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Occupation Order Case Law

Occupation Order Case Law

The judge erred by by solely considering the application under section 33(7) of the Family Law Act 1996 (the ´balance of harm´ test), rather than considering the case under the two seperate tests of the ´balance of harm´ test (under s.33(7)) and the the ´core criteria´ test set out under section 33(6). See our guide on Occupation Orders and specifically the section “What does the judge consider?”.

Worth noting clarifications regarding “e;significant harm”. This case cites Humberside County Council v B [1993] FLR 257, where Booth J considered that “significant” meant:

“… considerable, or noteworthy or important …”
In this case, evidence fell very far short of establishing that A was likely to suffer considerable or noteworthy or important harm if the order was not made.

Regarding the use of Undertakings as an alternative

Occupation orders are a draconian measure. The judge had dismissed the notion of accepting an undertaking, but the appeal court found there was no evidence to support that an undertaking would be ineffective. “It seems to me that the disharmony, such as it was, was of a character perfectly capable of control by injunctive order.”

Grubb v Grubb gives an example of circumstances supporting an occupation order which are exceptional, but do not extend to violence. Applications brought under section 33(6) of the Family Law Act 1996 do not need to establish the prospect of significant harm (which is a requirement under applications brought under section 33(7) of that Act).

The husband’s conduct was controlling, including not allowing the wife her own set of keys to the house, and threatening to lock her out of the house if she did not return in time for an evening out. In considering the case under section 33(6) of the Family Law Act 1996, the appellate judge also points out that alternative accommodation was available to the husband, and this was a factor in the court’s decision. Appeal rejected, with the wife and two children to remain in the property pending the financial settlement.

Exceptional circumstances need not be limited to violence or threats of violence.

The court had found that the parents arguing was causing the children emotional harm, and an occupation order granted for 3 months. The judgment was appealed on the argument that the judge had erred in their exercise of discretion. The appeal was rejected, and the appellate court held that the court was not limited to making occupation orders to cases which involved violence. A shared residence order had also been made, with the mother being the primary carer as the father had frequent trips abroad.

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