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Non-molestation / Occupation Order

  • Sera
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17 Sep 07 #3535 by Sera
Topic started by Sera
My husband served papers this morning, for a hearing next Monday. I'm prepared to represent myself, but his affidavit countains pages and pages of 'extracts' from rows we've had, which he supplied his sol with on CD (!) edited from rows he'd had. There is no reference to his words, just mine:

ie: (I'd booked a holiday) He stole my ticket, and rang me to say he was taking someone else.

I yelled back "I hope you die in a plane crash"!

also: He went away on his birthday, and met with this woman for dinner.... I rang let message (height of dispair) and said "I hope you get AIDS and die!"

This was around 6 weeks ago, just after he'd asked for divorce. How much tolerance is there is court? Can he used CD's/taped conversations in court? Do they care what was said during a row?

Is it perceived a threat? What's the worst that can happen to me?

I assume this is to rid me of my home here?

Any help? Advice? :unsure:

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18 Sep 07 #3558 by wscowell
Reply from wscowell
Sera,

Your X2B is using the Courts as a weapon to harass you. He does not need the protection of the Courts.

s42(5) Family Law Act 1996 sets out the criteria for the making of a non-molestation order, namely "all the circumstances including the need to secure the health, safety and well-being of the applicant or of any relevant child". None of these are threatened.

The following three principles must be considered by the Judge when deciding whether to grant an Order:

1. There must be evidence of molestation. (That includes not just proof that you said what he says you said, but also that it was in the circumstances "molestation".) See later.

2. The Applicant must need protection. He clearly doesn't. He provoked a row, did unforgiveable things, you reacted with harsh words. No threats. No pestering. End of.

3. Judge must be satisfied "on the balance of probabilities" that the Court's intervention is required to control the behaviour complained of. It clearly isn't necessary. You were provoked beyond endurance and all you did was shouted angrily at him. No provocation = no reaction. Anyway, once bitten, twice shy. You know what his hypocritical game is now.

By reason of all the above, there does not need to be an order, and in fact the aplication was clearly motivated by malice not the need for protection. (Unless you are doing more that we don't know about)

"Molesting" isn't defined in Family Law Act 1996. It is considered synonymous with "pester" - "to cause trouble, to vex, to annoy, to put to inconvenience." Did you cause trouble, or react to his provocation? Is it in truth "inconveniencing" him by you being upset in the face of such deliberate provocation? (But "molest" includes non-violent behaviour - take note.)

Repeated telephoning can amount to molestation. I think you didn't phone him (or not every time), it just slipped out during a phone conversation. Specimen orders now used by the Court don't include the word "molest" any more. They say "harass". Was your conduct harassment? I say not. (If it was harassment, why not apply under the Harassment Act instead?)

The Court has a wide discretion whether to grant the relief sought, and has a duty to use that discretion. Under no circumstances is it acceptable for a court to grant an order just because an application has been filed. It should not make this order, it is unnecessary and the motive in filing the application is higly questionable.

There may be case law I could refer you to. PM me with an e-mail address and I will try to find something and send a transcript to you as an attachment.

Best wishes

Will C

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18 Sep 07 #3561 by Sera
Reply from Sera
My goodness Will! What an amazing, fantastic, knowledgable soul you are! :)

I've just had a sleepless night in panic, trying to scramble thoughts together in my head, then I wake up to your post, and it outlines my arguement, that he's using this to rid me from the house, and I intend to show it as a mallisceous claim.

My e-mail is f*$%"d right now! (Technical probs), but if you do find something, please post or pm the link. I'd love to follow it.

What's really interesting, is that in his affidavit, he has transcribed a phone convo, whereby I'm asking him to contact me re: Sale of our house. (With massive detail about our various offers and buyers).
In mediation yesterday, he was denying our house was for sale, (In an attempt to get rid of me first, then sell it).... So, his sol has given me the biggest piece of 'evidence' I will need when it comes to arguing the financial settlement, by filing that as a Court document.

:woohoo:Nuckin' Futs' (sorry that's not a legal term!)

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18 Sep 07 #3563 by wscowell
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Hi Sera,

Good to know he has been over confident and shot himself in the foot. The case I have been looking for is C -v- C [1998] reported in Family Law Reports: 1 FLR 554.

The President of the Family Division stated that molestation had to involve "some element of deliberate conduct causing clear harassment to such a degree that the court’s intervention was necessary."

I don't see what you did as coming anywhere near that. Unfortunately I can't get an actual copy of the judgment but I think if you refer the Judge to that case it will still carry weight. It was decided at the highest level, after all. Fight on with confidence!

Will C

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18 Sep 07 #3564 by gone1
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Sera / Will. The order is there and you must deal with it. I have been thru non - mol and occupancy order. What swayed me to go the undertaking route was costs. I was presented with a bill of over £1000 if I failed to defend myself. I did all the right things by preparing an afadavit and had it sworn etc and did all the right things etc but I still was shafted. What she put on her statement was all lies. She had witnesses as well (her family) that I put nails in tyres and said things to her in Asda. None of which was true.

You have no choice but to defend it. But draft an undertaking and take it with you. If pushed just sign it and thats that. Its done with. Sometimes you have to suck it up. There is no such thing as justice. Chris.

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18 Sep 07 #3577 by Sera
Reply from Sera
Thanks guys... I'll certainly quote that case Will. I'll update Monday also afterwards.

I called the Court (spoke to a clerk I think?) They said it would be a short hearing, half-hour, and the judge could decide for a further length of time, to allow me to gather evidence. She also said I could deliver my Statement to his sol on the day.
Of the supposed 'witnesses', he's wheeled out only his mates that some way profit from his lies! (Cash jobbers), one mate owes him a debt of over 30k, asked for an extended period of repayment, and guess what!? He calls him a witness!

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18 Sep 07 #3591 by Sera
Reply from Sera
s42(5) Family Law Act 1996 sets out the criteria for the making of a non-molestation order,

Again, thanks Will, I found the link:

www.londonexternal.ac.uk/current_student...des/family/fam_4.pdf

Blimey! It took some reading! If I'd have printed it out, it would rival a roll of Andrex!

(Appropriate since I'll wipe my botty with his claim) :lol:

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