Scottish Sheriff Court Decisions

Act: Mr Peter Macari, solicitor, Iain Smith & Co, Aberdeen

Alt: Mrs Anne McTaggart, solicitor, McIntosh McTaggart, Aberdeen

Aberdeen: 19^th January 2004

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 11^th November 2003; reserves meantime all questions of expenses and appoints parties to be heard thereon at Aberdeen Sheriff Court on Monday 2^nd February 2004 at 12.30 pm.

Note

1. This is an action of divorce. The wife is the pursuer and respondent in the appeal and the husband the defender and appellant. The parties were married at Aberdeen on 20^th May 1994. There is one child of their marriage, a daughter Stephanie who was born on 24^th November 1994. The pursuer also has a daughter Michelle by a previous marriage. She was born on 8^th November 1988.
2. In terms of crave 1 the pursuer seeks decree of divorce against the defender on the ground that their marriage has broken down irretrievably as established by his behaviour. In terms of crave 2 she asks the court to interdict the defender from molesting her by abusing her verbally, threatening her, putting her into a state of fear and alarm or distress or using violence towards her; and to attach a power of arrest to the interdict and meantime to grant interim interdict. In terms of crave 3 she asks the court (i) to grant an exclusion order suspending the defender's occupancy rights in the matrimonial home, (ii) to grant warrant for his summary ejection from the house, (iii) to interdict him from entering the house without the express permission of the pursuer, and (iv) to interdict him from removing, except with the written consent of the pursuer or by a further order of the court, any furniture or plenishings in the house. The court is asked to grant interim interdict in terms of crave 3(iii) and (iv), but there is no reference in crave 3(i) to the granting of an interim exclusion order. This point was mentioned in the defender's grounds of appeal, but no reference was made to it during the hearing of the appeal itself and it was not argued that any exclusion order pronounced at this early stage in the action should be an interim order only.
3. The action was raised on 4^th November 2003, and on that same day Sheriff Harris granted interim interdict against the defender in the terms set out in crave 2. On the same day too a motion was lodged on behalf of the defender to recall this interim interdict in respect that a caveat had been lodged by the defender on 3^rd November 2003. Parties were heard on this motion by Sheriff Cowan on 7^th November 2003 and the upshot was that she granted the motion and recalled the interim interdict previously granted on 4^th November 2003, an undertaking having been given at the bar for and on behalf of the defender that he would not return to the matrimonial home (which the pursuer avers they own jointly) between that date and a further hearing which was fixed for 11^th November 2003.
4. On 11^th November 2003 parties were heard by Sheriff Cusine. The upshot was that he pronounced an interlocutor (a) interdicting the defender ad interim in the terms sought in crave 2, (b) granting an exclusion order suspending the defender's occupancy rights in the matrimonial home, (c) granting warrant for his summary ejection from the house, and (d) interdicting him ad interim in the terms set out in both crave 3(iii) and (iv). It is this interlocutor which is the subject of the present appeal. It will be observed that no power of arrest was attached to the interim interdict granted in terms of crave 2, and nothing was said about this in the course of the hearing of the appeal. Moreover, the exclusion order pronounced by the sheriff purported to be a final exclusion order rather than an interim exclusion order and again, as already indicated, nothing was said about this at the appeal itself.
5. When he heard parties on 11^th November 2003 the sheriff had before him the initial writ and, on the one hand, affidavits by the pursuer, her daughter Michelle and a friend of hers, Mrs Anne Morrice, and, on the other hand, affidavits by the defender, his sister Debbie Annand and his solicitor, Mrs McTaggart. There was also an inventory of productions for the pursuer which included, inter alia, a medical report on Michelle dated 5^th November 2003.
6. The circumstances which gave rise to the pursuer's application for an exclusion order are described in her affidavit briefly as follows. In the latter part of 2002 the defender started keeping late hours and on occasion disappeared for several days at a time without advising the pursuer as to his whereabouts. In April 2003 he told her that he was leaving the house for good, and they have not lived together as man and wife since then. In particular, he has not resided in the house except for a week towards the end of June 2003 when the pursuer was on holiday with her daughters. She returned from holiday on or about 1^st July 2003 when there was an argument between them after she had found some condoms and lubricating jelly in a holdall in one of the bedrooms. She challenged him about this, and in the course of the ensuing argument the defender grabbed the pursuer by the neck. According to the pursuer, Michelle witnessed this incident and succeeded in pulling the defender from her. On that occasion he was very aggressive and before the assault was standing right up against the pursuer's face shouting at her.
