Grant v James
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Year | 1993 |
| Court | Court of Appeal (Civil Division) |
PURCHAS, LJ AND CAZALET, J
Ouster – unmarried couple with child – joint ownership of home – mother seeking order excluding father from home – Judge making ouster order on basis it was in best interests of child – no finding of continuing physical danger or violence – whether findings justified an ouster order.
The father and the mother started their relationship in 1989 and initially lived at the father's parents' address. In 1990 they bought their own home in their joint names. Their child was born in 1992. The relationship was a turbulent one and by 1992 the mother had left home and sought an ouster order against the father. The facts found by the recorder were that whilst there might have been violence the mother had not left because of that but because she found it intolerable that the father was having an affair. It was clearly not practicable for the couple to live together. The mother and the father were equally to blame for the state of the relationship. It would be equally inconvenient for the mother and the father to be removed from the matrimonial home. The current state of affairs was harming the child. The recorder granted an ouster order because the mother was caring for the child and this factor tipped the balance in her favour.
The father appealed.
Held – allowing the appeal: The Judge had incorrectly exercised his discretion in granting the ouster order. The correct test was not "tipping of a balance" geared to find what was in the best interests of the child. This fell short of what was required to make an ouster order. The recorder did not find any risk of continuing physical danger or violence. Therefore, the exercise the recorder was carrying out was the solution of a housing problem, namely the housing of the child. That was irrelevant to an application under the Domestic Violence and Matrimonial Proceedings Act 1976. The recorder had failed to include in the balance of his discretion the Draconian nature of an ouster order and the effect it would have on the party against whom it was made. However, it was not possible to say that the mother had failed to make out a prima facie case. Therefore, the matter would be remitted for a rehearing.
Statutory provisions referred to:Domestic Violence and Matrimonial Proceedings Act 1976, s 1(1) and (2).
Matrimonial Homes Act 1983, s 1(3).
Cases referred to:Burke v Burke (1986) 151 JP 404.
G v G (Minors: Custody Appeal) [1985] 1 WLR 647; [1985] 2 All ER 225.
Summers v Summers [1986] 1 FLR 343.
Richards v Richards [1984] AC 174; [1983] 2 All ER 807.
Wiseman v Simpson [1988] FCR 242; [1988] 1 WLR 35; [1985] 1 All ER 245.
AppealAppeal from Mr Recorder O'Brien sitting at Bournemouth county court.
Deborah Bangay for the father.
Timothy Coombes for the mother.
LORD JUSTICE PURCHAS.This is an appeal by the father from an order of Mr Recorder O'Brien made in the Bournemouth county court on 7 August 1992, upon an application by the mother under s 1(1) and (2) of the Domestic Violence and Matrimonial Proceedings Act 1976. An undertaking was given to the court by the father in the following terms:
"(1) Not to use violence against, threaten, harass or pester the [mother] whether by himself or by instructing or encouraging any other person.
(2) Not to damage, destroy or otherwise dispose of the property and contents of [the matrimonial home] subject to the right of [the father] to apply to [the] court ...
And to be bound by these promises until further order."
Thereupon the court ordered:
"(1) The [father] do vacate the [matrimonial home] on or by midday on September 18, 1992 and that the [father] [do] thereafter not reside in the property nor enter nor approach within 100 yards of the property until further order.
(2) The [father] have liberty to apply to the district judge concerning the apportionment of the contents of the property.
(3) That the [father's] application for parental responsibility and contact of the child ... be transferred herewith to [the] court."
