Lake v Lake
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE WALL |
| Judgment Date | 20 July 2006 |
| Neutral Citation | [2006] EWCA Civ 1250 |
| Docket Number | B4/2006/1239 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 July 2006 |
[2006] EWCA Civ 1250
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOURNEMOUTH COUNTY COURT
(HIS HONOUR JUDGE BOND)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Thorpe
Lord Justice Wall
B4/2006/1239
MR J WARD-PROWSE (instructed by Jacobs & Reeves) appeared on behalf of the Appellant.
MR G FAWCETT (instructed by Trevanions) appeared on behalf of the Respondent.
Judgement
There was a hearing before HHJ Bond in the Bournemouth County Court on 16 May 2006. It was a hearing of an application brought for the transfer of a tenancy following a divorce between the parties and resulted in an order for transfer. It is plain from the written submissions of Mr Ward-Prowse, who appeared for the husband below, that he set out the statutory material carefully for the judge's consideration but it was only after judgment, in pursuit of an application for permission to appeal, that Mr Ward-Prowse advanced an interesting and plausible argument on the construction of the relevant provisions of the Family Law Act 1996, particularly contrasting the ambit of the discretion vested in the judge under section 33(6) of that Act and the discretion vested in the judge under paragraph 5 of schedule 7 of that Act.
HHJ Bond refused permission but said:
"If Mr Lake wishes to pursue his appeal, it would be right for this matter to be ventilated before the Court of Appeal on an application for permission there and that court can then decide in the circumstances what course it wishes to take."
With that encouragement the application was brought by Mr Ward-Prowse and on 21 June my Lord ordered an oral hearing on notice with appeal to follow if permission is granted. This point of construction is on any view clearly arguable and I would have no hesitation in granting permission.
In order to demonstrate that assessment I turn to the relevant provisions, starting with section 33. Section 33 of the statute is headed "Occupation Orders" and it defines the circumstances in which the court may make an order in favour of one party ousting the other from occupation. The court's task is defined by subsections (6) and (7) . In practice the judge in any case asks himself whether the application is governed by subsection (7) , which provides that if it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order under this section is not made, the court shall make the order.
So first the judge asks whether it is a significant harm case, in which case the order becomes mandatory. If the answer to that is no, he then travels to the wider provisions of subsection (6) which reads:
"(6) In deciding whether to exercise its powers under subsection (3) and (if so) in what manner, the court shall have regard to all the circumstances including-
"(a) the housing needs and housing resources of each of the parties and of any relevant child;
"(b) the financial resources of each of the parties;
"(c) the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3) , on the health, safety or well-being of the parties and of any relevant child; and
"(d) the conduct of the parties in relation to each other and otherwise."
Mr Ward-Prowse then contrasts the definition of the judicial task if the application is not for an occupation order but for a transfer of tenancy order. That is dealt with under schedule 7, which in paragraph 2 defines the cases in which the court may make an order. The present case clearly fell under paragraph 2(2) , which reads:
"On granting a decree of divorce … or at any time thereafter … the court may make a Part II order."
A part II order is defined in paragraphs 6 and 7 and the matters to which the court must have regard are regulated by paragraph 5. Paragraph 5 reads as follows:
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