7. Thereafter there were negotiations between the parties and their respective solicitors to try and sort out a financial settlement between them. There appears to have been no further incident of significance until Tuesday 28^th October 2003 when the pursuer arrived home in the late afternoon with the children. There was a strong smell of glue in the house and she found that a bolt had been glued to the inside of a bedroom door. The bedroom window was opened and a ladder had been taken from an unlocked shed and propped up against the rear wall of the house. It occurred to the pursuer that it was probably the defender who was responsible for this and she narrates in her affidavit that she and the children were very distressed by this episode.
8. On the following day, Wednesday 29^th October 2003, the pursuer returned home after work, to find that someone had been in the house. Several of the defender's shirts had been distributed around the pursuer's bedroom. Shortly afterwards the defender came into the house. Some weeks earlier he had pestered her at her work, calling up to five times a day saying that he was coming back for good. She had told him that the marriage had broken down and that things just would not work out between them. But on this particular evening he indicated again that he was coming back for good and that he would sleep in the bedroom to which he admitted having fixed the bolt. He indicated that his solicitor had advised him to do so if he intended to remain under the same roof but live separately. He had until then denied that he had a set of keys to the house but later that evening, having had a shower and changed, he came downstairs and laughingly handed the pursuer a set of keys. He then left indicating that he would be coming back later in the evening. He did not do so but, according to the pursuer, she and the children were nonetheless placed in a state of distress, fear and alarm. She had taken the children to the house of a friend (evidently this was Mrs Morrice) when the defender had been in the shower. She later collected Stephanie, bathed her and took her to her grandparents so that she could stay the night with them. Michelle was still at the friend's house doing her homework. She and the pursuer went back to the house but were unable to sleep since the defender had said that he would be returning. On the following day, Thursday 30^th October 2003, Michelle was not fit to attend school as she was too tired and the pursuer allowed her to take the day off school. The pursuer herself did not go to work since she was too stressed.
9. On the evening of Thursday 30^th October 2003 the pursuer again came back to the house. There was an argument between the pursuer and the defender, and while he was upstairs she took a bag which he had brought and put it outside the door. When he saw this he went outside and she locked the door against him. He shouted and demanded access and banged on the door. Eventually he went away. According to the pursuer, the two children were in a state of distress, Michelle in particular being very stressed by the incident.
10. On the late afternoon of Saturday 1^st November 2003 the pursuer and the two children returned home after shopping. The defender was in the house once more. A further argument ensued in the presence of the children and eventually the defender left. The children were again stressed and placed in a state of fear and alarm. Voices were raised during the argument which had ensued after the pursuer had asked the defender to leave. She herself was "very, very upset".
11. On the evening of Sunday 2^nd November 2003, sometime after 6.00 pm, the children and the pursuer were in the lounge at the rear of the house watching television. The blinds on the patio doors were drawn. All of a sudden the patio doors opened and there was a loud crash. But a secondary bolt prevented them from opening to their full extent. Then the defender's arm and leg appeared through the blinds. The children, according to the pursuer, were almost hysterical. The pursuer told the defender to go away and tried to push the patio doors shut. There was another commotion and the defender eventually left, the pursuer and the children by this time being "very upset".
12. In the final paragraph of her affidavit the pursuer states that she believes that it is necessary that the defender should be excluded from the house. She refers to the fact that he had not lived there since April 2003 and that before that he had been disappearing for days on end. After considering the question where the defender had been living in the meantime, she continues;

