England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		2nd December 2016

MR JUSTICE BAKER :

1. This is an application by Mr F for permission to appeal against a judgment and order of Her Honour Judge Murfitt dated 22 September 2016 under which, on an application by his wife, Mrs F, the judge made a non-molestation order against the husband and an occupation order in respect of the parties' matrimonial home. The appellant filed a notice of appeal on 11 October 2016, and, on 13^th October, I listed the matter for a hearing of the application for permission to appeal, with appeal to follow if permission was granted. The hearing at which both parties were represented by counsel took place before me on 27^th October. At the conclusion of the hearing, I reserved judgment.

Summary of background

2. The wife is in her late 70s, the husband is aged 67. The parties were married in 1987 but prior to that lived together for twenty years. There are two children of the marriage, B, aged 41, and D, age 38. The wife has an older son by a previous marriage.
3. The parties are comfortably off with assets valued at several million pounds. The matrimonial home is a substantial property in Essex with 7 bedrooms, held in the husband's sole name. The parties' wealth was largely derived from the husband's business activities, through which he has acquired a number of other properties, all in his sole name.
4. The wife's case before Judge Murfitt was that the husband had ill treated her on many occasions during the marriage, including occasions when he had been physically abusive towards her. She also alleged that he had been unfaithful and latterly disinhibited in his behaviour. The wife described the husband as an extremely difficult man of whom she was genuinely frightened. She said that for the duration of the marriage she had been the emotional punch bag for his insecurities and frustrations. She alleged that she has been completely dependent on him financially, in particular on cash provided by him. The husband denied that he has ever ill-treated her and contended that it is she who has behaved in an intimidating fashion towards him. He denied her assertion that she has been unhappy for many years, pointing out that they frequently went on holiday together until shortly before the breakdown of the marriage.
5. In January 2016, the husband developed a serious illness and was admitted to hospital for over three months. During this period, the wife concluded the marriage had broken down, and sought legal advice. She continued to visit him in hospital on a daily basis, but stopped doing so after 24^th March when, it is alleged, he was abusive to their son B. At that point, the wife changed the locks on the matrimonial home and subsequently changed the code to the electric gates to the property. On 21^st April, the wife arranged for B to deliver a letter from her solicitor to the husband in hospital, informing him of her intention to seek a divorce.
6. On 1^st May, as the judge found, the husband and D visited the property, and began banging on doors and windows with a stick and shouting at the wife. She remained locked inside the house for two hours until the police arrived. On 18^th May, the husband and D returned the property with a number of other men and managed to drive into the property and retrieve the husband's Rolls-Royce from the garage.
7. On 19^th May, the husband's solicitor wrote stating:

"I have been instructed to ask again that your client vacates the former matrimonial home and moves to another property so that Mr F may return to live in the former matrimonial home where he has lived for the last 31 years. In the current circumstances, we regard this as more than reasonable and would imagine that a court would agree with us. Mr F needs a carer and this cannot be arranged until he has his proper accommodation. All his clothes and all the items he needs and is

familiar with are in the family home."

