England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE CONNELL)

		Royal Courts of Justice Strand London WC2
		8 December 1998

1. LADY JUSTICE BUTLER-SLOSS: I will ask Thorpe LJ to give the first judgment.
2. LORD JUSTICE THORPE: In this appeal the wife is 44 years of age. She is one of two children of Sir Denzil and Lady McArthur-Onslow of Mount Gilead in New South Wales. Within the appeal papers it is said that the McArthur-Onslow family were amongst the earliest settlers of that state and their property at Mount Gilead is extensive and historic.
3. The husband is the seventh baronet of Monkton Farleigh in Wiltshire. In 1978 the wife was admitted a solicitor in New South Wales and two years later she obtained an MBA from the Graduate School of Management in Sydney. No doubt that was intended to prepare her for contributing to the management of her family estate. It was in 1981, after her move to Mount Gilead, that she met the husband and a casual friendship developed between them. After an interval of almost a decade, they met again in 1990 and their relationship deepened.
4. In October 1992 the wife sent the husband as a birthday present a ticket to Australia. He used it in February 1993 and shortly thereafter they became engaged and they married on 5 June 1993.
5. One of the sadnesses of the case is that the couple were unable to have a child. I have no doubt at all that this bore on the subsequent deterioration of their marriage. In April 1995 the husband suggested to the wife, who had by then returned to Australia, that there should be a separation. However, the wife returned to this country. An attempt was made at a reconciliation and in the summer the couple underwent IVF treatment. That proved vain and certainly by September 1995 the husband regarded the marriage as at an end. It was not until May of the following year that he petitioned for divorce on the grounds of the wife's conduct.
6. The wife's response was an answer that merely denied the breakdown of the marriage. There was no movement through the summer and autumn and the District Judge gave directions for the trial of a defended divorce. However, in January 1997 the wife amended her answer to cross pray for a decree on the grounds of the husband's conduct and on that basis the marriage was dissolved by decree nisi on 1 May 1997.
7. On 8 May the wife filed her application for ancillary relief in Form A. I interpose that, to my knowledge, this is the first time that an ancillary relief case prepared under the pilot scheme procedure has reached this court. It demonstrates the efficacy of the new procedure in containing what could in this instance have been even greater unnecessary development.
8. Despite the restraining effect of the new procedures, at the first appointment on 11 August the wife's counsel stated that a conduct case would be developed. Thereafter no less than five affidavits were filed by one side or the other, dealing with the wife's case of conduct. At the same time the more necessary aspects of an ancillary relief application were developed to show that the wife had over half a million pounds that had been inherited from her grandfather, together with shares in a family company that were only likely to achieve their current value of £140,000 on the demise of her mother, plus the likelihood of inheriting about £1.5M on the demise of her mother. On the other side, the husband declared by a process of self-assessment a worth of about £8.5M in land, shares and cash. I say self-assessed because he very sensibly took what I would call the Thyssen defence, namely that he could afford any order that the court might make, thus obviating the need for any detailed investigation of his financial circumstances.
9. In accordance with the new procedures, the husband filed his open proposal on 2 March. It was that there should be mutual dismissal of claims without any payment. The wife's open proposal shortly thereafter was that the price for mutual dismissal should be the payment to her of a capital sum between £625-675,000. This gulf resulted in a three day trial before Connell J, culminating in a judgment given on 11 March 1998. He divided the disputed territory by awarding the wife a lump sum of £175,000. Subsequently he refused the wife leave to appeal but leave was granted on 2 June by a single judge of this court.
10. On 5 June the wife's notice of appeal was filed and it is so commendably short in its grounds that I read them almost in their entirety.

"(1) The ... Judge erred in finding as a fact that the [wife] would leave England to live in Australia in between three and five years time, when there was no evidence of such a possibility adduced by either party and neither had been given an opportunity of addressing the Judge on the implications of such a finding.