My husband fails to appreciate the state of fear, alarm and anxiety into which myself and the children are placed by his recent behaviour. The only reason that I can think of as to why my husband wants to return to the property is that he wants to put me under pressure and in doing so he is also pressurising the children and putting them into a very anxious state. I would point out that my daughter Michelle is diabetic. It is well documented that stress and anxiety can induce a hypoglycaemic coma. This may be injurious to her physical health. The conduct which has been indulged in by my husband and the likely repetition of the conduct complained of by me would certainly be injurious to both my physical and mental health and indeed that of my children. Given the fact that my husband has managed to find accommodation for himself outwith the marital home since April this year, the court should look carefully at his motives for wishing to return to the marital home. I am certain that the mental and physical well-being of myself and the children will go downhill rapidly if I do not success (sic) in obtaining an exclusion order.

13. In her affidavit, Michelle confirms that the defender left the house in April 2003 and since then has stayed in it for only one week towards the end of June when she, the pursuer and Stephanie were on holiday. She says that on the day they got back from holiday there was an argument between the pursuer and the defender and that she ran upstairs and found the defender with his hands around the pursuer's throat. She says that she managed to pull him off and that the pursuer was very upset and crying. There was a lot of shouting during the incident. After that Michelle did not see the defender again until late October 2003.
14. Michelle's account of what happened on the evening of 28^th October 2003 closely mirrors that of the pursuer except that she says that they went to Mrs Morrice's house that night as well as the following night. Michelle states, inter alia: "I was very upset and I was quite afraid. I didn't know what was going on. I was worried that someone would come in during the night and get us. I told Anne Morrice that I had pulled my step-father off my mum earlier in the year. We stayed for about an hour and then we went home. I hardly slept that night because I was upset and afraid".
15. Referring to the incident on Wednesday 29^th October 2003, Michelle again supports the pursuer's account of events. She says that there was an argument and a lot of shouting and that she in particular was shouting at the defender to leave. She says that Stephanie and she were crying a lot and that she held her mother's hand and refused to let her go since she was very upset for both the pursuer, herself and Stephanie. She says that she stayed at Mrs Morrice's house until about 10.30 pm that evening and that she felt very stressed and unhappy. She says that she and the pursuer went back home at about 10.30 pm, that Stephanie was taken to spend the night with her grandparents and that she and the pursuer hardly slept since they expected the defender to come back again. She says that she had to take the day off school the next day as she was too tired to attend school.
16. Michelle again confirms the pursuer's account of the incident on Thursday 30^th October 2003. She says that there was a lot of shouting and that she herself was shouting as well as crying. She says that the pursuer and the defender were both arguing and that the pursuer was trying to get the defender to leave. Eventually he went away after the pursuer had locked him out. She says that she was "very frightened by this episode" and that Stephanie was also "very frightened".
17. Of the incident on the Saturday (which she mistakenly says was 2^nd November 2003) Michelle says that there was another argument when the pursuer, Stephanie and herself came home to find the defender lying on the living floor watching television. According to Michelle, "Everyone was reduced to tears and there was a lot of shouting".
18. After giving an account of the incident on Sunday 2^nd November 2003 which again supports that of the pursuer, Michelle concludes her affidavit as follows:

We cannot keep going on like this. We are all frightened to be in our own home. We don't know what's going to happen next. I am diabetic and I am aware of the possible consequences of stress as far as my illness is concerned. I don't want to live like this and my mum, Stephanie and I need security and peace in our house. My step-dad has lived away from the house for a long time now and I am sure that he has somewhere else to stay. He can live with his own mum and dad. We don't want him in the house. It is impossible for him to live with us after what has happened.

19. In her affidavit Mrs Morrice speaks to the pursuer and the two children having arrived at her house at about 10.30 pm on Tuesday 28^th October 2003. She says that the children were "in an extremely distressed state". Then she says: "The children appeared terrified that (the defender) would come back in the night and climb in the window. Michelle spoke to me and told me that she was worried that (the pursuer) would be assaulted since (the defender) had been violent towards her mother in the past. She did not go into detail".
20. Mrs Morrice then refers to the pursuer and the children having arrived again at her house at about 6.30 pm on Wednesday 29^th October 2003. She says that the children were "both visibly extremely upset and both were crying hysterically ...... Stephanie was carrying a wooden baseball bat, a toy, and she was threatening to hit him if he touched her mum. Her knuckles were white and her eyes were wide open and she was clearly in a state of fear and alarm. Michelle was crying and holding onto her mother. She was begging her mother to get (the defender) out of the house and she appeared terrified that he was going to hurt (the pursuer)". Mrs Morrice says that Michelle stayed with her that evening until about 10.30 pm and that she "was clearly terrified about going back to the house but didn't want her mum to be alone". She concludes her affidavit:

There is no way in which (the pursuer) and the children can live under the same roof as (the defender) given his behaviour. I sincerely believe that the health of all three would be affected. I used to work years ago as a staff nurse. I am still competent in first aid. I am worried about (the pursuer's) physical and mental health as well as that of the children. In particular Michelle is a diabetic and exposure to stress and anxiety may have serious consequences in her case. I am also a fully qualified Family Counsellor and have a good insight on how trauma like this can have repercussions with the children in later years.

