England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr Justice Kirkwood)

		Royal Courts of Justice Strand London WC2 Wednesday, 6th November 2002

1. LORD JUSTICE WARD: This is an application for permission to appeal the order (or orders) made by Mr Justice Kirkwood late on Friday of last week. That order has not yet been drawn because counsel were to submit a draft to the Associates and they have not done so, and at the moment they may not even be agreed about the order that was made. At least, the judge dismissed paragraph 2 of the husband's application that, pending the determination of an application he had made in paragraph 1 of that application to set aside the pronouncement of the decree nisi, there should be an order that the wife be restrained and prevented from having the decree made absolute. If that was for an injunction, the judge refused it. If it was for a stay of the pronouncement of decree absolute, he refused it.
2. Mr Turner, for the wife, will submit that the judge in fact dismissed the application to set aside the decree nisi. He consequently refused to give the husband leave to file an answer out of time. He also dismissed an application for a stay pursuant to section 5(6) and paragraph 9 of Schedule 1 of the Domicile and Matrimonial Proceedings Act 1973. Mr Marshall, for the husband, does not agree that any more was ordered than declining to hold up the grant of the decree absolute, which could have been made on Monday. It was not made then because of this urgent application, of which the court had notice after the effective close of business on Friday. It was put before me first thing on Monday of this week and adjourned over until today.
3. Looking at the application before the judge, it seems to me that one has to approach this matter with some sense of order. The fact is that a decree nisi of divorce was pronounced on 20th September 2002. It could have been made absolute on Monday, 4th November. It was an order of the court and, unless and until it is set aside, it is effective. There has been no attempt to appeal it but, by this application dated 28th October, there is an application to set it aside. The application to set it aside is presumably made pursuant to Family Proceedings Rule 2.42, by way of a rehearing, which is dependent upon the husband establishing that there is no error of the court. Assuming that it is possible to bring it within that umbrella, the gist of the application would have to be that the proceedings were irregular, there having been no proper service upon the husband. Assuming that that difficulty is overcome, he would seek to put in an answer to the wife's petition for a divorce based upon his alleged unreasonable conduct - conduct now found to have been unreasonable by virtue of the grant of the decree nisi. His challenge to that is, in part, a denial of the allegations made against him but, for present purposes, a challenge to the jurisdiction of the court on the basis that the petitioner wife is not domiciled within the jurisdiction.
4. Assuming that he would be successful in all of that, he seeks to resurrect an application for a stay under the 1973 Act. Let me deal with that application first. It seems to me to face three present obstacles. One (which may not be totally insuperable) is that the husband made a vain attempt to persuade Mr Justice Bodey to grant such a stay. It is accepted by Mr Marshall that Mr Justice Bodey dismissed that application on 18th September. It may be possible to have a second bite at the cherry but, since all of the grounds upon which he would seek to advance his application were grounds that were then available to him, he may have formidable difficulties because the rule from Henderson v Henderson is that, if you could take the point when it was first raised, you ought to take it. I regard the prospects of coming back for a second bite of the cherry as unrealistic.
5. There is a second reason why the application would fail. Subparagraph (1A) of paragraph 9 of the first schedule allows the court to intervene only so long as no trial or first trial in the proceedings has begun. There has been a trial of these proceedings by virtue of the grant of the direction to put it down in the Special Procedure List and, a fortiori, by the grant of a decree nisi. So unless and until the decree nisi is set aside (and, arguably, even then it is too late) there does not seem to me to be the jurisdiction available under paragraph 9 of the first schedule.
6. The third reason why an application for a stay is doomed to fail is that, as Lord Donaldson of Lymington MR made plain in Mansour v Mansour [1989] 1 FLR 418, an application for a stay raising an issue of forum non conveniens is one where it is of paramount importance that the application be made at the onset of the proceedings, before any steps of significance were taken in the action and before any costs were concerned. Here, this second application is made with the clock seconds away from the twelfth hour. It is too late.
7. It seems to me that that application is utterly hopeless and, if the judge did not dismiss it, undoubtedly he would have done. I see no merit in that part of the application.
8. So I concentrate on whether a real prospect of success can be shown against an exercise of discretion to refuse to stay the decree absolute. The applicant has all the difficulties of challenging an exercise of discretion; and, where the application is made as late as this, it is not surprising that Mr Justice Kirkwood should have declined to interfere by reason of the lateness alone. That would be a sufficient justification for his order and one which has no prospect of being successfully appealed.
9. But let me look at the merits - if, indeed, any merit can be found in any part of this application. The challenge is to the alleged irregularity of the grant of the direction for the trial of the matter by entering it in the Special Procedure List - or, perhaps, technically more accurately an irregularity in the grant of the district judge's certificate which, under the Special Procedure Rules, counts as effectively the grant of the decree nisi.
