Occupation Order - hearing planned what actually happens (no solicitor)

Watty1

I have filed (without the aid of a solicitor) for an occupation order.  I'm happy with my witness statement and it has gone in (a court staff member checked I had everything correct) and the hearing is booked.  I was trying to file for an ex-parte (without notice to the other person) hearing but was told that in my county these are never allowed.  (I know they are in others).    So the hearing is booked and this is where the web advice seems to run out (I used google to read solicitors websites to this point).

The background here (to cut a very long story short) My ex has another house to live in (he bought one, he is wealthy).  We were not married and my only asset is half the house we once shared.  My ex prefers not to live in the house he owns but rather to spend each night at the jointly owned one which I am trying to buy off him (although he keeps moving the goal posts on that sale).  I'm claiming emotional, psychological and financial abuse and asking if he could live in his own house and I live in the jointly owned one until the sale goes through.

I'm now consumed with anxiety to the point of wanting to withdraw it and so I'm hoping that if  I have more information about the actual hearing I will calm down.  

Does the other person file a witness statement?  Do I see that in advance?   What will actually happen on the day?  Does anyone know?  

TBagpuss

An occupation order would almost never be made without notice, in any county (it's non-molestation orders which often are, as a first step so someone can be protected from violence pending an on-notice hearing)

How long is the hearing listed for? Often they will be listed for a short hearing (up to an hour) so the court can see whether he is opposing the order and make direction , for instance for statements to be filed, and then list it for a longer hearing tp actually decide the outcome. 

Normally you would see a statement in advance, the court usually gives a timescale for him to provide it . 

If you haven't already, you ca ask the court for Special Measures - e.g. separate waiting rooms, screen in court so that you don't have to see him when in the court room  (these are typically like the privacy screens you see between desks in shared office space, they mean you can both see the Judge but can't see each other) and can also fill in the form to ask not to be cross examined by him directly in any hearing. 

when the decision is made, the Judge has to apply the 'balance of harm' test - i./e. will making the order, and making him stay away from the house, cause him harm which is greater than the harm you will suffer if the order isn't made. 

If you have already done a statement, hopefully you have addressed that, including setting out the other options he has, to show he won't be homeless r put under financial pressure, and that you don't have other options until the house is sold (or he buys you out) 

At the hearing, as you are the applicant, you would normally go first - tell the judge briefly what you want and why. However, where someone is not represented then the Judge may well ask you questions to get the information they need. If your ex is represented then their representative may be asked to outline the case first instead. 

At a full hearing, normally you have both already given statements so you don't have to repeat what you've already put in your statement, you may be asked to confirm formally that the statement is yours and it is accurate. Then the judge or your ex's lawyer can ask you questions to challenge what you have said or ask for more information, and you have the opportunity to do the same for him. 

In some cases, the hearing is done 'on submissions' which means that instead of giving evidence and asking questions, the court bases a decision on your written statements and any arguments you put forward in the hearing about the legal position. 

Depending on your financial position, you might qualify for legal aid (i junctions are one of the few types of work still covered) or if not, you could look into whether you could get a Direct Access barrister (a barrister who you instruct directly rather than via a solicitor, to cover a hearing only, without giving you any other advice)

If you ex doesn't com to court then the court may be able to make an order in his absence, provided they are satisfied he has been served with the application and knows about the hearing, if they do, the order won't be effective until IT is then served on him. For an occupation Order, it's fairly normal to give him some time to leave (e.g. 14-28 days to get out of the property.) as He already has other house, in your case you could push for a short period, maybe 24-48 hours so he is able to collect his clothes'/personal items. 

TBagpuss

Just to add - have ypu looked at Wikivorce? You may find others there who have gone through it and can add more, although be cautious about any legal advice  from any forum, (this one included!) 

You may also be able to ask to have a support worker with you at court - are you getting help from any local domestic abuse services? 

Watty1

That was such a helpful reply.  Thank you.  Womens Aid referred me to an organisation called Daisy Chain who interviewed me and then wrote the statement which I factually corrected and then they checked and said it was ready to be filed.  I did ask what would happen next but they advised me as if it would be in private.  .  My advisor only works one day a week, so when I found out it would be both of us I didn't know what to do so your reply is helpful.  

I'm not entitled to legal aid.  I've spent a lot on solicitors trying to resolve things.  We were not married so it has been a right  mess.    I'm still struggling to be honest with the end of the relationship.  He only became like he is when his father died.

My statement draws attention to the fact my mental health is suffering and I am struggling to work. It lists the problems I face daily.  It also highlights the efforts I have taken to settle and importantly says he has another house where he goes every day during the day and where he says he lives (to utility companies for example so he does not have to pay bills at the jointly owned house).

I've clearly stated he has a house that no one lives in and that he can live in it so he would not be disadvantaged by the order being granted. The only disadvantage I can think of is that he likes me to look after our joint dog when he works and he takes the dog when he does not work.  I'm so desperate I will give the dog up although I would agree to look after the dog for him if he would just give me some peace. 

I'm ok going to the hearing alone if I know what might happen then I can prepare mentally if that makes sense.  It is a 30 minute hearing. I expect him to come with his lawyer (after all he can afford her!)  

Watty1

Yes I asked for the privacy screen as he stares at me and I find that intimidating.    

Will my statement have already been sent to him?

TBagpuss

If your statement was attached to the application , yes. If it was filed later normally you are responsible for sending it to him and to the court, so if you didn't, you need to do that.

Watty1

Had a letter from the ex's solicitor and now thinking of withdrawing the application as they have let me know that they consider my witness statement does not meet the threshold and they are going to apply for me to meet his costs.
I don't have a solicitor for reasons of costs and to be made to pay his costs if I do not win just seems onerous.   Beyond fed up now but thank you for your comments @TBagpuss

Savvy_Sue

Go back to the organisation which helped you draft it. Sounds like a bullying mean-spirited bluff on his part.

TBagpuss

Costs orders are pretty unusual in family cases, I would be extremely surprised if a court entertained a costs application in a case like this,

tightauldgit

Watty1 said:

Had a letter from the ex's solicitor and now thinking of withdrawing the application as they have let me know that they consider my witness statement does not meet the threshold and they are going to apply for me to meet his costs.
I don't have a solicitor for reasons of costs and to be made to pay his costs if I do not win just seems onerous.   Beyond fed up now but thank you for your comments @TBagpuss

Well they're hardly likely to come back and say 'you've a really good case and we're probably going to lose.'

A lot of solicitors bluster like this especially when the other party is representing themselves as they think they can scare people off. Unless you've done something totally egregious you won't be on the hook for costs. You may win or lose your case but a costs order is very unusual.

Watty1

Thanks everyone. I have emailed the organisation that helped draft the witness statement but my case worker only works one day a week.    I have felt sick with worry since their letter but am reminding themselves it is possibly a bluff to make me back off.