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 THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr Justice Connell)

		Royal Courts of Justice Strand London WC2 Tuesday 11th September, 2001

1. LORD JUSTICE THORPE: This is an application brought by Mr Mehana for permission to appeal an order made by Connell J in the Family Division on 19th June 2001. The judge was sitting to decide ancillary relief claims between Mr Mehana and his former wife. The case focused on the only asset available for division, which was the former matrimonial home, a property at 44 Claremont Park Road in Finchley, which the judge held to be worth just over a £250,000, but heavily charged with a resulting net equity of about £130,000.
2. The case was not easy for him to decide because the evidence on a number of quite important points was at best shadowy. The original finance had come from a company controlled and owned by the husband, which had subsequently gone into liquidation and his brother had bought for a comparatively small sum the right to pursue the company's claims. Mr Mehana's case was that the monies advanced in the purchase and refurbishment of 44 Claremont Park Road were the subject of a charge in favour of the company and therefore now in favour of his brother. The charge was worth £40,000 and that that charge therefore had to come out of the net proceeds of any sale ranking second only to the first charge in favour of the Halifax.
3. The judge did his best with the evidence available and ultimately concluded that there was not a formal charge in favour of the company. He held that the arrangements amounted to no more than a loan by the company to Mr Mehana, and accordingly that was something that fell to be sorted out between the two brothers.
4. The other area of difficulty in the case was the extent to which the wife had measurable entitlement to family money in Turkey. Again the evidence was very shadowy. The husband had for him the fact that the wife had failed to comply with earlier court orders for the disclosure of documents relating to properties in Turkey. He had also going for him the fact that she had admitted to him months prior to the hearing receiving substantial sums from family properties in Turkey. However, the judge accepted her explanation that those admissions had been made under pressure and did not represent the reality. The judge ultimately decided that the wife's Turkish interests amounted to no more than future expectations too uncertain to be brought into account.
5. Mr Mehana's application today rests upon a number of specific criticisms and I take the three principal ones. Firstly, he says that the judge quite wrongly regarded him as and labelled him as obsessive for having, firstly, pursued the case as to his wife's Turkish interests and, secondly, for having pursued an allegation that she had taken a perverse route in trying to obtain registration as a dentist in this society. The reality is that the judge was even-handed in his criticism of the couple. He said:

"Both parties may accurately be described as unreasonable, obsessive and invariably hostile to the other."

6. Those findings were based on oral evidence given by both the parties. Those findings are essentially for the trial judge and it is inconceivable that this court would take a different view.
7. The second principal criticism is that the judge was wrong to hold the parties' contributions equal. Mr Mehana says that there was simply no evidence that the wife's family had made any financial contribution, save perhaps in the six months preceding the hearing. The judge, he says, overlooks the fact that the wife's financial survival after the separation was entirely thanks to the DSS and government money should be taken to have been contributed on the basis of equality. But I can find no support for that criticism in the judgment. The judge said quite accurately that the wife's financial contribution had been limited to sustaining payments to the building society sufficient to prevent possession proceedings. He noted that the wife had made those continuing contributions with the help of her family and the DSS, and he noted that the family's payments of £570 per month to the building society were present rather than past payments.
8. The other point that really has to be emphasised is that contributions under section 25(2) of the Matrimonial Causes Act 1973 are not limited to financial contributions. In holding that these parties had contributed equally, the judge referred not only to the wife's maintenance of the mortgage payments but, he said, she has also contributed to the welfare of the family by housing and bringing up the only child which is a very significant additional contribution.
9. Mr Mehana thirdly criticises the judge's finding in relation to the company's investment in the property. That was entirely a matter for the judge to assess on the evidence. He reached a conclusion doing the best he could on pretty inadequate material. In my opinion that finding is simply not open to challenge in this court.
10. What must be emphasised is that a judge deciding an application under section 25 has an almost unfettered discretion. The only fetter is to apply the criteria contained in section 25(2). The judge performed that task meticulously. The House of Lords has emphasised in the relatively recent decision of Piglowska v Piglowski [1999] 1 WLR 1360 that in this field the judge of trial has a discretion which is not to be interfered with by an appellate court in the absence of a plain misdirection or error. None has been demonstrated in the judgment of this very experienced judge, and the application for permission is accordingly refused.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment) ____________________