8. A few days later, an incident occurred at the property described by the judge as a "fracas" involving the parties' two sons, each of whom was taking opposite sides in the dispute, D supporting the husband, B the wife. Thereafter, according to the wife, the husband and D attended the property on a number of occasions each day and sat outside in a manner which she described as intimidating. It was the husband's case, however, that he had suffered continual harassment and surveillance from the wife, B, and the wife's older son. He asserted that his health problems had left him extremely frail and vulnerable.
9. On 1^st June, the wife filed an application for a non-molestation order and an occupation order. On 3^rd June, she filed a petition for divorce under section 1(2)(b) of the Matrimonial Causes Act 1973, seeking the full range of financial relief orders. On 6 June, the husband filed a cross-application for non-molestation and occupation orders. On 12^th June, the district judge directed that both applications be listed together on the 21^st June. On that date, the matter was adjourned, with directions, for a final hearing on 28^th July. On 1^st July, the wife filed a second application, seeking an early hearing of her application, which was listed before a district judge on 4^th July who, whilst making no findings of fact, ordered the husband not enter or loiter in the vicinity of the matrimonial home pending the final hearing.
10. That hearing took place before Judge Murfitt on 4^th August. At the outset of the hearing, the husband indicated that he did not wish to pursue his application for an occupation order against the wife, contending that the property was sufficiently large to accommodate both of them. After hearing evidence and submissions, judgment was reserved. A draft judgment was circulated to counsel on 5^th September and a final order made on 22^nd September. Under the occupation order, the judge declared that the wife was entitled to occupy the matrimonial home and had matrimonial home rights in the property which would not end when the husband died or the marriage was dissolved. The judge further ordered that the husband should allow the wife to occupy the matrimonial home, should not loiter in the vicinity of the property, nor obstruct harass or interfere with her peaceful occupation of it, and having left should not return, enter or attempt to enter the property. The occupation order is expressed as lasting until the conclusion of the financial remedy proceedings pendingbetween the parties. The judge further made a non-molestation order under which the husband "is forbidden to use or threaten violence against the wife and must not instruct, encourage or in any way suggest that any other person should do so." The non-molestation order further repeats the injunction against loitering in the vicinity of the property set out in the occupation order. The non-molestation order was expressed as lasting until 4^th February 17, i.e. 6 months after the hearing on 4 August. It also provided that the husband should pay the cost of the proceedings.
11. In her judgment, Judge Murfitt recorded that the wife alleged that the husband had physically hit heron numerous occasions over the years, although she was not specific as to dates or details. She had sought legal advice to start divorce proceedings in 2007 but was too frightened to see it through. In 2011, the police had been called following an incident at the home and the husband had accepted a caution in respect of an offence relating to domestic violence. There was no allegation of violence after that date. But the wife alleged that she had been unhappy in her marriage for a long time and asserted that she was genuinely frightened of her husband because of his excessive drinking and volatile intimidating and provocative behaviour. The husband denied ever being abusive towards the wife in any way. In his statement, he asserted that it was the wife who was intimidating towards him, although in oral evidence he denied ever saying that. He challenged the wife's claim that she had been unhappy in the marriage as she claimed, pointing to the fact they enjoyed many holidays together until very recently.
12. The judge accepted the evidence of the wife and described aspects of the husband's evidence as not credible nor honest. At paragraph 24, she said:

"the impression I formed of Mr F's credibility was as poor as my impression of Mrs F's was good. When their evidence diverged, in general I preferred that of Mrs F. I found her to be a straightforward witness, not given to lengthy or over-elaborate descriptions of her married life, but someone who nevertheless conveyed that she has reached the end of a road she has trodden unhappily for many years, and who no longer feels strong enough to manage it…."

She accepted that the husband had been controlling and concluded that she did not consider it likely that he would honour a division of the living space within the home. She further found (at paragraph 28) that the wife was likely to suffer significant harm attributable to the husband's conduct if an order suspending or restricting his right of occupation was not made, and that the behaviour which the judge accepted the wife has had to endure hitherto would simply continue. She found that the husband's insight into the impact of his behaviour upon the wife was extremely limited and that the wife has been made to feel vulnerable, anxious and intimidated, such that her sleep and concentration was affected. The judge found that the significance of the emotional harm the wife was likely to suffer may well exceed the physical, but was no less acute in the light of her age. The judge therefore concluded that the making of the order sought by the wife was mandatory under the statute, unless the husband was able to demonstrate that he would suffer significant harm if such an order was made. Having analysed his evidence, the judge concluded that any harm which he would suffer would be less than that which the wife would suffer by reason of his conduct if an order was not made. On that basis, the judge held that the making of the occupation order was mandatory under the Act, but added that in her judgment such an order was not only mandatory but also just and reasonable. The judge then added that in all the circumstances, including the need to secure the wife's health, safety and well-being under the Act, she was satisfied that a non-molestation order should also be granted.

13. The husband subsequently applied for permission to appeal. The judge refused permission, giving written reasons for her decision. I shall refer to a number of those reasons below.

The Law

14. The relevant provisions of the Family Law Act 1996 are as follows. S. 33, in so far as relevant to this case, provides as follows.

"(1) If

(a) a person ("the person entitled") –

(i) is entitled to occupy a dwelling house by virtue of a beneficial estate or interest or contract or by virtue of any enactment giving him the right to remain occupation, or

(ii) has home rights in relation to a dwelling-house, and

(b) the dwelling-house

(i) is or at any time has been the home of the person entitled and of another person with whom he is associated, or

(ii) was at any time intended by the person entitled and any such other person to be their home,

the person entitled may apply to the court for an order containing any of the provisions specified in (3), (4) and (5).

