or pursuant to further order of the court, return thereto. Execution of the order has been stayed until today; and no doubt the husband will need a further, short, ultimate, extension of the stay in order to effect his departure.
The occupation order was of course made under s.33 of the Family Law Act 1996. In her application for relief under that Act the wife also sought a non-molestation order under s.42 thereof. In principle the judge also acceded to her application for such an order. By s.42(6) a non-molestation order may be expressed so as to refer either to molestation in general or to particular acts of molestation. As drawn by counsel and perfected by the court, the judge’s separate order under s.42 indeed referred to particular acts of molestation: for, by paragraph, 1 the husband was forbidden to use or threaten violence against the wife and, by paragraph 2, he was forbidden to intimidate, harass or pester her. The inclusion of paragraph 1 was highly unfortunate in that there was scarcely any finding (nor allegation) of violence on the part of the husband to the wife and certainly no suggestion of such recent violence as might have justified an order against his use or threat thereof. During the hearing I extracted from Mr Turner QC, who, with Mr Oliver, represented the wife before the judge as well as before this court, an undertaking on behalf of the wife to apply forthwith for the deletion of paragraph 1 of the non-molestation order under the slip rule. Although the husband’s primary target was to secure permission to appeal against the occupation order, he also sought to appeal against paragraph 2 (as well, of course, as paragraph 1) of the non-molestation order on the basis that he had offered to the judge an undertaking not to intimidate, harass or pester the wife, which there had been no good reason for the judge to spurn. When, however, I asked Mr Cusworth QC who, with Mr Sear, appeared before me (albeit not before the judge) on beha
AI Generated Summary
Lord Justice Wilson refused the husband’s application for permission to appeal an occupation order granted by HHJ Hughes QC, and noted the husband had withdrawn his separate appeal against the decree nisi with a consent costs order. The parties, married since 1985 with five children, lived at Mayes House on the husband’s historic estate. The wife sought non-molestation and occupation orders amid controlling conduct and harassment, including lockouts and pressure to vacate when a lease expired. The judge acted under s.33(6) of the Family Law Act 1996, considering conduct and the wife’s stress and depressive disorder, and finding immediate separation necessary. The husband failed to offer concrete, financed proposals for the wife’s interim housing at Damerel, while Garden Gate was readily available to him. Wilson LJ emphasized the breadth of discretion under s.33(6) and held the appeal had no real prospect of success, with the wife likely to move to Damerel shortly.