England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PORTSMOUTH COUNTY COURT
(Deputy District Judge Cawood)

		Royal Courts of Justice Strand London WC2 Monday, 30th October 2000

1. LORD JUSTICE WARD: There are before the court today several applications brought by Mr. Phillip John Morgan, who has applied first in time, and then by his former wife, Anne Felicity Taylor, who has applied more recently. They seek to reverse orders that have been made in the long running, acrimonious and unsatisfactory matrimonial drama that has been played out over a number of years, with a number of applications having been made to the court, both in respect of money and in respect of the children. They have been represented by solicitors and counsel from time to time. They have often appeared in person.
2. This couple married in August 1988. It was a marriage that broke down in August 1996, so that it is a marriage which lasted for some eight years. They have two children, William, born on 4th December 1990 -- he is a month or so short of his 10th birthday -- and Helen, who was born on 8th September 1996. She is now four years of age. The marriage was dissolved on the husband's petition, where he was granted a decree nisi of divorce in October 1996. The decree was made absolute in June 1998.
3. We do not have a full list of all the applications that were before the court but the acrimony was soon very evident. It led, for example, to the husband being removed from the matrimonial home in Hampshire in February 1997. The wife, as I shall call her, even though the marriage has been dissolved, was granted an order for the residence of the children. That came to be reviewed in February 1998. I think it was District Judge Hurley who on 3rd February confirmed that order in mother's favour but awarded generous staying contact to the father.
4. On 20th February 1998 District Judge Hurley made the first order which has been the subject of our inquiries. That was in the ancillary relief proceedings between the parties. He ordered that the wife make a payment of a lump sum of £15,000 to the husband on or before 30th September 1998. It was to be on the basis that the husband transferred to the wife his interest in the former matrimonial home, subject to the mortgage and subject to an undertaking by the wife to procure the release of the husband from any liability under that mortgage. The order was intended to operate as a clean break. The idea in summary, for I shall have to return to the judgment in a moment, was that the husband was awarded the amount he sought, which would have been enough to enable him to put down a deposit on a property large enough for him to enjoy satisfactory staying contact to the children, as the court had so recently ordered. He was then teaching at the Surbiton High School for Girls and earning £25,000, going up to £26,000 per annum. The financial details which led to that order being made need to be explored in a moment.
5. To continue with the recitation of the history, it seems that the wife sold the former matrimonial home in July 1998 and moved to Wells. She recovered net proceeds of the sale of the house in round figures of about £64,000 and spent £66,000, with the costs that were involved in the purchase of the new home. Some weeks later, on 7th August 1998, His Honour Judge Lauriston dealt with the father's application to vary the residence order. He acceded to that application and ordered that the children should live with their father, with contact to the mother. That order is today under attack by the mother. It would seem that the contact mother was afforded was suspended by Judge Davies in October 1998. Then in November 1998 the husband applied for an order setting aside the ancillary relief order of District Judge Hurley. He relied upon the change of residence as an event which fundamentally undermined the assumption upon which District Judge Hurley had proceeded. He sought, therefore, permission to appeal out of time.
6. Before that application could be heard his employment came to an end in circumstances not fully explored. He says that he was constructively dismissed. His employers probably say that he was resigned. I know little more about what happened then.
7. On 11th February His Honour Judge Bond heard that application for permission to appeal out of time. He made an order giving permission to appeal out of time. He gave directions for the filing of up-to-date evidence by each party, and the order was that the matter "be set down for rehearing before a district judge". That order needs to be looked at carefully because that, too, is now under attack by the wife. The directions were fulfilled, in that both parties put in further evidence. The matter came before District Judge Cawood, first on 12th October 1999. He gave judgment on 20th October 1999. He ordered on that occasion that "the application be dismissed". He refused permission to appeal but the husband did appeal to Her Honour Judge Davies on 17th February. She ordered that "the appeal be dismissed". The husband sought permission from this court to appeal against that order. His application came before the Court of Appeal on 26th May 2000 before Chadwick L.J. and Charles J. They adjourned the application to be heard on notice to the wife who, in the judgment or a short note of the reasons prepared by Charles J, was to be given an opportunity to make such submissions as she wished to on practically all matters, including the effect of Judge Bond's order. Technically, therefore, we have before us today, firstly, the husband's application for permission to appeal against Judge Davies' order, the effect of which was to dismiss his appeal against District Judge Hurley's original order for ancillary relief. Secondly, we have, as an application without notice to the husband, the mother's application to appeal, firstly, Judge Lauriston's order transferring residence to the father, and, secondly, Judge Bond's order giving permission to appeal out of time. To say that this is a procedural mess is to put an accurate but perhaps inadequate description to what has been happening in the county court.
8. I will deal firstly with the application to appeal Judge Lauriston's order. His judgment is lengthy. He set out fully the evidence that each of the parties led in connection with the children. Their position had already become difficult because of the tension, acrimony and passion engendered in this appeal. He decided that the children should move from their mother. The principal reasons that he gave for coming to that decision, having correctly addressed himself to the need to put their welfare paramount and the need to take the check list into account, was essentially that the mother had failed in her responsibility to the children and had been guilty of some physical abuse and emotional abuse, particularly of William. It may be necessary to cite only a few passages showing the kernel of the judgment. The judge found:

