Gibson v Austin
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE BALCOMBE |
| Judgment Date | 24 March 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0324-10 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0307 |
| Date | 24 March 1992 |
[1992] EWCA Civ J0324-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE STAFFORD COUNTY COURT
(HIS HONOUR JUDGE WARD)
Royal Courts of Justice
Lord Justice Nourse
and
Lord Justice Balcombe
92/0307
MR PAUL A. CREANER, instructed by Messrs Frisby & Co. (Stafford), appeared for the Appellant (Applicant).
MISS SARA WILLIAMS, instructed by Messrs Crick & Mardling (Stone), appeared for the Respondent (Respondent).
In this case we have to decide who should occupy a house owned by an unmarried couple whose relationship has irretrievably broken down. At present both parties are continuing to live there, together with four children. That is an entirely unsatisfactory arrangement, not least from the children's point of view. However, by virtue of the decision appealed against that is the state of affairs which is continuing.
The couple are Mark Alan Gibson and Jennifer Ann Austin. It is convenient to refer to them as "the father" and "the mother". They met early in 1985. The father had three children of a previous marriage: a girl, who is now aged 11 and a half, a boy, who is now aged ten and a half, and a second girl, who is now aged nine. Shortly after they met, the father and the mother started living together with the father's three children. On 28th October 1985 a daughter was born to them. She is now six years old.
From 1985 onwards the family lived together in various rented council accommodation. In 1990 they moved to No.2 Greenside, Yarnfield, Stone, Staffordshire. That property was purchased from the Stafford City Council under the right to buy provisions of the Housing Act 1985 for £20,500, being financed by a £21,500 mortgage and the maximum 60 per cent discount allowed under the Act. We have been told that it is vested in the father and the mother as joint tenants legally and beneficially.
Unfortunately, from about the time that they moved into No.2 Greenside, the relationship between the father and the mother has deteriorated and rapidly from August 1991 onwards. At the end of September the mother left the home, taking the youngest child with her, and went to stay with her mother in Lincolnshire for five or six days. After that she returned and she and the youngest child have since then lived in the home with the father and his other three children. On 13th November 1991 the justices gave custody of the youngest child to the mother under the Guardianship of Minors Act 1971, with reasonable access to the father. We understand that an application for maintenance in those proceedings is due to be heard later this week.
On 11th and 12th December there were two incidents, in each of which the mother threatened the father with a knife. No doubt as a direct result of that, on 13th December the father made an application to the Stafford County Court seeking an ouster injunction against the mother under the Domestic Violence and Matrimonial Proceedings Act 1976. That application came on for an effective hearing before His Honour Judge Ward on 3rd January. The matter was adjourned part heard for enquiries to be made in regard to alternative accommodation available to both parties. I should also record that there was a discussion between counsel and the judge, in which it was pointed out to him that if a result of the dispute was that the house had to be sold to a third party, the council would be entitled to a large proportion of the proceeds of sale under the claw-back provisions of the Housing Act.
The matter came on again before Judge Ward on 27th January. On that occasion he declined to grant an ouster injunction against the mother. Instead he granted a non-molestation order against her in a familiar form. He did not, as it has been suggested that he ought to have done, attach any period to the non-molestation order, which is therefore still running.
Against the judge's refusal to grant an ouster injunction the father now appeals to this court.
In his judgment delivered on 27th January, Judge Ward made a number of findings, the most important of which are as follows. He found that it was quite plain that the relationship between the father and the mother had broken down utterly. At page 1G of the transcript he said:
"It is plain that the relationship has deteriorated over a period and there have been some nasty incidents more recently, in particular on two occasions in December she produced knives with which she went through the motions of attacking him. She denies that. I am afraid I have come to the conclusion that she is not telling the truth about that, and that she has, in the heat of arguments, threatened him with a knife, but, as I say, not very determinedly, and I suspect that it is more of a gesture than a serious threat, but I accept that she had indicated that that is likely to happen again.
Not surprisingly, he took that, in the heat of the moment, pretty seriously.
The atmosphere is very unpleasant in the house. It is in any event a fairly crowded little house, and that is not, of course, assisted when relations are bad."
At page 3C the judge said that on any basis, in the circumstances, one or other of the parties was going to have to leave the house. The decisive passage in the judge's judgment is at page 5C:
"So, it is an unpleasant atmosphere for the parents, though that is something that they have lived with for some time, and subject to the question of knives, it is not a very serious situation. As far as the children are concerned, plainly the sooner they are, all of them, in households where there is not this atmosphere the better, and that is an important feature for me to have in mind.
Since the matter came before the court first in December unpleasantness has continued, but nothing like the knife incidents have occurred and, as I think I have made plain enough, I do not take those as serious attempts at causing serious injury.
The fact is that the parties are approaching some sort of settlement of their financial affairs. They are due this week to be before the court to settle the periodic payments issue, and the questions of proportions of the capital value of the house are on the edge of those negotiations.
It would not be surprising if, as in so many such cases, the two matters come together in some sort of total solution, either arranged between the parties or imposed by the court."
The judge concluded by saying that he had come to the conclusion that the draconian order of turning the mother and, in effect, the youngest child out of their home was not warranted on the evidence, but that what was warranted was a non-molestation injunction.
It is clear from the decisive passage in the judge's judgment that he thought that he was effectively dealing with a period of relatively short duration. He thought that the parties would be able to settle all their financial affairs, including the question of what was to happen to the house, within a relatively short period. From what we have been told it seems clear that there can be no real dispute as to the beneficial interests in the house.
So the outstanding question in regard to the house is what is to happen to it? Is it to be acquired by one or other party from the other and, if so, for how much? Or is it to be sold to a third party? It is clearly in the interests of both parties that it should be acquired by one or other of them, because the claw-back provisions of the 1985 Act will not then apply. The probability is that it would be the father who would buy out the mother. We understand that an offer has been made, but that it has not been accepted. In any event the position today is that that very important matter which two months ago the judge thought would be resolved within a relatively short period has not been resolved. Little progress appears to have been made towards resolving it. Neither the judge nor this court can directly force the parties to resolve...
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