Family Law Week publishes an interesting article this week on the recent case of Grubb v Grubb which concerns an appeal against the granting of an occupation order ousting a husband from the matrimonial home. The article appears here and the transcript here. I am going to take a slightly different slant on that case than the author on FLW, who is critical of the decision of the Court of Appeal to uphold the occupation order and who suggests that the case has significance for occupation order applications without allegations of violence, a significant which he fears is in danger of passing unnoticed.

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Under s33 FLA 1996 the court has a discretion to make an occupation order even in the absence of significant harm. In exercising that discretion s33(6) directs the court to consider 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 of 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.

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The only relevance of significant harm in an application for an occupation order is that, where the court considers that the Applicant or a relevant child might suffer significant harm if no order were made, then the so-called ‘balance of harm’ test set out in s33(7) comes into play. That creates a potential obligation to make an order, rather than a mere discretion. An applicant for an occupation order may seek to make out his case either by satisfying s33(6) or s33(7)  (or both). The Grubb case was not argued under s33(7). Looked at in that light, we can see that insofar as the Grubb case is an example of an occupation order being made in the absence of any significant harm, it is not groundbreaking.

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An occupation order is of course quite separate from a non-molestation order – although they often co-exist. It may be trite to say it, but a non-molestation order deals with prohibiting acts of violence or harassment whilst an occupation order regulates the occupation of the home. Whilst there has to be a good reason to oust a party from their home there do not necessarily have to be grounds for a non-molestation order in order for an occupation order to be made. There is in fact no reference to violence or harassment in s33, although of course such behaviour would fall under ‘all the circumstances’ or ‘conduct’ or ‘significant harm’. It is a mistake to think that one can oust only a violent partner, although very clearly violence or harassment are very likely to form a main plank of the grounds for many an application and it may be difficult to justify an ouster in the absence of such conduct – depending of course on the facts.

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The transcript of judgment bears further reading. Although there are a number of specific findings relating to the Husband’s conduct upon which the court of first instance relied when granting the occupation order, it is clear from the full judgment that there was a significant course of conduct of oppressive behaviour on the part of the husband which the wife experienced as putting her under unbearable pressure whilst the family all remained within the one property.

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And yet the article characterises an occupation order as a ‘domestic violence remedy’ and queries whether this is really the kind of situation that it was intended to apply to. The suggestion made in the article is that a party ‘need not cite very much by way of conduct’ to justify an occupation order, and it seems to be said that cases of this kind are not what such a ‘domestic violence remedy’ was intended to cure. The writer of the article seems to me to fail to properly appreciate the extent of the Husband’s conduct as described in the judgment (and indeed the medical evidence which demonstrated the impact it was having upon the Wife), and in doing so seems (perhaps unintentionally) to minimise the significance of the non-violent conduct. In my view non-violent conduct of the kind described in the transcript falls fairly and squarely within most working definitions of domestic abuse that professionals in the field would use – which may range from controlling behaviour and mental or verbal abuse to physical attacks.

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I think that this is very much a case turning on its own facts. It may be unusual for occupation orders to be made in cases where the parties are wealthy, but that is precisely why the particular mix of factors is unlikely to be often repeated – for what the court was required to consider was whether to permit the toxic and harmful situation at home to continue in circumstances where an exercise of the court’s discretion in favour of the wife would not cause the Husband significant hardship. More often than not there is only one property and an ouster will mean the ousted party sleeping in the car or sofa surfing. There is a difficult balance to strike in such cases and often the lesser evil is leaving the parties in situ, albeit in very unpleasant circumstances. In this case the court could cure the impact of the husband’s ongoing conduct on the wife and children without causing any serious detriment or harm to him.

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Characteristic of this case was the fact that the wife did not seek to exaggerate the seriousness of the conduct of the Husband by asserting any s33(7) significant harm, and nor did she seek necessarily to oust the husband if alternative accomodation were provided by him for herself and the children. The Husband had within his control the parties substantial financial resources and had it within his power to make this happen without the need for him to leave. Had the application been for the husband to be excluded from his own home for reasons outwith his control and without recourse to suitable accomodation to meet his own needs, the outcome no doubt would have been very different, and properly so.