"Having [listened to all the evidence] my judgment is that it is in the children's interests, and that they will be better served in living with their father than with their mother. I believe that for a number of reasons, and I must give those reasons. I believe, first of all, as does Mrs Redman, that there are risks of further physical abuse, particularly of William."

9. He found, and later expressed regret at having to make findings as stark as this, that the mother had lied about previous physical abuse and indeed had lied on that occasion. He found, in effect, that there were five occasions when she had behaved inappropriately. They were not the most serious acts of physical cruelty, though they were none the less important. She had, for example, at one stage kicked the boy on his shin. On another occasion, when there were difficulties over piano lessons and cello lessons, she had struck him across the face. There were cuts and some bruises. Her emotional harm was constituted by her having, as the judge said:

"little concept or concern about what distress she was causing to William and Helen. In my view, such has been her lack of insight that the acrimony -- perhaps hatred is not too strong a word -- that she has towards the father, the pressures that she has exerted in the past, and the clear propaganda that she has been putting out against William about the father, would be likely to spread and continue unabated in the future, particularly so if she had to allow regular contact to the father."

10. The mother seeks permission to appeal against that order. She makes her application by a notice which in my bundle is not dated but has the seal of the court of 2nd August 2000. So it is an application for permission which is over two years out of time. The reasons for the delay are the harassing behaviour of the husband and the psychological distress that that has caused the mother, who now cannot work, is receiving treatment and is in a pretty unhappy state. I am sympathetic but that is no excuse for this length of delay; nor is the fact that she is a litigant in person, who may not be as versed in the law as lawyers at least ought to be. That too is no excuse. But, taking the most lenient view of her difficulties, the overwhelming obstacles that she faces are that she has since acted upon that order. Contact has been suspended. On her application contact has since been renewed. She has, in other words, proceeded as if that order were good and effective. It is now much too late to turn back the clock. The second main reason is that she does not begin to show any prospect whatever of successfully appealing that order. The judge made findings of fact against her with which this court would find it virtually impossible to interfere. Her application is utterly hopeless. I would dismiss it. That does not prevent her doing what she has apparently already set in train to do, namely to apply for orders which ensure that she has effective contact, and, secondly, if the circumstances justify, an application for a further variation of the residence order of the children. Those may be open to her. With what prospect of success, I do not know, but as an appeal this is utterly hopeless, and I dismiss it.
11. I turn therefore to her second application for permission to appeal Judge Bond's order. One must begin by observing that that order was made on 11th February 1999, so to appeal it it is 18 months late. The same unsatisfactory reasons are advanced for pursuing that application. What His Honour Judge Bond had to deal with was the father's application to appeal out of time against District Judge Hurley's order. It is necessary, therefore, to begin with District Judge Hurley's order. He dealt with the application for ancillary relief. He made a number of findings which are quite important. He examined the contributions that each of the parties had made to this marriage. It would seem that at the time of the marriage the wife was the owner of a small property. She had, in addition, savings which amounted to some £15,000 or £16,000. When her home was sold in 1992, to enable the parties to purchase the matrimonial home that was their home at the breakdown of the marriage, her property sold for some £31,000. In other words, she had put into the marriage something in the region of £47,000, one way and another.
12. The husband came in, it seems, with very little, but his father died leaving him about £27,000. That went into a joint account. It was used, perhaps unwisely in part. The parties took sums of money each. It may be that some of it was needlessly frittered away. The fact is that it went into the pot. He was a school teacher, not always in steady work. She was a teacher by training, an accountant's clerk by occupation, a part time music teacher to boot, and, by all accounts, a hard working woman. The District Judge found:

"I have come to the view that so far as these parties contributions were concerned during the course of this marriage, they are broadly equal. It is not only the direct financial contributions that fall to be considered under this particular paragraph, but also, the other contributions that parties make in terms of looking after the family and the home and other such matters.

