Dipper v Dipper
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL,LORD JUSTICE ORMROD,LORD JUSTICE CUMMING-BRUCE |
| Judgment Date | 05 March 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0305-7 |
| Date | 05 March 1980 |
| Court | Court of Appeal (Civil Division) |
[1980] EWCA Civ J0305-7
Lord Justice Roskill
Lord Justice Ormrod and
Lord Justice Cumming-Bruce
In The Supreme Court of Judicature
Court of Appeal
Family Division
MR. J. JENKINS (instructed by Messrs. Rubin & Boyle of Cardiff) appeared on behalf of the Appellant.
MISS J. ROSSER (instructed by Messrs. Morgan Bruce & Nicholas of Cardiff) appeared on behalf of the Respondent.
This is an appeal by a mother from an order made by Mr. Justice Wood sitting in Chambers on 31st January last year. He had before him an application by the former wife and former husband (whom I shall call the father and mother) both in relation to the custody, care 3 and control of the three children of the marriage and in relation to financial adjustment upon decrees and cross-decrees which these parties have obtained one against the other.
This appeal raises a surprisingly large number of points. One is of general importance to those who work in the Family Division – and indeed to any court dealing with Family Division matters. The others are peculiar to the facts of this case. I shall endeavour to deal with all of the points which arise in turn.
The learned judge made an order that the father should have the custody of the three children. He made a further order that the care and control of the three children should remain in the mother. In relation to the financial matters, he dismissed the mother's application for periodical payments, but be ordered that the father should make payments in respect of the three children of £650, £500 and £500 respectively beginning on 1st February 1980. He also ordered the father to make a contribution to the costs of the mot her who was legally aided which the father was not.
These parties were married on 27th February 1967. That marriage took place in London. The three children were born in 1969, 1972 and 1975. The eldest, Harriet, is now about 10½; the boy, Benjamin, is 7½ and the youngest child, Hannah, is Just under 5. Originally they all listed together in a rented flat, then they moved to their own house at Croydon. The father, who is now an industrial design consultant, has spent much of his working life in industrialdesign connected with textiles. In 1970 he got a job which took him to Cardiff. The family naturally enough went there. The facts found by the learned judge show that the marriage from then on became increasingly unhappy. In due course they went their several ways. The father formed an association with a Mrs. Frow and the mother committed adultery while she was in Cardiff, of which adultery the father first heard In the beginning of April 1978. Before that, in it 1977, the father had teen appointed to the post I mentioned a moment ago in Cardiff. In December 1977 he started the job there, while the mother, remained in Dublin. The father used to come to Dublin and see the mother and children once a month or so. By August 1978 the family moved to be under the same roof in Cardiff, but the marriage was by then well and truly on the rocks. Mrs. Frow was at that time living in York and she was on the brink of a divorce. It should be mentioned, perhaps, that the father, the mother and Mr. and Mrs. Irow had for some time in the past up to 1970 been personal friends.
To cut a long story short, so far as the history of the case is concerned, on 5th December 1978 the father petitioned for divorce and on 9th March 1979 the mother cross-filed an answer and cross-petitioned. There was a reply later in 1979. Each complained of the other's conduct while admitting their own adultery. As a result of negotiations, very sensibly, there were decrees on the basis of the adulteries but not on the basis of the conduct complained of, although each reserved the right thereafter to rely on conduct for the purposes of ancillary relief. In 1979 the cross-decrees were granted in Cardiff. The question of custody was then adjounred to chambers, Then there were other proceedings with which we are not concerned, but application was made to transfer the question of custody and other questions of ancillary relief to a judge of the High Court and thus the matter came before Mr. Justice Wood.
Mr. Justice Wood, as I have already said, divided the custody on the one hand from care and control on the other. He said in a judgment of which we have got a note which is approved:
"One of my reasons for making the somewhat unusual order of giving custody to one party and care and control to another is that I do not want these children to be removed from their schools without the Father being notified and he will have the say about their future upbringing."
