H v W and by Cross Summons W v H
| Jurisdiction | Northern Ireland |
| Judge | District Judge (MC) Meehan |
| Judgment Date | 01 September 2017 |
| Neutral Citation | [2017] NIMag 1 |
| Court | Magistrates' Court (Northern Ireland) |
| Date | 01 September 2017 |
1
Neutral Citation No: [2017] NIMag 1
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: 2017NIMAG1
Delivered: 01/09/2017
IN THE PETTY SESSIONS DISTRICT OF EAST TYRONE
County Court Division of Fermanagh and Tyrone
_________
H
-V-
W
AND BY CROSS-SUMMONS
W
-V-
H
_________
MEEHAN J
[1] On 8th August 2017 this matter was listed at Dungannon Domestic Proceedings
Court. It was a husband’s Application for full Non-Molestation and Occupation Orders
against his wife. An interim ex parte Order which combined both Non-Molestation and
Occupation orders had already been granted on 7th July.
[2] I was invited at the outset by counsel for the Applicant to read the papers; he felt
this might shorten matters. I retired to consider the papers and later returned to the
Court to state that I was dismissing the Application. I gave reasons for my decision at
that time, but I take this opportunity to set those out in somewhat greater detail.
2
[3] The Applicant’s supporting Statement is to be found in the Appendix hereto.
That was part of his Form F1 written Application. These being all the papers put before
me on the Applicant’s behalf, I proceeded then as now on the basis that the learned
Deputy District Judge who granted the interim Order took no notes, nor added any
memorandum in the course of the leave application and subsequent ex parte Hearing
on 7th July. It is to be expected in such circumstances that all the evidence upon which
the Judge’s decisions was based is to be found in the papers filed.
[4] My own practice when dealing with an application for leave to proceed ex parte
is not to admit the Applicant to chambers while I consider the merits from the papers
alone. If, as is usually the case, I cannot find a basis for granting leave, I invite the
Applicant’s Solicitor to come in and respond to my reasoning. Sometimes the Solicitor
will indicate that the Applicant would then wish to amplify upon the written Statement
and ask that I permit oral evidence to be taken. My response is to suggest instead an
amendment to the paperwork. More usually, the Solicitor accepts the ruling, sometimes
even adding that (s)he was simply “following instructions”. These applications for what
is properly understood to be truly exceptional relief are quite common nowadays.
[5] In Wallace v Kennedy [2003] NICA 25 a Resident Magistrate had granted an ex
parte Non-Molestation Order and made provision that it should last for a year. In
respect of the decision to grant an ex parte Order at all, the Northern Ireland Court of
Appeal had this to say;
[6 …. We have no information about the circumstances of the case which
influenced the court to make an ex parte order rather than direct a hearing on
notice, and cannot express an opinion on the correctness of its decision to do
so. We would only observe that Article 23(2) spells out a number of
circumstances to which the court should have regard in determining whether
to make an order ex parte, in terms which appear to envisage that the court
should be satisfied that there is an urgent need for an order to be made
without notice to the respondent.
[7] …
Hoffmann LJ in a non-molestation case in Loseby v Newman [1995] 2 FLR
754 at 758 described the proper practice in generalised terms:
“An ex parte order should be made only when either there is no time to give
the defendant notice to appear, or when there is reason to believe that the
defendant, if given notice, would take action which would defeat the
purpose of the order.”
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