On this appeal the appellant challenges only the first of the orders, namely, the ouster order, and is content to continue to be bound by the undertakings forming the introduction to the order. The history for the purposes of this appeal may be shortly stated. The parties commenced a relationship in 1989 and lived for six months with the father's parents. On 7 July 1990 they purchased their home in their joint names. This is the property which is the subject matter of the order. On
13 February 1992 the child was born. It was common ground that the relationship between the two was more or less throughout a turbulent one. There was one particular incident of violence which occurred in July 1991, that is when the mother was pregnant by a matter of about six weeks. There was dispute about the exact circumstances of this matter. The recorder's findings were in the following terms:
"These allegations are, of course, always difficult to weigh, particularly as there is on both sides an element of self interested exaggeration. That is to say, I think [the father] is exaggerating his concern for the anticipated baby, and [the mother], I think, is exaggerating the extent to which violence was used upon her. I can well understand an overwrought situation in which the parties are quarrelling and it seems at the time to somebody in [the father's] position that the appropriate course, is to hold his partner down on the sofa until she calms down. Although I can well agree that with hindsight that is not the most appropriate course. I can well understand the domestic circumstances under which it occurs."
Reverting for a moment to the general history of the relationship, there had been a period of some two weeks during 1991 when the mother left the home. During this time the father apparently continued to enjoy the society of other women and the mother reacted jealously to this. In her first affidavit the mother asserted that the father had a history of violence towards her, although apart from the incident in July 1991, she did not identify any particular incident of violence. In her first affidavit sworn on 29 May 1992 the mother asserted:
"During our relationship there have been rows. It is quite common following such rows that the [father] becomes extremely aggressive and lashes out at me.
The [father] has repeatedly threatened to kill me. His behaviour was such that on May 8, 1992 I could not tolerate it any longer and made arrangements to move out of the property."
The mother then described an event which occurred on 21 May 1992 when she returned to the house to collect some items for the child. She asserted that the father was present and became extremely aggressive:
"... [The father] then pushed me up against his sister-in-law's car and held me by the shoulders bruising my arms saying that it would be `worth it to put my head through the window'. Although he did not strike me he was so angry he shut the car door on me violently and then he lashed out and smashed the glass in the front door of the property with his fist. He called me a bitch and once again threatened to kill me. His own sister-in-law was present at this time.
Although I am being housed temporarily I wish to return home with my son but cannot do so without the protection of the court. I understand that the
[father] could easily move into his parents' property on a temporary basis until more permanent accommodation could be found for him."
The mother swore a second affidavit on 24 June 1992. She dealt with other matters which had arisen between her and the father and then returned to her application for a non-molestation order. She deposed:
"Although I did not rely on the events of May 21 in my application for a non-molestation order I confirm that I always intended to move back into the property as soon as I was able but I was not prepared to do so if the [father] remained in the property ... I have cited other events in support of my application for an ouster order. The [father] accepts that we frequently rowed whilst living in the same property and this was beginning to affect [the child]."
In his affidavit the father put in issue much of the detail of the mother's first affidavit and further asserted that much of the trouble arose because of the mother's "almost paranoid obsession" with the fact that he was seeing somebody else.
Both parties gave evidence before the recorder and were cross-examined on their respective affidavits.
The recorder made the following findings in reaching his conclusion:
"That there were other incidents I have no doubt. That they were not of a level such as to justify medical intervention is a comment, but it is rightly said that the Act does not become invoked only when there has been violence suffered by somebody to an extent necessary to call for medical intervention. However, as has been rightly pointed out, this is a draconian power and one should not exercise it except on good and sufficient grounds."
The recorder then referred again to the incident in July 1991 and said:
"... I would not have considered that incident alone as justifying the exercise of the discretion. Most significantly perhaps because it took place a long time ago, relatively ...
Came the time in May of this year, during the week before May 8, [the mother] discovered a document, a letter which is certainly indicative either of the intention to have, or somebody else's query as to whether there was an intention on [the father's] part to have a relationship with another woman. It was at that time that [the mother] decides that she and [the father] can no longer live together. She says it was due to his violent behaviour.
My view is that it was the unsatisfactory relationship between them, which included the turbulent aspect, although I think actual fisticuffs were not necessarily the most major part of it. It was just a relationship which had perhaps no further mileage in it, and was one in which the receipt of this document...
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