21. The medical certificate on Michelle is signed by a general practitioner who states that she "suffers from insulin dependent diabetes mellitus, which is generally well controlled. In recent weeks she has suffered from hypoglycaemic episodes which can be triggered by physical or emotional stress. It appears the latter has been at play in recent times. Hypoglycaemia requires prompt treatment by the patient or carer with the use of oral supplements or intramuscular injection, to restore blood sugars to normal levels. Failure to do so can result in profound medical problems and if untreated may cause death".
22. In his affidavit the defender explains that the marriage broke down because of the level of debt which had been incurred by the parties and the pursuer's refusal to discuss this. He says that they had continual arguments about it, but that these were never heated. He says that by May 2003 he was getting really desperate about the debt situation and yet the pursuer persisted in spending money despite their huge debts. This was, he says, the final straw and he left the house finally on 30^th May 2003 (and not in April as stated by the pursuer). He accepts that he has not lived in the house since with the exception of the one week when the pursuer and the children were away on holiday. He differs from the pursuer about the precise date when she and the children returned from holiday, but he accepts that, when they did so, there was an incident during which, according to him, the pursuer shouted at him that he should get out of the house and "basically pushed me out of the door and locked it behind me". He denies having touched her during the incident.
23. The defender then refers to various negotiations between the parties' respective solicitors about various matters including his getting access to the family home. He mentions an allegation that had been made by the pursuer to the effect that he was gay and not supporting the family financially. He then says that he went to the house on Saturday 25^th October 2003 and that, while he was there, the pursuer shouted and swore at him to get out of the house. He says that he found a set of house keys which he took and later had copied. Having found the keys he left the house immediately, the pursuer pushing him out and locking it behind swearing that he should not come back again.
24. The defender admits that he was the person who entered the house on Tuesday 28^th October 2003. He says that, before doing so, he had been in touch with the police and also his solicitor and that the pursuer had steadfastly been refusing to allow him into the house despite having been requested to do so. He says too that he had put a bolt to the inside of the bedroom door and had left the window open to get rid of the smell of the glue.
25. The defender explains that he went back to the house on 29^th October 2003 with some shirts. He says that, when she entered the house, the pursuer went "mad" and that she was being "really abusive" so that eventually he chose to leave because of the way she was "pushing me, screaming, shouting and swearing".
26. The defender accepts that he went back to the house again on 30^th October 2003 carrying a holdall with his clothes in it. He proceeds to give an account of the incident that day and paints a picture of the pursuer shouting and swearing at him, pushing him down the stairs and throwing the holdall out of the door. When he eventually went out of the house to collect this the pursuer locked the door behind him. He denies that he then shouted and banged on the door. He says that he just opened the letterbox and asked the pursuer to let him in at which she swore at him that he was not going to get into the house.
27. On 1^st November 2003 the defender says that he went again to the house and switched on the television. The pursuer and Stephanie returned but not Michelle who, according to the defender, was at work. Once again the pursuer shouted and swore at the defender to get out of the house and threw some hot chocolate powder over him. In due course he decided to leave.
28. The defender says that he then spoke to the police about what had happened and that they advised him to take somebody with him when he went to the house. Accordingly when he went there on Sunday 2^nd November 2003 in the evening he was accompanied by his sister Debbie. When he tried his key in the front door he found that either the lock had been changed or the pursuer had put a key in the door to stop him getting his key to work. He says that he telephoned the pursuer on his mobile telephone and that she swore at him to leave the house. He says that he then went round to the back and opened the patio door and stepped in. He says that he was pushing the blinds open and that the pursuer pushed him back. At this point both she and Michelle were shouting and swearing at him. He says that at one point the pursuer had her hands around his neck and was pushing at his chest and that she finally crunched the patio door against his knee. According to him, he then heard her say to Michelle to "go and get a knife" and that point his sister advised him that they should leave. He says that the incident was recorded on tape and that the police have retained the tape and have charged the pursuer with assault and breach of the peace. He says that he is not violent or aggressive towards the pursuer and never has been, and further that she was the one who had instigated all the incidents against him and that he had not reacted to them.
29. The defender's sister Debbie in her affidavit supports the defender's account of what happened on the evening of Sunday 2^nd November 2003. In particular she speaks to the pursuer and Michelle shouting and swearing at the defender and she expresses the opinion that "there is absolutely no way that either (the pursuer) or Michelle were frightened by (the defender). They were both giving him terrible abuse. Neither of them would have known that I was at the house with him. I was horrified at the way (the pursuer) was carrying on. She was just trying to stop (the defender) getting in to what she called her house not for any reasons of fear".
30. In her affidavit the defender's solicitor Mrs McTaggart speaks in particular to the allegation made by the pursuer to the effect that the defender was gay and not financially supporting either her or the children. But I do not think that it is necessary for present purposes to dwell on the contents of this affidavit since nothing in it seems to me to be of material importance to the issues which were raised in the course of the appeal.
31. In the course of the hearing before the sheriff on 11^th November 2003 the defender's solicitor produced a tape recording which had been made by the defender himself when he had visited the house on the evening of Thursday 30^th October 2003. This was played again during the hearing of the appeal. The defender can be heard on the tape saying that he is about to go into the house. Thereafter it is not easy on first listening to the tape to make out who is saying what and to whom, but the general impression given by the recording is of a fraught scene in which the parties were shouting and swearing furiously at each other and the two children could be heard intervening at various points during the incident. Whatever else may be said about this incident, the fact that the defender chose to make a tape recording of it demonstrates in my view that he knew perfectly well that his appearance at the house would provoke exactly the type of incident that in fact ensued - and the same is true of the incident on the following Sunday evening when the defender not only made a tape recording of it but also brought his sister along to witness it.
32. In the note which he wrote in support of his interlocutor of 11^th November 2003 the sheriff explained that on that date the matter had called before him firstly at 9.30 am and thereafter at 2.15 pm. He explained that at the hearing in the morning Mr Macari for the pursuer sought interim interdict in terms of crave 2 of the initial writ and the order, warrant and interim interdicts in terms of crave 3. The sheriff records that after some discussion it was accepted that interim interdict should be granted in terms of crave 2 "and the hearing was then on crave 3". After rehearsing the submissions of the parties' solicitors the sheriff concluded his note as follows (Mrs McIntosh was for the defender):

