Manjra v Shaikh: When a non-molestation order should end
|Photo by Daniele Levis Pelusi on Unsplash|
It is a point that I, and no doubt many other family lawyers, have pondered over many times: if a non-molestation order simply requires a person to refrain from doing what they should not do anyway, where is the harm in the order continuing?
The point arose in the case Manjra v Shaikh, in which judgment was handed down by Mr Justice Cobb today.
The relevant facts in the case were as follows:
1. The parties' marriage broke down in 2016.
2. In November of that year, the wife applied for a non-molestation order against the husband, and an occupation order to regulate the continued co-occupation of the matrimonial home (specifically, forbidding the husband from entering the master bedroom). These orders were made ex parte on 18 November 2016, and were expressed to "begin from the time that the respondent is made aware of the terms of this order". No provision was made in the order for their expiration, but the husband was given the opportunity to apply to vary or revoke them, an opportunity that he did not take up.
3. Both parties continued to reside together in the matrimonial home.
4. In or about May 2018, the parties settled their financial remedy proceedings by agreement, under which the matrimonial home was to be transferred to the husband. In August 2019, the wife moved out of the home. The parties are now divorced.
5. On 6 November 2019 the husband applied to the court to discharge the non-molestation and occupation orders. His application was listed for directions on 7 January 2020.
6. At the hearing it was obviously agreed that the occupation order should be discharged, but the wife sought the continuation of the non-molestation order. The judge accepted that there had been no problem between the parties since the orders were made, and that there would be no jurisdiction for the court to extend the order, or to make a new order. However, she saw no reason why the non-molestation order should be interfered with, and therefore ordered that it should continue indefinitely.
The husband appealed.
Hearing the appeal, Mr Justice Cobb found two significant errors in the judge's approach to the case:
1. She wrongly approached the question of whether the order should continue or be discharged not by reference whether it was necessary for the court to continue to protect the legal right of the wife from "conduct which clearly harasses and affects the applicant to such a degree that the intervention of the court is called for", but by considering whether there was any prejudice to the husband in its continuation.
2. Having regard to (inter alia) the length of time the order had been in place and the fact that the wife had made no material complaints about the conduct of the husband in the intervening period, it was "manifestly wrong" for the judge to dispose of the application by continuing the non-molestation order, particularly by extending it for an indefinite period: "She had failed to embark on anything approaching an adequate analysis of whether this case did justify the making of an open-ended order. Indeed, had she done so, on the facts ... the proper outcome would ... have been the discharge of the order."
Accordingly, the appeal was allowed. However, the wife told Mr Justice Cobb that she still felt intimidated by the husband, and volunteered illustrations of the husband's alleged more recent behaviour. Mr Justice Cobb therefore remitted the husband's application for discharge of the 2016 non-molestation order for a re-hearing. In the meantime, he substituted the 7th January order with one which provided for the continuation of the non-molestation order until further order.
You can read the full judgment here.