Anthony Tobias v Lindsey Tobias
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 29 June 2017 |
| Neutral Citation | [2017] EWFC 46 |
| Docket Number | Case No: FD17F00055 |
| Court | Family Court |
| Date | 29 June 2017 |
[2017] EWFC 46
IN THE FAMILY COURT
Courtroom No. 48
Queen's Building
The Royal Courts of Justice
Strand
London
WC2A 2LL
11.15am – 11.36am
The Honourable Mr Justice Mostyn
Case No: FD17F00055
Miss F Headley (instructed by JCS Solicitors) appeared on behalf of the Respondent
The applicant was self-represented and attended by telephone
JUDGMENT (Approved)
Anthony Tobias is a tetraplegic and he presently lives in a care home in Bournewood. His wife, Lindsey Tobias, lives in the former matrimonial home, 115 Ingleside Drive in Stevenage. This property may be worth £650,000, but it is heavily charged in respect of a number of debts in favour of commercial creditors as well as the local authority for unpaid council tax. Moreover, it is subject to a notice of home rights under the Family Law Act, 1996, in favour of Anthony Tobias which was registered on 19 December 2016. It is elementary that the property could not be sold without the consent of Anthony Tobias, while that notice was in place.
However, on 31 May 2017, Mr Tobias made an ex parte application for a freezing order to the out-of-hours High Court judge, Keehan J. He has told me, by telephone, that he did this because he was advised to do so at the Family Court at Luton. He was not able to explain to me what the emergency was that required the use of the High Court out-of-hours service; which is there for extreme emergencies, for example, if children are about to be removed from the jurisdiction or if a medical procedure needs to be authorised. Keehan J declined to make a freezing order; his order — which is headed to be in the High Court of Justice, although for reasons which I shall explain, it certainly was not in the High Court of Justice, it was rather in the Family Court — provided that Mr Tobias' application for injunctive relief would be listed on 7 June 2017 before the urgent applications judge.
The witness statement, in support of the application for injunctive relief, was a defective document in that it failed to specify that the property was already heavily charged in favour of various creditors. It did, in paragraph four, state that Mr Tobias had the benefit of the home rights charge which I have mentioned. It also stated that he had filed a petition at Bury St Edmunds which was waiting to be issued, as they were working in that court on a 28-day backlog. That petition still has not been issued 1.
On 5 June, Mr Tobias sent an email with attachments to the court, which included a draft injunction order, and that, on 6 June, was treated as an application for a freezing order. The draft of the injunction order was, in fact, sealed by the court and has the appearance of an order actually issued by the court, but investigation demonstrates that this is not so, and that the sealed document is in fact the proposed order that Mr Tobias was seeking.
That application, although it was not framed as an application in proper form, came, pursuant to Keehan J's direction, before Francis J on 7 June 2017, when he made an order, again headed in the High Court of Justice— but which, as I shall explain, almost certainly was not in the High Court of Justice but was rather in the Family Court — which recorded that he had heard Mr Tobias via a telephone link and that the wife, Lindsey Tobias, was neither present nor had notice.
Francis J did not make a freezing order on that day, but he adjourned the matter to be heard inter partes on 15 June 2017. On that occasion the matter was heard by Hayden J;
Mrs Tobias attended in person and again Mr Tobias attended by telephone. On that occasion, the court recorded that Mrs Tobias gave an undertaking not to dispose of "any of the marital assets". In her witness statement made in these proceedings, she argues that there has been some kind of misunderstanding because, on one view of things, that would prevent her even spending money on a sandwich. She said that what she had intended to give an undertaking to do, was not to dispose of the marital home.Hayden J, having recorded this undertaking, directed that the matter be...
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...allocated to a Judge of High Court level by reference to the criteria in the efficiency statement applied by analogy: See Tobias v Tobias[2017] EWFC 46.’ Held (1) Applying Henderson v Henderson (1843) 3 Hare 100, it would be abusive if the applicant wife were allowed to make a claim to the ......
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The Case Of Tobias V Tobias [2017] - Freezing Injunctions, Without Notice Orders And Applications To The Out-Of-Hours Judge
...29 June 2017, a Judgment was given in the case of Tobias v Tobias ([2017] EWFC 46) which gave guidance in relation to freezing injunctions, without notice orders and applications made to the out-of-hours Judge - all of which are explained further The background to the case is that there was......