Scottish Court of Session Decisions

INFOAct: Wise QC; Pagan Osborne

Alt: Dowdalls; Morton Fraser

18 July 2008

[1] The action before me concerns when a couple separated in 2006. They were not married but had a child born in 1997 who was eight years of age at the time of the events to be described. The date of separation is important because of the operation of Section 28 of the Family Law (Scotland) Act 2006. Put simply unless the parties were co-habiting after 4 May 2006 the pursuer's claim on the defender is severely restricted. The pursuer contends for a date of separation in June, the defender for April.

[2] It is not disputed that the parties had a somewhat unusual pattern of living over the admitted ten year co-habitation. The pursuer was employed by the defender to run two nurseries in different parts of Aberdeen known as "Just Kidding" in Cults and "All Little People" in Calsayseat Road. She is still so employed. In 1996 they lived together above one of the nurseries before moving in 1999 to Redmoss farm, Old Meldrum some distance out of Aberdeen. The child attended a private school in Aberdeen.

[3] In general they lived at the farm during the week and at the weekend the defender went to live in the flat in Aberdeen above one of the nurseries. He socialised with his friends and had an interest in football. The pursuer and the child spent most weekends attending pony events. The child enjoyed riding and was talented. She began to win prizes. The defender encouraged her but as time went on he began to resent the amount of time they were away. The pursuer did cook and do laundry for the defender. She still did laundry until recently. The parties did not appear to have any active sex life with each other. During the relevant period the defender had several jobs. He had employment at Dyce and later in the city at Oil Based Management (O.B.M.) then "Frontier". On the Record, the Joint Minute and the whole evidence I find these general matters proved and not seriously in dispute. The problem arises however, in the detail of certain specific events. In order to understand this it is necessary to resume the evidence. The issue is a clear one of credibility and reliability. There is no legal issue.

[4] The pursuer gave evidence and led nine witnesses viz Cormack, Blight, Nicol, Marino, Robertson, Bayliss, Hammond, Brown and Middleton. The defender gave evidence and led two witnesses, Duthie and Montague. Inevitably there was a lot of hearsay evidence. I now summarise the main points of the evidence where the parties are in dispute.

[5] The pursuer began by explaining a matter that was to assume some significance. It related to the child's attendance at the private school in Aberdeen. It was a significant journey from the farm to the school and it was done by car each day. Parties had to be up early and leave at 6.45am to avoid traffic. When they had two cars they went in convoy. For four terms from August 2005 the Headmistress asked the pursuer if she could help another mother Sarah Hammond who lived even further away in Turiff. It became the practice for Sarah to bring her child Tayla to the farm in time for both children to leave together. I shall return to this.

[6] The pursuer then described events in March 2006. Due to the untimely death of her sister she had gone to Wales to help her in her last illness. She had been in Cardiff, Oxford and Manchester. The child had gone on a skiing holiday with her aunt Sunita and others. She met a lot of her relatives and timed this visit at the end of March and beginning of April. The defender who was in Aberdeen had lost his job with OBM and soon thereafter started with "Frontier". The pursuer said the Summer term began on 18 April (in 2006 Easter Sunday was the 16^th).

[7] On 22 April the child competed at Ladybank in a Horse Show and on the weekend of 1 May at another Show also in Ladybank. When they returned late the defender was at the farm. The pursuer then spoke to a row she had with the defender shortly before he left for good. I infer that it was in May and was on a "school run" morning. It was "something and nothing". I refer to it later as the "white powder" incident. The pursuer became angry when the defender had emptied out the freezer. She ran after his car and threw a packet of coffeemate at it. The contents hit the car but blew back on her dark suit. She had to change. She then described the events of the weekend beginning Friday 2 June. Unusually the defender was at the farm. On the Friday there was a row over a "carpet picnic". On Saturday the pursuer took the child to friends to ride her pony. On the Sunday she went with the child to a local show at Aden Park leaving early. The defender said that if they went he would not be there when they returned. They did go and he was still at the farm when they came back. The child, however, told her mother "daddy's drawers are empty".

