Garner v Garner
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,MR JUSTICE CAZALET |
| Judgment Date | 06 November 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J1106-6 |
| Docket Number | 91/1088 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 November 1991 |
[1991] EWCA Civ J1106-6
Lord Justice Neill
and
Mr Justice Cazalet
91/1088
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PETERBOROUGH COUNTY COURT
(HIS HONOUR JUDGE CRANE)
Royal Courts of Justice
MR GRAHAM LODGE, instructed by Messrs Hunt & Coombes (Peterborough), appeared for the Appellant (Petitioner).
MR ANDREW GORE, instructed by Messrs Hegarty & Co. (Peterborough), appeared for the Respondent (Respondent).
I will ask Mr Justice Cazalet to give the first judgment.
The appellant in this case is Margaret Joan Garner and the respondent to the appeal is David Victor Garner. The parties were formerly married, and although they are now divorced I shall, for ease of reference, refer to the appellant and the respondent as "wife"and "husband"respectively throughout this judgment.
The wife appeals from an order of His Honour Judge Crane, sitting in the Peterborough County Court and made on 15th April 1991, whereby he dismissed the wife's appeal from an order of Mr Registrar Elliott of 13th November 1990 varying paragraph 6 of a consent order which had been made in proceedings between the parties on 6th April 1989. Paragraph 6 of the consent order, the subject-matter of the appeal, ordered the husband to pay to the wife the sum of £15 per week by way of periodical payments for each of the two children of the family. The children are James, now aged about eight and a half, and Ava, now aged nearly seven years. The children make their home with their mother. They have visiting access to the father.
The background to this appeal is as follows. The parties are aged in their late thirties, early forties. They were married on 9th August 1980. The final matrimonial home was 72 Saxon Road, Whittlesey, Peterborough. This had been the home of the wife during her previous marriage. It serves no purpose to explore the detailed background as to why the property was put into the joint names of the parties to these proceedings because any contentious matters in regard to the house were resolved consequent on the consent order of 6th April 1989.
The parties finally separated in December 1987. The husband went to make his home with, and he continues to make his home with his widowed mother who is in her early sixties. He lives with her and his son Neil by a former marriage, Neil now being aged 16 years. Neil, we were told, has just started as a trainee baker and in six months' time, or thereabouts, may be earning a wage in full-time employment.
On 26th February 1988 the wife filed a divorce petition. A decree nisi was pronounced on 12th August 1988, the wife being granted custody, care and control of the two children. That decree was made absolute on 29th September 1989.
The wife made her application for ancillary relief. It proceeded through the interlocutory stage on the basis that the matter was to be contested. Affidavits were filed. The husband worked as a self-employed painter and decorator. The main asset of the parties was the matrimonial home. At court the parties came to terms and the order by consent was made on 6th April 1989 by Mr Registrar Goodman. It was a clean break order, and the order provided that the wife was to pay the husband the lump sum of £10,000 within two months of the date of the order, and upon payment of that sum the husband was to transfer all his estate and interest in the former matrimonial home to the wife. There were the usual provisions for the dismissal of the claims of each of the parties against the other. Then under paragraph 6, which is the relevant paragraph of the order, provision was made for the husband to pay to the wife for the benefit of each of the children, James and Ava, the sum of £15 per week payable weekly from 5th April 1988 until each child should attain the age of 17 years or cease full-time education or further order. Credit was given for payments made; my understanding is that the husband had in fact been paying at that rate up to that date.
On 17th July 1990 the wife issued a notice of application seeking to vary paragraph 6 of the order of 6th April 1989. Further affidavit evidence was filed by the parties, and the matter came on for hearing before Mr Registrar Elliott on 13th November 1990. The Registrar varied the order to provide that the husband should pay periodical payments from 6th November 1989 at the rate of £18.50 per week per child. Accordingly, the upwards variation was in the sum of £3.50 per week for each child. The Registrar also ordered the husband to make a contribution of £75 towards the wife's costs.
The wife was dissatisfied with the amount of the increase ordered by the Registrar and appealed that order to the judge. The matter came before His Honour Judge Crane in the Peterborough County Court on 15th April 1991. The evidence before the judge comprised the affidavits which the parties had put before the Registrar, as well as further updating affidavits. The judge heard oral evidence from the wife and the husband; both parties were legally represented.
