Valerie Rose Simmons (Applicant v Claudius Alexander (Respondent
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE STAUGHTON |
| Judgment Date | 13 January 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0113-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 January 1994 |
[1994] EWCA Civ J0113-2
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON COUNTY COURT
(His Honour Judge Willis)
Before: Lord Justice Staughton and Lord Justice Peter Gibson
MR. G. BRODIE (instructed by The Goodridge Partnership, Penge) appeared on behalf of the Applicant (Respondent).
MR. D. MENDES DA COSTA (instructed by Amphlett Lissimore, London SE19) appeared on behalf of the Respondent (Appellant).
Thursday 13th January 1994
On 2nd December 1993 His Honour Judge Willis in the Croydon County Court on the application of Valerie Simmons (1) made a non-molestation order against Claudius Alexander for six months, (2) made an ouster order requiring Mr. Alexander to vacate premises known as 18 Birling House, Graveney Crescent, London SE20 by 2nd January 1994 and (3) attached a power of arrest for six months to those two orders. Mr. Alexander now appeals from those orders which are sought to be discharged.
Mr. Alexander and Miss Simmons have cohabited for 24 years. They have a son aged twenty. For fifteen years they have been joint tenants of a flat, owned by the Council or by a Housing Association, 18 Birling House. It is common ground that their relationship has been tempestuous. Mr. Alexander accepted in his affidavit, as well as in his oral evidence, that the relationship between him and Miss Simmons is probably over or has no future. Some years ago Miss Simmons obtained an injunction against Mr. Alexander restraining him from assaulting her, but he disobeyed that injunction and was sent to prison for 21 days. That was six or seven years ago. She says in her affidavit that Mr. Alexander since then has determined to make her leave their flat, and that since March 1992 the situation has deteriorated radically. In her oral evidence she said that Mr. Alexander was violent towards her, that he would smack her with an open hand, that he had pushed her against a wall and had threatened to kill her. The events which immediately preceded the orders now under appeal occurred on 23rd and 24th November last year. Miss Simmons, who had for some weeks been staying with her mother because she had had a leg operation, came to the flat on the evening of 23rd November, she says to get some clothes. Mr. Alexander was in the flat with two or three friends. There was an altercation between Miss Simmons and Mr. Alexander. She claims that he pushed her head against the wall. On the following day she went again to the flat, again there was an altercation. She claims that Mr. Alexander pushed an empty beer can into her face, causing bruising. At least on one of those occasions she found that cannabis was being smoked in the flat.
Mr. Alexander accepts that some cannabis might have been smoked, but his version of what occurred on the two occasions differs from that of Miss Simmons. He claims that the altercations were caused by her provocation and her remarks and that he did not hit her or cause her injury. After these incidents he changed the lock on the door of the flat.
On 26th November Miss Simmons applied ex parte before the Judge, who granted a non-molestation order with power of arrest attached until 2nd December 1993. On that date an inter partes hearing was held, and after hearing the oral evidence of Mr. Alexander and Miss Simmons the Judge made the orders which I have indicated. However, there have been stays pending this appeal.
The note of the judgment of the Judge is short and I shall read it in full, numbering the paragraphs for ease of reference.
(1) "Ouster proceedings are always sad occasions. Having heard the evidence of the parties, I find that there are certain inconsistencies in [Mr. Alexander's] evidence. Mr. Thomas contradicted himself."
I interpose the comment that Mr. Thomas gave evidence for
Mr. Alexander and was one of the people in the flat when
Miss Simmons called.
"The evidence in the end is not at all reliable."
(2) "[Miss Simmons'] evidence shows exaggeration. I find however that she is not lying; this is her characteristic way of expression. I am satisfied that her head was knocked against the wall and her face pushed into a beer can which caused bruising to her face. I have seen that."
(3) "There has been considerable provocation in her approach and the way she has spoken to him."
(4) "[Mr. Alexander] served 21 days in prison for breaking an order. He admits changing the lock to the front door and admits the relationship with her has broken down. The parties have lived together for 25 years, fifteen years as joint tenants of the property, and it is reasonable to oust the [Mr. Alexander]."
(5) "It is clear that the relationship has been a tempestuous one —I ask myself will it improve? It seems clear that the relationship is not going to improve. I think [Mr. Alexander] will have to go but how soon."
(6) "It is not easy to get accommodation. [Miss Simmons] is at her mother's. This is not an ideal arrangement but it is not desperate either. [Miss Simmons] suggests that [Mr. Alexander] be given two weeks. Although generous on her part it is not enough time. I think he should go in 28 days."
(7) "In the meantime I make an order in similar terms to the last one with a power of arrest. [Miss Simmons] may feel safe to return to the house because of the non-molestation order."
The non-molestation order was made in exercise of the jurisdiction conferred on the court under section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976, which by reason of section 1(2) of that Act applies to cohabitants. The section confers a discretion on the court. In the case of the ouster order the power is conferred by section 1 of the 1976 Act, but the applicable principles are those under section 1(3) of the Matrimonial Homes Act 1983, which gives the court power to make such order as it thinks just and reasonable having regard to the conduct of the parties in relation to each other and otherwise, to their representative needs and financial resources, to the needs of any children and to all the circumstances of the case (see Richards v Richards [1984] AC 174). Those criteria apply to applications for an ouster order between cohabitants (see Lee v Lee [1984] FLR 243. The attachment of a power of arrest is also a matter of discretion, but the condition of making that order is that the Judge must be satisfied that the person against whom it is directed has caused actual bodily harm to the other party and that he is likely to do so again, (sections 2(1) and (2) of the 1976 Act).
No argument has in fact been addressed to us on the making of the non-molestation order, nor of the attachment of a powers of arrest. The argument advanced by Mr. Mendes da Costa on behalf of Mr. Alexander has been confined to the ouster order. Because that order is one made in exercise of a discretion, if this appeal is to succeed we must be shown that the Judge has erred in some material way by making a mistake in law or taking into...
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