….

(3) An order under this section may

(a) enforce the applicant's entitlement to remain in occupation as against the other person ("the respondent");

(b) require the respondent to permit the applicant to enter and remain in the dwelling-house or part of the dwelling-house;

(c) regulate the occupation of the dwelling-house by either or both parties;

(d) if the respondent is entitled as mentioned in subsection (1) (a) (i), prohibit, suspend or restrict the exercise by him of his right to occupy the dwelling-house;

(e) if the respondent has home rights in relation to the dwelling-house and the applicant is the other spouse or civil partner, restrict or terminate those rights;

(f) require the respondent to leave the dwelling-house or part of the dwelling-house, or

(g) exclude the respondent from a defined area in which the dwelling-house is included.

....

(6) In deciding whether to exercise its powers under subsection (3) and (if so) in what manner, the court shall have regard to all the circumstances including

(a) the housing needs and housing resources of each of the parties and of any relevant child;

(b) the financial resources of each of the parties;

(c) the likely effect of any order, or any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child; and

(d) the conduct of the parties in relation to each other and otherwise.

(7) If it appears to the court that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order under this section containing one or more of the provisions mentioned in subsection (3) is not made, the court shall make the order unless it appears to the court that

(a) the respondent or any relevant child is likely to suffer significant harm if the order is made; and

(b) the harm likely to be suffered by the respondent or child in that event is as great as, or greater than, the harm attributable to conduct of the respondent which is likely to be suffered by the applicant or child if the order is not made."

…

(10) An order under this section may, in so far as it has continuing effect, be made for a specified period, until the occurrence of a specified event or until further order."

S.42, in so far as relevant to this case, provides as follows.

" (1) In this Part a "non-molestation order" means an order containing either or both of the following provisions:

(a) provision prohibiting a person ("the respondent") from molesting another person who is associated with the respondent;

(b) provision prohibiting the respondent from molesting a relevant child.

….

(5) In deciding whether to exercise its powers under this section and, if so, in what manner, the court shall have regard to all the circumstances including the need to secure the health, safety and well-being

(a) of the applicant; and

(b) of any relevant child.

(6) A non-molestation order may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both."

S.47(2) provides:

"(2) If

(a) the court makes an occupation order; and

(b) it appears to the court that the respondent has used or threatened violence against the applicant or a relevant child,

it shall attach a power of arrest to one or more provisions of the order unless the court is satisfied that in all the circumstances of the case the applicant or child will be adequately protected without such a power of arrest."

Finally, s.63(1) provides inter-alia that "harm" means ill-treatment or the impairment of health, and "health" includes physical or mental health.A non-molestation

15. Those are the relevant statutory provisions which Judge Murfitt had to apply. So far as this court is concerned, an appeal will be allowed where the decision of the lower court was wrong, or unjust because of a serious procedural or other irregularity in the proceedings in the lower court: Family Procedure Rules 2010 ("FPR") rule 30.12(3). Where, as in this case, permission to appeal is required, it may only be given where (a) the court considers that the appeal would have a real prospect of success, or (b) there is some other compelling reason why the appeal should be heard: FPR rule 30.3(7).

Occupation order - submissions

16. The occupation order was made by the judge under s.33(7). She held that the wife was likely to suffer significant harm if the order was not made and that the harm that she would suffer was greater than any harm which the husband was likely to suffer. She made an order under s.33(3)(f), requiring the husband to vacate the property altogether.
17. On the half of the husband, Mr Johnstone makes the following submissions. First, he contends that the judge was plainly wrong to make an order under s.33(7). He submits that no finding of significant harm was made and there was no evidential basis to justify such a finding. The wife did not allege that she had been physically assaulted by the husband for over 5 years. There was no finding of recent infliction of violence, nor of any threat of violence. Had it appeared to the judge that the husband had used or threatened violence, she would have been bound to add a power of arrest under s.47(2) (supra). As she decided not to attach a power of arrest, it must be concluded that it did not appear to her that there had been any use or threat of violence. Mr Johnstone accepts that, conceptually, it is possible for a court to conclude that there is a likelihood of significant harm which does not involve physical violence, but he submits that there was no evidence here to justify such a finding. The wife made assertions as to her state of mind, but Mr Johnstone points out that no medical evidence was adduced about this aspect. A finding of a likelihood of significant emotional harm was inconsistent with the fact that the wife had accompanied the husband on holiday on many occasions in the preceding 12 months and had visited the husband daily in hospital for over 10 weeks after his admission.
18. Before the judge at first instance, and in this court, Mr Johnstone cited the decision of the Court of Appeal in Chalmers v Johns [1999] 1 FLR 392 to illustrate the high evidential threshold required to make an occupation order. In that case, Otton LJ, citing an earlier case decided under the previous legislation, defined "significant" as "considerable or noteworthy or important". In the same case, Thorpe LJ observed:

