G v G

For an occupation order under section 33 of the Family Law Act 1996, significant harm must be attributable to the respondent’s conduct. The court focuses on the effect of that conduct, rather than the respondent’s intention. Lack of intent may be relevant, but it does not remove conduct from consideration.

Where the mandatory condition in section 33(7) is not established, the court must still consider the discretionary power in section 33(6), having regard to the statutory checklist. An occupation order is a draconian remedy, particularly where exclusion is sought, and may properly be refused where an imminent substantive hearing and suitable directions regulating shared occupation make immediate exclusion inappropriate.

The wife appealed from the refusal by His Honour Judge Milligan, sitting in Southampton County Court, of her application for a non-molestation order and an occupation order under section 33 of the Family Law Act 1996. The judge found that significant harm was likely to accrue to the wife and children, and that the wife’s allegations of misconduct were true. He nevertheless concluded that the harm was not attributable to the husband’s conduct to the required degree and declined to make an occupation order.

The wife argued that the judge had wrongly treated intention as relevant to attribution, misapplied the comparative harm test in section 33(7), and failed to apply the checklist in section 33(6). The central issue was whether the errors required the refusal to be set aside and the application reheard.

1. Appeal dismissed. Although the judge’s reasoning was open to substantial criticism, his refusal to make an occupation order was, in the circumstances, plainly tenable.
2. Under section 33(7) of the Family Law Act 1996, the relevant question is whether the significant harm is attributable to the respondent’s conduct. The court must concentrate on the effect of conduct, not the intention behind it. Intentional misconduct is not required. Unintentional conduct may still cause harm for which protection is available.
3. The judge had misapplied the comparative harm test in section 33(7). The comparison is between the harm likely to be suffered if the order is not made and the harm likely to be suffered if it is made, not between different forms of harm to the same party.
4. Even where the mandatory condition in section 33(7) is not established, the court must proceed to the discretionary assessment under section 33(6), including the housing, financial, health, safety, well-being and conduct considerations in the statutory checklist. The judge did not expressly address the checklist, although he considered the circumstances broadly.
5. The Court of Appeal nevertheless upheld the outcome. Orders excluding a spouse from the home are draconian and ordinarily arise only in exceptional cases. Here there was no violence, the substantive residence and ancillary-relief hearings were imminent, the husband was frequently away on business, the children wished their father to remain, and the judge had regulated continued occupation by directions concerning the principal bedroom, communications, consultation and business absences.
6. It would have been open to the judge to make a regulatory order under section 33(3)(c), even if section 33(7) did not apply. Permission to appeal should generally be refused where an imminent final hearing makes an appeal likely to delay resolution.

• Court of Appeal (Civil Division): Appeal from the refusal by His Honour Judge Milligan in Southampton County Court of an occupation order under section 33 of the Family Law Act 1996. Appeal dismissed.