Following upon Mrs McIntosh's submission that there was no reason for excluding the Defender, I made the point that the situation disclosed on the tape was one that should not be repeated, if at all possible. I suggested that the Defender might be willing to undertake not to enter the matrimonial home, except at specified times and then confine himself to the room on the door of which he had put a lock. That would have resulted in interim interdict being granted in terms of Crave 3(iii). I therefore invited Mr Macari and Mrs McIntosh to obtain obstructions on this and asked that the matter be reconsidered at 2.15 pm.

At the hearing at 2.15 pm, Mrs McIntosh advised me that the Defender would be willing to agree not to enter the matrimonial home, except at specified times, but Mr Macari advised me that that was not acceptable to the Pursuer. Mrs McIntosh invited me not to grant Crave 3 and submitted that, in terms of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 s.4, Crave 3 would have to granted in its entirety or not at all, a submission with which Mr Macari agreed.

Given that the Pursuer would not agree to the Defender being in the house at all, I granted Crave 3 in its entirety. My primary reasons for so doing were the averments by the Pursuer that she and the children are afraid of the Defender, that the health of one of the children could be serious affected in a detrimental way by the Defender's conduct and that the sort of incident revealed on the tape ought not to be repeated. In the circumstances, I was of the opinion that to grant the order etc. in Crave 3 was both justified and reasonable.

