England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(1), (2) & (3) HER HONOUR JUDGE COATES

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st July 2007

Lord Justice Wall:

1. There are three matters before me today, brought on the application of Mr C. There are two applications for permission to appeal against orders made by HHJ Coates. They relate to orders made by the judge on 30 November 2006 and 14 December 2006, and there is also outstanding an application for permission to appeal against an earlier order under the Children Act, which came before Scott Baker LJ on 8 March 2007. Scott Baker LJ refused it, but that was in the absence of Mr C, who lives in Greece, with the result that when Mr C protested the order was set aside and adjourned until today for me to hear.
2. Mr C is resident in Greece. He acts in person, and I mean no criticism of him when I say that I have found it slightly difficult to piece together the history from the documentation before me, but I will do my best to go through events. I propose to direct at the end of this judgment to order that a transcript of it is prepared and made available to Mr C at public expense, so that he can read it at his leisure. He has, as I understand it, flown in last night from Greece; this happened when we last met, as I shall relate, and I fully understand that Mr C has prepared his case with considerable difficulty and under some pressure of time.
3. Going back, it would seem from the papers that Mr C and his wife were married on 4 October 1985 and they have twin children, a boy and a girl who were born on 14 June 1994, so they are now just over 13. The parties seem to have separated in about April 2001, and in July 2002 Mr C made his first application relating to the children and that resulted, as I read the papers, in a consent order for contact. That Consent Order was made on 10 September 2002, and there were various undertakings given, one earlier by the wife, as I shall call her, which prohibited her from removing the children from the jurisdiction.
4. There was a decree nisi of divorce on 13 October 2002, and Mr C made a further application in relation to the children on 7 November 2002. Most unfortunately, as it seems to me, the applications in relation to the children seem to have got mixed up with the financial dispute between the parties. What happened, as I understand it, is that effectively they had two properties: one was at ..... in Brighton, and the second was at ..... in Brighton; and the second of those properties, ....., was the matrimonial home. My understanding is that it was in the Mr C's sole name and there was a mortgage on it. ..... was a property, which was let and, as I understand it, was in joint name. The wife made an application for ancillary relief. Mr C says there was an agreement reached which I think he says the wife resiled on; but, in any event, on 29 October 2003 there was a Consent Order. The property at ..... was to be transferred to the wife, and the mortgage on it was to be reduced. ….. transferred into his sole name, on the basis that there would be a clean break; and it looks as though the thinking behind that order, although it is not entirely clear, was that the wife and children should continue to live in the matrimonial home with a reduced mortgage, and that Mr C should be in a position to finance his own accommodation out of the proceeds of sale of the property at …...
5. The decree absolute was made on the same day, 29 October 2003. Unfortunately, what appears to have happened is that, whilst all this was going on, Mr C's mother died -- she had been ill, I think, for some time -- and there then arose a dispute between former husband and wife, the wife saying that she had not known about the death of Mr C's mother; that he had benefited from her estate, and that the money from her estate had not been brought into account in the financial proceedings.
6. This raised very profound feelings in Mr C; first of all he took the view, very strongly, that his mother's property was nothing to do with his former wife, and he resisted very strongly any suggestion that the funds from her estate should be brought into the family pot.
7. There was also a lengthy delay before the wife's application for permission to appeal, out of time, against the consent order were heard. The permission appears to have been given in September 2004, then rescinded, then given again on 28 October 2004. Directions were given by the judge in May 2005, but the appeal was not heard until 28 October 2005. In the meantime, Mr C had made a further application for residence of the children, this being made, as I deduce it, on 7 September 2004.
8. Plainly the Children Act application was not dealt with. Mr C sought permission to appeal against the order of 28 October 2004. That application came in front of Black J, sitting as a single judge of this court. It also came before me, without either us apparently knowing that the other was due to be dealing with it, and on 27 October 2005, I refused permission to appeal against the order made on 28 October 2004 allowing the wife to go ahead. The judge then completed her hearing on 28 October and, as described by Wilson LJ in a subsequent judgment, she made what he described as a relatively modest alteration in the order: namely that Mr C should pay his former wife a total sum of £61,000, enough to clear the mortgage on ….., and her debts. It looks as though, from the documents, because Mr C was not present on 28 October, that the judge decided to exercise her powers, which she had under the Supreme Court Act, to execute the relevant documents if Mr C did not cooperate with any transfers.
9. On 4 November 2005, again when Mr C was not present, the judge refused him permission to appeal against the October 2005 order, and Mr C's application for permission to appeal was not heard in this court until it came before Wilson LJ, sitting as a judge on his own on 3 March 2006. Wilson LJ recalls that he was hearing applications for permission to appeal against the two orders made by the judge on 28 October and a further order on 4 November, when Mr C had not been present, but his applications for permission to appeal were refused by Wilson LJ.