"The gravity of an order requiring a respondent to vacate a family home, an order overriding proprietary rights, was recognised in cases under the Domestic Violence and Matrimonial Proceedings Act 1976 and a string of authorities in this court emphasise the Draconian nature of such an order, and that it should be restricted to exceptional cases. I do not myself think that the wider statutory provisions contained in the Family Law Act 1996 obliterate that authority. The order remains Draconian, particularly in the perception of the respondent. It remains an order that overrides proprietary rights and it seems to me that it is an order that is only justified in exceptional circumstances."

Thorpe LJ recognised that:

"there will be cases where the character of the violence or the risk of violence and the harm to the victim or the risk of harm to the victim is such that the Draconian order must be made, must be made immediately, and must be made at the earliest interlocutory stage."

He did not, however, consider that the circumstances of that case satisfied this requirement. It is Mr Johnstone's submission that the judge in this case ought to have reached the same conclusion.

19. In the course of submissions at first instance, Mr. Johnstone also cited the decision of the Court of Appeal in Wiseman v Simpson [1988]1FLR 490 in support of his submission that "Draconian" occupation orders should not be used as a stepping-stone to divorce There is no reference to either Chalmers v Johns or Wiseman v Simpson in the judgment in this case, but in the reasons subsequently given by the judge for refusing permission to appeal she stated that the court was not assisted by the authorities cited by either party in order to understand or interpret the meaning of "significant harm" which she described as a term engaged daily in the family court. She also pointed out that Wiseman v Simpson, is now some 28 years old and not only predates the 1996 legislation but is qualified by subsequent developments in the law, not least government guidance published in September 2012 expanding the definition of domestic violence and abuse. Mr Johnstone submits that the judge's analysis is erroneous and unclear and that her reasons for not following the Court of Appeal guidance have not been expressed in either the judgment or the reasons for refusing permission to appeal.
20. The judge's conclusion was substantially based on her assessment of the parties' evidence. Mr Johnstone submits that the judge was plainly wrong to prefer the evidence of the wife to that of the husband, given that the wife had made untruthful statements which she retracted in cross-examination – as to whether or not she had any money, and as to where she was hiding when the house was visited by the husband, D and others. In her written submissions for refusing permission to appeal, the judge expressly addressed these two statements, pointing out that the wife had immediately corrected her previous statements in cross- examination, adding that

"since neither of these inaccuracies had any significant bearing on the underlying substance of her case, they did not lead the court to conclude that her general veracity was in doubt. In contrast the inconsistencies in the husband's evidence were considered fundamental to the case he had initially commenced and that which he pursued, such as to cast considerable doubt on his credibility."

Nonetheless, Mr Johnstone contends that the judge's failure to address these inconsistencies in the mother's evidence adds further weight to his argument that that her assessment of credibility in this case was flawed.

21. In the alternative, if an order under s.33 was required, Mr Johnstone submits that the judge was wrong to make an order under s.33(3)(f). The court should always make the least interventionist order necessary to protect the applicant. He submits that, in this case, an order under s.33(3)(c) regulating the occupation of the property by dividing it between the parties would have been sufficient to protect the wife, given the fact that the property is a large 7-bedroom house, the husband is in poor health, and also have regard to the wife's own conduct in preventing the husband returning to the property by changing the locks and the code on the electric gates. Mr Johnstone submits that the judge failed to analyse this aspect, and in this respect relies again on dicta of Thorpe LJ in Chalmers v Johns (at p.397) that

"conventionally, the court has given careful consideration to the control of domestic disharmony by the imposition of injunctive orders before resorting to the Draconian order."