(2) The ... Judge failed to consider and/or provide for, adequately or at all, the [wife's] need to be housed during the period of about twelve years before she might reasonably be expected to inherit... He considered only the period of three to five years ... for which period he made provision intended to enable the [wife] to rent accommodation in England."

11. Those two paragraphs have been developed most fluently and skilfully by Mr O'Sullivan in his oral submissions and he has extracted from those two paragraphs three points. The first point is that most plainly stated by paragraph 1 of his grounds, namely that there was no evidence to justify the judge's finding that the wife would return to her homeland after a period of between three and five years. In order to do justice to that submission, it is necessary to consider the evidence before the judge in some detail.
12. First, I consider the evidence in written form filed during the preparation of the case. In September 1997, in answering the husband's questionnaire, the wife made the following statement:

"It is not possible to give `precise' plans for my independent future as

(1) this is dependent upon the outcome of this case.

... I enjoy English country life and pursuits and have made many friends here and would like to continue life on the above stated basis.

...

My way of life for the last 4 years has been destroyed by my marriage breakdown and until I have a home and some capital to readjust it is going to be very difficult for me to make constructive plans."

13. However, in an affidavit which was sworn on 30 December 1997 the wife said:

"[In order] To make a positive and constructive start on readjustment, written instructions have been sent to Australia to get details of being re-admitted as a solicitor, insurance brokering managerial posts and work on family estates."

14. The husband in his next affidavit recounted a conversation with his mother-in-law in the course of which she:

"... told me very plainly little more than a year ago when the divorce proceedings had already been in progress for at least six months that she wanted her daughter home both because she loved her and also because she finds her a great help at the family home of Mount Gilead."

15. In her written response to that affidavit, the wife did not deny the statement by her mother but sought to explain its context.
16. I turn now to the oral evidence of the wife which has been transcribed for the purposes of this appeal. The issue of her future intention was addressed by Mr O'Sullivan in almost his first question in-chief. He asked his client:

"... where do you wish to live now that your marriage has come to an end..."

17. She answered:

"I wish to live in England on the basis that we were proposing to live as a married couple. In other words, visiting Australia for perhaps three and four months of the year but living in England."

18. Mr O'Sullivan then asked as to her connections with England. She replied:

"... I have been visiting England since I was about 17. I first came over with my parents and stayed with friends in Northamptonshire. They lived in the country. They were very keen on hunting and country pursuits, and I found that very much to my liking, and subsequently I came over probably almost every other year for many years, hunting and enjoying English country life."

19. She then said that during the marriage she had made friends in the area of Monkton Farleigh. She also said in-chief, in response to Mr O'Sullivan's question as to whether it was not easy for her simply to resume her former life at Mount Gilead:

"I do not think that that is a possibility. Certainly the relationship between my mother and myself has changed and I do not think there is any possibility of my going back."

20. Mr O'Sullivan followed that up by asking whether the change in relationship between mother and daughter was recent or not. The response was as follows:

"Certainly things are strained at the moment, but apart from that, I think there is a change that is caused simply by the fact that I have been away, I have led a married life for five years, and I do not see that I can possibly go back to being the unmarried daughter living in my mother's household."

21. Now that seemingly firm position came under inevitable attack in cross-examination. Mr Mostyn started by putting to the witness that it was certainly a possibility that it would be she who would run the estate at Mount Gilead. She said in answer:

"Anything is a possibility. If my brother gets hit by a bus next week, yes."

22. I interpolate that the wife's only brother has been living at Mount Gilead for the last eight years and is actively involved in the management of the estate. He is unmarried.
23. Mr Mostyn then turned to what was the obvious weakness in the wife's case, namely the statement that had been made on 30 December affidavit to the effect that she was investigating opportunities in Australia in order to make a positive and constructive start on readjustment. Mr Mostyn put that passage to her and said:

"That seems to me to be saying that you have sent instructions to Australia to find out about employment opportunities. Why would you have done that if you did not have the intention of going there?"

24. The answer was:

"It is simply a matter of looking at all options.

