COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TUNBRIDGE WELLS
HIS HONOUR JUDGE HAMMERTON)
B e f o r e :
LORD JUSTICE NOURSE
LORD JUSTICE STUART-SMITH
| JANET SYLVIA EILEEN FISHER
|JOHN HARRY FISHER
MISS ANN WICHEREK (instructed by Messrs. Waughs, Solicitors, East Grinstead, West Sussex, RH19 3AD) appeared on behalf of the Petitioner (Respondent).
Crown Copyright ©
LORD JUSTICE PURCHAS: This is an appeal by John Harry Fisher ("the husband") from an order for periodical payments in favour of his ex-wife Janet Sylvia Eileen Fisher ("the wife") made by His Honour Judge Hammerton on 10th June 1988. Subject to a small variation, the judge affirmed an order made by Mr. Registrar Di Castliglione on 17th March 1988. The central issue raised on the appeal is whether the judge and, in his turn, the registrar were correct in rejecting a submission made on behalf of the husband that the provision for periodical payments in favour of the wife should be limited under the provisions of s.31(7) of the Matrimonial Causes Act 1973 as amended ("the 1973 Act"). In turn this raised the question as to the impact of the presence of a child ("Richard") bom to the wife on 22nd August 1981 and of whom the husband was not the father, on the court's duty to take into account "all the circumstances of the case" under the section to which I have just referred. This appeal was listed before Slade LJ and Hollings J. on 15th November 1988. After hearing part of the appellant's submissions, the court adjourned the appeal to be heard by a court of three judges.
The history can be shortly stated. The parties were married on 12th May 1973, at which time their only child ("Jonathan") had been born on the 27th July of the previous year. The marriage was of short duration. The parties separated in November 1978. At this date the wife was 31 and the husband 48 years of age. The marriage was dissolved upon the wife's petition on the grounds in s.1(2)(b) of the 1973 Act by decree nisi dated 29th March 1979. After the separation the wife looked after Jonathan, with whom the husband has at all times kept in close contact. Between November 1978 and June 1981, although she had received £50 per week for housekeeping and received child benefit for Jonathan, the wife had incurred an overdraft with the bank which by 10th June 1981 had amounted to £10,000. On this date there was an order by consent under which the husband paid the wife a lump sum of £50,000 and substantial periodical payments to the wife and to Jonathan. Decree absolute was pronounced on 13th June 1982.
The terms of the order of 10th June 1981 included provision for the sale of the matrimonial home and the distribution of part of the proceeds of sale in the form of the lump sum already mentioned, with the balance to the husband. The figure for the periodical payments was fixed after the sale of the matrimonial home at £5,625 per annum to the wife and £1,375 to Jonathan, both less tax; the latter order was to continue until Jonathan reached the age of 17 years or further order. Liberty to apply for decree absolute notwithstanding the passage of a year after decree nisi was also granted. The present proceedings were initiated by an application made by the wife dated 18th November 1987 to vary the provisions of the 1981 order for periodical payments to herself and Jonathan by increasing both. This prompted a cross-application by the husband dated 13th January 1988 seeking the discharge of that part of the 1981 order which related to periodical payments to the wife or alternatively varying that part of the order by reducing the amount.
There ensued the usual exchange of affidavit evidence, etc. and the matter came before Mr. Registrar Di Castliglione on 17th March 1988, when both parties gave evidence. The wife's case depended mainly upon the necessity of an increase in the payments to keep pace with the effects of inflation. The husband's case was based upon the "clean break" provisions which had come into force since the 1981 rder as a result of amendments to s.31 of the 1973 Act. The registrar heard a considerable body of evidence as to the financial circumstances of both parties. For the purposes of this judgment it is not necessary to rehearse any of the details of the evidence recorded in the affidavits, documents or notes of evidence. It is sufficient to refer to one or two findings made by the registrar in the judgment which he delivered. In the event the registrar ordered that the provisions of the 1981 order should be varied so that the periodical payments paid to the wife should be increased to £7,500 per annum (less tax) and to Jonathan to £2,600 per annum (less tax) until Jonathan attained the age of 17 or ceased full-time education whichever was the later date, or further order. Relevant to the issue in this appeal are the references in the registrar's judgment to Richard as follows:
"In considering the evidence before me I have to take account of all the circumstances. One of those circumstances is the fact that Richard lives in the same household as the Petitioner. She is responsible for his upbringing and, unfortunately, has been unable to secure any payment by way of maintenance from the father of that child, who disappeared and is thought to be resident in Ireland.