22. Mr Johnstone also submits that the judge was plainly wrong to reserve judgment for four weeks to consider whether the facts justified a s33(7) order. He contends that, if the facts justified such a conclusion, they would "jump off the pages" so as to enable an immediate extempore judgment, rather than require a lengthy consideration focusing on the difficulties of a failing 30-year marriage between parties of senior years.
23. Finally, Mr Johnstone submits that, if the judge was justified in making an occupation order, she was plainly wrong to decide that the duration of the occupation order should be until the conclusion of the financial remedy proceedings. Occupation orders are intended to be relatively short-term interim protection measures and are not intended to provide long-term housing or to create a "status quo" for the purposes of financial provision. The duration of financial remedy proceedings, which could last up to 2 years, is wholly unrelated to the need for an occupation order.

Occupation order – discussion and conclusion

24. Mr Johnstone is right to accept that the judge's decision was based substantially on her assessment of the parties' evidence. Judge Murfitt had ample opportunity to assess their credibility and her conclusion was clear - that her impression of the husband's credibility was as poor as her impression of the wife's was good. She relied in particular on the blatant contradiction in the husband's evidence between his assertion in his written statement that his wife had been intimidating and his flat denial in oral evidence that this was the case. The judge was plainly unimpressed by his attempt to explain this discrepancy. Mr Johnstone complains about the judge's failure to address two inconsistencies in the wife's evidence in her judgment, but as described above the judge addressed this point in her supplemental reasons refusing permission to appeal. In the circumstances, I do not consider that these can be regarded as a significant omission in her judgment. In my view, any challenge to the judge's assessment of the parties' credibility is hopeless.
25. In the circumstances, I conclude that the judge was entitled to accept the wife's assertion as to the husband's intimidating and provocative behaviour throughout the marriage. She accepted that wife "has reached the end of a road she has trodden unhappily for many years and … no longer feel strong enough to manage it". The judge found that there was evidence to support her allegation that the husband was controlling and intimidating. Although she did not expressly say so in her judgment, it is manifestly clear that she concluded that the harm which the wife had suffered as a result of the husband's intimidating and controlling behaviour, and was likely to suffer if the order was not made, was significant harm within the meaning of s.33(7). In my judgment, this was plainly a conclusion that she was entitled to reach. The concept of significant harm is one with which all family judges are very familiar. I see no merit in the complaint that the judge failed to refer to the two Court of Appeal authorities cited on behalf of the husband. Furthermore, the judge was in my view entirely right to draw attention, when setting out her reasons for refusing permission to appeal, to the changes in understanding and awareness of the nature and extent of domestic abuse that has occurred in the last fifteen years.
26. It is true that the judge made no findings of the use or threat of violence, but, as the judge rightly observed when refusing permission to appeal, the Act does not require violence to be proved to justify the making of an occupation order under s.33(7). As stated above, "harm" includes mental, as well as physical, ill-treatment. It was the wife's case that she had suffered harm as a result of enduring years of the husband's abusive behaviour. The judge was plainly entitled to find that the harm was significant, and therefore obliged to make an order under s.33(7), unless the harm which wife would suffer if the order was not made was exceeded by the harm caused to the husband if it was. The judge's balancing exercise on this issue was, in my view, unimpeachable.
27. Any order that interferes with rights to occupy property is serious and should only be made where the circumstances justify it. Furthermore, as Mr Johnstone submits, the court must impose the least interventionist order necessary to achieve the object of protecting the applicant, and it is only where an order regulating the occupancy of the property would be insufficient to protect the applicant that the court is entitled to make an order excluding the respondent from the property altogether. On one view, the larger the property, the greater the likelihood that the applicant would be sufficiently protected by regulating the occupancy and dividing the property between the parties. In this case, however, the judge found it unlikely that the husband would honour any division of the property. This conclusion was plainly within her discretion, and consistent with her overall assessment of the husband and his evidence. Given the fact that the husband owned a significant number of other properties, and was a man of some means, an order excluding him was one which the court was plainly entitled to make under s.33(3) and (7).
28. In refusing permission to appeal, the judge observed that, unusually for such hearings in the family court, the case had been listed for a full day's hearing of the oral evidence with lengthy written and oral submissions presented by counsel on both sides. She added that, in those circumstances, it was reasonable for the court to undertake a careful appraisal of all the documents before delivering a reserved judgment. I endorse the judge's comments. When a decision requires a careful assessment of the evidence and submissions, it is usually advisable to reserve judgment. I do not accept Mr Johnstone's suggestion that such an order should only be made in circumstances where the outcome "jumps off the page" in a way that enables the judge to deliver an ex tempore judgment. Judges are expected to take care when reaching these difficult decisions, which have to be made alongside all the other demands of sitting in a busy family court.
29. Although it may be the case that occupation orders are normally made for a period measured in months, s.33(10) provides, as stated above, that the order may be made until the occurrence of a specified event or until further order. In other words, as Mr Kefford submits on behalf of the wife, the court has a complete discretion to determine the appropriate duration of an order, having regard to the facts of a particular case and the findings made. In this case, given the court's findings as to the husband's behaviour and the overall evidence as to the parties' means, I consider it entirely reasonable for the judge to conclude that the order should continue until the conclusion of the financial remedy proceedings.
30. I find that the judge's decision to make an occupation order in this case was manifestly within her discretion. She based her decision on an assessment of the parties' evidence and the degree of harm which the wife had suffered at the hands of the husband. She identified and applied the law to those facts as found by her. In my view, there is no prospect of the husband succeeding in an appeal against the occupation order.

