Wallace v Kennedy [2003] NICA 25 (25 June 2003)

Wallace v Kennedy [2003] NICA 25 (25 June 2003)

An ex parte non-molestation order is not void ab initio if the court fails to arrange a full hearing, but the omission must be cured within a short period. If a considerable time elapses without a full hearing, the order cannot be regarded as valid at the time of alleged breach. Procedural fairness under Article 6...

Source-derived case information.

Citation
[2003] NICA 25
Parties
Appellant: A Wallace; Respondent: Colin Robert Kennedy
Jurisdiction
Northern Ireland
Judgment Date
25 June 2003
Procedural Posture
Appeal by Way of Case Stated / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Non Molestation Orders, Ex Parte Orders, Procedural Fairness, Article 6 ECHR
Family Law Domestic Violence Human Rights Non Molestation Orders Ex Parte Orders Procedural Fairness Article 6 ECHR

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Parties

A Wallace

Appellant

Colin Robert Kennedy

Respondent

Procedural Posture

Appeal by Way of Case Stated / Court of Appeal Judgment

Legal Issues

  1. 1 Whether failure to arrange a full hearing renders an ex parte non-molestation order void ab initio
  2. 2 Whether the summons for breach of the order should be dismissed due to procedural defects

Ratio Decidendi

An ex parte non-molestation order is not void ab initio if the court fails to arrange a full hearing, but the omission must be cured within a short period. If a considerable time elapses without a full hearing, the order cannot be regarded as valid at the time of alleged breach. Procedural fairness under Article 6 ECHR requires timely opportunity for the respondent to be heard.

Court Disposition

Appeal dismissed

Orders

  • Summons for breach of non-molestation order dismissed
  • First question (void ab initio) answered No