District Judge Sowaran Singh:
Background
The Complainant (“mother”) is the ex-wife of the Respondent (“father”). They have one child from the union a boy who is now 6+ years old. They were married in India in February 2007 and their marriage was dissolved on the 8th February 2012 (IJ granted). The ancillaries were heard and orders made on the 30th October 2014 (the Order). Both parties had filed appeals against these orders. The appeals were duly heard and the decision was rendered by the High Court on the 29th June 2015. Both parties are in the IT line with Masters Degrees in IT. The mother is now about 34 years old and the father 35 years old.
In SS 2840/2014 the mother applied on the 24th November 2014 for a Personal Protection Order (PPO) for herself and the child against the father. In SS 2997/2014 she applied on the 12th December 2014 for a Domestic Exclusion Order (DEO) against the father. In MSS 5518/2014 she applied on the 8th December 2014 for the enforcement of arrears of maintenance for their child which had been ordered on the 30th October 2014. All three applications were together on the 29th May 2015 with both parties being represented by counsel. The mother’s affidavits were marked as exhibits P1, P2 and P3 whilst those of the father were marked as exhibits D1, D1A, D2, D2A and D3. Both parties also gave oral testimony and were cross-examined. Thereafter, both parties made their submissions on the 5th and 30th June 2015.
At the conclusion of the hearing on the 30th June 2015, in so far as relevant to the present appeals, the court granted both the PPO and DEO applications except that the PPO was only granted in respect of the mother. The father has now filed appeals against these orders.
The Appeal
On the 14th July 2015 the father lodged an appeal against the court’s decision in granting the PPO and DEO applications to the mother. The court will now deal with the issues that arose at the hearing.
The Facts in Brief
The Mother’s Case in Brief
The father had left the matrimonial home (the home) on the 2nd October 2010 to live elsewhere and since then the parties had been living separately. The mother complained that after the Order was made the father again began to harass the child and her in the home. She was away in India from the 18th to the 23rd November 2014 and the home was unoccupied save for her 2 tenants whom she had permitted to stay. On her return she was shocked to find the father in the home. She learnt from one of the tenants Axxx (“A”) that he had granted the father entry into the home on the 21st November 2014 when she was away. She discovered that the father and A knew each other and fearing for her safety she terminated A’s tenancy agreement immediately on the 23rd November 2014.
Her case was briefly as follows: - the father had surreptitiously gained entry into the home without her knowledge/consent after a period of some 4 years and this showed his malicious behaviour after the Order. There was no reason for him to enter the home other than to cause her undue harassment and hardship by interfering with her tenants and putting her and the child in fear of their safety. Knowing the father’s violent and aggressive behaviour towards her from past incidents, their son and she were very fearful in his presence. She had to call the Police but as the father was a joint owner of the home they could not do anything and advised her to apply for a PPO. - during the time the father was in the home, he continuously harassed the child and her by following them around taking videos of their movements and conversations even when she was talking to A. This caused her and the child tremendous harassment. After A vacated his room the father still remained in the home and slept in the master bedroom for the night of the 23rd November 2014. She was unable to sleep the whole night due to the stress he had caused her the whole day. The father also called one of his friends despite her objections and called the Police. When the Police arrived at about 11pm, the father and the unknown person left. The Police advised her to apply for a PPO. She also went to see a Doctor and was prescribed anti-depressant medication and given a medical certificate. - in fear of their safety, she changed the lock of the main door in the morning of the 24th November 2014. On the 25th November 2014, whilst running errands she received a telephone call from their son who was screaming and crying. He asked her to come home immediately as the father had entered the home in her absence with the help of a locksmith who broke the lock. The child witnessed the locksmith drilling and breaking the lock. She immediately took a taxi and went home. On reaching the home, she found her domestic helper holding the child in her arms as the child was screaming, crying and shivering with fear. Their son was traumatised by the whole incident. The father was busy taking videos of everything going on in the house instead of consoling the child. She was compelled to apply for the DEO. She claimed that there was no bond of the child with the father. - she exhibited a copy of the Order which provided that the parties were to have joint custody of the child with care and control to the mother and reasonable access to the father every Saturday from 9am to 6pm.For the access the transfer was to be at the “lobby” of the mother’s residence where the father was to fetch and return the child and only the parties were to be present during the transfer. - she said that after their marriage she was physically and mentally abused by the father and his family members on several occasions. As a result she was injured and she exhibited a medical report dated 5th September 2009 which showed that she had sustained abrasions and cuts. She also averred that the father had tried to suffocate her with a pillow. She also exhibited another medical report dated the 16th October 2010 in which she alleged that the father pulled her hair. In September 2009 she had applied for a PPO against the father. At the hearing in court on the 12th October 2009 the father gave an undertaking not to commit violence against her and trusting his words she withdrew her application. She exhibited the Notes of Evidence (the NE) of that hearing on the 12th October 2009 and a Deed of Settlement (the Deed) that the parties had entered into on the 11th October 2009. The NE reveals that the mother had withdrawn her PPO application in SS 2302/2009 and that the parties had entered into a Deed in which the father had given an “undertaking not to commit family violence” against her. The Deed (at paragraph 1) stated that she reserved her right to apply for a PPO should the father breach the term not to “henceforth use or attempt to commit any violence” against her.
In respect of the maintenance another clause of the Order provided that the father was to pay the mother a monthly sum of $1,000 per month as child maintenance with effect from the 15th November 2014 with the payments to be deposited into the mother’s DBS account number as stated therein. She went on to add that although the father had filed an appeal against the Order, he was still obliged to pay the sum as there was no stay of the Order. She listed out several instances of previous defaults by the father in making maintenance payments and requested that there be an Attachment of his Earnings Order (AEO). The arrears sum now outstanding was $7,000.
The Father’s Case in Brief
The father in turn accused the mother of extreme harassment which then led him to apply for the divorce on the 6th December 2010.He had lodged several Police reports as a result of her threats and harassment. He too exhibited medical reports to show that he had sustained injuries on account of the mother’s violence which were dated 16th October 2010.Their divorce concluded with the Order being made on the 30th October 2014. Despite this, the mother continued her harassment by preventing him from returning to the home with the intention of keeping him away from their son and renting the home without having to declare the extra income she was making. His went on to add that: - the mother had been continuously harassing him by filing multiple PPO applications all of which had been dismissed. - her current applications were fabricated to prevent him from returning to the home. She had rented out two rooms in the home without updating him or the court. She was supposed to give him 80% of the rentals but had not done so. Her DEO application was filed with the aim of securing monetary gain in his absence. - he went on to describe the incident on the 23rd November 2014 when the mother returned from India in the morning. When she saw him in the home, she immediately called the Police saying that he had no right to be in the premises. When the Police arrived he informed them that he was a registered owner and had a legal right to be there and they left. The mother then told the tenant A to leave the home after accusing A of assisting him (the father) to enter the home. She again called the Police who left after checking that A was a tenant. As she harassed A, he (A) left the same day and rented another place. Later the father called a friend of his to be with him in the room to protect himself against the mother’s fury and false allegation but she did not allow his friend to enter. He then went out to apologise to his friend and as soon as he returned he found that the mother had changed the padlock again to prevent him from entering his own home. - he tried to enter the home but was met with hostility from the mother. When he went to the Family Court to seek help he was told to get a locksmith to break open the...