"I recognise in making my Order that the Respondent has no responsibility for the upbringing of Richard or his maintenance. Nevertheless he is a factor in my mind in achieving my decision; it does appear to me that while the child is so young it is a matter of great difficulty for the Petitioner to take employment.
"I do think that she has got very seriously to contemplate the fact that before long she can expect to be responsible for her own maintenance without being dependent upon the Respondent. She would be well advised not merely to seek employment, but some education or training in the time available to her."
"But in commenting about her employment prospects, I would expect her by the time Richard is nine to at least be in a position of taking up part-time employment should it be available in the area where she then resides.
"That, however, is a matter to be reserved for the future when evidence as to the availability of employment, part-time or otherwise, will be required for a Court considering whether there should be a clean-break or the extent to which the Petitioner should contribute financially to her upkeep."
(a) it was a short marriage;
(b) the Petitioner's earning capacity was ignored;
(c) the existence of Richard was treated unfairly so far as the Respondent was concerned.
Although in the note of his judgment the judge refers to the husband's case being based upon the amendments in s.25A of the 1973 Act, the whole context of the argument before him was in relation to s.31(7) and this was merely a slip in referring to this section. Mr. Pointer, who has appeared for the appellant, does not take any point on this. He refers to it, however, merely as an indication that the judge's approach to the whole problem was suspect. For my part I find no substance in this suggestion.
"The Learned Registrar in a careful judgment considered all the circumstances of the case. He considered not only the circumstances of the Petitioner and the Respondent but also of Jonathan. He also bore in mind that, since separation, the Petitioner had given birth to a son, Richard, now aged about six, who is not the Respondent's child. He directed himself correctly that the Respondent had no responsibility for Richard but that Richard's existence was clearly a factor affecting the ability of the Petitioner to provide a suitable income for herself. In that limited sense only does the child figure when dealing with the amount the Petitioner is entitled to receive from the Respondent. Bearing in mind the child for whom she is responsible, she clearly cannot earn in the way she might be able to do if the child were not there.
"In the event, the Learned Registrar indicated that the question of the Petitioner's future employment and the possibility of a 'clean break' was a matter to be reserved for the future, at which time, he said,
'....evidence as to the availability of employment, part-time or otherwise, will be required for a Court considering whether there should be a "clean break" or the extent to which the Petitioner should contribute financially to her upkeep....'"
"I venture to suppose that that figure is considerably less than the appropriate figure taking into account the rate of inflation, nor does that sum as such reflect a conventional one third of joint income. The Respondent is a person in receipt of income substantially in excess of the sort of figure to produce £7,500 on a conventional basis. (The husband's income was said to be about £45,000 per annum).
"In my view, included in the circumstances which the Learned Registrar had in mind were those which Miss Davidson mentioned in her submissions, namely, the shortness of the marriage and the fact that the Petitioner had some earning capacity, ignoring the existence of Richard. He took into account that part of the maintenance provided for Jonathan to some extent did assist Richard.
"That being the situation, the basis of Miss Davidson's appeal was really not quantum but that the Respondent sought to incorporate an immediate 'clean break' situation, or, alternatively, upon Jonathan reaching the age of seventeen or ceasing full-time education, or if I am against her on that, that there should be a reduced figure of maintenance for the Petitioner in the future. I have borne in mind that in this case a lump sum has already been paid to the Petitioner and, therefore, that it is not open to me to order another - as it were - to commute any future periodical payments entitlement.