10. Wilson LJ went through the history, looked at the various authorities, clearly heard and understood everything that Mr C, who was there in person, put to him, but refused permission to appeal. As far as the order of 28 October 2005 went, that is the end of the matter. The order which now governs the two properties is the order made by the judge on 28 October 2005. Wilson LJ has refused Mr C permission to appeal that order; therefore, it has to stand.
11. On 8 May 2006 -- a document of which I have copy, but which is, I have to say, somewhat mysterious -- the judge simply dismissed Mr C's application under the Children Act; I simply do not understand what happens here. The application had been made in the form of a notice of application, but normally in these circumstances what happens is that there is a notice of application, followed by a statement; there is a conciliation appointment; in contested cases, there is usually an application for CAFCASS to investigate; both sides file statements, and the judge hears the matter. On 8 May 2006, Mr C was not present. There is a very short transcript. The solicitor acting for the former wife, the mother of the children, was present. She invited the judge to dismiss the application and the judge dismissed it.
12. That is all that I have. Mr C sought permission to appeal against that order and, as I indicated earlier, it is that application, which, as I understand it, came before Scott Baker LJ; he disposed of it, but in the absence of Mr C, who now renews it, by permission of Baker LJ in front of me. I will come back to the Children Act question later.
13. What then appears to have happened is that Mr C not only sought permission to appeal against the order made on 8 May 2006, but the former Mrs C took proceedings in front of the judge seeking to enforce the order in relation to the properties which have been made earlier. Once again, as I do not have a number of these orders it is not altogether easy to piece the matter together, but what appears to have happened, according to a transcript which I do have, relating to 30 November 2006, is that the judge decided that Mr C had not been properly served. She therefore adjourned the application by the wife to enforce to 14 December.
14. In so far as Mr C seeks permission to appeal against that order, simply adjourning the matter to 14 December, it seems to me the appeal is unnecessary and indeed academic, because what matters is the order the judge made on 14 December. In my view, she was right not to deal with the matter on 13 November in the absence of Mr C. She adjourned it for him to be served and he cannot criticise her for doing that, and indeed, the order has been spent, so no purpose would be served in appealing it. That application therefore, which is, as I understand it is, Application 0364 of 2007, I refuse.
15. More important is the order which the judge made on 14 December, because on that occasion -- and although I do not have a copy of the order she made -- it appears that what she did was to sign transfer documents in relation to the former matrimonial home; that is to say, ......
16. I remain somewhat in the dark, and do not quite understand what the position is as to ….., because I initially thought (wrongly) that was in Mr C's sole name, and I have not seen an order transferring it into the name of his former wife. Indeed, the judge would not have jurisdiction to make such an order having made a Transfer of Property Order at an earlier stage, but I can clear up one misapprehension which Mr C is suffering from, and that is: he says that the court had no jurisdiction in any event to transfer any property into his wife's sole name, because it was done after the decree absolute, and under the Family Law Act 1996, if there is to be a transfer of a tenancy it has to be done whilst the parties are still husband and wife and cannot be affected after the decree absolute.
17. I am afraid this is a misapprehension on Mr C part; as I understood it (wrongly), he and his former wife were joint owners of …., and under the Matrimonial Causes Act, a property adjustment order transferring one interest from one to the other simply cannot be made before a decree nisi, and cannot take effect until after a decree absolute, and so his belief that the judge had no jurisdiction to transfer the property to his former wife is completely misplaced.
(At this point, Mr C interrupted the judgment to point out that ..... was in his sole name and that ….Street was in joint names.)
18. The property at ….. being in joint names, the judge plainly had jurisdiction to transfer one party's share to the other after the decree absolute, because that is what the Matrimonial Causes Act says, and when the transcript comes back I will ensure that attached to is a copy of section 24 of the Matrimonial Causes Act, which explains that the jurisdiction of the court in Matrimonial proceedings to make property adjustment orders only arises on decree nisi. I think Mr C may be confused by the phrase "joint tenancy" or "tenancy in common". "Joint tenancy" and "tenancy in common" means that they own the property jointly; they are not tenants of it, in the sense of renting it from someone else; they own it, and the court clearly has jurisdiction to transfer one party's share of the property to the other.
19. I will however continue, because what Mr C's very helpful intervention has enabled me to understand why the judge was doing what she did, because if the property at ….. was in the sole name of Mr C, then plainly the judge had power to execute documents transferring it into the wife's sole name, pursuant to the order she had made previously on 28 October 2005; and if she is seeking to ensure that ….. is sold so that the wife can be paid the money she is due from it and the rest paid to Mr C, then that, at least, explains why she was doing what she was doing on 14 December. In any event, Mr C was not present. Despite the efforts of the judge to ensure that he was served, and despite the judge beginning her judgment on that day by saying that there had been correspondence, and that Mr C was aware of the transfer and of the order and of the hearing, he says he was not. He was not served, he did not know and he was not there.