I therefore find as a fact that these parties have contributed on an approximately equal basis during the course of the marriage."

13. None the less, the District Judge did not adjust the beneficial interest in the current home that they had, which was then worth some £83,000, subject to a £20,000 mortgage. The wife's other assets comprised at the time £18,000 in a building society account, some shares in the Abbey National Building Society, the Halifax Building Society, and the Norwich Union, acquired on the privatisation of the share issues from those institutions. Those assets amounted to approximately £6,000. The wife also had the benefit of the surrender value of an insurance policy, so that her other capital totalled £32,000. The husband in turn had the surrender value of a small policy worth £3,000, but he had debts of £5,000, and effectively he had no free-standing capital. On a very rough and ready calculation, therefore, their financial position was -- former matrimonial home £83,000, wife's capital £32,000, total £115,000, less the mortgage of £20,000 -- net assets of £95,000. If one divided them in two, which may or may not have been the fair allocation at that stage, there was something like £47,500 that the husband could have sought. In fact, he did not seek it. He only asked for £15,000 because he said that that would enable him to buy a two or three bedroomed house in Surrey where he was living. Since he was earning £25,000 a year he could service a mortgage and that would provide him with an adequate home at which to have the children stay for long periods, as the court had ordered. The District Judge acceded to his request. On that basis he ordered payment of £15,000.
14. Before Judge Bond the husband argued that, since the court had changed the residence order, that undermined the existing basis of the District Judge's approach. Therefore, the matter should be re-opened. Judge Bond dealt with the case, correctly directing himself to Barder v Barder [1988] AC 410. There, the House of Lords laid down effectively four requirements to be satisfied, the first being that there was a new event that had occurred since the making of the order which invalidated the basis upon which it had been made, so that any appeal was certain or very likely to succeed; secondly, the new event had occurred within a relatively short time of the making of the order; thirdly, the application for permission to appeal had been made reasonably promptly, and, fourthly, that third parties would not be prejudiced. There was no dispute but that requirements 2, 3 and 4 applied. The case depended on the first issue. The judge decided:

"In the light of all that I have come to the conclusion that there is a prospect that Mr Morgan is likely to succeed at a rehearing to the extent that the court, if it considers the position afresh, as it will have to do, and on the basis that he has a job by the time the matter comes back, by stretching the available resources a home could be made available for both these parties in that situation. I think that given the situation that has now arisen and given the rather limited nature of what Mr Morgan seeks to do, it would be right to give him leave to go back to the District Judge out of time, to have this matter looked at again on the basis that I think that the court is likely to say, if he retains the residence of these children, he should have a sufficient sum whereby, with the help of his own earnings, he would be able to put down a deposit on a house either in which he would live wholly with the children, or, alternatively, where they can come for substantial periods of contact."

15. Miss Taylor seeks permission to appeal against that order.
16. I would reject that application for three reasons. The first is that she is wildly out of time and gives no adequate explanation of her failure to appeal it and, secondly, because the court has since twice acted upon Judge Bond's order and has had the matter considered by District Judge Cawood and Her Honour Judge Davies, and on those cases the wife was successful, so there is little purpose in seeking to set aside Judge Bond's order, but, thirdly, also because, in my view, there is no reasonable prospect of successfully submitting that Judge Bond erred. He correctly addressed the question. It was a matter for his discretion as to whether or not he thought there was a reasonable prospect of success. Unless he was plainly wrong this court would not interfere. On the evidence before him I am not surprised that he gave permission to appeal out of time. He was right to do so. Consequently, the appeal would be hopeless. That application must also fail.
17. I now turn to the husband's application for permission to appeal Judge Davies' order. He is not here today. Today is the aftermath of gales that have wreaked havoc in the country. The wife struggled to get here by catching a coach from Wells at 4 o'clock in the morning. She was here at 10.30 when the court sat. The husband was not here. He only lives in Weybridge. Although Surrey will have been affected by the disasters and public transport may be difficult, he has a motor car, and I am surprised that he could not get here if he put his mind to it. Be that as it may, we have received a faxed communication from him this morning. It is timed 11.54 but I suspect, with the clocks going back, that it should have been 10.54. It is sent from a fax number where he appears not to be known when we telephoned him to try and make contact with him. He says this:

"I am unable to attend the hearing at the appointed time owing to the inclement weather and lack of public transport. I respectfully ask, therefore, that the hearing either be postponed or that my faxed argument be considered in my absence."