"Neither is it possible to speculate as to what extent she could find employment. The imponderables are there because the Petitioner has not had to consider work because of Richard's age. The matter was not of great urgency until this application arose. On the other hand, the Petitioner herself concedes that an order of the type the Learned Registrar made cannot be regarded as an order in perpetuity. Not only have I been told that the Respondent may retire in two years' time, but also that Jonathan may leave school in the next year or two and Richard is getting older. They are all factors which must go, if not to a 'clean break', at least to a much reduced figure for maintenance in the future. In the circumstances, the issue is relatively narrow but requires some judicial intervention. In my view, it is desirable that there should be a period of time independent of Jonathan's education during which the higher rate of maintenance ought to be paid, but the matter must come back to Court after that to deal with the situation after Jonathan is no longer training or receiving full-time education."
During argument the judge had indicated to Miss Wicherek that he did not intend to make a "clean break" order but that the matter should be postponed for a future occasion. Accordingly Miss Wicherek did not fully present her argument against any order being made under s.31(7) of the 1973 Act. He therefore ordered:
"That the order of the Learned Registrar be varied in as much as that part of the order concerned with periodical payments to the Petitioner be restored upon Jonathan ceasing full-time education or three years from today, whichever is the earlier."
The husband now appeals against the order on the basis that the judge should not have taken into account the existence of Richard, whom the judge considered at his present age was an inhibiting factor against the wife seeking even part-time employment. This point was adumbrated as a ground for complaint before the judge when the appeal against the registrar's order was being considered as disclosed in the judge's note: "The existence of Richard was treated unfairly so far as the Respondent was concerned". Before Slade LJ and Hollings J. it appears from the transcript of Slade LJ's judgment that Mr. Pointer was taking the same sort of point in a more specific form, namely (per Slade LJ):
"He submitted in effect that when the court is invited to exercise its discretion under section 31(7) of the 1973 Act as amended neither a husband nor a wife is entitled to rely on any reduction in his or her income earning capacity which has occurred because of circumstances within his or her control and of his or her choice. He submitted accordingly that in the present case the wife is not entitled to rely on the fact that the presence of her younger son, Richard, prevents her from working because it must be presumed that his advent has occurred solely because of circumstances of her own volition. He submitted that there is no reason whatever why the presence of Richard should prejudice the husband's financial position or improve her own in any way for the purpose of these applications. I have paraphrased Mr. Pointer's submissions, but I think this was the effect of them."
"The learned judge failed to give any or any proper consideration to the provisions of s.31(7) of the Matrimonial Causes Act 1973 as amended."
It is convenient here to consider the provisions of that section. S.31 deals with applications to vary, inter alia, orders for periodical payments. S.31(7) was substituted for the preexisting s.31(7) by the Matrimonial and Family Proceedings Act 1984, s.6(3), and came into effect on 12th July 1984. It provides as follows:
"(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen, and the circumstances of the case shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates, and -
(a) in the case of a periodical payments or secured periodical payments order made on or after the grant of a decree of divorce or nullity of marriage, the court shall consider whether in all the circumstances and after having regard to any such change it would be appropriate to vary the order so that payments under the order are required to be made or secured only for such further period as will in the opinion of the court be sufficient to enable the party in whose favour the order was made to adjust without undue hardship to the termination of those payments;"
"25A. Exercise of court's powers in., favour of party to marriage on decree of divorce or nullity of marriage.
(1) Where on or after the grant of a decree of divorce or nullity of marriage the court decides to exercise its powers under section 23(1)(a), (b) or (c), 24 or 24A above in favour of a party to the marriage, it shall be the duty of the court to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable.
"(2) Where the court decides in such a case to make a periodical payments or secured periodical payments order in favour of a party to the marriage, the court shall in particular consider whether it would be appropriate to require those payments to be made or secured only for such terms as would in the opinion of the court be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence on the other party."
