Christopher Linton Shann (Petitioner) v Veronica Catherine Shann
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,MR JUSTICE CAZALET |
| Judgment Date | 30 October 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J1030-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/1000 |
| Date | 30 October 1991 |
[1991] EWCA Civ J1030-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
(HIS HONOUR JUDGE H. WILSON)
Royal Courts of Justice
Lord Justice Nourse
Mr Justice Cazalet
91/1000
MISS LAURA HARRIS, instructed by Messrs Jane Dicks & Co. (Chesham), appeared for the Appellant (Petitioner).
MR MARTIN BLOUNT, instructed by Messrs Edwin Coe, London Agents for Messrs Charles Hoile (Newbury), appeared for the Respondent (Respondent).
I will ask Cazalet J. to deliver the first judgment.
This is an appeal by Christopher Linton Shann, who was formerly the husband of the respondent to the appeal, Veronica Catherine Shann. Although the parties are now divorced I shall, for ease of reference, throughout this judgment refer to them as "the husband" and "the wife".
The husband appeals from a consent order made on 16th October 1989 by His Honour Judge Harold Wilson sitting in the Coventry County Court, this case having come from the Oxford Registry List. That consent order was a clean break order, consequent upon a compromise of the parties' ancillary relief proceedings. It disposed of financial and property claims as between the parties themselves, and in regard to their two children, as well as claims under the Inheritance Act 1975.
On 6th March 1981 the husband obtained leave to appeal from that consent order, on terms imposed both on himself, such leave being granted notwithstanding that the application was out of time. Further the husband was given leave to adduce additional affidavit evidence, with leave to the wife to file affidavit evidence in reply. That evidence has all been filed. The husband's asserts that the criteria established in the House of Lords decision of Barder v. Barder (Caluori intervening) [1988] A.C. 20 obtain, on the basis that certain new events have occurred, and for that reason he asks that his appeal be allowed and that the original consent order, made on 16th October 1989, be set aside and that a new order be made on the parties' cross-applications for ancillary relief.
The wife before this court has, in my view wholly properly, accepted, for reasons to which I will come in a moment, that the Barder criteria do here apply. However, it is maintained on her behalf that in approaching the figures de novo, the court should not disturb the terms of the consent order made by the judge below. It has been agreed between the parties that in considering the evidence as to the terms of a new order, if any, which is to be made, the court should proceed on the basis of the additional affidavit evidence, which has been filed by both parties and is now before the court.
The background to these proceedings may be shortly summarised. The husband is now aged 44, the wife 46 years. The parties were married on 11th September 1971. There are two children of the family, namely Andrew Michael Shann, born on 7th October 1975, so he is now just 16 years of age, and Josephine Hilda Shann, who was born on 29th December 1977, so she is nearly 14 years old.
The marriage having broken down, the husband in 1988 presented a petition for divorce on the ground of the wife's behaviour. The petition was undefended and a decree nisi was pronounced on 16th December 1988. That decree was made absolute on 30th April 1990.
On 28th July 1989 His Honour Judge Harold Wilson made an order granting joint custody of the two children to the parties. In contested proceedings he made an order as to Andrew that the husband have care and control of him for two weekends out of three, half of all school holidays including half terms, and otherwise save that when Andrew was at school, care and control should be vested in the wife. As to Josephine the court ordered that the wife should have care and control of her for weekdays during term time and for two weekends out of three and for one-half of all school holidays, and at half terms, and otherwise care and control would be vested in the husband. There were then detailed provisions as to sharing of festival holidays, with a 12-month supervision order being made in favour of the Berkshire County Council Probation Service. We were told in argument that the supervision order was made because there were worries as to whether in particular the father might undermine the wife's access to the children; and in the circumstances, somewhat unusually, the split care and control order to which I have made reference was a shared one.
Following that order, at the beginning of August 1989, the wife for a short period left the former matrimonial home at Crossing Cottage, Compton, near Newbury, Berkshire. The husband remained at that address. There was to be a hearing for ancillary relief between the parties on 7th September 1989, but for reasons with which I need not concern myself that hearing was not effective. The wife returned to Crossing Cottage shortly after this date, and both parties remained there with the children, subject to the fact that Andrew was at boarding school, till that property was sold in January 1990.
Although a Miss Bryanton, the Court Welfare Officer, had given much assistance to the parties on issues relating to the children, it was apparent by 7th September 1989, when the court was giving directions generally about the hearing of other contentious matters between the parties, that both the husband and wife were concerned to vary the earlier order made on 28th July 1989 in relation to the children. As a result directions were given that the Court Welfare Officer should prepare an updated report by 2nd October 1989, and that all matters should come back before the court, with custody and access issues consolidated with the ancillary relief applications to be heard on 16th October 1989.
At that hearing the judge made orders whereby it was provided that the husband was to have interim care and control of Andrew, initially for two weekends out of three, half of all school holidays, including half terms, and otherwise, save when Andrew was at school, care and control would be vested in the wife. It was provided that the wife was to have interim care and control of Josephine for weekdays during term time, for two weekends out of four and for half of the school holidays and half terms, and otherwise care and control would be vested in the husband.
As to ancillary relief, there were negotiations between the parties' respective counsel which resulted in a consent order being made. Each party disclosed his or her assets, and at that stage the financial position of each of the parties appeared clear. In the light of the way the husband put his appeal, it is appropriate I should make some reference to certain salient aspects leading up to this consent order.
It is helpful first to consider the assets, as they were disclosed, of each of the parties. First there was the former matrimonial home, Crossing Cottage. This was already on the market pursuant to previous orders of the court. It was expected to be sold for at least £120,000. The anticipated equity was in the order of £55,000. The wife's father, Mr Kenneth Lane, had died in May 1988. The wife under his will was entitled to one-half of his residuary estate, her brother being entitled to the other half. By the time of the hearing she had already received a payment on account of her entitlement under her father's will of £50,000, and it was estimated she was likely to receive a further sum of about £18,000. The wife said she had some £31,336 left from the initial £50,000. Accordingly the total cash sum available to her was thought at the time of the order to be about £50,000, i.e. the £31,000-odd which she still had in cash from her father's estate, plus the further sum of about £18,000 to come.
The wife's father's estate had also included some shares. In addition to the sum of £50,000 to which I have just referred, the wife was entitled to, amongst the shares, 863 shares in a private company called Cross & Herbert (Holdings) Limited, which operated a chain of chemist shops. At the hearing it is apparent that the parties and their legal advisers proceeded on the basis that each of these shares was worth £4.25 because this was the most recent value at which they had changed hands. A letter confirming this valuation dated 13th October 1989 was made available by the Company Secretary of Cross & Herbert to the wife's advisers and subsequently to the husband's advisers. On the basis of this value per share the value of the wife's 863 shares in Cross & Herbert was accordingly taken at £3,667. There were certain other shares, as I have said. These had a limited value, with dividends that also had accrued. Overall, this gave an estimated total worth of the wife's shares with accrued dividends at about £5,000.
On the income side, the wife was then working, and indeed continues to work, for Hilliers, the well-known nursery gardeners. More recently her net monthly earnings have been about £585.
At the time of the hearing on 16th October 1989 the husband had recently started to work as a self-employed consultant in the water industry. He estimated his earned income, working on a full-time basis, was likely to be about £20,000 gross. Apart from his interest in the house, he had no other capital assets of any substance.
Previously there had been discussions that the wife's inheritance from her father should fund a school fees plan for the children's education. Andrew had been attending, and indeed continues to attend, a special school for dyslexic children, he unfortunately being a...
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