[8] The next week was the start of the World Cup Football. On Monday 5^th the Hammonds arrived at the usual time. The pursuer said that the defender picked up his daughter and said he was "leaving and not coming back". She saw his car was fully packed with cases and boxes. She thought he was just being silly and knew he would go to Calsayseat Road. She said that was the end of the co-habitation.

[9] Let me now examine the competing account which the defender gave in his evidence. The defender at 51 was some eight years older than the pursuer. He said he had been married twice before cohabiting with the pursuer who worked for him. During the relevant period he had three jobs; the first a job in Dyce which ended in June 2005 then he worked for Oil Based Management (OBM) until March 2006 and finally for "Frontier" in Golden Square since 10 April 2006 (see 7/2 of Process). He had adult children from his first marriage. He described a very unhappy relationship with the pursuer who was abusive and aggressive towards him. (I pause to observe that the generality of this is not on Record nor was much of it put to the pursuer). Accordingly to the defender the pursuer wanted him away from Redmoss at weekends since it interfered with her plans to take their child eventing. Be that as it may I have little doubt that the defender was happy to be with his friends in Aberdeen at weekends for social and sporting reasons. He accepted that the pursuer and the child regularly went to horse events and if he was at Redmoss he was left on his own.

[10] He said that on 21 April he went to the farm - that was a Friday. On 22^nd he said the pursuer and the child went to an event returning late. On Sunday 23^rd they were again away and returned late. On the Monday he decided to leave and early in the morning told the pursuer and his daughter. He had only gone back once to Redmoss for his belongings. He denied Mrs Hammond was there when he left that Monday. Unsurprisingly, in cross-examination he did not accept he left in June. He admitted that he had had an affair with a girl Lenka since September 2005.

[11] Both parties then spoke to their respective positions on Record which cannot, of course, be reconciled. The remainder of the Record contains only averments relating to money and the child. However, the remainder of the proof concerned general events before 2006 and various matters occurring after the date of separation whenever it was. There is much hearsay evidence of what the parties said to other people and I now turn to deal with what is material in that. I will continue at first with the defender's case. The defender said that at the end of the week he left i.e. about 28 April he met, by chance, his solicitor Andrew Duthie in a car park. He told him he had left the pursuer and then arranged an appointment to discuss his mortgage. For reasons that were unclear, that meeting, over lunch in a restaurant (The Yu Restaurant), did not take place until the 25 May. The solicitor told him how lucky he was to have left before "the law changed".

[12] Andrew Duthie said he met the defender in April and was told he had left the pursuer. Interestingly he said the reason given by the defender was that the pursuer had forced him to transfer an interest in an antiques business in Keith to her brother. (nNeither the pursuer or defender claimed that). They did meet on 25 May for lunch (See No 7/1 of Process) when he told the defender how lucky he was to have left before the Act came into force. In cross-examination he maintained that position but also confirmed the real reason for the meeting was to discuss a mortgage. The defender's friend John Montague was the last, and a very nervous, witness. He met the defender on 28 April in the T.U.C. Club. It was his father's birthday. He said the defender told him he had "moved out" that week. In July the witness took the defender a television to Calsayseat Road. In cross-examination he admitted that he only had the defender's word as to when he left since earlier he had said on a number of occasions he was "thinking of leaving".

[13] Let me now look again at the pursuer and her witnesses. Many matters of great detail were spoken to especially about horse events. I am not sure how important all of these are. They are perhaps easiest to follow in date order. On Saturday 22 April the pursuer and the child went to an event in Fife (a long journey). The pursuer's presence there was confirmed by Mrs Cormack who overheard her telephone the defender. The pursuer said she was at the farm on 23^rd. On Monday 1 May (agreed in Joint Minute as a school and bank holiday) they were again at an event (see 6/14 which was the Programme). The pursuer spoke to a phone call with the defender who complained of having no meal. At the event the child won a prize.