The intention and effect of the amendments to the law relating to ancillary relief which can be ordered by the court effected by the 1984 Act have been apparently well understood and usefully applied until this appeal. The purpose was to discourage in cases of marriages of short duration, particularly where no children were involved, orders for periodical payments which were known colloquially as "meal tickets for life". The new provisions required the court in every case to consider in particular, but not to the exclusion of other relevant factors, whether "it would be appropriate" to limit the term in such a way as to provide a positive stimulus to the spouse in whose favour an order for periodical payments is made to achieve either partial or total financial independence of the supportive spouse. To adopt with gratitude an expression used by Butler-Sloss LJ in Barrett v. Barrett (infra), it was obviously undesirable that spouses should remain locked in matrimonial financial situations any longer than justice to each required. However, in their terms both s.25A and s.31(7) are careful to qualify the requirement for adjustment by the words "undue hardship". The expression "adjust to the termination of the support" itself connotes a gradual but progressive effort on the part of the supported spouse. The court therefore has to enquire whether (a) the position has been reached in which such an order is appropriate; and (b) if, and only if, the court is so satisfied then to devise a programme of adjustment which will achieve partial or total financial viability without undue hardship. In either case the court must have regard to "all the circumstances of the case" and must give first consideration to the welfare of any child of the family.
In opening his appeal on an invitation extended by the court in the absence of a skeleton argument, Mr. Pointer summarised his submission in the following terms: "Neither a husband nor a wife is entitled to rely upon a voluntary reduction in his or her income earning capacity. This principle applies whether its effect is on the ability of the individual to make payments to the other or to support him or herself".
"1. It is not a sufficient answer to an application for periodical payments to say, 'I have no income.' The court will look at all available resources (including earning capacity).
"2. A paying spouse with income (or an attributed earning capacity or ability to pay) is not entitled to place an after-acquired spouse or children in priority to his first wife and their children.
"3. A recipient spouse, notwithstanding that he or she is not currently in work, is liable to be assessed as having an earning capacity and/or the ability to be self-financing.
"4. A recipient spouse with income is not entitled to rely upon the existence of an after-acquired dependent spouse (or cohabitee) or dependent children as a reason for the enhancement of any periodical payments to which he or she may otherwise be entitled.
"5. A recipient spouse with insufficient income (periodical payments apart) to maintain her household should look to (a) any cohabitee and/or (b) the other parent of any dependant child to fund the deficiency.
"6. A recipient spouse without income (but with an earning capacity as in 3,) should not be allowed to rely on the existence of an after-acquired dependent spouse or dependent children as a ground for not utilizing that capacity."
I have set out Mr. Pointer's submissions in extenso so as to ensure that I do not do any injustice to his case by omission. I regret to have to say, however, that in my judgment, the only submission relevant to this appeal, i.e., No.6 above, is ill-founded. Mr. Pointer was not able to go to the full length of saying that the judge was obliged by law to ignore the existence of Richard. He submitted with vigour that as he was a liability, or alternatively a reduction in earning capacity voluntarily accepted by the wife, the judge should have ignored the wife's responsibility to look after Richard when assessing her earning capacity for the purposes of s.31(7).
I now refer shortly to the six propositions set out above. Proposition 1 is drawn from the authorities collected in paragraphs 29 and 30 on pages 83 et seq in Jackson's Matrimonial Finance and Taxation, 4th edition. These authorities are dealing with the case where a spouse merely asserts that he or she has no income or assets and where the court forms the view that, were the will to earn present,the party concerned could without doubt improve his or her financial position the court is not "misled" by appearances but looks at the realities. This is based on the old ecclesiastical concept of "faculties". There is no doubt about the correctness of this proposition but I regret, with respect to Mr. Pointer, that I can see no connection with the proposition and the problem with which the judge was faced in this case. The wife here says that she is not in a position to seek employment. That proposition was accepted both by the registrar and the judge as being justifiable in the presently existing circumstances. The reason is the existence of Richard. It is not a question of a party wilfully refusing to work or hiding their assets.
