PF v CF

An occupation order under Family Law Act 1996, section 33(7), does not require proof of physical violence. Significant harm may include mental ill-treatment and impairment of mental health arising from controlling or intimidating behaviour. Where the statutory conditions are met, the order is mandatory, subject to the comparative-harm exception. The court must nevertheless impose the least interventionist order sufficient to protect the applicant. The duration of an occupation order is a matter of judicial discretion. A non-molestation order may remain appropriate after the parties cease living together where the evidence establishes continuing intimidation or harassment. Any injunction must reflect the findings actually made. An appellate court may amend an order to remove unsupported terms and substitute terms supported by the findings.

The appellant sought permission to appeal against orders made by Her Honour Judge Murfitt on the respondent’s applications under the Family Law Act 1996. The judge had made an occupation order excluding the husband from the matrimonial home until conclusion of the financial remedy proceedings, and a non-molestation order lasting six months.

The first-instance judge accepted the wife’s evidence of longstanding controlling, intimidating and provocative behaviour. She found that the wife was likely to suffer significant harm if an occupation order was not made, and that the husband’s likely harm from exclusion would be less. The central issues were whether the statutory threshold had been met, whether exclusion was necessary, how long the order could last, and whether the terms of the non-molestation order were supported by the findings.

1. Occupation order. Permission to appeal against the occupation order was refused. The judge was entitled to find that the wife had suffered, and was likely to suffer, significant harm within section 33(7) of the Family Law Act 1996. “Harm” includes mental ill-treatment and impairment of mental health under section 63(1). Proof of the use or threat of physical violence is unnecessary.
2. Once the conditions in section 33(7) are satisfied, the court must make an order unless the respondent’s likely harm from the order is at least as great as the applicant’s likely harm if no order is made. The judge’s comparative assessment was open to her on the evidence.
3. The court must impose the least interventionist order necessary to protect the applicant. Regulation of occupation may be sufficient in a large property, but exclusion is permissible where regulation would not adequately protect the applicant. The judge was entitled to conclude that the husband would not honour a division of the home.
4. Section 33(10) gives the court discretion to specify the duration of an occupation order, including until a specified event or further order. It was permissible to continue the order until conclusion of the financial remedy proceedings.
5. A non-molestation order remained justified by evidence that the husband continued to drive past and loiter near the property. However, the sealed order forbidding the use or threat of violence was unsupported by any finding of violence or threat. Permission to appeal on that point was granted, and the appeal was allowed in part. The unsupported term was deleted and replaced by an injunction prohibiting intimidation, harassment or pestering, which was supported by the findings and had been proposed in the parties’ draft orders.
6. The court declined to discharge the injunction merely because reconciliation was asserted in an email. Any application for discharge should be made in the family court with appropriate evidence. Costs were adjourned for two months, after which there would be no order as to costs unless restored.

High Court (Family Division): Permission to appeal against the occupation order was refused. Permission was granted in relation to the non-molestation order, and that appeal was allowed in part. The order was amended by deleting the prohibition on using or threatening violence and substituting a prohibition on intimidating, harassing or pestering.