Frost v Frost
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SALMON,LORD JUSTICE FENTON ATKINSON |
| Judgment Date | 26 April 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0426-1 |
| Date | 26 April 1968 |
| Court | Court of Appeal (Civil Division) |
[1968] EWCA Civ J0426-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Danckwebts
Lord Justice Salmon
and
Lord Justice Fenton Atkinson
MR. N. LERMON. Q. C., and MISS N. BOOTH (instructed by Messrs. Lovell White & King) appeared on behalf of the Appellant.
MR. E. MYERS, Q. C., and MR. A. EMBANK (instructed by Messrs. Herbert Reeves & Co.) appeared on behalf of the Respondent.
(as revised)
LORD JUSTICE DANCKWERTS: This is an appeal from a decision of Mrs. Justice Lane, in interlocutory proceedings regarding custody, or care and control, of a child who was born on the 20th July, 1961, and so is now a little bit under seven, and it arises as an aftermath of a decree nisi obtained in divorce proceedings which were started by the wife, Mrs. Frost, against her husband, Mr. Frost. They were married on the 21st August, 1960, and the Petition was filed on the 20th September, 1965, in which it was alleged by the wife that the husband had committed adultery with a Mrs. Payne from 1964 onwards.
Originally as the Petition was drafted the wife was not asking for discretion, but subsequently her Petition was amended after, I think, the husband had put in his Answer, and she did ask for discretion in respect of a single act of adultery with one of the three parties cited, Mr. Mason, and subsequently the husband put in a Supplemental Answer. Eventually, on the 25th January of 1968, the divorce hearing was ended, after, I think, nine days. The learned Judge made an Order for a decree nisi, on the husband's Answer, and rejected the Petition of the wife, for certain reasons which will appear so far as it is necessary to state them.
The judgment delivered by the learned Judge was some thirty three pages long. I have read it, and I do not propose to go into it more than is absolutely necessary. Of the general atmosphere it could be said that the number of persons who appear, and who were involved in matters which arose, were most of them members of an amateur dramatic society, and the sort of general atmosphere could, I think, be sufficiently indicated if I say that it was difficult to know who was in whose bed at any particular moment.
Anyhow, the result of the proceedings was that the learned Judge made certain findings. She found that the husband left his wife in February, 1965, with a desire to live with Mrs. Payne. The husband, for his part, had said that themarriage had already broken up before that occurred. The second thing the learned Judge held was that the wife did in fact commit adultery with one of the parties named, called Beverley, and that the husband had connived at it. She also held that the charge of adultery with one Vadim, another of the parties cited, was true, and the fourth point is that the learned Judge found that there was one act of adultery by the wife with Mr. Mason, which appeared in the wife's discretion statement, but she rejected the allegation of adultery between Mr. Mason and the wife between the 16th and 23rd July, 1966, at a holiday camp somewhere near Chichester.
Fifthly, the learned Judge considered that Mr. Mason was a truthful witness, and formed, it appears, rather a good, opinion of him. Sixthly, she held the husband was morally responsible for the indiscretions of the wife, but gave him a decree and exercised discretion in his favour with the object of enabling Mr. and Mrs. Mason to marry, which was a rather unusual result, I would suppose, in divorce proceedings.
That was the situation, and the judgment of the learned Judge of the 15th March, 1968, which was the judgment with which we were concerned, arose in the course of proceedings in regard to the custody, or care and control, of Mark, the child of the marriage, to whom I have referred. Then a rather unusual thing arose. We are not concerned with the outcome, or with deciding the question of custody or care and control, but we are concerned with a certain matter which arose in the course of those proceedings.
Affidavits were filled on behalf of the husband, suggesting that Mr. Mason had in fact committed adultery with the wife at the holiday camp in July, 1966, and, further, that there had been a deliberate conspiracy between him and the wife to deceive the learned Judge into deciding as she did, that the adultery had not taken place in any way at the holiday camp.
Then arises the question whether evidence should be admitted in the course of what I will call, for short, the custody proceedings, and upon that point on the 15th March, 1968, Mrs. Justice Lane decided that she ought to admit the evidence, that it was not absolutely barred by any matter of res judicata or estoppel and it should be admitted by her because it was fresh evidence and could not have been discovered at the time of the hearing of the divorce petition, and it might affect her decision in regard to which of the two parties should have the custody or care and control of the child in question.
The two authorities which have been cited to us are really quite well known on this subject, I think, Corbett v. Corbett (1953, Probate, p. 205) a decision of the Court of Appeal, and a decision of Mr. Justice Sachs, in which he went very fully into this sort of question, in Hull v. Hull (1960, Probate, p. 118.) The general result of those decisions is that if a matter has been decided in the divorce proceedings it is res judicata and it cannot be reopened, on an estoppel, possibly, except in very exceptional circumstances. The Court mentioned what might be one of those circumstances and the general rule, of course, about the admission of further evidence, which is so well recognised by the Court of Appeal, provides also that two conditions shall be satisfied, namely, that before further evidence shall be admitted it should, first, be some such evidence as could not reasonably have been available at the time of the trial, and, secondly, it must be of a character which would be likely to have a substantial effect upon the decision of the relevant appeal.
The learned Judge was satisfied...
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