18. We have his faxed argument. We have considered it. These matters have already dragged on an intolerably long time, and, for my part, I would not agree to adjourn it. I am prepared to proceed upon the basis of his written submission.
19. His written submission does not say much that is material or relevant. Much of it deals with the children's position. He refers to a report from a Dr. Eyre, a consultant psychiatrist. That has nothing to do with the present money matters or the substance of the appeal. He asserts that there has been a substantial change of circumstances since the order made by District Judge Hurley in 1998, and that, given their respective needs, an adjustment should be made. I do not find this part of the case totally easy. There is no doubt that the jurisdiction Judge Bond was exercising was an appellate jurisdiction. He had to consider whether to extend time to appeal. He acceded to that request and he had therefore a full-blooded appeal from the District Judge's order which he was capable of deciding, had he wished to do so. I can readily understand, given the passage of time which had passed, for reasons that are totally inexplicable as far as I am concerned, between the time when an application was made in February 1999 or when he came to deal with it, that matters may have changed, but the way he dealt with that was to give directions for the filing of up-to-date evidence and to send it back to the District Judge. That was a permissible way to deal with it, and the order he made, in my view, makes it plain that what was being set down was a rehearing -- not a review, not an appeal. He had allowed the appeal and sent it back for a rehearing, and a consideration of his judgment makes it plain that he had in mind, as he expressly said from time to time, a rehearing to the extent that the court, if it considers the position afresh, as it will have to do, a complete rehearing on the basis of the fresh material. That was appropriate.
20. District Judge Cawood dealt with the matter and perhaps lost sight of what he was supposed to be doing. When the matter came before him on 12th October it appeared that, when the husband was cross-examined, he disclosed something hitherto undisclosed, namely, firstly, that he had an interest in a property in Wales. From what I can understand of the position, it is this. A relative died leaving a one-fifth interest in this property in Neath. It is occupied by one of the other beneficiaries, an elderly lady who is not terribly well. Her daughter lives in the house and looks after her. Money has since been spent improving it. If it has any value at all it has a value of about £30,000. He has a one-fifth interest which is worth £6,000. The judge appears to have proceeded upon a basis, which I cannot see in the papers before me, that the money might have been realisable within a matter of a few months. I do not know how. That was £6,000 worth of asset that had not been declared to Judge Hurley.
21. Secondly, it became clear on cross-examination that the husband had more generous pension provision than he had declared. He declared before Judge Hurley that he had a pension plan with a transfer value of £9,600 and a second with a value of £4,600, a total of £15,200. The wife had two plans, one worth just over £9,000 and another worth just under £1,800, a total of £10,900. Those were transfer values. They were not realisable. They may provide help to the parties when they attain whatever retiring age the plans provide for. What the husband had not disclosed was that he had a third policy worth over £17,000 at the time it was before Judge Cawood, and it would have been worth a little less before Judge Hurley. Judge Cawood asked himself the question:

"I have considered the matter and, considering it at its highest, I have asked myself the question whether this non-disclosure is such that it taints and affects the application in a way that a further ancillary relief [application], with a further adjourned hearing (which would be needed, because even today the documents about his inheritance and his property in Wales are not forthcoming), whether that would be justified."

22. He then looked at Barder v Barder. He came to the view that:

"The parties, however, are no nearer to agreeing any matter and, bearing in mind the relatively limited amount of capital, and the costs that continue to accumulate in the litigation between these parties, Mr Morgan's non-disclosure and the need to adjourn if the court was to get to the bottom of the disclosure is wholly unsatisfactory. ... Of course, it is impossible to tell what order might now have been made all that time ago, had those disclosures been made (to District Judge Hurley) but it is apparent to me that it would have affected - or likely to have affected the decision of any judge doing the balancing exercise at that time.

Mr Morgan's position is, therefore, that his own non-disclosure taints and affects the decision in February 1998. Had that been clear to His Honour Judge Bond at the time when Mr Morgan was seeking leave to appeal out of time, or seeking directions for a rehearing, one imagines that the court would have taken that into account."

23. In effect, therefore, District Judge Cawood was reconsidering that which Judge Bond had reconsidered, coming to a different conclusion about it, which he was not entitled to do, and then not doing what Judge Bond told him to do, which was to look at the matter afresh. It is a great pity that the case was approached in that way. His conclusion:

"I am satisfied, therefore, that it would be inappropriate to disturb the previous judgment of District Judge Hurley, although this court might come to different conclusions because one of the very principal reasons why the court may come to different conclusions is the default and non-disclosure of the party who is seeking the rehearing, namely, Mr Morgan."

