Bassett v Bassett
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE ORMROD,JUSTICE CUMMING-BRUCE |
| Judgment Date | 07 November 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J1107-5 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 November 1974 |
[1974] EWCA Civ J1107-5
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: His Honour Judge Phelan - London)
(Revised)
Lord Justice Megaw
Lord Justice Ormrod and
Mr. Justice Cumming-Bruce
Miss ELIZABETH LAWSON (instructed by Messrs, Clinton Davis & Co.) appeared on behalf of the Appellant (Husband, Respondent).
Mr. T.A.C. CONINGSBY and Mr. D.W. VAN HEE (instructed by Messrs. Trott & Gentry) appeared on behalf of the Respondent (Wife, Petitioner).
I shall ask Lord Justice Ormrod to deliver the first judgment.
This is an appeal from an order made by His Honour Judge Phelan on the 18th October this year, whereby he ordered the respondent husband to vacate the matrimonial home at 116 Powerscroft Road, London, E.5, on or before the 28th day of October, and went on to grant an injunction restraining Mr. Bassett from returning to, entering or attempting to enter or loitering near 116 Powerscroft Road, and also against assaulting, molesting, threatening or otherwise interfering with the wife or the child of the family. That order was stayed by the judge himself in order to give an opportunity for the husband to appeal to this Court, which he now does.
In his notice of appeal the husband took the point at first that the learned judge was wrong to deal with the matter on affidavit evidence only and without hearing oral evidence. However, it transpired at an early stage of the hearing of the appeal that in fact no application had been made to the learned judge to adjourn the matter to enable cross-examination to take place, and indeed no notice had been given requesting the attendance of any of the deponents at the hearing for the purpose of cross-examination. So that point is clearly not open to the husband on this appeal and I say no more about it except that too much should not be made of it in cases like this. There are cases where there is a conflict of evidence over a fact or facts which are crucial to the decision of the case, and in such cases cross-examination may well be essential if justice is to be done. There are other cases, and this is one of them, in which practically every word of the wife's affidavit is challenged, yet there is sufficient material which is common ground to enable the court to reach a proper decision. In such cases the delay causedby resolving a mass of disputed fact by oral evidence may be quite unjustified and in itself productive of injustice.
The basic facts of this case can be set out quite briefly. The parties were married on the 19th September, 1970. At that time Mr. Bassett was 31 years of age and Mrs. Bassett was 24. He had been previously married and that marriage had been dissolved. They had one child, who was born on the 21st February, 1973. They lived at first, as I understand it, with the husband's mother, but they later obtained a small two-roomed flat at the address mentioned in the order. 116 Powerscroft Road. The two of them went to live there, together with the baby.
The marriage, according to the wife, was extremely unhappy, for a variety of reasons, all of which the husband disputes. In May of this year the husband's son by his first marriage, a boy of 15 years of age, now 16, was brought by the husband to live in the flat, although of course there was no bedroom available for him. The reason for that apparently was that his mother, with whom he had hitherto been living, was about to get married again and was moving to live in Leicester, The boy did not want to go with her to Leicester, and so the father took him in. The reason why the boy did not want to go to Leicester appears quite clearly from the father's evidence, namely, that the boy's friends, and particularly his girl friend, live in London, It was suggested by Miss Lawson at one time that some serious question about the continuity of his education was the reason for his staying in London and not going to Leicester, but the father in his affidavit mattes nothing of that point and I rather doubt whether in this case education was comparable in importance to the convenience of this young man and his girl friend. At any rate, he came to live in this flat, clearly creating a situation of great overcrowding. Although there is no evidence as to this, the coincidence in time is probably significant, because the wife in fact leftfor the first time in June. There is a complete conflict of evidence between husband and wife as to why she left in June: but she left, taking the child with her, and went to live with her own parents in circumstances of extreme difficulty. She had to share a bedroom with a sister and another woman, sharing a single bed with her sister and having this 18-months-old child in the room with the three of them, a condition of such discomfort that it is difficult to avoid the inference that she must have had strong reasons for leaving home and putting herself, and of course her family, into such a position, At any rate they must have been reasons which seemed very strong to her.
