The Gazette 1983

N O V E M B E R

1983

GAZETTE

Barring Orders and Ouster Orders — Judicial Change of Attitude?

by Paul McNally, Solicitor

O N 17th June, 1983, in the case of O'B -v- O'B (unreported) the Supreme Court (consisting of O'Higgins C.J., McCarthy and Griffin JJ. heard an appeal by a husband against the making of a barring order against him under Section 22 of the Family Law (Maintenance of Spouses and Children) Act 1976.* In relation to his appeal O'Higgins C.J. stated that this probably constituted the last occasion upon which the Court could consider the proper application of the statutory provisions to the making of barring orders' On 20th June, 1983, in the case of Richards-v-Richards [1983] 2 A11ER 807, [1983] 3WLR 173, the House of Lords (consisting of Lord Hailsham L.C., Lord Diplock, Lord Scarman, Lord Bridge of Harwich and Lord Brandon of Oakbrook) heard an appeal, again by a husband, against an "Ouster Order" granted to his wife by the High Court on 8th November, 1982, and confirmed on appeal by the Court of Appeal on 6th December, 1982. In respect of this appeal, Lord Brandon of Oakbrook stated: (at pp. 826/7) "It falls to your Lordships, in order to determine this appeal and to give guidance for the future, to do what the Courts below have signally failed to do, namely to examine, and having examined, to pay proper regard to, the statutory framework within which Courts dealing with applications for ouster orders are not only empowered, but also obliged, to operate." The highest courts in both jurisdictions were asked, and felt themselves obliged, to determine the statutory basis on which orders requiring a spouse to remove himself/ herself from the family home could be granted. While the wordings of the statutory provisions empowering the granting of these types of orders are different in the two jurisdictions, the decisions which the two appellate Courts arrived at, in effect, are similar. Prior to the Richards' decision in England there had been a number of conflicting Court of Appeal decisions. On the one hand there was a line of decisions culminating in Myers -v- Myers 11982] 1 A11ER 776; [1982] 1 WLR 247, which held that in order for a wife to succeed in obtaining an ouster order against her husband she must have "just and reasonable" grounds for making her application. On the other hand there was a line of decisions culminating in Samson -v- Samson [1982] 1 A11ER 780; [1982] 1 WLR 252, which held that the wife did not have to have "just and reasonable" grounds in making her application in order to succeed so long as the welfare of the children of the marriage required that the order be made. In Samson's case the wife had succeeded on the grounds that she could not bear to be in the same house as her husband. When the

case was before the English High Court,

Richards'

Pennant J. had found that:

"the wife is slrongwilled and does not wish to be in the same house as her husband and says she cannot bear to be with him. But it is not true that she cannot. I think it is thoroughly unjust to turn out this father but justice no longer seems to play any part in this branch of the law."

He granted the wife the ouster order she sought.

The Richards' Case In brief, the facts of Richards' case were as follows: . Mr. and Mrs. Richards were married in November 1974. There were two children of the marriage, a girl and a boy, aged 6 and 4 respectively at the time of the hearing. Mr. Richards was in regular employment. The family (matrimonial) home was a council house. Mrs. Richards had left her husband on a number of occasions. Other men had been involved, but Mr. Richards had always forgiven his wife and cohabitation had been resumed. In January 1982 while the parties were still cohabiting Mr. Richards received a divorce petition signed by his wife. It alleged that their marriage had irretrievably broken down and it sought to establish this by proving that Mr. Richards had "behaved in such a way that (Mrs. Richards) cannot reasonably be expected to live with him (Mr. Richards)." Mr. Richards opposed this petition, which had not been heard at the date of the House of Lords'judgment (June 1983). On the institution of the divorcc proceedings Mrs. Richards moved out of her husband's bedroom but continued to live in the house and continued cooking for him. In June 1982, Mrs. Richards left the home and took the two children with her. She went to live with a lady friend Mrs. Moore in admittedly overcrowded condi- tions. On 15th October, 1982, Mrs. Richards issued a summons upon which the appeal before the House of Lords was based. In her grounding affidavit Mrs. Richards claimed an injunctin against molestation and another injunction restricting communication. Both of these were rejected and not persisted in. She also sought an Order that the husband should quit and deliver up possession of the matrimonial home and not return thereto. At the hearing before the High Court on 8 November, 1982, Mrs. Richards said that she could not stay at the house of her lady friend beyond 22nd November, 1982, and that, although she had tried to get accommodation from the local council, the best they 279