MR MOSTYN: So Australia is certainly an option?

A. No, it is not.

MR MOSTYN: I am not saying you have to go there.

A. No, it is not an option, but certainly if I do not have the funds to buy a house, I do not think I have the funds of my own at the moment to live a suitable life in this country. I will probably be forced to go back to live with my mother, but that is not a desirable situation."

25. Objectively it seemed that the wife had overplayed her hand in denying that Australia was an option so the judge sensibly intervened to point out that, although undesirable, it was obviously an option. With that, the wife agreed. She said:

"Exactly, it is an option.

THE JUDGE: It is an option but it is not a an option that you would welcome?

A. Exactly."

26. As my Lady pointed out during the course of argument, there is another significant passage in the oral evidence explored by the judge. At page 54 in the transcript the judge asked this question:

"About your brother: has he always lived and worked at Mount Gilead or has he worked from time to time elsewhere?

A. No, he worked in Sydney for a number of years, and in Melbourne as well, as an investment analyst for pension funds for a very long time; I suppose it was more than ten years, and then he has been working on the property for, I suppose ... maybe it is eight years, seven years, something like that."

27. When the judge asked:

"Does he take an active part in the life of the cattle and agricultural side"

the wife answered:

"He was not particularly interested in cattle. He was much more interested in machinery and irrigation."

28. The significance of this passage to the judge's assessment was that the wife's special responsibility at Mount Gilead had always been the cattle.
29. On the same page she also said in answer to Mr Mostyn:-

"I have always lived in Australia until the age of 39. I would like to keep some sort of interest in that, and I explained that to Charlie at the time. I do not really want to be absolutely removed from everything, and I do not want to be alienated from my mother, especially given that I do not have a family of my own. I will be very much reliant upon my family, my Australian family, in the future."

30. In relation to all that ambivalent evidence it is, I think, necessary to discern the underlying strategy. The husband was asserting that the wife could simply return at once to Australia and resume her former life - therefore zero financial dependency. The wife was saying, England is now my home and until I inherit I must be financed in England by my husband - therefore twelve years financial dependency.
31. The effect of these strategies was to create this issue as the primary issue for the judge's determination. He determined it at two points in his judgment which I will read in full given the importance that they have to the outcome of this appeal. First, at page 6, commencing at line 13:

"As to the suggestion that the wife should return now to live at Mount Gilliad with her mother, the documents placed before the court which emanate from Lady Dorothy McArthur-Onslow made it plain that that lady is very angry that she has been asked to disclose details of her wealth to the court in the context of these proceedings. Whilst it is clear that she places the prime responsibility for this at the door of the husband, nonetheless I conclude that she is less than pleased with her daughter who contracted this unsuccessful marriage and made the decision to emigrate to England. It is as a result of the daughter's financial claims ... that Lady Dorothy has become involved, even if at second-hand ... I accept that this feature would make it difficult for the wife to return to live in Australia over the next few years. That said, I conclude that the wife is very likely to return to live in Australia in the slightly more distant future, since this is where her roots are and where her immediate family still live. She is domiciled in Australia, she is an Australian citizen who holds an Australian passport and in all the circumstances I conclude that she is likely to return to Australia in about three to five years time."

32. The second passage is in very similar terms. It commences at page 17, line 24:

"The failure of this marriage and the fact of these proceedings has had an adverse effect upon [the wife's] relationship with her mother, which will no doubt be cured over time. But she cannot in my view be expected to abandon her English way of life and return to her mother's home at this time and in these circumstances. Over the three to five years which I have previously referred to she will need a satisfactory home where whilst she restores her family ties and prepares gradually for what I believe will be her inevitable return to Australia."

