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Case Study Family Law Act Injunctions Statutory Materials : Family Law Act 1996 ss 33,40,42,45,46, and 47 Cases:

Chalmers v- Johns [1999] 1 FLR 392, Chechi v- Bashier [1999] 2 FLR 489, Re B-J [2000] 2 FLR 443, Nwogbe v- Nwogbe [2000] 2 FLR 744, 1. It is Friday lunchtime. When you rise the Court staff inform you that an ex parte is on its way and you agree to take it at 2 p.m. before your afternoon half day fast track trial. 2. The papers arrive at 1.45 p.m. The application is for orders under FLA sections 33 and sections 42 and 45. There is no draft of the order. From the applicants statement you learn that the Applicant Mrs James has fled from the matrimonial home on Thursday morning. The parties have been married for fifteen years. There are no children. She claims Mr James has an alcohol problem and he has been making her He has become convinced that she is having an life a misery for the last six months.

affair with a colleague at work, which is completely untrue, and has attended four times in the last month at her place of work and caused a scene there, being abusive and threatening both to her and the colleague. cannot be allowed to continue indefinitely. 3. At home the atmosphere has become very tense and there have been a number of arguments which have involved threats and minor scuffles, usually when Mr James has been the worse for drink. The parties are now sleeping in separate bedrooms. In the early Matters came to a head in the early hours of Thursday morning. Mrs James had gone to bed on Wednesday evening leaving her husband downstairs drinking. hours she had been woken by a noise and had discovered her husband standing over her with a heavy kitchen knife in his hand. He had screamed out at her Im going to kill you, you bitch. He was obviously drunk and she had managed to disarm him after a As short struggle and persuaded him to go to bed. She had been too frightened to return to her own bed and had spent the rest of the night dozing in a chair downstairs. she left for work Mr James had threatened her again telling her not to bother to return and that she would be better off seeking consolation from her fancy man. Being too frightened to return home she had slept the night in her car. Her employers are sympathetic, but she has been called in to see her line manager who has made it clear that the situation

4. All her income is tied up in paying her share of the mortgage and other outgoings on the matrimonial home and she cannot afford to rent accommodation let alone stay in a hotel. Mr James has a close friend who lives only a mile away on his own in a two bedroom flat. Mr James and the friend went away on a weeks fishing holiday together three months ago and she says that he could easily go and stay at that address. 5. She wants an immediate occupation order and non molestation order with a power of arrest attached to both orders. Q.1. What orders, if any, would you make on the without notice hearing ? Q.2. Assuming you do make an order in the first hearing, what other provisions will it contain ? 6. A few days later both parties appear before you. You have a full days list. Mr

James is unrepresented. He has not lodged any witness statement but tells you that he wishes to contest the application and make a cross application of his own. He has an appointment to see his solicitor the next day and has been told to ask for an adjournment in order to obtain proper legal advice and representation which is opposed. Mrs James solicitor tells you that she is too frightened to live in the house Her position is desperate. Mr James tells unless her husband is ordered to leave.

you that he has not spoken to his friend about going to stay with him for a short time. He says the idea is preposterous. Having spoken to his solicitor on the phone he is prepared to offer a non molestation undertaking if Mrs James gives a similar undertaking. Mrs James through her solicitor says she has no problem with that provided Mr James is excluded from the home. Q.3. Assuming that you have refused an occupation order at the first hearing do you grant the adjournment? Q.4. Assuming you do grant the adjournment do you make an interim occupation order and if so on what terms ? Q.5. Do you accept undertakings ?

Notes for syndicate leaders. Apart from the FLA aspects this exercise is being set also as a test of judicial gender neutrality. Exactly the same exercise is being set to other syndicates with the roles of husband and wife reversed. The exercise should allow for a wide ranging discussion but please try to include the bullet points specified. At certain points in the discussion you will need to stop and take a vote from each of your syndicate group members. Please record carefully on the form enclosed the number of judges who made the various orders and hand in the form to the JSB Office: First hearing 1. A full ouster order 2. A partial ouster order e.g. not to enter the applicants bedroom. 3. A power of arrest to the section 33 order 4. A non molestation order 5. A power of arrest to the section 42 order 4. No order under either sections. 33 or 42 Second Hearing 5. A full or partial ouster order 6. A partial ouster order 7. A power of arrest attached to the section 33 order 8. A non molestation order 9. A power of arrest attached to the section 42 order 10. No order under sections 33 or 42 Notes for guidance Q.1. This factual scenario has deliberately been set for a number of purposes: To point up difficulties which can arise under the FLA where one party alleges that he or she has been driven from the matrimonial home and has nowhere else to go. To sit on the edge of conduct which might justify an immediate without notice order. Some judges might consider

On the section 33 application there is no right answer.

that the Applicant will be adequately protected by a prohibition on the Respondent entering the Applicants bedroom, or simply by a non molestation order with a power of arrest. Others might say that if the Respondent is the worse for drink there is more

likely to be a breach of the order, there is a threat of serious violence and leaving the parties under the same roof does not provide sufficient protection for the Applicant. The Respondent has somewhere to go for a few days so the balance is in favour of a short immediate ouster with a return date as soon as practicable. Remind your syndicate that if the return date is less than two clear days you will need to make an order abridging the time for service, otherwise the return date will not a proper on-notice hearing. On the section 42 application there is a clear threat of serious violence and clear evidence of harrassment so the Applicant is entitled to a non molestation order (a) prohibiting the use or threat of violence with a p.o.a. and (b) a separate clause prohibiting the harassment by attending at the Applicants place of work with p.o.a. Stress the point about not putting p.o.a.s on general non molestation orders in order to avoid HRA Article 5 problems. Q.2. The case obviously requires a swift return date. How swift will depend on the order made. A full ouster clearly requires a very short return date 2/3 days. No ouster at all also requires a very short return date 2/3 days abridging time for service if necessary. A partial ouster might benefit from a slightly longer return date say 7/10 days to allow the Respondent time to prepare properly for the hearing and avoid an abortive hearing on the first inter partes hearing. There will always be a tension between a swift return date and the need to allow parties adequate time to prepare for what may be a rather more complicated case that appears from the initial papers. Qs.3. and 4 There should be no difficulty about granting the adjournment. The Respondent clearly needs time to prepare but the question is now more difficult in that you are dealing with an application which has been properly served, where one party is asking for urgent relief and the other party wishes to contest the facts. It is suggested that the proper approach is to make clear to the Respondent that the case has not yet finally been

judged, that a final decision will not be made until the judge has heard both sides, but until the next hearing the Applicant is entitled to some protection. With both parties in front of you it may well be appropriate to make an interim order at least giving the applicant a zone of safety in the house. To avoid the appearance of prejudging the case it might be sensible to give each party a zone of safety within the house, particularly if you do not make a temporary full ouster order. Section 40 orders are legally possible but cannot be enforced . Full timers may be asked to share their experience whether they are in fact being requested to make these orders in the light of Nwogbe . There is a wide divergence of judicial opinion on the merits of partial ousters. Impose a time table for the service of witness statements so that the next hearing will be effective, allowing the Applicant the chance to reply by statement if so advised. Q.5. This kind of polite blackmail is by no means uncommon. Some gentle banging together of heads is certainly to be encouraged but if parties are not prepared to compromise, you can and should make an interim non-molestation order in favour of the Applicant to last until the final hearing. On the facts you can hardly refuse this application. .Stress that undertakings can never be imposed against a partys will.and powers of arrest cannot be attached.