Dolan v Corby

Under section 33 of the Family Law Act 1996, the court must first consider the significant-harm and comparative-harm provisions in section 33(7). If that provision does not determine the application, the court has a broad discretion under section 33(6) and must weigh all relevant circumstances.

An order excluding a joint occupier from the home is grave and requires exceptional circumstances. Exceptional circumstances are not confined to actual or threatened violence. The court must assess housing, resources, health, safety, well-being and conduct. It must not treat the decision as an award of occupation to the party whose behaviour is less blameworthy.

The parties were long-standing cohabitants and joint tenants of a Bingley property. Following an application by Ms Dolan, the Keighley County Court made an occupation order under section 33 of the Family Law Act 1996. It excluded Mr Corby from the property for six months and prohibited him from entering or approaching it.

The parties resolved the related non-molestation and committal issues by cross-undertakings. The Recorder therefore determined only occupation of the property. Mr Corby appealed, principally contending that the Recorder had misapplied the statutory framework and that the exclusion order was outside the proper scope of discretion.

1. Appeal dismissed. Although the Recorder wrongly conflated sections 33(6) and 33(7) of the Family Law Act 1996, the error did not invalidate the occupation order.

2. Section 33(7) had to be considered first. It could not be satisfied unless Ms Dolan was likely to suffer significant harm, attributable to Mr Corby’s conduct, if no order were made. The Recorder’s finding that her psychiatric difficulties would be alleviated by living apart from him did not amount to such a finding. The statutory balance-of-harm exercise under section 33(7) therefore did not arise.

3. The Recorder’s reasoning could nevertheless properly be treated as an exercise of the broad discretion under section 33(6). He had considered the statutory factors, including both parties’ housing and financial circumstances, Mr Corby’s conduct, and, centrally, Ms Dolan’s vulnerability and psychiatric condition.

4. An exclusion order is grave or draconian and is justified only exceptionally. However, neither actual violence nor a threat of violence is a necessary condition. Exceptional circumstances can arise in different ways. The judge must identify and weigh all material features rather than impose an additional violence requirement.

5. The decision was not a reward for the party whose conduct was less inappropriate. The Recorder was entitled to find that the parties could not live together and that Mr Corby was better able to obtain alternative accommodation without serious harm. Ms Dolan’s previous ability to obtain another tenancy was relevant but not decisive, because it was no longer available and her greater vulnerability carried substantial weight.

• Court of Appeal (Civil Division): dismissed Mr Corby’s appeal and upheld the occupation order: [2011] EWCA Civ 1664.
• Keighley County Court (Mr Recorder Bradshaw): on 10 June 2011 made an occupation order under section 33 of the Family Law Act 1996, excluding Mr Corby from the jointly occupied property for six months.