England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Cardiff Civil Justice Centre Wednesday, 10th July 2002

Wednesday, 10th July 2002

1. LORD JUSTICE WARD: This is an application by Mr Gibbins for permission to appeal against the grant of a Decree Nisi of a divorce by Recorder Powell on 13th March of this year. The respondent, Mrs Gibbins, had petitioned for divorce on the grounds that the marriage had irretrievably broken down by reason of the fact that her husband had behaved in such a way that she could not reasonably be expected to live with him.
2. As in every divorce, tragedy is writ large. This couple, both previously married, married each other on 1st March 1996. Mr Gibbins has some history of ill health, which is a misfortune, and there seemed to have been such difficulties in the marriage that eventually the wife petitioned. It led to there being an answer filed in which Mr Gibbins denied that the marriage had broken down irretrievably, denied the conduct alleged against him by the wife, and sought to persuade the judge that there was still a hope of reconciliation for this couple.
3. Sadly, this plea fell on deaf ears: deaf from the wife, and unhappily for Mr Gibbins, deaf from the Recorder. The Recorder heard the evidence called. He referred to the interlocutory proceedings for various injunctions and this has sown some seed of confusion for the husband, the applicant today.
4. Mr Gibbins has referred me to a judgment of the District Judge, OW Williams, of 12th October of last year, which he says was corruptly altered by the judge. I will deal with that allegation in a moment, but the important thing for the present is to observe that it is not the District Judge's judgment which is under appeal, but the Recorder's and the Recorder made it plain, correctly in my judgment, that he was to approach the case on the basis of the evidence before him and, as he said at page 3 of his judgment:

"I have approached the matter afresh and considered the evidence before me".

5. He had, therefore, to decide which of the parties he believed as they gave their respective accounts of the unhappy events which led to the wife's submission that the marriage are broken down irretrievably. He formed an impression that Mr Gibbins:

"... is a man with decided views who has a clear idea in his mind of what is right and what is wrong and may perhaps not be as susceptible to the finer social niceties in terms of the proper way of approaching other people's problems as one might expect".

6. A harsh finding, perhaps, but one which the judge was entitled to make. He found, therefore, that Mr Gibbins:

"... does have the ability for self-delusion to see and believe that that is what the argument is all about".

7. He therefore dealt with one of the early incidents of alleged violence. This was said to have taken place on 23rd February 1998. The dispute arose, said the wife, about the way the Anglican Church in Wales was operating. The husband flew into a rage and beat her and shook her and threw her against the wall and in effect locked her into her room by tying the door somehow to a bed post to prevent her escape.
8. Although the husband denied the violence, which denial the judge did not accept, the judge found and was entitled to find that:

"... to imprison the wife in the bedroom so that a matter of relative trivia could be resolved was not the action of a man acting reasonably towards his wife".

9. There was another incident in July 1998 when the judge accepted that the husband ripped the mask off the wife while she was swimming and pushed her under the water, which gave her quite a considerable scare. There were allegations of his keeping her awake at night, notwithstanding she was trying to hold down a job as a taxi driver, and the judge again accepted her evidence.
10. What Mr Gibbins submits to me today relates primarily to an incident said to have occurred after the 11th September attack in New York. The judge relates the events on that day. On the wife's account, there was an argument about the Palestinians and the Jews and the building of the temple in Jerusalem, but whatever it was, said the wife, the husband lost his temper, he clenched his fists and threatened to kill her.
11. Mr Gibbins did not accept that account, but the judge held (again, I quote):

"I prefer the evidence of the petitioner and think that it was said in temper because perhaps, in his view, [the wife's] attitude was provocative bearing in mind the importance of the subject to his personal credo".

12. That is all that the judge found in relation to the incident on 11th September.
13. He then dealt with what he called "the final incident which led to the parties separating". That happened on 2nd October, according to the evidence given to the Recorder. The wife's version is that on that evening, the husband simply would not leave her alone, would not allow her to sleep, kept shaking her to keep her awake, desired to have sexual intercourse with her, which offer she rejected. He endeavoured to insist on his so-called "rights in the marital bed". There was a furious row and the wife said that it culminated with her being struck blows to the shoulder and an incident of such ferocity that she went to her doctor the following day.
14. The doctor's report confirmed that the wife had several bruises on her upper body, namely both upper arms, consistent with someone having held her very firmly in place with some force. She also had a bruise on her left temple consistent with having been struck or having struck her face against some object. There was a bruise on her neck. There was evidence of a bruise on the right side of the neck.
15. The husband said he did not lay a finger upon her. He had wished to have a cuddle, but otherwise he totally denied that incident.
16. I return to the central submission made by Mr Gibbins to me today: that the wife is self-deluded; that she has made this all up; it is all a travesty of lies. For that submission, he relies upon an affidavit which she swore in the interlocutory proceedings on 5th October. It is not at all clear whether this point was made to the Recorder. Nonetheless, I entertain it.
17. In that affidavit, she relates the events of 11th September, but the affidavit goes on as if a narrative account of that evening and deals with her being pestered for sex and then being attacked in the way that I described. Significantly, in a later paragraph, she says that she had been advised by her solicitor to see the doctor "for injuries I suffered on 2nd October 2001". The report she attaches is the very report that the judge referred to, confirming her account of the incident of 2nd October.
18. I see the full force of this submission, that in that affidavit she had spoken of one and not two incidents. When the District Judge heard that evidence, the District Judge pointed out that the affidavit spoke of all of that occurring:

"On the evening of 11th September".

19. Mrs Evans, who appeared for the petitioner, said:

"11th September, but ..."

20. The District Judge interrupted and said:

"... but that has been corrected today, it is 2nd October."

21. The respondent said:

"Yes, yes".

22. Now, it seems to me that this was a matter entirely for the Recorder to decide on the evidence he had. He had an account of two separate incidents on 11th September and 2nd October. He made clear findings of fact, preferring the evidence of the wife to that of the husband. He was entitled to make those findings, and in order to upset them, the applicant has to satisfy me that the Recorder so abused the advantage he had of seeing and hearing the witnesses that I should interfere with his findings of fact on the basis that they are wrong.
23. In my judgment, I cannot do that. It is not the function of the Court of Appeal to interfere with findings of fact unless there is the most compelling evidence before the Court of Appeal that the trial judge abused the advantage he had of assessing the witnesses, their demeanour, their presence and the general impression they formed.
24. There is no prospect whatever of the applicant successfully attacking the findings of fact upon which the Decree Nisi depended. It is unfortunately in the category of hopeless applications and I should dismiss it.
25. But I do not dismiss it without this word, intended to be, although it probably will not be accepted, as some words of consolation to the husband. The breakdown of any marriage is a tragedy. It is a misfortune and the state of the law, which may be unacceptable to the conscience of many, but nonetheless is the law of the land, is that the marriage was proved to have broken down by establishing a fact. That fact is simply that she cannot reasonably be expected to live with her husband. It does not carry any great stigma. It does not in the end impute grievous blame, because blameworthiness disappeared from divorce in 1967.
26. So Mr Gibbins need not feel grievously wounded by this finding. His wife, sadly, has concluded she cannot carry on with the marriage. I am afraid his job is now to accept this with a shrug of the shoulders, with a degree of fortitude, with a degree of determination to say: "I am sorry, it is not how I would have liked it to end, but there it is". Life must go on, Mr Gibbins, and unfortunately for you, it must go on with your marriage being dissolved as soon as the decree can be made absolute, but do not take it seriously to heart.
27. So the application for permission to appeal is dismissed. Thank you very much for your attendance and for your courteous submissions.
28. Appeal Outcome: Dismissed.