Non-molestation order

31. As set out above, under the non-molestation order the husband "is forbidden to use or threaten violence against the wife and must not instruct, encourage or in any way suggest that any other person should do so." The non-molestation order further repeats the injunction against loitering in the vicinity of the property set out in the occupation order. The reasons for making the order are set out shortly at the conclusion of the judgment:

"In considering all the circumstances including the need to secure Mrs. F's health, safety and wellbeing under s.42(5), I am also satisfied that I should grant her the non-molestation relief she seeks as well."

32. On behalf of the husband, Mr. Johnstone submits that, after making an occupation order under which the parties would not be living together, the judge was plainly wrong in deciding that that there was still any reason for a non-molestation order, given the parties' ages, their very long marriage, and the husband's poor health. An order under s.42(5) can have serious consequences since it can lead to the immediate arrest of the party who is the subject of the order. There was no explanation in the judgment as to why an order was needed, nor any evidential basis for making such an order. In the alternative, Mr. Johnstone submits that the normal duration for such an order is 3 months and there were no grounds for imposing a longer order in this case.
33. In her written reasons for refusing permission to appeal, the judge explained that the court accepted the evidence that the husband continued to drive past and to loiter in the vicinity of the property and that in the circumstances the court was satisfied that there was evidence to justify a non-molestation order even while the husband was not living at the property. She added:

"The court acknowledges that an order under section 42 is a serious one which can lead to immediate arrest, and for this reason its duration should be for a limited period of 6 months, in the expectation that the motivation for such behaviour will abate. This is in contrast to the occupation order (which does not include the power of arrest) which the court is satisfied should endure until the making of the final order in the pending proceedings for financial relief."

34. This lucid explanation in the judge's supplemental reasons for refusing permission to appeal provides full justification for the making of a non-molestation order. In the light of her assessment of the evidence, I consider that this was manifestly a decision that she was entitled to make.
35. There is, however, a problem with the terms of the order as actually drawn and sealed.
36. Although no point was raised about the terms of the order in either the grounds of appeal or skeleton argument, Mr Johnstone in the course of oral submissions suggested that an order in terms forbidding the use or threat of violence was wrong when no finding of any use or threat of violence had been made. I was told that counsel had submitted alternative draft orders following the conclusion of the hearing before Judge Murfitt, although neither draft was included in the papers submitted for the appeal hearing. I therefore directed counsel to file copies of those drafts and they were sent to me a day or so after the hearing. Mr Kefford's proposed draft on behalf of the wife read:

"the applicant is forbidden to

(a) use or threaten violence towards the respondent;

(b) intimidate harass or pester the respondent;

in each case until the conclusion of the respondent's application for financial remedy within divorce proceedings or further order."

Mr Johnstone's draft on behalf the husband read:

"the applicant is forbidden to use or threaten violence towards, intimidate, harass or pester the respondent until 4 November 2016 or further order."

Both drafts also included an injunction against loitering in the vicinity of the property. Both counsel also filed supplemental written submissions for Judge Murfitt prior to the order being drawn, but neither addressed the terms of the order, save for the issue of its duration.