33. At the outset of the hearing of the appeal on 18^th December 2003 the defender's solicitor produced a second affidavit from the defender which had been sworn by him on the previous day. In this he refers to having recovered, inter alia, two letters which had been sent to the pursuer by her solicitors which indicate that she had been advised to ignore his request for keys to the house and that it had not been explained to her that he was entitled to go there whenever he wished to do so. He also says that he had discovered that the pursuer had had the lock to the front door of the house changed on 1^st November 2003 and the lock to the patio door changed on 2^nd November 2003. Finally he speaks to certain productions included in an inventory of productions lodged on his behalf on the day of the appeal which purport to demonstrate that Michelle could not have witnessed the incident on Saturday 1^st November 2003 having been at work at the material time.
34. Opening the appeal, the defender's solicitor submitted under reference to Bell v Bell 1983 SLT 224, Ward v Ward 1983 SLT 472 and Brown v Brown 1985 SLT 376 that there had been three tests which the sheriff had had to apply in this case. These were (a) whether an exclusion order was necessary for the protection of the pursuer or the children, (b) whether a common law interdict would afford sufficient protection for them, and (c) whether an exclusion order would be unjustified or unreasonable in the circumstances. In these three cases, said the defender's solicitor, there had been quite considerable violence on the part of the non-applicant spouse. This was to be contrasted with the present case which was very similar to the situation in Matheson v Matheson 1986 SLT (Sh.Ct.) 2 in which an exclusion order had been refused on appeal and it had been pointed out that the only real problem was the tension between the parties which had arisen on account of their separation and the desire of one party to exclude the other from the matrimonial home. In order to justify the granting of an exclusion order there had to be a weight of evidence with affidavits displaying conduct of a substantial kind demonstrating violence or aggression on the part of the non-applicant spouse over a period of time. In the present case the pursuer's affidavit disclosed only one alleged assault which had occurred at the beginning of July 2003. It was not suggested that there had been any previous assaults during the marriage and this single incident had not been reported either to the police or to the parties' agents. The sheriff, said the defender's solicitor, had given too much weight to this one incident, and also to the medical report which did not vouch the proposition that Michelle's recent hypoglycaemic episodes had been attributable to conduct on the part of the defender.
35. Referring to the tape of the incident on 30^th October 2003, the defender's solicitor submitted that this demonstrated that it had not been the defender's conduct which had been causing the stress among the parties but the pursuer's attempts to prevent him from legitimately entering the matrimonial home. It appeared from his note that the sheriff's decision had to a great extent turned upon what could be heard on the tape. This showed quite clearly that it had been the pursuer who had been the aggressor and that, if distress had been caused to the children, it had been by her actings rather than those of the defender. Her conduct had not, so it was said, been that of someone who was afraid of the defender. With the exception of the single incident of alleged assault, all the incidents between the parties had simply been a case of the defender trying to get back into the matrimonial home as he was entitled to do and the pursuer attempting to prevent him doing so. It was significant that following the incident on Sunday 2^nd November 2003 it was she, and not the defender, who had been charged by the police. The sheriff, so it was argued, appeared to have given no consideration to the question whose conduct was causing the problem. In all these circumstances he had erred in law and had reached a conclusion which was not warranted. In particular he had erred in law in failing to take account of the fact that it was the defender's conduct that he should have been considering. Instead he had taken into account the pursuer's conduct. He had thus not considered whether or not the defender's conduct had been injurious to the health of the pursuer or the children. He had merely looked at the situation generally rather than the defender's conduct in particular and had then failed to consider whether an exclusion order was unjustified or unreasonable. In light of all these errors he had come to a wholly unwarranted conclusion and accordingly the interlocutor pronounced by him on 11^th November 2003 should be recalled and the matter remitted back to him to reconsider in light of the defender's latest affidavit and his productions which had been lodged that day.