33. In my judgment these two passages amount to an eminently fair determination. It was, and could be, no more than a speculative judgment based on all the surrounding facts and circumstances, together with his assessment of the wife's evidence and demeanour.
34. I turn to the second point that Mr O'Sullivan drew from his notice of appeal. He submitted that the judge's allowance of £75,000 for the cost of English housing over the period of readjustment would only permit her to spend £15,000 a year on rent. In relation to that submission, I reach the following conclusions. First, that the crude calculation of £15,000 a year derived from dividing 75 by 5 is quite unjustified. In reality £75,000 a year would permit the wife to spend at least £20,000 a year on rent over the period of four years that middle the judge's bracket. Without any evidence to the contrary, that does not seem to me a figure that is manifestly below the target. Second, the judge did not approach the quantification of the need on that simple basis. At page 18 of his judgment, at letter 14, he explained:

"She may decide to rent or she may decide to buy a house from her own available funds, thereby diminishing her investment income. I propose to award her £75,000 under this particular heading."

35. Third, it seems to me that the judge's quantification must be well within the discretionary range. It is dangerous to concentrate too much on individual items within an overall lump sum award at the expense of an appraisal of the total. For instance, in this case it is plainly up to the wife to determine how she spends the overall award of £175,000. She is not confined to the compartments by which the judge built up the total sum. In addition to the £75,000 that was allowed for housing, a further £100,000 was allowed for either furniture, a motor car or in compensation for her contribution to her husband's estate and manifestly there is within the package room for her to manoeuvre as she thinks fit.
36. Mr O'Sullivan's third point, which is perhaps only just possible to extract from his notice of appeal, is that even on the assumption that the wife will return to Australia in, say, four years time, the judge should have provided for the wife's need for independent housing in Australia for the remaining eight years before the notional actuarial date of her inheritance. In relation to that submission, it is to be noted that the wife's case was not put specifically and clearly thus before the judge. Furthermore, it is plain from the passages in the judgment that I have already read that the judge made a clear inferential finding that on return to Australia the wife would live at Mount Gilead and would therefore have no such need for independent housing.
37. Having considered Mr O'Sullivan's three specific submissions, I would like to evaluate the judge's award in more general terms. The latitude of the Family Division judge's discretion is at its widest in a case such as this. The parties came from remarkably similar backgrounds, considering the distance that separates their family estates. On both sides the fortunes were inherited. The wife's father had died in 1984 and had effectively willed the family fortune to his widow. The husband's father died in 1991 but, following custom, had effectively willed the family fortune to his son and heir. Hence, in part, the disparity between their present financial circumstances. That disparity will be partially redressed on the death of the wife's mother. Next, this is a childless and brief marriage. Nor had the wife sacrificed any financial advantage on entering it. The extent of her financial dependency turned crucially on her ability and her will to resume her former life. That was rightly seen by the judge as the primary issue for his assessment and determination. He was certainly not ungenerous to the wife in allowing her three to five years in which to rebuild her bridges. Nor was he ungenerous in assessing her income potential as nil for two years and thereafter at £12-15,000 a year. She had her qualifications, her management experience at Mount Gilead, and she had impressed the judge as "intelligent and industrious".
38. In all these circumstances the Section 25 criteria clearly do not lead to an obvious bracket, let alone to a likely award. A judge might have awarded either less or more without being wrong. The figure for which this very experienced judge elected is explained in a careful judgment and is, in my opinion, above criticism.
39. Finally, I would like to pay tribute to Mr O'Sullivan's presentation of his client's case in a difficult appeal. This is a sad case for both the husband and the wife. Their disappointed expectations of marriage have led them into protracted and unnecessarily contentious litigation. Since its inception they lived for two and a half years in tension and unhappiness under the same roof. That is longer than the two years of relative harmony for which the marriage persisted. It is perhaps to be regretted that a relatively straightforward situation could not have been resolved, possibly by mediation, at a much earlier stage. But that said, I am of the opinion that this appeal is without merit and should be dismissed.
40. LORD JUSTICE MUMMERY: I agree.
41. LADY JUSTICE BUTLER-SLOSS: I also agree.

Order: Appeal dismissed with respondent's costs to be paid by the appellant on the standard basis; no order for costs on the respondent's notice. (This order does not form part of the approved judgment)