For the reasons set out in his judgment of 15th April 1991, the notes of which are before us, the judge dismissed the wife's appeal. The judge indicated that, but for his view of the law, he would have been disposed to make a somewhat higher order than that made by the Registrar. He went on to say at the end of his judgment at page 36 as follows:
"I make it quite clear that this decision has been reached as a matter of law on the basis that I do not consider myself entitled to consider the matter afresh."
It is argued on behalf of the wife that had the judge, as it is contended that he should have done, considered the full matters which were put before him and looked at the figures in detail, then, as he did in fact so indicate in his judgment, he would have allowed the appeal and made an order in a sum higher than that ordered by the Registrar. However, the judge did not take that course for the reasons which he gave.
Issue has been joined between the parties as to the approach which the judge should have adopted.
The court's powers to vary periodical payments orders and the extent to which the court should take into consideration matters appertaining to the parties' overall position has been dealt with in statute. In the earlier cases it was section 28 of the Matrimonial Causes Act 1950 which gave the court power to vary maintenance orders. Section 28(1) provided as follows:
"28(1) Where the court has made an order under [any of the various sections providing for maintenance], the court shall have power to discharge or vary the order or to suspend any provision thereof temporarily and to revive the operation of any provisions so suspended".
In subsection (3) it was provided:
"(3) In exercising the powers conferred by this section, the court shall have regard to all the circumstances of the case, including any increase or decrease in the means of either of the parties to the marriage."
Section 31(7) of the Matrimonial Causes Act 1965 re-enacted the precise wording of section 28(3).
Then came section 31(7) of the Matrimonial Causes Act 1973 when the wording of the provision empowering the court to vary earlier periodical payments orders was, in part, changed. The original wording of section 31(7) before it was changed by the new subsection substituted in 1984 read as follows:
"In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates".
Whilst under each relevant subsection the court has been required to have regard to all the circumstances of the case, section 31(7) of the Matrimonial Causes Act 1973 broadened the extent of those considerations which were specifically to be included within such circumstances. Prior to the 1973 Act the inclusive circumstances comprised any increase or decrease in the means of either of the parties. Under section 31(7) of the Matrimonial Causes Act 1973 such became, in effect, all those matters covered by section 25 of the Matrimonial Causes Act 1973.
A new subsection was substituted for that subsection (7) by the Matrimonial and Family Proceedings Act 1984. It added the requirement that, in considering all the circumstances of the case, primacy should be given to the welfare of the child of the family with other circumstances taking secondary consideration to that. It reads as follows:
"In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen, and the circumstances of the case shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates".
The meaning of section 28(3) of the 1950 Act was considered by the Court of Appeal in Foster v. Foster [1964] 3 All E.R. 541. That was a case in which the wife applied to vary an order, against which she had not appealed; the matter proceeded upon the basis that the original order had been properly made. I go to a passage in the judgment of Willmer L.J. at page 544G:
"The contention put forward by counsel is that, although one must, of course, take the previous maintenance order as a starting point, once it is seen that some alteration should be made because of a change of circumstances, then the whole matter is at...
To continue reading
Request your trial
-
Flavell v Flavell
...change. 17 Mr. Berkin sought to derive support for his proposition from a passage of the judgment of Cazalet J in Garner v Garner [1992] 1 FCR 529. The case concerned an application to vary a periodical payment made to children. In the course of the judgment Cazalet J said this: "Almost inv......
-
Clive Douglas Christopher Joy-Morancho v Nichola Anne Joy
...cited above. H is therefore bound by and cannot go behind the fundamentals of the August 2015 judgment. 32 As Cazalet J observed in Garner v Garner [1992] 1 FLR 573 (in a passage cited with approval by Moylan J, as he then was, in Morris at [88]): 'Almost invariably, an application to vary ......
-
Peter Rodney Morris v Jane Edwina Morris
...to consider the matter de novo. That Ward LJ is not saying this is clear because he agrees "entirely" with what Cazalet J had said in Garner v Garner [1992] 1 FLR 573: "Almost invariably, an application to vary an earlier periodical payments order will be brought on the basis that there has......
-
A v A
...case, both from the point of view of the husband and father and from the point of view of the wife and mother.’ 22 In Garner v Garner [1992] 1 FCR 529 EWCA the Court of Appeal (EW) gave more concrete guidance as to how to approach the statutory power to vary. Cazalet J, giving the leading j......