36. The pursuer's solicitor submitted that the appeal should be refused. Under reference to Macphail's Sheriff Court Practice (2^nd Edn) at paragraphs 18.110-111 he drew attention to the circumstances in which an appeal court might properly interfere with a decision made by a sheriff, as in the present case, in the exercise of his discretion. The pursuer's solicitor submitted that it could be seen from the final paragraph of his note that the sheriff had applied the correct test, namely whether an exclusion order was necessary to protect the pursuer or the children from any conduct or threatened or reasonably apprehended conduct of the defender which was or would be injurious to the physical or mental health of the pursuer or the children - see section 4(2) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. The pursuer's solicitor emphasised the recurring nature of the defender's conduct in the week which had culminated in the incident on Sunday 2^nd November 2003, and he submitted that this had been properly taken into account by the sheriff. He drew attention to the fact that on the Thursday the defender had made a tape recording of the incident and on the Sunday he had been accompanied by his sister to witness what happened. On both these occasions therefore he had been expecting an incident of the kind which had in fact taken place. The submission that the sheriff had failed properly to take into account the conduct of the defender should therefore be rejected. The sheriff, so it was said, had correctly decided that this conduct would be injurious to the health of the pursuer and the children, and in particular Michelle who suffered from diabetes. As for the question whether it was reasonable to make an exclusion order - see section 4(3) of the Act - it had been pointed out to the sheriff that the defender had not resided in the matrimonial home for many months until all of a sudden, after a period of fruitless negotiations between the parties, he had decided to return there. The sheriff had not erred in law having correctly considered whether the defender's conduct would be injurious to the health of the pursuer and the children, whether a common law interdict would be sufficient protection for them and whether an exclusion order was unreasonable or unjustified in the circumstances. The sheriff having correctly considered these tests, the matter could not be opened up on appeal. In any event, if he had fallen into error, it would not be appropriate to remit the matter back to the sheriff. On the contrary, the matter should be treated as being at large on appeal and the sheriff's decision to grant an exclusion order affirmed.
37. Reading the final three paragraphs (and especially the last one) of his note which I have set out in paragraph [32] above, I think that it is clear enough that the sheriff did consider, as he was required to do by section 4(3) of the Act, whether the making of an exclusion order would be unjustified or unreasonable. But it is far from clear to me that he applied his mind properly to the questions posed by section 4(2), namely (a) whether there was any conduct or threatened or reasonably apprehended conduct of the defender which was or would be injurious to the physical or mental health of the pursuer or the children, and (b) whether the making of an exclusion order was necessary for the protection of the pursuer or either of the children from such conduct on the part of the defender. It is true that the sheriff speaks of the averments to the effect that the pursuer and the children are afraid of the defender, and it is clear enough from the terms of article 3 of the condescendence, where these averments appear, that the pursuer's position is that it has been the defender's conduct which has brought about this state of fear on her part and that of the children. It is true too that the sheriff refers to the possibility of the health of one of the children (presumably Michelle) being seriously affected in a detrimental way by the defender's conduct. But he goes on to say that "the sort of incident revealed on the tape ought not to be repeated", and this is an echo of his observation in the third last paragraph of his note "that the situation disclosed on the tape was one that should not be repeated, if at all possible". The impression given here is that what was uppermost in the sheriff's mind was the thought that such an incident should be avoided in the future. I do not suppose that anyone would disagree with this, but it does not seem to me that it necessarily answers the two questions which the sheriff was required to consider in terms of section 4(2) of the Act.
38. In the circumstances I am driven to the conclusion that the sheriff has misdirected himself in law by failing to address these questions as he ought to have done. The defender's solicitor submitted that in this event I should remit the matter back to him for reconsideration in light of the defender's most recent affidavit and the productions which were lodged on his behalf on the day of the appeal. My own view is that these do not add anything of significance to the matters disclosed in the affidavits and productions which were before the sheriff with the result that the issues canvassed before him should be considered as being at large on appeal. Thus paragraphs 1 and 2 of the defender's latest affidavit simply vouch the proposition, which must have been obvious enough before, that the pursuer believed, albeit wrongly, that she was entitled to exclude the defender from the matrimonial home. And paragraph 3 seeks to show that Michelle could not have been present at the incident on Saturday 1^st November 2003 (as she says she was) since she was at work until 5.30 pm that day. The difficulty for the defender here is that nowhere in the averments in the initial writ or in the affidavits which have been lodged is the time of the incident that day stated explicitly. So, even it if is true that Michelle was at work until 5.30 pm, she could still have been present at the incident thereafter along with the pursuer and her sister Stephanie.
