The parents in the instant case had been married for 20 years and had twins aged eight. Relations had deteriorated between the parents and in proceedings before the judge, the husband produced audio and video recordings showing exchanges between him and the wife which were designed to show that she was unreasonable or unwell. The judge said that, on the recordings, the wife was undoubtedly shouting at the husband for long periods of time and saying what she had said in her evidence.
He further said that the wife saw the husband as a poor father, which did not accord with the judge’s express finding that he was not. The judge considered the situation between the parents. He found that it had been a measure of the depth to which relations had fallen that the wife had felt it necessary to call the police. He also considered that the fact that the father had told one of the twins that a burn mark she had had been caused by her mother, without caveating that it had been accidental, showed that the father had tried to manipulate the situation to his own benefit.
Further, he found that there was no evidence supporting the husband’s contention that the wife was mentally ill, but said that the husband seemed unable to take the view that the wife was mentally well but that the marriage was over through no fault of her mental health. He also found that the children had been badly affected by the arguments and feelings between the parents. The wife was of the view that it would be problematic for the parents to continue to live together. The husband wanted the family to remain together as a unit, but submitted that if that was not possible, then he wanted the wife to move out immediately.
The judge, exercising his discretion under section 33(6) of the Family Law Act 1996 (the 1996 act), made an occupation order that required the husband to vacate the matrimonial home and to remain away from it for a defined period. He also made a shared residence order in respect of the children which provided that they should live primarily with the wife and spend frequent time with the husband. The husband appealed.
In respect of the occupation order he submitted that: (i) the judge had erred in making the order as it had been too draconian a response to the situation; (ii) the judge had omitted to make findings on important issues and those findings he had made had been insufficient to justify the order made; (iii) the judge had failed to give proper weight to the evidence that had been placed before him and the lack of corroborative evidence of the wife’s allegations of abuse; and (iv) there had been no evidence that the children had suffered, or would suffer, harm as a result of the parents conduct. In respect of the shared residence order, he submitted that: (i) the judge should not have made such an order where he had made no findings of fact that had supported a stipulation that the children should live primarily with the wife; and (ii) having determined that the childrens’ welfare required a shared residence order, it had been wrong to exclude the husband from caring for them by excluding him from the house. The appeal would be dismissed.
There was nothing in section 33(6) of the 1996 act that limited the discretion to make an occupation order to cases in which there had been physical violence. That sub-section required the court to look at all the circumstances and, pursuant to section 33(6)(c), include in that consideration the likely effect of any order, or of any decision by the court not to exercise its powers under section 33(3), on the health, safety or wellbeing of the parties and any relevant child. That covered not only cases in which there was violence, but also all manner of other problems that might occur when a relationship was in difficulty
In the instant case, the judge had not erred in the exercise of his discretion by excluding the husband from the property. The judge had not needed to go any further down the fact-finding route than he had. Further, he had been entitled to make the findings that he had on the evidence that had been before him. In considering each of the headings in section 33(6) of the act, the judge’s finding, in respect of the health and wellbeing of the children, had gone beyond the sort of harm that children inevitably suffered when a marriage broke down and he had found that they had suffered significant harm.
He had further found, and been entitled to find, that both parties’ conduct had contributed to the situation and that their presence together in the house was a problem. The judge had concluded that it was not possible for the parents to live together under the same roof without damage to the children. The parents themselves had seemed to be of the same view. In the light of those findings, it was not surprising that the judge had determined that he had to intervene. He had been correct, in determining how to intervene, to consider who should have care of the children.
Where one parent had had to be chosen as the primary carer, in the particular circumstances, the judge could not be criticised for having chosen the wife as it was not outside the band of reasonable decisions
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