England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE GLOUCESTER COUNTY COURT
(HIS HONOUR JUDGE TICEHURST)

		Royal Courts of Justice Strand London WC2 Tuesday, 17th July 2001

Tuesday, 17th July 2001

1. LORD JUSTICE THORPE: This is one of those sad cases where the breakdown of a marriage has led to a good deal of unhappiness; and Mr Butterworth is certainly not accepting his former wife's decision to abandon him and the two children of the family for whom he has cared since her departure. She initially brought proceedings on the ground of conduct, section 1(2)(b) of the Matrimonial Causes Act 1973, which succeeded at first instance but which Mr Butterworth successfully appealed to this court. He was in person; the wife was represented by Mr Barclay, but nonetheless this court held that the proceedings in the court at trial were flawed, and set aside the decree. Accordingly the former wife waited until she was satisfied that she was entitled to a decree on the ground of five years' separation. She dated the separation to 28th March 1995 and accordingly on 30th March 2000 she filed her petition for divorce. In his answer Mr Butterworth simply said that he denied that the marriage had broken down irretrievably. He did not plead to the assertion – the cardinal assertion – that the final separation had occurred on 28th March.
2. At the hearing before His Honour Judge Ticehurst on 5th June 2001 the petitioner appeared by Mr Bairstow of counsel, and Mr Butterworth was in person. He asserted that the final separation occurred on 24th May and not 28th March. In support of his case he particularly relied upon the assertion that he and his wife had gone away for a family holiday between 13th and 20th May, and he produced some diary evidence to establish a holiday at the West Bay Holiday Camp. In a sense this was an ambush, but of course latitude is given to litigants in person and pleading points are not taken against them. But as is clear from the transcript the wife was called and she said in answer to Mr Bairstow that the date of final separation was 28th March and that she had not lived with Mr Butterworth since. She was cross-examined particularly as to the holiday, and in re-examination she said that she had returned to the home after 28th March but only to attend to a sick child; that return had been for only a matter of days and it was within days of 28th March. Mr Butterworth gave evidence at length substantiating his memory of the holiday, and of his conviction that she had left finally on 24th May.
3. The judge gave a very short judgment. He simply said that he was satisfied with the wife's evidence. He was satisfied that the final separation had taken place on 28th March. He said:

"In particular having heard the parties and observed their demeanour and bearing in mind the position that is adopted by them I prefer the evidence of the petitioner."

4. In relation to the respondent's case he said:

"It is in my judgment a matter of convenience that a diary that was not previously available before the court has now been found to support the Respondent's viewpoint."

5. It is the function of the trial judge to determine disputed issues of fact and it is not for this court to interfere particularly with findings as to the credit and demeanour of witnesses. Although I understand Mr Butterworth's feeling that there has been an injustice and that technically his former wife should have waited until 25th May before petitioning, there is simply no basis upon which this court could interfere with the determination of the trial judge, and the application for permission is accordingly dismissed.
(Application dismissed; no order for costs).