Overview
Chalmers v Johns [1999] 1 FLR 392 remains a key authority on the interpretation of section 33 of the Family Law Act 1996. The case clarified how the courts should apply the “significant harm” test when deciding whether to make an occupation order—an order that may exclude one party from the family home.
Background
The appellant (father) and the respondent (mother) were joint tenants of the family home and had two children together. Their relationship was long but volatile, marked by incidents of conflict, minor violence, and alcohol misuse. Following an acquittal for common assault in June 1998, the mother left the home with the younger child. Both parties then made applications for non-molestation orders, occupation orders, residence orders, and a transfer of tenancy.
In September 1998, the judge ordered the father to leave the family home within seven days. The father appealed the decision, arguing that the court had applied the law incorrectly.
The Court of Appeal’s Decision
The Court of Appeal granted a stay of execution and held that the judge had misapplied section 33 of the Family Law Act 1996 by treating subsections (6) and (7) as concurrently applicable and by finding “significant harm” without sufficient evidence. The Court emphasised that subsection 33(7) applies only where the court is satisfied that the applicant or child is likely to suffer significant harm if the order is not made, and that this harm must be exceptional and supported by clear evidence. Where the threshold for significant harm is not met, the court must instead consider the broader factors listed under section 33(6).
Why This Case Matters
Chalmers v Johns restored proportionality and restraint to the use of occupation orders. It ensures that the Family Law Act 1996 is applied in a way that balances personal safety with property rights. The decision continues to guide practitioners and judges in distinguishing between cases involving genuine risk of harm and those involving lower-level domestic conflict. The case stands as a reminder that exclusion from the home is a serious remedy that should only be granted when there is clear evidence of significant harm.
Practical Implications for Practitioners
Family law practitioners should ensure that applications for occupation orders are approached with care, supported by clear evidence, and proportionate to the risk involved. Applicants must demonstrate a genuine risk of significant harm, while respondents can rely on the principle that fairness and property rights remain central to the court’s assessment. The case also underlines the importance of judicial discretion and proportionality, reminding practitioners that courts may encourage alternative dispute resolution such as mediation, where appropriate, to achieve a fair and practical outcome.
Conclusion
Chalmers v Johns [1999] 1 FLR 392 remains a leading authority on the proportionality and evidential thresholds required under section 33(7) of the Family Law Act 1996. It makes clear that minor or isolated instances of domestic conflict will not ordinarily meet the standard of significant harm. More than two decades later, this case continues to inform judicial reasoning and professional practice, ensuring that occupation orders are granted only where truly necessary to protect individuals from substantial risk.