PF v CF, Court of Appeal - Family Division, December 02, 2016, [2016] EWHC 3117 (Fam)

Resolution Date:December 02, 2016
Issuing Organization:Family Division
Actores:PF v CF
 
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IMPORTANT NOTICE

The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment may be identified by name or location and that in particular the anonymity of the parties and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: 2016/0002

Neutral Citation Number: [2016] EWHC 3117 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 2nd December 2016

Before :

THE HONOURABLE MR JUSTICE BAKER

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Between :

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Mark Johnstone (instructed by RHW Solicitors) for the Appellant

Anthony Kefford (instructed by Prettys solicitors) for the Respondent

Hearing dates: 27th October 2016

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JudgmentMR 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 13th 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 27th 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 24th 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 21st 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 1st 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 18th 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 19th 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 1st June, the wife filed an application for a non-molestation order and an occupation order. On 3rd 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 12th June, the district judge directed that both applications be listed together on the 21st June. On that date, the matter was adjourned, with directions, for a final hearing on 28th July. On 1st July, the wife filed a second application, seeking an early hearing of her application, which was listed before a district judge on 4th 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 4th 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 5th September and a final order made on 22nd 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 4th 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...

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