Giwa v Giwa
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE PARKER |
| Judgment Date | 08 May 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0508-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 85/1120 |
| Date | 08 May 1985 |
[1985] EWCA Civ J0508-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
ILFORD COUNTY COURT (HIS HON. JUDGE HATTON)
Royal Courts of Justice,
The President (Sir John Arnold)
Lord Justice Parker
85/1120
1985 D. No. 0017
MR W. BATSTONE (instructed by Messrs, Meadows & Moran, Solicitors, Romford) appeared on behalf of the Appellant (Wife).
MR S. LEVENE (instructed by Messrs. Shah & Burke) appeared on behalf of the Respondent (Husband).
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I shall ask Lord Justice Parker to give the first judgment in this matter.
By an originating application dated 24th January 1985 the appellant wife applied to the County Court for an ouster injunction against her husband, the respondent, a non-molestation injunction, an order for interim custody, that a power of arrest to be attached to the order, and costs. That application was heard on the 4th February of this year before His Honour Judge Hatton, who granted the non-molestation order, the application for interim custody, and power of arrest. He refused the ouster injunction. The wife now appeals against that refusal.
The parties were married on the 18th November 1970; the marriage has therefore lasted for approximately 14 years. There are two children, one Gimah Sebastian, born on the 2nd June 1978—now aged 6. The other, Azis Dominic, born on the 27th November 1980—now aged four.
Until very recently, the parties were living together at the matrimonial home last acquired, and recently acquired—a property in their joint names, 61 Hampton Road, Ilford, Essex. That property is a substantial three-bedroomed house, and according to the husband's evidence, it is worth about £37,000, with a mortgage of £22,500.
The husband is an engineer earning some £8,200 gross per annum, and he makes mortgage repayments of £260 per month. He is 45 years old, and comes from Nigeria. His wife is 35 years old and comes from Sweden. Neither has any available relatives living in this country.
For some time prior to December of last year, difficulties had arisen in the marriage, and in that month the wife decided to petition for divorce. When that became known to the husband, he was, to say the least of it, irritated if not positively angry, and shortly before the weekend of the 11th and 12th January 1985, he made it clear that the wife must either abandon her petition, or, alternatively, leave the house. Over that weekend two assaults took place, which were denied in evidence by the husband, but found to have taken place by the learned Judge. They are described as assaults of some severity.
For three days thereafter, there were no further assaults, although that appears to have been due largely to the fact that the husband remained, for the greater part of that period, in his room.
On the 15th January, however, a further incident occurred which is described in the wife's affidavit which was before the learned Judge, in addition to her oral evidence. She says this: "On Tuesday 15th January, during the morning, the respondent came downstairs and was clearly once again in a very aggressive frame of mind. He started shouting at me in front of our youngest child Azis, such things as: 'I am going to make you leave. I am going to get you out even if I have to hire two thugs to wound you. It's no good you going to the police or solicitor. It's nothing to do with them". And again: "I have, just woken up, and I want a woman and I can't have one because you are here". Then she says with that he went off to work.
The wife, after this incident, left the property and the position then became as follows: The husband remained in the home, and the wife is presently accommodated by the authorities at Havering Women's Aid Refuge. There she shares a bedroom with the two children. Each has their own bed, but they normally share a kitchen, bathroom and sitting room with another family.
The learned Judge, having set out those facts, says: "It is clearly not as convenient for the wife and children to remain there, and the children cannot attend their regular school and nursery". He then goes on: "I have to apply Section 1(3) of the Matrimonial Homes Act 1983, and make such an order as is just and reasonable in all the circumstances".
Having recited that matter, the judgment is then contained in four paragraphs, which I will read: "Divorce proceedings have started. The husband has indicated an intention to defend and seek custody of the two children. Any order I make under the Act is an order for instant relief, it is not permanent. I will make an order to allow breathing space. On the facts as I find them and on the evidence I think it is right that I should order the respondent to...
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