Wiseman v Simpson
| Jurisdiction | England & Wales |
| Judgment Date | 30 September 1987 |
| Court | Court of Appeal (Civil Division) |
255
CA
[1988] FCR 242
Wiseman v Simpson
COURT OF APPEAL
30 SEPEMBER 1987
MUSTILL AND RALPH GIBSON, L JJ
Injunction – exclusion order – unmarried couple with one child – joint tenancy of flat – relationship breaking down – mother changing locks in absence of father and refusing him entry – cross-applications under Domestic violence and Matrimonial Proceedings Act 1976 – mother seeking order excluding father from home – principles to be applied where there was no violence or threat of violence.
The two parties were unmarried and had a son aged 20 months. In April 1986 they were granted a joint tenancy of a council flat. The relationship became unhappy and the parties were continually arguing. They began to live separate lives. In June 1987, without prior notice, the mother changed the locks to the flat whilst the father was out at work and refused to allow him into the flat. The father applied to a county court under the Domestic Violence and Matrimonial Proceedings Act 1976 for an order, inter alia, requiring the mother to permit him to return to the flat. The mother lodged a cross-application under the 1976 Act seeking, inter alia, an exclusion order against the father. The Judge held that he must apply s 1(3) of the Matrimonial Homes Act 1983 and make such order as he thought just and reasonable having regard to the conduct of the parties towards each other and otherwise, to their respective needs and financial resources, to the needs of the child, and to all the circumstances of the case. Although, in an affidavit, the mother had referred to the father behaving in a threatening manner, this was not pursued at the hearing and the Judge found that the father was not a violent man. He found that they were both good parents and fond of the child, and that it was no longer practical for the parties to live under the same roof and, if they did so, the resulting tension could only become worse. He accepted the evidence of the mother that the development of the child was being retarded. He found that the mother could not work because of the child and that she had no alternative accommodation; whereas the father was working and in a better financial position and had alternative accommodation at his parents' home. He therefore concluded that, on balance, and in the interests of the child he should exercise his discretion by granting the mother an injunction restraining the father from returning to the flat except for the purposes of access and to collect his personal possessions.
The father appealed.
Held – (1) In proceedings under s 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 between an unmarried couple to whom the section applied, the court must apply the principles set out in s 1(3) of the Matrimonial Homes Act 1983: see per Lord Brandon in Richards v Richards [1984] AC 174 at p 222B. (See also Note below.)
[1988] FCR 242 at 243
(2) Proof of violence or some conduct adverse to the applicant or any children was not a necessary requirement to the making of an exclusion order under s 1 of the 1976 Act. The Judge must have regard to the matters set out in s 1(3) of the 1983 Act namely, the conduct of the parties towards each other and otherwise, their respective needs and financial resources, the needs of any children, and to all the circumstances of the case, and make such order, having regard to those matters, as he thought just and reasonable. But the Judge must include in the balance of the exercise of his discretion the Draconian nature of an exclusion order and the effect it would have upon the party against whom it was made. It must not be forgotten that an exclusion order was a very serious order which should only be made in cases of real necessity. See Summers v Summers [1986] 1 FLR 343 and Burke v Burke (1986) 151 JP 404. Further, although the Judge had duly considered the matters set out in s 1(3) of the 1983 Act, he could not properly make an exclusion order merely because the case of one party was in his view on those matters stronger than the case of the other. It could only be just and reasonable to make an exclusion order if the case of the party claiming the order was not only stronger on those matters than the other party's case but was such as to justify making an order that a person be excluded from his or her home.