37. When sending the documents to me after the appeal hearing, counsel added supplemental submissions in the following terms. On behalf of the husband, Mr Johnstone did not contend that the non-molestation order should be varied on appeal, only that it should be discharged entirely as there had been no finding of the use or threat of violence. He submitted that it was clear that the trial judge rejected the words "intimidate, harass or pester" which were far wider in scope and an alleged breach would enable arrest in far less serious circumstances than envisaged by her. He added that there is no Respondent's Notice seeking to expand or vary the non-molestation order on appeal. He therefore submitted that in those circumstances an appeal against the non-molestation order can only be discharged or upheld in its current terms. On behalf of the wife, Mr Kefford stressed that the wife's case is that permission to appeal should be refused and contended that, if permission to appeal was refused, the order could not be expanded to include the words "intimidate harass or pester". He added, however, that if permission to appeal was granted in respect of that part of the order, this court would have discretion on appeal to amend the non-molestation order to include the words "intimidate, harass or pester".
38. The position therefore is as follows.

(1) Notwithstanding the fact that there was no finding of a use or threat of violence, both parties submitted draft orders inviting the judge to include in the injunction an order preventing the use or threat of violence, and the judge duly made an order in those terms.

(2) Both counsel also included in their draft orders an injunction against intimidating, harassing or pestering, but the judge did not include such a provision in the order, instead repeating the order against entering the property or loitering outside (which both counsel invited the court to include) notwithstanding the fact that this was also included within the occupation order.

(3) The husband did not include any complaint about the terms of the non-molestation order in his grounds of appeal, although he has raised it in the course of oral submissions before me.

(4) The wife has not filed any Respondent's Notice although, in the event that permission to appeal is granted on this basis, she has subsequently invited the court to amend the order to include an injunction against intimidating, pestering and harassing.

39. In these circumstances, it seems to me that the judge was inadvertently led into making an order in terms that were not supported by her findings. Although this did not feature in the Appellant's Notice, or in the grounds of appeal or skeleton argument in support of the proposed appeal, I consider that it is a point that Mr Johnstone is entitled to raise, albeit late in the day. If Mr Johnstone had sought to amend the Appellant's Notice to include an extra ground of appeal that the order forbidding the husband from using or threatening violence was not supported by the judge's findings, I would have granted him permission to amend. Had Mr Johnstone amended the document, Mr Kefford would have filed a Respondent's Notice inviting the court, in the event that it was minded to allow the appeal on this ground, to substitute an order prohibiting the husband from intimidating, harassing or pestering the wife.
40. In my judgment, the justice of the case requires that the order should be amended by deleting the injunction against the use or threat of violence and substituting an order prohibiting the husband from intimidating, harassing or pestering the wife. There is no prejudice to the husband by taking this course because (1) the order in such terms is manifestly supported by the judge's findings and (2) his counsel submitted a draft order which included a provision in those terms.
41. I therefore make an order in the following terms.

(1) The application for permission to appeal against the occupation order dated 22^nd September 2016 is refused.

(2) The husband is granted permission to appeal against the non-molestation order made on 22 September 2016.

(3) The appeal is allowed in part and paragraph 1 of the non-molestation order made on 22 September 2016 is amended by deleting the injunction against the use or threat of violence and substituting an order prohibiting the husband from intimidating, harassing or pestering the wife.

(4) Save as aforesaid, the appeal against the non-molestation order made on 22 September 2016 is dismissed.

Postscript

42. After a draft of this judgment was sent out to counsel, I received an email from the wife's counsel stating that he had instructions that the parties had reconciled and forwarding an email from his instructing solicitor giving details of a conversation between the solicitor and Mr. and Mrs. F. It was suggested that in the circumstances the injunction should be discharged.
43. Having considered the matter, however, I have decided to proceed by making the order set out in paragraph 41 above. I do not consider it right for this appellate court to discharge the order at this stage on the basis of an email which leaves a number of questions unanswered. If a reconciliation has indeed taken place, an application for the discharge of the injunctions can be filed in the family court, supported by appropriate evidence.
44. There remains the question of the costs of the appeal. I propose to adjourn that issue for 2 months on the basis that, if no party applies for it to be restored during that period, there shall be no order as to the costs.