Gayle v Gayle
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE LAWS |
| Judgment Date | 29 November 2001 |
| Neutral Citation | [2001] EWCA Civ 1910 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/2001/2358 |
| Date | 29 November 2001 |
[2001] EWCA Civ 1910
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
(HIS HONOUR JUDGE HORNBY)
Royal Courts of Justice
Strand
London WC2
Lord Justice Thorpe
Lord Justice Laws
B1/2001/2358
MISS N. MEHENDALE (Instructed by Messrs Hodge Jones & Allen, London, NW1 9LR) appeared on behalf of the Appellant
MR C. HALE (Instructed by Messrs Edwards Duthie, East Ham, London, E6 1DQ) appeared on behalf of the Respondent
This is an appeal brought against orders made by His Honour Judge Hornby in the Bow County Court on a committal application brought by Michael Andrew Gale against Julie Gale. They are the parents of a little boy, Nathan, who was born on 27 January 1995. The separation occurred when Nathan was only about 18 months of age and there have been tremendous difficulties over contact since the father's application for an order in the Bow County Court, filed on 25 January 1998. It is sufficient to go straight to an order made by Judge Hornby on 6 October 2000. That order was as follows:
"1. The … Mother … be required to make available … Nathan … for contact to the … Father, on … 21 October … between … 2.00pm-7.00pm, such contact to be supervised by the mother at 17A Mortham Street, Stratford…
2. The … Mother be required to make the child available for contact to [the father] on … 4 November between the hours of 2.00pm-7.00pm, such contact to be unsupervised by the mother and the father be allowed to take the child away from the mother's home at 17A Mortham Street … and thereafter fortnightly until further order."
To that order was attached a penal notice:
"You must obey the directions contained in this order, if you do not, you will be guilty of contempt of court and may be sent to prison."
Neither period of contact took place and, accordingly, in January 2001 the father issued a committal application in standard form setting out the two paragraphs of the order of 6 October and alleging breach by 1) failing to make Nathan available for contact to the father on Saturday, 21 October between the hours of 2 and 7; and 2) failing to make Nathan available for contact to the father on 4 November between the hours of 2 and 7. The requirements of the order could hardly have been simpler and the allegations of breach could hardly have been clearer.
The application had an initial return date of 8 March 2001. That hearing did not take place for reasons that need not be investigated and a later return date of 10 April 2001 was fixed. That hearing, likewise, was further adjourned, the mother neither attending nor being represented.
The next day set was 1 May. On that occasion the judge had a medical report concerning the mother who, again, was neither present nor represented. In the light of the report, the judge adjourned the matter generally with liberty to restore. That restoration took place on 13 August. The judge had before him not only the adjourned committal but also, seemingly, the father's petition for dissolution upon which the judge granted a decree nisi. That again was in the absence of the mother or any representative of the mother. The committal application was further adjourned to 2 October.
On 2 October the mother did attend and in a dramatic development collapsed at the court before the proceedings had travelled very far. She was attended by an ambulance team and ultimately admitted to hospital, whereupon arrangements were made between the lawyers, since on that occasion she was represented, for the father to pick up Nathan from school.
That permitted a meeting between father and Nathan which, on any objective view, was long overdue. Unfortunately the news of this arrangement led to the mother's immediate discharge from hospital and her visit to the father's house in an endeavour to resume her care of Nathan.
The judge made an order on 2 October which provided that, having heard counsel for the petitioner and the respondent, the committal be adjourned until 16 October as also should be the father's applications for directions as to contact and for a residence order. The judge specifically directed or ordered the mother's attendance on 16 October. By separate order, he adjourned her cross-application to set aside the decree nisi to the same hearing. On 16 October the parties were again represented by counsel: Mrs Dent for the mother and Mr Hale for the father. The judge reached the case at about 11 and, in what was a sensible discussion with counsel alone, agreed to take the committal application first and only deal with the less pressing applications insofar as time allowed. The committal applications involved the judge hearing oral evidence from both parties and it was only towards the end of the day that he gave his extempore judgment. There was little time left for other business, but there was an extensive opportunity given to Mrs Dent to discuss developments with the mother in the light of the judge's findings that she was in breach of the order of 2 October 2000 and accordingly was to be sentenced for those contempts. What the judge sought to engineer was a sensible arrangement for contact to take place, observed and supervised by the senior Court Welfare Officer, before he had to make up his mind on the difficult issue of sentence. That contact duly took place on 19 November, two days before the date fixed by the judge for sentence. We have a report from the Children and Family Reporter, a Mr Walker, who stood in for...
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Grand Field Group Holdings Ltd v Chu King Fai And Others
...(2) Adverse inferences can similarly be drawn against a party who walks out of the hearing so as not to testify (see Gayle v. Gayle [2001] EWCA Civ 1910 at paragraph 13 (per Thorpe LJ); Lam Hong Ching Andy v. Wong Kam Tong HCA 1144/2006, 12 October 2009 (unrep) at paragraph 61 (per Recorder......