(3) On the Judge's findings this was a borderline case upon which to make an order excluding the father from his home. If the task of the court was to decide who, in fairness, between the man who was going out to work and the woman who had the care of the child, should have the flat to live in then, as a matter of housing policy, the decision of the Judge might well be right. But the court had no power to decide the case simply on that basis. The fact that the parties did not get on and that there would be tension if they lived under the same roof did not necessarily justify the making of an exclusion order. The evidence that the development of the child was being retarded was unsatisfactory and there appeared to have been no investigation at the hearing as to whether, if the parties continued to share the flat, the tension between them would affect the child. Although each party wanted the other to leave the flat and the father agreed that it would not work if they lived together, it did not follow that if the father returned it would not be reasonably possible for the mother to stay. It was essential that the Judge, having considered the conduct of the parties, their respective needs and financial resources and the needs of the child; and having concluded as he did that the need of the mother and the child for the flat was greater than the need of the father; go on to consider whether in all the circumstances the mother had proved that it was just and reasonable to make an exclusion order. To order a man who had done no wrong out of his house was drastic and when it was done there should be an expression of the reasons why it was necessary to take that step. On the facts of this case, it was hard to know how the order could be justified. It was not possible to say, however, that the mother had not made out a prima facie case. Therefore there would be an order for a new trial before another Judge.
NoteAs to applications for exclusion orders, see also Lee v Lee [1984] FLR 243.
AppealAppeal from His Honour Judge Goldstone sitting at Barnet county court.
Lord Meston for the father.
J Edward Cross for the mother.
LORD JUSTICE MUSTILL.I will ask Ralph Gibson, LJ to give the first judgment.
[1988] FCR 242 at 244
LORD JUSTICE RALPH GIBSON.This appeal raises questions with reference to the exercise of the discretion which the county court Judge is required to exercise under s 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 upon an application for an ouster order.
The appellant is Sean Joseph Wiseman. The respondent is Debbie Ann Simpson. They are both aged 21 years. They are the parents of a boy, now aged one year eight months. They are unmarried. They had known each other for some four years when the child was born in January 1986. For a time they lived together at the home of the respondent's mother. In April 1986 they were granted a joint tenancy of a two-bedroomed flat by the local council. The appellant was and is employed as a postman. The respondent has not worked since having the child.
This litigation arose out of the respondent's act in excluding the appellant from their home. When the appellant was at work on 4 June 1987 the respondent had the door of the flat removed and a new door with a different key fitted. The relationship between the parties had for some time been unhappy, as will be described, but the appellant was given no notice by the respondent of what she intended to do. The respondent had consulted solicitors and on 28 May 1987 they had written to the appellant saying that the parties were no longer living together as husband and wife and complaining that the appellant had "not made any effort to maintain" his son. They asked for proposals for maintenance. There was no suggestion that the respondent was in need of protection or had any anxiety about remaining in the flat with the child while the appellant also lived there.
On 4 June 1987 when the appellant returned home from work in the afternoon he was refused entry by the respondent who told him that she was "taking over the flat from now on".
On 8 June 1987 the appellant applied to the county court under the Domestic Violence and Matrimonial Proceedings Act 1976 ("the 1976 Act") asking for orders restraining the respondent from assaulting, molesting or threatening or otherwise interfering with the appellant and requiring the respondent to permit the appellant to return to the home. The appellant's affidavit in support was lodged with the application.
On 18 June 1987 the respondent gave notice of her cross-application: she also asked for an order restraining the appellant from molesting, assaulting or otherwise interfering with her and that the appellant be excluded from the home.
His Honour Judge Goldstone heard the case and gave judgment on 22 June 1987. Both parties were represented by counsel. After amendment of the proceedings the order of the Judge included the grant of custody of the child to the respondent with provision for access for the appellant. Nothing arises in this appeal with reference to that part of the order.
The Judge made no order with reference to molestation, assaults etc in favour of either party but he granted an injunction restraining the appellant from returning to his home save for the purposes of access to the child and for collection of his personal possessions.
It is to be noted at once that the Judge found that the appellant "is not a bad man and is not violent. Two very young people have simply ceased to be in love with each other." The Judge held that he must apply s 1(3) of the Matrimonial Homes Act...
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Blackstock v Blackstock
...made our task more difficult. Where the spouse remaining in the house was not to blame, Ralph Gibson, LJ said in Wiseman v Simpson[1988] 1 FCR 242 at p 255C: "... to order a man who has done no wrong out of his home is without question That was a decision on very different facts and where t......