Linda Mary Robertson Or Cunningham V. Nicholas George Cunningham
| Jurisdiction | Scotland |
| Judge | Lord Macfadyen |
| Date | 03 November 2000 |
| Court | Court of Session |
| Published date | 03 November 2000 |
| OUTER HOUSE, COURT OF SESSION | |
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| OPINION OF LORD MACFADYEN in the cause LINDA MARY ROBERTSON or CUNNINGHAM Pursuer; against NICHOLAS GEORGE CUNNINGHAM Defender: ________________ |
Pursuer: Hayhow; Stuart & Stuart, W.S.
Defender: MacNair; Mowat Dean & Co., W.S.
3 November 2000
Introduction
[1]This is an action of divorce which is undefended on the merits, but defended in respect of a number of ancillary matters. The pursuer concludes (1) for decree of divorce on the ground that the marriage between the parties has broken down irretrievably by reason of the defender's behaviour, (2) for a residence order in respect of the younger child of the marriage ("M"), (3) for an order under section 14(2)(a) of the Family Law (Scotland) Act 1985 ("the 1985 Act") for the sale of the former matrimonial home, and for equal division between the parties of the net free proceeds of sale, (4) for payment of a capital sum of £500,000, (6) for payment of a periodical allowance of £1500 per month for a period of three years from the date of decree of divorce, (6) for aliment for each of the two children of the marriage at the rate of £500 per month, (9) for interdict against the defender molesting her, (11) for expenses, and (12) for an order upon the defender under section 3(1)(b) of the 1985 Act to pay the school fees and other incidental educational expenses from time to time incurred in respect of the attendance of the children at Dundee High School. I have omitted reference to the seventh, eighth and tenth conclusions, since they are of a procedural nature and are of no remaining significance at this stage of the case. The defender concludes for a property transfer order in his favour in respect of the pursuer's one half pro indiviso share in the former matrimonial home. In the event Mr Hayhow for the pursuer did not insist in the pursuer's conclusions for periodical allowance and aliment. I was informed that the parties had entered into a Minute of Agreement regulating the payment of aliment in respect of both children. Mr Macnair for the defender did not insist in the conclusion for a property transfer order, and did not resist the granting of an order for sale of the former matrimonial home, and the equal division of the net free proceeds thereof.
Divorce
[2]Since no defence was offered in respect of the conclusion for decree of divorce, it is sufficient that I record that I was satisfied, on the basis of the evidence of the pursuer and her sister, Mrs Sheila Forsyth, that the parties' marriage had broken down irretrievably by reason of the defender's behaviour. I shall therefore grant decree of divorce.
Interdict
[3]The pursuer's ninth conclusion is in the following terms:
"To interdict the defender from molesting the pursuer by abusing her verbally, by threatening her, by placing her in a state of fear and alarm or distress and by using violence towards her."
Interim interdict in those terms was granted on the motion of the pursuer on 4 February 2000.
[4]In her evidence, the pursuer described the incidents that had led her to apply for interim interdict. She referred first to a course of telephone calls by the defender, mostly on the subject of contact between him and the children, of a threatening or aggressive tone, persisted in despite her making it clear that she did not wish such communication. Secondly, she referred to difficulties that arose when the children were being dropped off after contact. The defender sought to force his way into the pursuer's house and to engage her in discussion, despite her making it clear that she did not wish him to come in and did not wish to speak to him. The pursuer referred in particular to three incidents, which occurred respectively on 15 June 1999, 16 October 1999 and 16 January 2000. These and other incidents are described in paragraph 6 of an affidavit (No. 6/23 of process) sworn by the pursuer on 1 February 2000 for the purpose of the application for interim interdict, which was incorporated into her evidence at the proof. The pursuer called the police on a number of occasions because of the defender's behaviour, and a letter from Tayside Police dated 7 January 2000 (No. 6/26 of process) confirms the dates of a number of those occasions. According to the pursuer the police were again called in January and in May 2000. The incident in May resulted in the defender being charged with breach of the peace, in respect of which charge he still awaits trial. Also in May, there was an incident when he broke a pane of glass in a door at the pursuer's house. In respect of that incident he was charged with vandalism. The pursuer said in evidence that she remained apprehensive that the defender would molest her. She pointed out that, although there had been no incidents since May, the defender had during that period been the subject of a bail condition that he would not approach her. She expressed hope but no confidence that his behaviour would change once the present proceedings were at an end.