The mother appealed against that order giving sole custody to the father. The father cross-appealed against the order giving the mother care and control. In opening the appeal yesterday Mr. Jenkins for the mother made it plain that, if the order for custody were altered to a joint custody order, the wife would not pursue that matter further. After the adjournment yesterday wiser counsels prevailed on both sides and the father – not without a certain reluctance, but obviously very sensibly – withdrew any opposition to an order for joint custody and withdrew his cross-appeal that be should have care and control. These children have been with their mother all along. The youngest of them is not yet five. The father and mother are still living under the sane roof In Cardiff and it would be quite unrealistic now, when father moves to be with Mrs, Frow, to give the care and control of these children to him. Accordingly, the learned judge's order on custody will be varied and both parents will have custody jointly. The judge's order on care and control will stand.
That brings me to consider the question of general importance on the dismissal of the wife's claim for periodical payments. The order of the learned Judge in paragraph 7 was this:
"The Respondent's application for periodical payments is dismissed."
When one looks at the note of the judge's judgment, he ends by saying this, after defiling with the figures (and I shall return to the figures In a moment):
"I have thought it right to dismiss the wife's periodical payments not only because of her view but also applying S.25 of the Act and Minton v. Minton (1979) 1 AER, 79. I therefore dismiss the claim to periodical payments."
Mr. Jenkins put in the forefront of his argument yesterday that there was no power in the court to make that order dismissing her claim for periodical payments because she had not consented to such an order being made. He submitted that the learned judge had misunderstood the effect of the decision of the House of lords in Minton v. Minton. It seems to me that the right approach to the question of whether the judge had jurisdiction to make this order is first to look at the relevant statutory provisions unguided by judicial decision. I start with section 23(1) of the Matrimonial Causes Act, 1973. It reads thus:
"On granting a decree of divorce, a decree of mullity of marriage or a decree of judicial separation or at any time thereafter ….. the court may make any one or more of the following orders, that is to say -
(a) an order that either party to the marriage, shall make to the other such periodical payments, for such term, as may be specified in the order;"
I turn from that to section 25 which is well-known and sets out the duty of the court which we had to consider some years ago In Wachtel v. Wachtel. I can pass to section 28(3) which reads thus:
"If after the grant of a decree dissolving or annulling a marriage either party to that marriage remarries, that party shall not be entitled to apply, by reference to the grant of that decree for a financial provision order in his or her favour, or for a property adjustment order, against the other party to that marriage."
Section 31 reads thus:
"(1) Where the court has made an order to which this section applies, then, subject to the provisions of this section, the court shall have the power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation so suspended.
(2) This section applies to the following orders, that is to say,"
I need not read (a):
(b) any periodical payments order:
(c) any secured periodical payments order;"
I need not read (d) or (e). Finally, section 34(1):
"If a maintenance agreement includes a provision purporting to restrict any right to apply to a court for an order containing financial arrangements, then -
(a) that provision shall be void;"
I need not, I think, read (b) or subsection (2). Those than are the relevant statutory provisions.
It seems to me that either party to a marriage at the time of the granting of a decree of divorce or nullity or judicial separation, or at any time thereafter, is at liberty to apply for periodical payments, subject only to the restriction Imposed by those sections, which do impose certain restrictions as, for example, that which arises on remarriage, imposed by section 28. I venture, therefore, first to ask the question, where does one find in that statute anything which enables the court to deny a party, whether it be husband or wife, access to the court at any time after the decree, or to dismiss such an action finally and irrevocably so as to bar any second or subsequent application by either party who might otherwise wish to make it? If one has regard only to the express language of the Act, I find nothing which seems to be to suggest that the court has any power by dismissing of its own volition and without the consent of the applicant an application for periodical payments, to bar any subsequent application for these.
It is said that, notwithstanding the impression that the statute leaves on one's mind, there...
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