The second proposition is based upon a number of cases to which we were referred, the leading one of which was Roberts v. Roberts  Probate 1, a judgment of the court delivered by Rees J. This was an appeal to the divisional court against an award made by a magistrates' court. The authority does not support any principle other than that a husband who, after the breakdown of the marriage, subsequently remarries and takes on financial responsibility possibly including children of his new spouse, is not entitled to put them in priority to his first wife and family when it comes to his capacity to pay maintenance to those for whom he is responsible. Roberts v. Roberts was followed in subsequent cases, Moon v. Moon  FLR 115 and Macey v. Macey [ 982] FLR 7 and Cowey v.Cowey Fam. Law Journal, 1983. None of these cases, however, supports the submission that in considering the overall responsibilities of the husband the court, beyond giving primary consideration to his first family, is obliged to ignore the existence of a second wife, and her children. In fact in Macey v. Macey Wood J. envisaged the possibility of taking into account the wealth and earning capacity of the second wife as being relevant in considering the ability of the husband to support the first wife and children. This aspect underlines the fallacy under which Mr. Pointer's submission suffers on this aspect since if the second wife's earnings can be taken into account in reducing the husband's liability to provide for her, it cannot at the same time be said that her presence and his liability to provide for her must be ignored when considering the husband's responsibility to provide for the first wife. I found no assistance from this line of authorities for Mr. Pointer's basic submission that the presence of Richard ought, if not in law, in application of the law, to be ignored qua the husband 's liability to support his ex wife.
As phrased, Mr. Pointer's fourth contention assumes "a recipient spouse with income" seeking to increase periodical payments in order to support an after-acquired spouse, cohabitee or dependent children. In any event this situation does not arise in this case where the wife has not claimed for the support of Richard. Quite apart from this I could not accept that this contention is correct as a general proposition. If it were, it would have resulted in the total exclusion of the husband's second family in cases such as Roberts v. Roberts and Macey v. Macey. Without intending any disrespect to Mr. Pointer, I do not feel it necessary to consider this submission in any greater detail.
The fifth contention is dealt with by the findings of the registrar and the judge which are common ground to this appeal, that the wife tried to proceed against the father to obtain maintenance for Richard and for very good reasons was unable so to do.
As to the sixth contention which, as I have already commented, is the only contention relevant to the issues raised in this appeal, this flies in the teeth of the express provisions of s.31(7) to take into account all the circumstances of the case and is not supported either by authority, reasoning or logic. The argument would apply equally to a person who had become incapacitated from earning through accidental injury or illness if the exposure to such injury or illness resulted from a voluntary act.
Finally, Mr. Pointer relied upon the case of Suter v. Suter & Jones  Fam 111. In that case the court held that the judge at first instance had failed properly to direct himself according to the provisions of s.25A(2). The court, therefore, exercised its own discretion in the light of this provision. Sir Roualeyn Cumming-Bruce, who delivered the leading judgment, on the facts in that case came to the conclusion that it would be "premature to make an order terminating the wife's claim for periodical payments for her support from her husband". Mr. Pointer relied upon the comments of Sir Roualeyn Cumming-Bruce at page 123 E relating to the importance given to the welfare of the children of the family by s.25(l) as amended and submitted that by analogy once Jonathan was no longer dependent upon the mother the continued presence of Richard, not being a child of the family, should be for practical purposes ignored. I regret that I am unable to accept this submission. The ratio decidendi in Suter v. Suter has no direct relevance, in my judgment, to the question whether and to what extent the wife's admitted responsibility for Richard which admittedly prevents her from engaging in gainful occupation relieves the husband of his liability to support her within the terms of s.25A and s.31(7).
The court drew Mr. Pointer's attention to recent judgments in the Court of Appeal delivered in two-judge courts which appeared relevant to the issues in this case. These were Barrett v. Barrett (Court of Appeal), transcript 20th June 1988, and Hepburn v. Hepburn (Court of Appeal), transcript 21st June 1988. Barrett v. Barrett, in which the leading judgment was delivered by Butler-Sloss LJ, concerned S.25A; but the learned Lord Justice's views are equally applicable to s.31(7). The court considered that the judge at first instance adopted a too restricted approach to the exercise of discretion, per Butler-Sloss LJ at page 5 G:
"That is to say he felt himself bound to put not only into the balancing exercise the consideration whether the periodical payments order should be terminated, but that it should be in the forefront of his mind. And when he says that 'dependency should be terminated unless there is a reason why it should not be', in my view he is placing too great an emphasis upon termination. It is obviously desirable that people should not remain locked into matrimonial financial situations if in justice to both sides that can be brought about by an order to an end, either immediately on decree absolute or within as short a period thereafter as possible. But if there is to be determination unless there is good reason not to be, then in my judgment it should have been set out in the Act.
