Jersey Unreported Judgments

[2010]JRC073A

royal court

(Family Division)

12^th April 2010

IN THE MATTER OF J

Reasons for decision (made on 17th March, 2010) that Husband is to be permitted to pursue his conduct argument

Advocate R. E. Colley for the Petitioner.

Advocate C. R. G. Davies for the Respondent.

judgment

the registrar:

1.        The husband has filed an affidavit, in support of his argument that the Court should take the wife's conduct into account in determining ancillary matters.  That was on 10^th March, and in accordance with a Court direction made on 24^th February.  

2.        From what I knew of the case at the time I made the direction, I doubted that the conduct complained of by the husband would be sufficiently serious for me take account of it in determining ancillary matters.  So I further directed, on 24^th February, that there would be a further Case Review Hearing on 17^th March, to determine whether or not the conduct set out in the respondent's affidavit constitutes conduct, which it will be inequitable for the Court to disregard in determining ancillary matters (in accordance with Article 29(1) of the Matrimonial Causes (Jersey) Law 1949, as amended).

3.        These are my reasons for the decision, at that review hearing, for allowing the husband to continue with his application.

4.        The gist of his argument to date is that the wife has had sexual relationships with others via the internet such that she has:-

(i)        become obsessed with internet chat rooms;   

(ii)       involved the children in her sexual relationships, exposing them to pornographic images;

(iii)      spent family time and money travelling to pursue these relationships;

(iv)      developed an unhealthy interest in their children's and young peoples' sexual development and relationships.  

5.        Up to now, he has not seen or fully contemplated what counter argument the wife may have.  She will have the right to file her affidavit on conduct by 16^th April, 2010. 

6.        However, I am told by the wife's advocate that:-

(i)        the conduct alleged, except for her relationship with one man, will be strenuously denied;

(ii)       the conduct of the husband will also be called into question. 

7.        Neither counsel was aware of any case in which the Court has demonstrated the power to prevent a party putting forward an argument on conduct.  The husband's advocate argued that now was not the time for the Court to interfere.  The wife's advocate argued that, nevertheless, it was a pragmatic approach to prevent a party putting forward an argument which could be damaging to both parties. 

8.        I am persuaded that the husband must be permitted to put his case, but, at the same time, I have the right to point out the disadvantages of him doing so.  That is the purpose of this short judgment. 

9.        Advocate Colley for the wife warned that a contested hearing on conduct may take several days to complete.  I am sure this was not intended as a threat, more a statement of the inevitable consequences of a clash of evidence which the parties insist on being resolved one way or the other.  The nature of the evidence is so personal that I would agree with her that "the impact will be with them for the rest of their lives."  The cost to the husband will be many thousands of pounds, depending on how many days in Court the hearing takes.  The hearing is to take place before the Inferior Number because I do not have facilities at the Judicial Greffe to hold long trials involving several witnesses. 

10.      Apart from being expensive and emotionally damaging, I wonder what it can achieve.  Advocate Davies in her skeleton argument states that the husband believes that the wife's conduct will have a "direct and measurable effect" on the reasonable needs of the family.  She states that the husband, having become the primary carer in such difficult circumstances, is anxious to provide the children with as much stability as is possible.  Even if the husband can prove that the wife's conduct has led to the children living with him, it may not make much difference in terms of financial settlement.  I am actually told that the wife has recently improved her relationship with the children and has good contact with them.  I will be surprised if she does not in time argue that she will need suitable accommodation to have the children to stay.  The father will have to bear the brunt of maintaining the children, whether they remain living with him, whether they progress to tertiary education, or whether they spend more time with their mother.  So, even if the husband can prove "a direct and measurable effect" (which I doubt) I also doubt there can be any real benefit to him if he were to succeed. 

11.      The point of alleging conduct may, according to Advocate Colley, be designed to encourage the parties to enter into early settlement talks.  I fear it could have the reverse effect in that a hearing on conduct will have to be completed before such talks can commence, resulting in a delay.  But, above all, I fear that hearing on conduct might have such a devastating effect on the parties' relationship that such talks could be difficult to hold at all. 

12.      I can only see one potential benefit to the husband - that, as a matter of principle, he wants to have his day in Court, to prove his position as a righteous father.  I doubt he can do this either.  Most cases reveal, not right and wrong, as white and black, but all shades of grey in between.  Time may tell what the position is in this case, but one thing is certain, it won't be worth destroying the family in an attempt to win a point of principle. 

Authorities

Matrimonial Causes (Jersey) Law 1949.