There is an issue as to whether the husband asked her to come back or what happened, but she did return in July and brought the baby back and resumed life in this two-roomed flat with the husband and his son. There was a quarrel - I think this is common ground - on the 22nd July, at a time when her mother was in hospital, but they continued to live in the flat until the 3rd September this year, when, again in circumstances which are in issue, the wife left again and left finally. Very shortly after leaving she filed her petition. It is only necessary to say this about the petition: it is based on the ground that the husband had behaved in such a way that she could not reasonably be expected to continue to live with him. The substance of her allegations is of a very familiar pattern - a mixture of aggressive behaviour including some acts of violence by the husband, drinking too much, and constant quarrelling over housekeeping money - in fact a picture, if it is true, of an oppressive husband in a variety of different ways, a pattern which is familiar to all of us who have had much experience in the Family Division. The wife also took out a summons asking for the relief which the learned Judge gave her, namely, that she wanted to go back to the matrimonial home with the baby and without the husband. She took out a summons askingfor the injunction which I have mentioned. She swore an affidavit in support of that application which sets out briefly the history of the marriage, and I need not refer to it any more because all the matters which to my mind are relevant are common ground, and I have mentioned them all.
In reply to that the husband filed an affidavit in which he denied seriatim each paragraph of the petition and each allegation made in the wife's affidavit, except the facts, which of course he could not deny, of separation and so on. He offers virtually no explanation for the break-up of this marriage except to say that the wife when she was a girl sustained a severe head injury which, he suggests, may have accounted for her behaviour; and he goes on to say that the final quarrel arose over her taking money of his. Otherwise he produces no explanation at all as to why she should leave and go and live in such acutely uncomfortable conditions elsewhere, He does not say in his affidavit anything about his own difficulties about finding alternative accommodation; nor did his affidavit contain any suggestion whatever that, so far as he is concerned, this marriage is still viable. In fact, in answer to a question from the court. Miss Lawson told us that he was waiting for a legal aid certificate to enable him to file an answer which would contain a cross-prayer for divorce on the ground that the wife had behaved in such a way that he could not reasonably be expected to live with her. It is thus clear that this marriage has totally broken down. The husband made no proposals about the wife and child except by implication that they should come back pending the hearing of this suit, which might be a long time, a year or so, perhaps, ahead; and he made no offer of anything except an undertaking not to molest. So it was a very uninviting proposal so far as the wife was concerned. Indeed it is quite plain that his one object was to exclude her from this flat. He does not believe for a moment that she is going tocome 'back while he is there, anyway.
On that state of the evidence, Miss Lawson submitted that the wife had failed to bring herself within what Miss Lawson called the "principles" of Hall v. Hall (1971 1 Weekly Law Reports 404) and Phillips v. Phillips (1973 1 Weekly Law Reports 615). For my part, I doubt whether either of those bases can be said to lay down anything which could he dignified by the term "principle", I think they both contain, if I may say so with respect, statements of common-sense. In Hall v. Hall, the relevant passage in Lord Denning's judgment is to be found at page 406/D. There, the Master of the Rolls Bald: "I would like to say that an order to exclude one spouse or the other from the matrimonial home is a drastic order. It ought not to he made unless it is proved to he impossible for them to live together in the same house. It is difficult to draw the line, as is shown by a case which came before this Court in 1964: Akingbehin v. Akingbehin (1964) 108 Solicitors' Journal 520. There was a difference of opinion in the court. The majority of the court thought that unpleasantness and inconvenience was not a sufficient ground for ordering one spouse out. I agree, Such an order ought not to be made unless the situation is impossible. I would add that it is important as well to have regard to the interests of the children. In the ordinary way, the longer they can be...
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