"I do not see Parliament as taking from the court the exercise of discretion in the widest possible way, so long as each aspect of section 25, so far as appropriate, and section 25A, particularly subsection (2) are clearly in the mind of the court and are given appropriate weight to the particular case which is before the court."
Butler-Sloss LJ then reviewed the particular circumstances of the wife. These were that she had shown a willingness to return to work and to take some training but that the existence of employment was very much in doubt. The judge at first instance had said that his duty under S.25A involved his looking into a crystal ball - "I think the probability is that the wife will obtain full-time employment. She has taken a course in using a word processor ....". Butler-Sloss LJ continued at page 8 F of the transcript:-
"I take the view that he (the judge) was so concerned with his requirement to bring periodical payments to an end for this particular wife, on the basis that wives ought not to have continuing orders unless it is absolutely necessary, that he was looking for a period in his crystal after which he felt obliged to bring the order to an end, and, as he said, 'How long it will take is a matter for speculation and anyone's guess', and he then fixed upon the period of four years with, in my view, a hope not based upon fact that she would be enabled to become independent and find her livelihood.
"It would seem to me unjust that she should have the anguish of whether or not, when she goes back without being able to find work, the court would say 'we will terminate anyway'. It puts an onus upon her that I do not think is justified by the section 25A(2). Since the section considers whether 'those payments to be made only for such term as would in the opinion of the court be sufficient to enable the party in whose favour the order is made, to adjust without undue hardship to the termination', at this stage neither the learned judge nor this court knows whether that period is sufficient for her to adjust without undue hardship."
In the case of Hepburn the wife had formed a stable relationship short of marriage with another man. The issue was whether or not the judge was correct when applying s.31(7) to grant her a nominal order for periodical payments in light of the fact that she had obtained work and was for the time being financially viable. The Court of Appeal held that it was open to the judge in the exercise of his discretion under s.31 to make such an order notwithstanding the fact that at the time she could support herself. The facts in this case were unusual and apart from confirming the view expressed in Barrett v. BarreLL, namely the wide-ranging nature of the discretion afforded to the court by s.31(7), I do not think that the leading judgment, again delivered by Butler-Sloss LJ, is of any further assistance in the present case.
In light of these authorities, none of which supports Mr. Pointer's primary contentions on this appeal, it is in my judgment quite impossible to criticise the approach either of the registrar or the judge in their application of the provisions of s.31(7). Indeed, if they had made an order of the sort which Mr. Pointer invited the court to make they would have fallen foul of the criticisms made by Butler-Sloss LJ in Barrett v. Barrett of the judge at first instance in that case. With respect, I wholly endorse the views expressed by Butler-Sloss LJ in Barrett v. Barrett. I can see no room for the application of the principles established in the cases of Suter v. Suter or Roberts v. Roberts to the birth of Richard in the circumstances of this case. The proposition that by allowing pregnancy to occur a spouse has "voluntarily disabled herself in such a way as to be deprived of support" is in my judgment quite unarguable and the analogy drawn between the so-called "faculty cases" and a case where the wife is willing to take employment if and when her domestic duties in relation to her child, albeit not the child of the husband, will allow her to take employment is a completely false analogy. Again, to base a submission on the grounds that these authorities permit the court to look solely upon the absence of responsibility for the presence of Richard when assessing the husband's obligation to support the wife is equally unsupportable. In any event the invitation extended to this court to express a view that if not as a matter of law then as a matter of practice the court should ignore the wife's responsibility to her child because he is not a child of the family denies the discretion given to the court under s.25A and s.31(7) of the 1973 Act as amended.