24. It is perhaps not a surprise that the matter was appealed to Judge Davies. Judge Davies, when she heard it, said:

"To revisit it so late in the context of significant non disclosure, would, in my view, not be right, bearing in mind, as I do, that you do now have appropriate accommodation, albeit that your financial circumstances relating to income are clearly much straitened."

25. That is what she told the husband who was there in person.
26. Her fuller reasoning is to the same effect. She said this:

"It is clear that so far as this matter is concerned I have a discretion as to whether to admit further evidence. I can exercise my discretion to re-open matters which have already been determined by the District Judge, and I can give such weight as I think fit to the way in which the District Judge exercised his discretion."

27. So far I agree. She continued:

"So I look at the judgment of the District Judge in the light of the matters that are now before me. It is quite clear from that judgment that District Judge Cawood felt that it was unnecessary to hear any evidence from the wife because the lack of frank disclosure by the husband was so serious that it was his view that it was not going to be appropriate in all the circumstances to consider making any order different from that which had been made by District Judge Hurley in 1998."

28. She too looked at Barder v Barder and concluded:

"So it is clear from that that Barder v Barder does not immediately apply so far as what was said in that case to the circumstances of this case."

29. Again, she was in error because that is what Judge Bond had decided and it was not for her to look at it again. Then she said this:

"In this case of course the children are now living with the husband, whereas at the time of the hearing before District Judge Hurley it was expected that they would continue to make their home with the wife, and it was therefore an underlying assumption that the purpose of the purchase of the property by the wife was to provide them with a home. It is now clear that the husband needs to provide them with a home on that basis. It is equally clear that at present he is providing them with a home which is entirely adequate for their needs, and that having obtained the payment that he did in consequence of the order of 1998 he would have been in a position to do exactly what he had said he intended to do at that stage, but subsequently did not do, that being to purchase a property which would have sufficient space for the children to come to stay with him.

In the light of those circumstances and the fact that the significant non disclosure made by him is such as to improve his financial position rather than not do so, it seems to me that it would be quite wrong in this case to exercise my discretion in a way which would result in a different order being made now from that made by the District Judge in 1998."

30. I am not sure that I wholly understand the reasons, but it seems to me that these are the salient points that emerge. The judge does seem to accept that the change of residence might have undermined the underlying assumption upon which District Judge Hurley proceeded. To meet that assumption he provided a sum of capital which was sufficient to provide a home for him and the children to visit. That home would have been "entirely adequate for their needs". I agree. He could have bought himself the two to three bedroomed house that he wanted. He did not do so because he spent the £15,000 on a variety of things, including three holidays to Greek islands, paying some of his legal costs, doing bits and pieces with his motor car, and in dribs and drabs frittering away the money, as is set out in his own explanation of that expenditure. He had the opportunity from July until January to do what he told the District Judge he wanted to do. If he had done it he would have bought himself an adequate home for the children. He would have secured the mortgage, and had he lost his employment thereafter it may be that income support, which currently provides for him, would have met the interest charges on the mortgage. He may well have survived. That he did not do so was his fault and was unacceptable in the circumstances. Added to that there is the non-disclosure. Whereas I see the powerful case that he might have advanced for a share close to equality, an argument which becomes even more attractive in the light of the speech of Lord Nichols of Birkenhead in White v White, none the less, it seems to me that the court should not now interfere. I say that for these reasons. This is in truth a third attempt to appeal. I am therefore bound to apply the new rules. I am bound to ask myself: Does this raise an important point of principle or practice, or is there some other compelling reason for the Court of Appeal to hear it? My answer is, no. There is no important point of principle or practice. The principle is established by Barder. The practice in this case is a mess, and nothing we can do will retrieve that position. Is there a compelling reason why he should get a half as opposed to what he has got thus far? No. If he had spent the money wisely at the time he got it in getting what he wanted, he would have been sufficiently protected. He was not frank with the court. The court has little sympathy with him in those circumstances.
31. It is high time that this litigation came to an end. For my part, I would therefore refuse him permission to appeal Judge Davies' order, dismiss that application and in that way achieve the result that District Judge Hurley's order stands in effect. There has been a clean break between the parties. They must get on and live their separate lives. What they do about their children must be a matter for them, but I ask them to reflect about the damage they are likely to be doing to their children by their incessant applications to the court. The sooner these children begin to have an opportunity to be able to move freely between parents who love them, the better. The more conciliation and the less confrontation the better. It is an unhappy case. This was a bad tempered judgment as a result. In the result, all the applications are dismissed.
Order: Applications dismissed; copies of judgment to be provided to parties at public expense.