Aquilina v Aquilina
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,LORD JUSTICE CLARKE |
| Judgment Date | 24 March 2004 |
| Neutral Citation | [2004] EWCA Civ 504 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 March 2004 |
| Docket Number | B2/2004/0338 |
[2004] EWCA Civ 504
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CARDIFF COUNTY COURT
(HHJ MASTERMAN)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Ward
Lord Justice Clarke
B2/2004/0338
MISS JANE FOULSER MCFARALANE (instructed by GUY MOORE OF MARTYN PROWEL, Hallinans House, 22 Newport Road, Cardiff CF24 OTD) appeared on behalf of the Appellant
MISS FELICIE LUCAS (instructed by TESSA THOMAS OF MORGANS, 31 Wilson Road, Ely, Cardiff CF5 4LL) appeared on behalf of the Respondent
This is an appeal against the order of His Honour Judge Masterman, made in the Cardiff County Court on 6th February 2004, when he sentenced the appellant to a term of six months' imprisonment for the breach of an injunction which had been renewed on 30th September 2003, restraining this husband from being within 200 metres of the address where his wife and children were living.
The script almost writes itself, so depressing and so common is the tale. We are dealing here with a youngish couple, who married in 1999, having had, it seems, an association going back over years previously. They have three young children. The eldest is soon to be 11, the youngest is 3. They separated in December 2002, and there are divorce proceedings on their way. In the course of those proceedings the wife, as I shall call her, was forced — and I have no doubt for good solid reason — to apply for a non-molestation injunction and for an occupation order in respect of their matrimonial home and orders were made accordingly some time in June.
Sadly, within a very short space of time there were proceedings for committal, alleging breaches of that injunction. That resulted in the local judge (not, I think, on that occasion Judge Masterman) imposing an order of imprisonment for 56 days in respect of two breaches which had occurred in August when this errant, foolish husband, notwithstanding the injunction, returned to the matrimonial home. I have no doubt whatever that part of the underlying problem relates to his contact, or lack of it, to his children. That order of committal was, however, wisely suspended by the judge on condition that he complied with the order.
But this silly man, inflamed with his passions and aroused by the difficulties he faced in seeing his children, was in breach of the suspended order five days after it was imposed and, as a result, on 30th September, he was duly sentenced to prison for 56 days, no further penalty being imposed for the second breach.
He was released on 27th October. What happened? Well, he still had not learned the error of his ways, and, on 11th November, there he was making a thorough pest and nuisance of himself by driving past this lady's home at 10 o'clock at night. Whether it was wise of her and correct of her to return immediately to the court for the third committal, that is what she did, and that is what came before Judge Masterman. The husband denied that he was in breach. The judge simply did not believe him, thought that he was a man who had "shown himself to have no regard at all for the truth when he is on oath in court". That breach was therefore found proved. There was precious little mitigation that could be advanced, in that there was no open acknowledgment of the breach, there was no apology for it. All that could be said, and was said by counsel who appeared then on his behalf, Miss Foulser McFarlane, was that this was a comparatively minor matter and that there had been no history of repetition, which, given the history of this case, is a point which, on the facts of the case, has some...
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...often a need for family members to continue to be in contact with one another (see Hale v Tanner [2002] FLR 883 at paras 25 and 29 and Aquilina v Aquilina [2004] EWCA Civ 504 at para 10). The Hearing: Procedural Errors in Proving Contempt 10 Despite these principles, neither the 1998 Act, n......
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...Channel [2002] EWHC 2500 [QB]. ● Masri [supra]. ● Crystalmews Ltd –v- Metterick [2006] EWHC 3087 [Ch]. ● Aquilina –v- Aquilina [2004] EWCA. Civ 504. ● Re M (Children – Contempt) [2005] EWCA. Civ 615. Council Regulation (EC) 44/2001 and two decisions of the CJEU relating thereto, Realchemie ......
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