20. The face of the transcript tells a different story, but in essence what I have to say to Mr C is this: the order that the judge made on 28 October 2005 is a binding order; he has attempted to appeal it. Wilson LJ has refused permission to appeal, and in those circumstances Mrs C is entitled to apply to enforce, and the judge is entitled to allow her to apply her to enforce; and if that means, as it appears to mean, that on 14 December the judge executed documents to bring about transfers, and a sale of ….. that is something which is plainly within the judge's jurisdiction and not something about which Mr C can legitimately complain. It therefore follows that I do not think his application for permission to appeal against the order made by the judge on 14 December 2006 would have any reasonable prospect of success.
21. This leaves me with the Children Act application, which is the most troublesome, and one which I frankly do not at the moment understand. It appears that on 8 May 2006, the judge dismissed the application made by Mr C under the Children Act. All I have, as I say, is the bare order dismissing the application, and a transcript of the short hearing which took place. Mr C has not renewed that application; he has not gone back to the judge and said, "Please hear my application". His view would be that the judge is effectively biased against him, that she has not behaved appropriately, and that his former wife's advisers are themselves guilty of a form of corruption and an attempt to pervert the course of justice in relation to the earlier financial proceedings.
22. All I can say to Mr C is this: that if he has a genuine case, either for residence or for contact, or in relation to any aspect of the children's welfare, that is a matter which he can and should bring before the Brighton County Court; and if he objects to Judge Coates hearing the application, he can and should apply to the judge, for her, in the legal phrase, to recuse herself; that is to say, give the case to another judge and allow the case to be heard by another judge. Mr C tells me that the children who are now, as I say, 13, want to live with him; they have said that to him. He speaks to them on the telephone, and in June he had them to stay with him in his bed and breakfast accommodation, then being rented in London.
23. He clearly has been able to maintain a degree of contact with them, although he plainly regards what he has retained as unsatisfactory, and he makes a number of assertions: namely that it is not possible for fathers to get justice in England; that he has been impoverished for the benefit of his former wife; and that he is therefore a victim of the system, and unable to play any proper part in his children's lives.
24. One of the reasons I am going to invite a transcript at public expense is that I wish to disabuse Mr C of these beliefs, which are wholly erroneous. The courts pay great attention to the needs of fathers. We regard it as most important that where children's parents are separated, each parent plays as full a part as is possible in the lives of their children. There is no gender bias in family proceedings; it is one of the myths that are perpetrated. True it is that, at the moment, the only powers to enforce orders are by fining or sending people to prison, both of which the courts are very reluctant to do, but in the present case it seems to me that Mr C is seeing his children; he has a case in relation to them; and if he wants to apply for specific relief such as identified contact or residence, then he must bring the matter to court. He simply cannot sit back and say: "Well, the judge refused to do anything on 8 May 2006. I am not going to replicate my proceedings. I am not going to go in front of her again. I am not going to ask for anything else. She is wrong and I should be seeing the children and I have been excluded".
25. My strong advice to Mr C, and it is not advice which he is in any sense obliged to accept, is that if he has a case for residence or contact, he must reactivate it before the court. He must make a statement setting out his case and he must either invite conciliation or, as he has told me today he is minded to do, apply for mediation. As I say, he is seeing his children. On the face of it, I have to say to him that if his children have always lived with their mother, and have been living with her since the separation of the parties now some years ago, the prospects of moving them to different accommodation and to a different regime may be unrealistic. I simply do not know. But it is not enough, it is simply not enough, for him to come to this court and say "I want to appeal against the order of 8 May 2006", now well over a year ago, because the judge should have done something different. All the judge had in front of her was his notice of application and an absence of anything else. If he wants to apply for residence or contact, he must do the thing properly. He must make a proper application. He must support it with a statement and he must invite the court, if necessary, to ask his former wife to answer that statement and for the children's situation to be investigated by CAFCASS.
26. Therefore I see absolutely no purpose in giving him permission to appeal against the order of 8 May 2006; there is effectively nothing to appeal against. There was simply a notice of application, which the judge had in front of her -- no other material -- and she dismissed it. That is over a year ago; it is now water under the bridge, and if he wishes to apply for residence or contact he must, in my view, make a fresh application.
27. For these reasons Mr C applications will be refused. But as I say, the door is not closed on him in relation to the children, and one of the benefits of having a transcript of this judgment, is that, if he does apply to the County Court for residence or contact, he will be able to show the judge that this court has said in clear terms that he has the right to apply, and for his application, if properly formulated with a statement in support, to be properly dealt with by the judge. However, on the material before me, I am in no doubt at all: the present applications would stand no reasonable prospect of success if I put them before the court, and therefore the applications must be refused.

Order: Applications refused.