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(Court of Appeal; Thorpe, Rafferty, Black LJJ; 7 December 2012)
An appeal against a 6-month occupation order. The parties lived together in the same rented property for 30 years . The woman granted without notice non-molestation order, the man moved out of the property. At the hearing to determine occupation order, the judge found the woman to be physically disabled, that she had a history of drug abuse, psychiatric problems and was vulnerable. He found the allegations of physical and sexual abuse unfounded but that the man had subjected the woman to verbal abuse and frequently belittled her. An occupation order was made under s 33 of the Family Law Act 1996.
The man's appeal was dismissed. The judge had conflated s 33(6) and 33(7) rather than considering them separately but that did not vitiate the exercise of his discretion . The judge had paid regard to the factors in s 33(6) and of those factors the woman's mental health problems and vulnerability had been very influential. The exceptional circumstances of making an occupation order outlined in G v G and Chalmers v Johns were not confined to violent behaviour or the threat of violent behaviour. The important thing was for the judge to identify and weigh up all the relevant features. Decision had been within the judge's discretion and sufficiently justified in his judgment.
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