As recorded in the judge's judgment the wife herself recognises that the time is approaching when Richard will reach an age when it should be possible for her to consider getting part-time employment. At the moment the evidence is that Richard wishes to return home for lunch and the wife thinks it right to allow him to do this. This was never challenged at any stage; but may well be a circumstance which will change in the not too far distant future. From the extracts already cited in this judgment, .it is clear that both the registrar and the judge had well in mind that total dependence upon the husband by the wife should not be permitted to continue for very many more years. The judge was looking at a period of about two years which he geared to his expectation that Jonathan would continue at school. As events have turned out Jonathan left school early and has taken advantage of the Youth Training Scheme designed to last for two years. During the period of the training scheme Jonathan will continue to be dependant upon the wife, with whom he will continue to live.
It is true that he will be receiving wages in the region of £30 per week. This will be a factor to be taken into consideration when the question of periodical payments for Jonathan are reviewed; but it is not an issue raised on this appeal.
What the judge clearly intended to achieve by his order was that the matter should be reviewed by the court in something like two or three years so that an order under s.31(7) could be considered in the light of all the circumstances then prevailing, I am not sure that the order as recorded in his judgment after Miss Wicherek had made her intervention nor in the form in which it has been drawn up has achieved this. "The order in respect of periodical payments" is not capable of being restored. The judge's order in effect dismissed the appeal from the order of the registrar. The registrar's order provided for the payment of periodical payments to the wife "during their joint lives until such date as she remarry or further order". The way in which this order is drawn correctly reflects the views of the registrar, and with which the judge agreed in substance, namely that at the present time an order under s.31(7) would be premature. It does not, however, reflect the judge's view that the consideration of "a further order" should take place after any given period of time, or that on the future hearing the court should not be restricted to "changes in circumstances" but should have an unfettered approach. With respect to the judge, it was not necessary for him to have been concerned about this. He could have achieved the same result by making an interim order. However, in my opinion, it was not necessary for him to do even this. The words "or further order" in the registrar's order as drawn leaves it open to the husband to make another application under s.31 - when the court must take into account all the circumstances - including any changes.
I venture to comment, however, that the husband would be ill-advised to make a further application prematurely. Mr. Pointer at one stage of his submissions was saying that the order for periodical payments ought to end at the end of this year. I find it difficult to accept that submission as anything other than a forensic gesture. It would be utterly unacceptable as a course to be adopted in the circumstances of this case. As the judge envisaged, it will take at least two years before the wife is free of her full-time obligations to Richard and when he most likely will be able to spend the bulk of the day at school rather than returning home for lunch. In addition, there must be reasonable time for the wife to adjust and to receive appropriate training as well as steps taken in order to determine whether employment is available or not. A court hearing a renewed application of this kind will not receive kindly a premature application by the father any more than it will be tolerant to a case presented by the wife which demonstrates that far from honouring her acceptance that she should get back to work she has made no material efforts in this direction.
In what was said to be an alternative to his main line of argument, Mr. Pointer submitted that it is inequitable that a former wife who is kept at home to look after her illegitimate child, there being no financial support from the father, should be maintained at the expense of her former husband. As a general proposition, that submission is no more sustainable than Mr. Pointer's other arguments. He even went so far as to suggest that we should assume that the circumstances in which Richard was conceived were discreditable to the wife. There having been no investigation of that matter in evidence below, I wish to make it clear that that is a suggestion to which no appellate court can listen. True, it is possible to think of exceptional circumstances where it would be appropriate, for example where responsibility for a cohabitee or a child is assumed with a reckless disregard for the source of his or her future maintenance or with the purpose of embarrassing the former husband. But here, for all we know, Richard may have been conceived in circumstances which reflect nothing but credit on the wife, for example under a promise of marriage from the father.
This only goes to show that no point of principle at all is here at stake, save only that s.31(7) of the 1973 Act as amended requires the court, in exercising its powers under that section, to have regard to all the circumstances of the case. Judge Hammerton applied the correct principle, did not misdirect himself and exercised his discretion in a manner with which it is impossible for this court to interfere. His warning to the wife that the present state of affairs might not continue indefinitely was fair to both parties and eminently sensible.
(Order: Appeal dismissed with costs, such costs to include costs of adjourned hearing before Slade LJ and Hollings J on 15th November 1988).