Ewen v. Annand [2004] ScotSC 5 (19 January 2004)

Ewen v. Annand [2004] ScotSC 5 (19 January 2004)

The defender's conduct between 28 October and 2 November 2003 was injurious to the physical health of Michelle and the mental health of the pursuer and both children. The defender's repeated, provocative entries to the home, despite knowing the distress caused, justified the exclusion order. A common law interdict would not provide sufficient protection. The exclusion order was necessary and not unjustified or unreasonable.

Citation
[2004] ScotSC 5
Parties
Pursuer and Respondent: Diane Mary Ewen or Annand; Defender and Appellant: Richard Annand
Jurisdiction
Scotland
Judgment Date
19 January 2004
Procedural Posture
Divorce and Exclusion Order / Appeal Against Interlocutor Granting Exclusion Order and Interdict
Outcome
Appeal refused; interlocutor of 11 November 2003 adhered to; all questions of expenses reserved.
Legal Topics
Divorce, Exclusion Order, Interdict, Matrimonial Homes (family Protection) (scotland) Act 1981, Child Welfare
Family Law Civil Procedure Divorce Exclusion Order Interdict Matrimonial Homes (family Protection) (scotland) Act 1981 Child Welfare

Case Brief

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Parties

Diane Mary Ewen or Annand

Pursuer and Respondent

Richard Annand

Defender and Appellant

Procedural Posture

Divorce and Exclusion Order / Appeal Against Interlocutor Granting Exclusion Order and Interdict

Legal Issues

  1. 1 Whether an exclusion order against the defender is necessary for the protection of the pursuer and children under section 4(2) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981
  2. 2 Whether a common law interdict would afford sufficient protection
  3. 3 Whether the exclusion order is unjustified or unreasonable in the circumstances

Ratio Decidendi

The defender's conduct between 28 October and 2 November 2003 was injurious to the physical health of Michelle and the mental health of the pursuer and both children. The defender's repeated, provocative entries to the home, despite knowing the distress caused, justified the exclusion order. A common law interdict would not provide sufficient protection. The exclusion order was necessary and not unjustified or unreasonable.

Court Disposition

Appeal refused; interlocutor of 11 November 2003 adhered to; all questions of expenses reserved.

Orders

  • Exclusion order against the defender maintained, suspending his occupancy rights in the matrimonial home.
  • Warrant for summary ejection of the defender from the house.