Grubb v Grubb

An occupation order under s.33(6) of the Family Law Act 1996 is an independent statutory route; significant harm under s.33(7) need not be shown. The discretion should not be confined by rigid assumptions that an order is only a last resort or is invalid if vacation is not immediate. Seriousness is assessed in context, including the need for separation, alternative accommodation, the parties’ resources and likely duration. Eviction may be justified where immediate separation is necessary, the other spouse lacks a workable alternative, and the displaced spouse has accommodation or resources. Imprecise language in the lower court’s judgment does not invalidate an order if the substance of the statutory enquiry was properly addressed.

The husband sought permission to appeal against an occupation order requiring him to leave the matrimonial home and a related non-molestation order made by Her Honour Judge Hughes QC on 31 July 2009. The orders arose from the wife’s applications under the Family Law Act 1996, heard together with the wife’s defended divorce petition under the Matrimonial Causes Act 1973.

At the outset, the husband withdrew his proposed appeal against the decree nisi and agreed to pay the wife’s costs of that proposed appeal. The remaining application concerned whether the occupation order was premature, pragmatic rather than statutory, insufficiently urgent and disproportionate in duration, and whether the injunction against intimidation, harassment or pestering should have been replaced by an undertaking.

1. Permission refused. Wilson LJ concluded that the proposed appeal against the occupation order had no real prospect of success. The husband’s challenge to the second paragraph of the non-molestation order also fell away because there was insufficient evidence that the alleged undertaking had been offered to the judge. The wife undertook to apply under the slip rule for deletion of the first paragraph, which referred to violence despite the absence of an adequate factual basis.
2. Section 33(6) of the Family Law Act 1996 provides an alternative route to the significant-harm route in s.33(7). Parliament therefore did not require proof of likely significant harm before an order could be made under s.33(6). The court should not confine the width of that discretion within a rigid rule inconsistent with the statutory language.
3. An occupation order remains a serious remedy, but its seriousness is assessed in context. Immediate separation was necessary on the evidence. The wife had a large family to accommodate and no sufficiently defined immediate proposal for alternative accommodation. By contrast, the husband had access to Garden Gate and substantial resources with which to obtain comfortable accommodation. Evicting him was therefore the only effective means of achieving immediate separation. The order also contemplated that the wife would leave Mayes House once reasonable alternative arrangements had been made, so the duration of the husband’s absence was substantially within his own control.
4. The lower judge’s language sometimes suggested a pragmatic rearrangement or an incorrect link between the occupation order and the decree nisi. That language was open to criticism, but the appellate court would examine the substance of the decision and ask whether the order was legally justified under s.33(6). On the substance, it was.
5. The authorities relied on by the husband did not impose a rigid limitation. Wiseman v Simpson was consistent with the principle that seriousness depends on context. Re Y (children) (occupation order), G v G (Occupation Order: Conduct) and Burke v Burke were distinguishable on their facts and circumstances.

• Court of Appeal (Civil Division): On 25 September 2009, Wilson LJ refused permission to appeal against the occupation and non-molestation orders. The husband’s proposed appeal against the decree nisi had been withdrawn, with costs ordered by consent.
• Principal Registry of the Family Division: On 31 July 2009, Her Honour Judge Hughes QC made the occupation order, requiring the husband to vacate the matrimonial home, and made separate non-molestation and divorce orders.