10. What happened was this. The wife issued her petition for divorce on 8th May 2002. On 14th May the petition and the related documents and other orders for injunction were sent by facsimile transmission by the solicitors then acting for the wife to the number which is the husband's point of contact. Furthermore, on 10th June the petition and the related documents were sent by post to the husband pursuant to rule 10.3 of the Family Proceedings Rules 1991.
11. The husband is a banker, who is employed in Venezuela. He is an American citizen, but he and the wife and their two children have lived in Venezuela since about the year 2000. The marriage, by any account, has had its difficulties. The wife removed herself and the two children from the home in Venezuela (as a matter of detail, it may be from Barbados, where she moved temporarily with the children) and returned to London, where her parents live and where she still retains a flat. The husband therefore began proceedings for the return of the children to Venezuela pursuant to the Child Abduction and Custody Act 1985.
12. In the course of those proceedings - indeed, on the first occasion the case came before the Family Division in that regard, on 18th June - Mrs Justice Hogg recorded in the order made that she had read "the documents relating to proceedings number FD02DO3259". Despite the wife calling for the production of the documents produced to the court, they have not been produced. There is no satisfactory explanation why they have not been produced. The inference is irresistible that the husband did make available to the judge the petition and, since the preamble reads "documents" and one therefore assumes that there must have been more than the petition, and the inference is irresistible that it was the various documents which were either sent by fax on 14th May or by post on 10th June. But that he had them is as plain as a pikestaff.
13. Because of his lack of participation in the divorce, Mr Justice Sumner, dealing in part with the child abduction proceedings, put on his other hat and, as a judge of the Family Division dealing with the divorce proceedings, ordered on 2nd July that:

"Service of the specified documents on Bindman and Partners, the Respondent's solicitors, in his application made pursuant to the Hague Convention, shall be deemed to be good service on the Respondent 48 hours thereafter".

14. The specified documents included the petition, the statement of arrangements and the notice of proceedings. That notice of proceedings (being the original notice, designed to be served on someone out of the jurisdiction) gave him 36 days in which to enter his opposition and file his answer. Those documents were sent by post on 4th July. They are therefore deemed to have been served on 6th July, and the 36 days he was allowed to file his answer expired on Sunday 11th August, which, by operation of the rules, gives him the further 24 hours to the close of business on 12th August.
15. On 12th August the petitioner applied to the district judge for directions for the trial of the undefended cause by entering it into the Special Procedure List. There is some note on the documents before me that the application may have been expedited. It is, however, perfectly clear that the senior district judge did give the certificate of satisfaction that the requirements of the rules had been complied with, and he directed the matter be entered into the Special Procedure List. That order was made on 13th August. It was made, therefore, after the time for the filing of an answer had expired, on any view of the facts of this case, and long, long after time had expired, if (as is the fact) the husband received these documents in May.
16. I am not clear what else was before Senior District Judge Angel on the application, but I must assume that he would have had available on the court file an order that had been made by District Judge Maple on 7th August, on an application made without notice to the husband. It was supported by an affidavit of the wife's solicitor, Mrs Readhead, who set out the various steps that had been taken to serve, as I have outlined them. She added the opinion (whether right or wrong is not a matter we have investigated) that because, in fact, the service took place on Bindmans within the jurisdiction, the husband was only allowed 28 days to put in his answer. Be that as it may, District Judge Maple was sufficiently satisfied that service had been effected that he made an order (perhaps not brilliantly drawn) that "deemed service of the divorce proceedings" should be assumed and that the time for the filing of an answer was "deemed to have expired".
17. I find no merit whatever in Mr Marshall's submission that the order made by Mr Justice Sumner rendered as naught the previous two attempts to serve. District Judge Maple was totally justified in deciding that adequate service had been made in one shape, form or other. He was perfectly entitled to conclude that time for putting in an answer had expired. For my part, I cannot see that the order he made was anything other than the order one would have to expect in the circumstances of the case. Mr Marshall contends that it was an irregularity; and if it was irregular, he submits, it carries the consequence that the grant of the decree nisi made pursuant to it is void. He can give me no authority for that proposition in law. I reject the proposition in law. I would have thought that, if service were irregular, then the most that could possibly happen would be that the proceedings subsequent upon it were voidable, not void. But he has taken no steps to appeal District Judge Maple's order, even though the husband had received a copy of it by the end of August on his own admission.
