Duo v Osborne (formerly Duo)
| Jurisdiction | England & Wales |
| Judgment Date | 02 April 1992 |
| Court | Court of Appeal (Civil Division) |
LORD DONALDSON OF LYMINGTON, MR, BUTLER-SLOSS AND LEGGATT, L JJ
Contempt – alleged breach of non-molestation undertakings – husband avoiding service – Judge refusing adjournment – whether Judge should have proceeded with the hearing – power to order retrial where Judge's order could not stand.
Domestic violence – non-molestation order – no power to attach power of arrest after end of marriage or cohabitation – need for amendment of law.
In the course of divorce proceedings, at an ex parte hearing in May 1991 the wife was granted an injunction restraining the husband from using violence against her and their two children, from threatening, harassing or pestering them, and from entering the premises where the wife and children were living. At an inter partes hearing in June 1991, the husband gave an undertaking in the same terms. In October 1991 a decree absolute in divorce was granted. The husband was alleged to have committed breaches of his undertaking in December 1991 and again in January 1992. On the second occasion the husband was arrested for assault. He was granted bail on condition that he lived at a specified address. The wife applied for the husband's committal for the breaches. She was unable to effect personal service of the notice to show cause, and an order was made for substituted service to be made by letter at the address at which the husband was required to reside as a condition of his bail. The husband failed to attend court at the time fixed for the committal proceedings on 13 March 1992. The Judge, having dealt with proceedings involving the husband on previous occasions, stated that he was of opinion that the husband was deliberately avoiding service. He, therefore, adjourned the matter until later the same day when the husband was due to appear for a hearing relating to access to the children. At the adjourned hearing, the husband appeared. His solicitor applied for a further adjournment to take instructions and call witnesses. The Judge refused to adjourn the proceedings and heard the wife's evidence which the husband's solicitor said he was not in a position to challenge by cross-examination in the absence of instructions. The husband then gave evidence denying the allegations. The Judge found the husband had breached his undertaking and committed him to prison for six months.
The husband appealed.
On 26 March 1992 the Court of Appeal granted the husband's application for bail pending the hearing of the appeal and made a non-molestation injunction with power of arrest attached.
Held – allowing the appeal: (1) The husband could not complain that he was taken by surprise. He was aware of the committal proceedings but had taken considerable measures to avoid service. However, this was the first hearing of the committal proceedings and the Judge should have adjourned the hearing to enable the husband's solicitor to take instructions and call witnesses. Therefore, the order of the Judge could not stand.
(2) By s 13(3) of the Administration of Justice Act 1960, the court had power to order a rehearing. In this case, the husband had been in prison for 13 days. If the wife's allegations were made out, that was an inadequate sentence. Therefore, the matter would be remitted for a rehearing before a different Judge.
Linnett v Coles [1987] QB 555 and Harmsworth v Harmsworth [1987] 1 WLR 1675 applied.
Per curiam: When the court granted a non-molestation injunction on 26 March 1992, the marriage had been terminated and there was no power to attach a power of arrest. As had been stated in Pidduck v Molloy[1992] 1 FCR 418, it was a very serious defect in the law that the Domestic Violence and Matrimonial Proceedings Act 1976 applied only when the parties were married or living together as a couple. Very often the need for a non-molestation injunction buttressed by a power of arrest was greater when the parties had recently separated or the marriage had recently ended than it was during the earlier stage of the relationship. It was to be hoped that the law would be amended to remedy the defect.
AppealAppeal from His Honour Judge Rice sitting at Southend county court.
Barbara Philcox for the husband.
Michael Stern for the wife.
LORD DONALDSON OF LYMINGTON, MR.This is an appeal against an order of His Honour Judge Rice in the Southend county court, made on 13 March 1992 committing Mr Dominic Duo to prison for six months for contempt of court. The relief sought is that the sentence of imprisonment be set aside, he having served 13 days in prison or, alternatively, that it be varied or, alternatively, that a new hearing be ordered. Mr Duo is at present on bail pursuant to an order made by this court last week.
The complainant, Mrs Osborne, was formerly the wife of Mr Duo, the marriage having been dissolved on 2 October 1991. On 16 May 1991 various orders were made against Mr Duo. They were, first, that he should not use any violence against Mrs Osborne, who was then of course Mrs Duo, or against their children, that he should not threaten, harass or pester Mrs Osborne or the children and that he should not enter the land or buildings known as 30 Treecot Drive, Leigh-on-Sea, Essex and 4/6 High Street, Hadleigh, Essex.
On 18 June 1991, I think on an inter partes hearing, the original order having been made ex parte, Mr Duo undertook to continue to comply with those orders. On 3 January 1992, in the course of an access hearing before Judge Rice, Mrs Osborne alleged that the children did not wish to see their father because they had seen him throwing a washing line pole through the window of their house on 2 December 1991. The Judge was not, of course, concerned at that hearing with any question of whether
that was or was not a breach of the order – plainly, it was a breach of the order if it occurred – but what he did do was, first of all, to order a welfare officer's report and secondly, to warn Mr Duo in stern terms of the consequences of breaching the terms of his undertaking and of the original order. In particular, he was warned that he should not go to 30 Treecot Drive.
It is alleged that eight days later, on 11 January 1992, he did in fact go to 30 Treecot Drive. He pushed open the door, causing one of the children to fall over and, much more seriously, he kicked and punched Mrs Osborne. That he was there on that occasion is not in doubt because he was arrested by the police at the house. Mr Duo was released on police bail on condition that he lived at 370 Southbourne Grove, Westcliff on Sea. Mrs Osborne thereafter applied to the court to have Mr Duo committed for breaches of the orders of 16 May and the undertaking of 18 June the notice to show cause specifying the following breaches:
"1. On December 2, 1991 telling [one of the children] that you were going to smash the [wife's] face in.
2. On December 2, 1991 by entering the curtilege of the property 30 Treecot Drive, Leigh-on-Sea.
3. On December 2, 1991 by throwing a washing line pole through the kitchen window at 30 Treecot Drive, Leigh-on-Sea thereby smashing the glass and denting one of the unit drawers in the kitchen.
4. On January 11, 1992 by entering the property 30 Treecot Drive, Leigh-on-Sea.
5. On January 11, 1992 by pushing open the door at 30 Treecot Drive, Leigh-on-Sea and causing the said child of the family to fall on one side.
6. On...
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