39. In my opinion it is plain from the affidavits which have been lodged both by the pursuer and by the defender that between 28^th October and 2^nd November 2003 there was conduct on the part of the defender which was injurious both to the physical health of Michelle and to the mental health of all three of the pursuer, Michelle and Stephanie. It is important here to bear in mind that the defender had been living away from the matrimonial home since at least the end of May 2003 by his own account (and some time in April 2003 by the pursuer's) with the exception of the one week at the end of June 2003 when he stayed in the house while the pursuer and the two children were away on holiday. So this is not a case where the pursuer had suddenly taken it into her mind that she wanted the defender put out of the house without further ado. On the contrary, she and the children had been living peacefully in the house for several months when the defender, having lived elsewhere during these months, determined that he would return to live in the house. In law he was no doubt entitled to do so, but it can scarcely have come as a surprise to him to find that in fact he would not be welcomed back by the pursuer. His antics on Tuesday 28^th October 2003 demonstrate that by then he was perfectly well aware of this, and the incident on Wednesday 29^th October 2003 could only have confirmed this in his mind. Despite this he returned to the house on Thursday 30^th October 2003, and there can be no doubt from his having had the tape recorder with him that he knew all too well that his entry to the house would precipitate precisely the type of highly charged and distressing incident that did in fact ensue. In this context it will not do in my opinion for him to say that it was the pursuer's conduct in trying to prevent him exercising his right to enter the house which was the source of the trouble. The blunt fact is that it was his entry to the house which started the incident off, as he well knew it would.
40. It might have been thought that after this incident a father with any sensitivity towards the feelings of his eight year old daughter (as she then was), let alone his step-daughter and his wife, would have stayed away from the house until some sort of accommodation had been reached which would have allowed him to return there without provoking further unhappy scenes. But that was evidently not the way the defender saw the matter, for he returned on Saturday 1^st November 2003, and again on Sunday 2^nd November 2003. On this last occasion he had not only a tape recorder but also his sister as a witness, so it is clear beyond peradventure that he knew that his attempted entry to the house would be the catalyst for yet another distressing incident. And this, needless to say, was exactly what followed.
41. It was said on behalf of the defender that the medical certificate produced by the pursuer did not justify the assertion that Michelle's recent hypoglycaemic episodes were attributable to the defender's conduct. I disagree. The author of the report (which, be it noted, is dated 5^th November 2003) stated that Michelle had in recent weeks suffered from hypoglycaemic episodes which could be triggered by physical or emotional stress, and that it appeared that the latter had been at play in recent times. The likelihood in my view must be that some at least of the hypoglycaemic episodes were triggered by the defender's conduct in precipitating the incidents that occurred between 28^th October and 2^nd November 2003, and that any subsequent conduct of this kind would trigger further hypoglycaemic episodes. As for the effect of his conduct on the mental health of the pursuer and the two children, it seems to me to be idle to pretend that such very stressful incidents, recurring more or less daily as they did, would not have had an adverse effect on their mental health. And here I think that the evidence of Mrs Morrice as to the state of Michelle and Stephanie when she saw them is of particular importance.
42. It can I think scarcely be disputed that, if steps had not been taken to put a stop to the defender's visits to the matrimonial home, further conduct on his part of the kind desiderated in section 4(2) of the Act would have been reasonably apprehended. As for the question whether the making of an exclusion order was necessary for the protection of the pursuer and/or the children from such conduct, I did not understand the defender's solicitor to argue to the contrary. In particular, I did not understand her to argue that a common law interdict in terms of crave 2 of the initial writ would have afforded sufficient protection to the pursuer and the children. My own view is that such an interdict would not strike with sufficient precision at the real mischief in this case which is the defender's determination, in the teeth of quite understandable opposition from the pursuer and apparently also in complete disregard of the effect of his conduct upon his own daughter, to resume occupation of the matrimonial home. To prevent this an exclusion order is in my opinion necessary.
43. The defender's solicitor advanced no separate argument to the effect that an exclusion order would be unjustified or unreasonable having regard to all the circumstances of the case including the matters specified in paragraphs (a) to (e) of section 3(3) of the Act, and I am not myself persuaded that such an order would be unjustified or unreasonable in light of all these considerations. I have therefore adhered to the interlocutor of the sheriff.
44. In addition to the authorities which I have already mentioned, I was also referred to Colagiacomo v Colagiacomo 1983 SLT 559.
45. It was agreed that I should reserve all questions of expenses.