18. In any event, the matters which are crucial are the matters which came before the district judge in granting the certificate which led to the pronouncement of the decree. By that time it is as plain as a pikestaff that (a) there had been service of the documents on the husband and (b) he had not put in an answer. Two reasons are given by him for not putting in an answer. One is that he did not accept that this court had jurisdiction. That seems an odd submission to support. He has every opportunity to challenge the jurisdiction of the court by attacking the wife's claim to domicile here, and that is the appropriate way to take that point. It seems a little odd, given that in his affidavit he claims to have been doing nothing because he mistakenly thought that an order made by Mr Justice Sumner, on the same day that he ordered the service of these documents upon him, amounted to a stay of the divorce proceedings. What Mr Justice Sumner had ordered in the child abduction proceedings was that the Children Act and Family Law Act 1996 proceedings number FDO2DO3259 be transferred to the High Court and stayed until the determination of these Hague Convention proceedings. How he could have thought that that amounted to a stay of the divorce is a matter not satisfactorily explained to me. The words are obvious enough. He had solicitors and counsel acting for him and it seems impossible to conclude that Mr Justice Sumner intended to stay the divorce proceedings when at the same time he ordered that there should be service of those proceedings on the husband in order to make assurance double sure.
19. It seems to me, therefore, that there is no realistic prospect of persuading the district judge (for it would be he to whom the application is made in the first place) or, if the proceeding have been transferred into the High Court, the High Court judge that, upon a rehearing of the decree nisi (which I think is the proper form), there has been proved such an irregularity as to create an injustice.
20. I should add, in parenthesis, that the husband (who has taken every technical point in the book that could possibly be taken, and some not even in the book) was given ample opportunity to put his house in order by Mr Justice Bodey, who correctly observed on 18th September, two days before the grant of the decree nisi, that the proper procedure would be to apply before the grant of the decree nisi for permission to put in an answer out of time and so upset the district judge's certificate. He did not avail of that procedure.
21. The technical points are without merit and I conclude that Mr Justice Kirkwood was right to reject them.
22. It does not end there. The main challenge is to jurisdiction. This is an English born wife, who retains a flat in this country; who went to America to live with her husband, who worked there; who went to Venezuela with her husband when his job took him there. She asserts a domicile of origin. Even if it be right, as the husband contends, that she had acquired a domicile of choice in the United States and then, after 2000, a domicile of choice in Venezuela, she would lose that domicile of choice when she left Venezuela with the intention of no longer returning there. Factum and animus must march hand in hand and, if she no longer resided in Venezuela and no longer had an intention that she would remain there indefinitely - the factum and animus of domicile - then her domicile of choice would not arise. Authority for that is the case of Tee v Tee [1974] 1 WLR 213. The husband, who put up very little by way of evidence, took the point so late that the wife has had no chance to put in her own evidence on domicile, but, by just looking at the probabilities, I would have thought that his argument is almost certain to fail and there is no merit in his challenge to the jurisdiction of this Court.
23. So he resorts to his final cri de coeur: that is, to public policy. He submits that, if a wife comes to this country, having wrongfully removed children contrary to the Hague Convention, and seeks to establish a domicile of choice in this country, it is contrary to public policy to allow her to do so. As support for that proposition he refers to the judgment of the President, Sir George Baker, in the well known case of the Baader-Meinhof lady, now Mrs Puttick, in her application for a declaration that she had validly married an Englishman: Puttick v Attorney-General and another [1980] Fam 1. She was a fugitive from German justice. She entered illegally. The court was of the view (as the President set out on page 18) that, having acquired her residence illegally, she should not be allowed thereby to acquire a domicile of choice. I can see no application of that case to this, for two reasons. First, this petitioner did not enter illegally. She is a British citizen, who entered by virtue of her British passport, under which passport her children also are entitled to travel. She is not an illegal entrant. Moreover, on her case, she was not here to establish a domicile of choice. Either she had never lost her domicile of origin or, upon her removing herself from Venezuela and determining never to go back there again, she had reacquired that domicile of origin.
24. I have only one word of sympathy and support for this husband. He has been the victim of a child abduction, which is an international scourge. The wife is to be condemned for that, and has been condemned for that in the child abduction proceedings, where, by order of Mr Justice Hedley, she is to return the children to Venezuela, I believe later next week. Public policy, in giving effect to the Convention, has been totally met by the order of the court and there is no further criticism that is to be made of the wife in these divorce proceedings. To submit that a person whose domicile of origin is this country is not entitled to exercise the rights that that domicile gives to bring divorce proceedings simply because she has wrongfully removed children from another jurisdiction seems to me to be a remarkable proposition, for which there is no authority, and which I utterly reject.
25. I have taken a lone time to say that this is an abjectly hopeless application, which was rightly summarily dismissed by Mr Justice Kirkwood. It has no realistic prospect of success whatever and I dismiss it.
Order: application dismissed with costs assessed at £5,147.92, to be paid forthwith.