[5]The defender did not seek in evidence to contradict the pursuer's account of his behaviour. He suggested that the behaviour in question had been out of character, but he accepted that objectively it had been "less than good". His behaviour, he suggested, was a reaction to his profound shock at the pursuer's separation from him, and at finding himself no longer living in family with her and the children. In 1999 he was under medical treatment for depression and anxiety (see No. 7/5 of process). He experienced feelings of frustration, desperation and deep hurt at not seeing and communicating with the children. Those circumstances combined with pressures in relation to his business, and in relation to his father's illness and subsequent death to bring about a state of mind in which he behaved uncharacteristically. The last-mentioned pressure was now past, the passage of time had allowed him to come to terms with being separated from the pursuer and the children, and contact with the children was now operating on a satisfactory basis. In these circumstances there was no ground for apprehension that he would revert to the sort of behaviour of which the pursuer had complained. He expressed the hope that with the conclusion of these proceedings, it would be possible to re-establish communications between him and the pursuer in the interest of the children.
[6]Mr Hayhow submitted that in the circumstances the pursuer had reasonable ground for apprehension that when the bail condition to which the defender was presently subject flew off, he would, if not interdicted from doing so, resume molesting her. He referred to Gunn v Gunn 1955 SLT (Notes) 69 and Murdoch v Murdoch 1973 SLT (Notes) 13. In Gunn Lord Guthrie said:
"The third conclusion for interdict is a most unusual one, and, in ordinary circumstances, I should be very reluctant to entertain it in an action for divorce. In the present case, however, the evidence clearly shows that the pursuer has reasonable grounds for fearing molestation at the hands of her husband, unless she receives such protection as the law can afford."
In Murdoch, which was concerned with interim interdict against molestation, the court said (at 14):
"Nothing we have said should be understood to cast any doubt upon what was said by Lord Guthrie in the wholly different circumstances of Gunn v Gunn".
Mr Hayhow accepted that these dicta supported the view that permanent interdict against molestation is a remedy that the court will be slow to grant, but submitted that the present pursuer had sufficiently cogent grounds for apprehension to make it appropriate that interdict be granted.
[7]In submitting that interdict should not be granted, Mr Macnair relied upon Gunn and Murdoch. He submitted that practice had not materially altered since the dates of those decisions, and that permanent interdict against molestation was a remedy that the court should be slow to grant. As an illustration of the sort of circumstances in which such interdict would be granted, he cited Morton v Morton 1996 GWD 22-1276. Although it was accepted that the defender had behaved badly in the past, in light of the facts that the defender had now come to terms with the breakdown of the marriage and that contact with the children was now operating satisfactorily, there was no ground for continuing apprehension that there would be further molestation. Without permanent interdict, the pursuer would have the ordinary protection of the criminal law, and other civil remedies if, contrary to current indications, the pursuer did resume the behaviour complained of. Having seen the defender in the witness box, I should, Mr Macnair submitted, find that there was no present ground for apprehension.
[8]In my opinion permanent interdict against molestation is a remedy that ought not to be granted lightly. Although the case of Gunn shows that it may be granted where there is reasonable ground for apprehension of future molestation, it also shows, and in my view Murdoch re-affirms, that it is an unusual remedy that the court will be slow to grant. I agree with Mr Macnair's submission that the practice of the court has not been relaxed in this respect. In assessing whether there is reasonable ground for apprehension of future molestation, the matter must in my view be looked at objectively, and in addition past events must be viewed in light of any relevant change of circumstances since they occurred. In the present case, if one were to look at the matter from the pursuer's subjective point of view, it might be accepted that her apprehension that the defender may revert to his former behaviour should not be labelled unreasonable. But in my view when the matter is viewed objectively, it is necessary to consider not only the defender's past behaviour, but the circumstances in which that behaviour took place, and any changes in circumstances that bear on the likelihood of repetition. The...
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