[14] Important evidence was given about the unseemly event (previously mentioned) which reflects little credit on the pursuer. It was called the "White Powder Incident". Its importance is when it occurred because there can be no doubt that the defender was then living at the farm. The actual incident is easy to describe. One school morning the parties had a violent and stupid argument about the kitchen freezer contents. I suspect the pursuer was probably more to blame for the argument then the defender. He made to leave in his car. She followed him and threw a bag of white powder at the car in rage. The powder was flour or coffeemate. The bag burst when it hit the car but the wind blew most of it back over the pursuer's dark suit. She had to change her clothes. The pursuer said this happened in daylight in late May with Mrs Hammond present. Sarah Hammond confirmed the facts, the approximate calendar date and that it was in early morning daylight as they were preparing to leave the farm for school at about 6.40am. The defender gave a conflicting account of the date but accepted Sarah was there. He said he was working for OBM and the incident was in June 2005. He then realised it could not have been so early and changed his date to "...well before May 2006...". At one point he said it was March. I very much doubt if it would have been broad daylight in March. I shall have to return to this incident.

[15] I have already dealt with the pursuer's account of the weekend of 2^nd to 5^th June. Sarah Hammond had no precise recollection of the Monday save that it was a normal school run day. She does, however, remember that from the 6^th the defender was never there again. Her memory of that weekend is helped by the fact that she could relate it to her own husband's birthday (4^th June). What she said she "clearly remembered" was the child (not the pursuer) excitedly telling her on the 6^th that "...mummy and daddy are getting divorced...". She also remembered the defender being there in the mornings in the month of May. Sarah Hammond was not cross-examined.

[16] It is of some importance to note what other people knew at this time. The witness Donald Nicol knew the pursuer through his son, swimming and horse eventing. He was on duty at the horse show on 4^th June (see 6/16 of Process). At that show he said the pursuer had told him the defender was going "...to pack his bags and leave the following day...". His impression was that the pursuer did not believe he meant it. He saw her three days later at swimming to be told the defender had "...gone...". He was sure of his dates. He also visited the farm at Redmoss and said he never saw the defender there again. While his account like many others is only as good as what he was told he was clear about timings.

[17] On 10^th June there was a remarriage of a friend of the parties Dr Rebecca Brown. She had invited the pursuer, defender and the child. In the event none of them went. The child had a support teacher Kay Marino at her after school club. She spoke to an occasion she remembered just before this wedding. She remembered it because of the wedding and because her own husband was in hospital. She knew both the pursuer and defender. She said the child burst into her room, held on to her, upset, and said "...daddy has left mummy...". According to her it happened later in the day when the defender left. The importance is the date and that it was an action of the child.

[18] Two other dates were spoken about and of these the one concerning events at the Royal Highland Show at Ingliston on 22^nd June is of less importance. By then the pursuer suspected the defender was having an affair with the girl Lenka. She saw her at the Show and became upset. I do not think anything important turns on this date.

[19] The other date which is important was spoken about by the witness Lisa Robertson. She worked as a nursing manager for the defender, and had duties in both nurseries. She said she had a clear memory of the pursuer asking her in June 2006 to clear out toys from wardrobes in Calsayseat Road as the defender was "...moving in..." full time. The toys were taken downstairs and a loft room was prepared and decorated for the child. The witness was able to be sure about the date because she had given in her notice to leave just before the event. (See 6/17 dated 30^th May 2006).

[20] There are three other witnesses I should mention. Linda Middleton said the pursuer told her "...Alan had left her..." the week before the Brown wedding. Karen Baylis said the pursuer told her the defender had left on 5^th June that very day. She knew both parties and indeed met the defender for lunch in February 2007. She said he told her he had been away from the pursuer for a year. She did not agree with that and said if he had left before June she would have known. She was in daily contact with the pursuer due to a common interest in horses.

[21] Finally is the witness Brenda Blight. She was the pursuer's aunt and was very close to her although she lived in Plymouth. Once again much of what she said was hearsay but the importance of it is the dates. She had a clear memory of the sad events in Cardiff early in 2006 when the pursuer's sister died. It is my impression that she was fond of both the pursuer and defender. She said that at the beginning of June the pursuer telephoned her to say the defender "...had made a big show of leaving her (and had)...gone over the top...". Her own impression was that it was a storm in a teacup. However, she was quite clear about the date as she could relate it to a cricket test match at the Oval and the start of the football World Cup. Like the defender Mrs Blight was a keen football fan. She maintained that her relationship with the pursuer was such that if the defender had left her in April she would have known.

[22] I want to look briefly at the submissions of both Counsel. Since the only issue is one of fact I need not detail them at any length. Also much of the evidence did not feature on Record.

[23] Miss Wise said that the quality or nature of the cohabitation was not an issue other than as background. Dates were agreed in the Joint Minute. The pursuer's account of events over the April weekend 21^st to 24^th April should be preferred, as also the Bank Holiday weekend on 1^st May. The white powder incident must have been in May with the defender still at the farm. His version of the date was self contradictory. The pursuer's account of the separation in June was to be preferred. She told a number of people then and his behaviour over the wedding and two weeks later at Ingliston was consistent with her realising he was not coming back. The actions of the child in telling others was corroboration as was the evidence of Robertson and Hammond. There was a consistent body of primary hearsay that the defender left in June. That supported the pursuer's credibility. The defender's late contesting of the date in the pleadings was of some importance.

[24] As far as the defender was concerned while he told people in April he had left that was not true. Nobody said he was living in town between April and June. The defender was unreliable on details and the delay in meeting Duthie was suspicious.

[25] Miss Dowdalls invited me to prefer the defender's account. The defender left in April and the pursuer had not taken that seriously until the Royal Highland Show. Sarah Hammond could not remember being at the farm on the 5^th June. The witnesses who were told of the June date by the pursuer were not precise in what they said. The defender was clear about the date because of his change of job. Duthie should be accepted as truthful and reliable.

[26] In my view the solution to this case is clear and I find that the pursuer has clearly proved that the defender left her for good on Monday 5^th June 2006. There are a number of compelling reasons for reaching that view.

[27] In the first place I prefer the pursuer to the defender. She gave her evidence fairly and moderately. She was accurate about dates, was backed up by eventing programmes and on essentials was corroborated by some of her witnesses. The defender, on the other hand was vague about a number of matters including his former marriages and the white powder incident. He was vindictive about the pursuer's behaviour to him almost none of which was put to her. It is my clear impression that he was quite happy that the pursuer and the child went eventing while he spent time with his own friends.

[28] A number of people who had no reason to be partial were told the competing dates by the respective parties. It is all primary hearsay but the weight of such evidence for what it is worth favour the June date.

[29] A more compelling chapter of evidence to support the pursuer is that of Sarah Hammond. The fact that she was not cross- examined in itself is not corroboration but it does mean I would have to find serious reasons to reject what she said. There are none. She spoke to a regular school run trip over at least three terms. The defender was always at the farm until 6^th June when he was never there again. That I hold as corroboration of the pursuer. The child's remark to her three weeks before the end of term on 29^th June (Joint Minute) is also corroboration of what happened that month. The little girl was of an age to appreciate that things were amiss. For the same reason I hold that Kay Marino's evidence of what the child said to her on 5^th June is also corroboration of the date.

[30] There are two other vital matters. It is clear the defender was at the farm on the morning of the white powder incident. On the evidence of the pursuer and Sarah Hammond I hold that this was on a day in May about two weeks before he left. The defender's account of a date in March or the year before is simply untrue. His evidence contradicts itself and in any event I doubt that it would have been broad daylight at such an early hour in March.

[31] The final matter is the evidence of Lisa Robertson supported in particular by No 6/17 of Process. Although she was cross-examined she was not seriously challenged about what she did in June to remove toys and clear wardrobe space for the defender to move in permanently to Calsayseat Road. I hold that also to be corroboration of the pursuer's account.

[32] The consequence of all this is that the defender has been untruthful about the date to the Court and also to his solicitor and his witness. His reason for behaving in this way is only too obvious.

[33] For completeness I should add that I have not found it necessary to rely on or making findings about the sale of any business in Keith or paragraph three of the Joint Minute. Nor do I think that anything turns on when the defence advanced was first put on the pleadings.

[34] The pleas-in-law for both parties do not precisely reflect the issue I have had to decide and at this stage without further proof cannot properly be sustained or repelled in full or even pro tanto save that the first plea for the defender (to relevancy) must be repelled at this stage. The interlocutor will accordingly find in fact that the parties cohabited until 5 June 2006 and I will order further proof simpliciter on the remaining nine pleas-in-law.