Gollins v Gollins

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE DAVIES
Judgment Date26 October 1962
Judgment citation (vLex)[1962] EWCA Civ J1026-2
Date26 October 1962

[1962] EWCA Civ J1026-2

In The Supreme Court of Judicature

Court of Appeal

Before

Lord Justice Willmer,

Lord Justice Harhan and

Lord Justice Davies

Gollins
and
Gollins

Mr R. J. A. TEMPLE. Q. C. and Mr JOSEPH JACKSON (instructed by Messrs Peacock & Goddard, Agents for Messrs J. S. Winny & Co., Craven Arms, Salop) appeared on behalf of the Appellant wife.

Mr JANES COMYN, Q. C. and Mr TREVOR REEVE (instructed by Messrs Isadore Goldman & Son, Agents for Messrs Henry Lee, Bygott & Eccleston, Wem, Salop) appeared on behalf of the Respondent husband.

1

LORD JUSTICE WILIMER: This is an appeal by a wife from a judgment of the Divisional Court of the Probate, Divorce and Admiralty Division (consisting of Sir Jocelyn Simon, President, and Mr Justice Cairns) given on the 5th April, 1962, whereby they allowed the husband's appeal from a non-cohabitation order made by Justices on the ground of alleged cruelty on the part of the husband. The relevant facts are fully stated in the judgment of the Divisional Court, and I do not think it is necessary for me to repeat them here. The nature of the wife's case was that throughout the marriage the husband had run up debts and had persistently failed to maintain her and the two children of the marriage. As a result of this she had, she said, since 1957 been compelled to earn her own living by running the matrimonial home as a guest house for elderly people, and this enabled her to provide financial support not only for herself and the children but also for the husband. In September, 1960, she wrote him a letter informing him that she could not stand the strain of his debts any longer, and warning him that if he did not get work and clear himself of debt she would have to take proceedings. As this letter produced no effect, she issued a summons before the Justices asking for a maintenance order on the ground of the wilful neglect of the husband to provide reasonable maintenance for herself and her children; and on the 5th January, 1961, the Justices made an order in her favour at the rate of £3 per week for herself and per week for each of the two children. The husband never paid more than a trivial fraction of the amount of maintenance so ordered. In April, 1961, the wife consulted her doctor, who found that she was suffering from a moderately severe anxiety state, which he attributed to her financial and marital difficulties. Armed with this, the wife issued a summons for variation of the previous order by the insertion of a non-cohabitation clause on the ground of persistent cruelty on the part of the husband. The husband countered with a cross-summons asking for avariation of the amount of maintenance ordered. The two summonses were heard together on the 5th October, 1961, when, on the wife's summons, the Justices found persistent cruelty proved and inserted a non-cohabitation clause in the previous order. On the husband's cross-summons, they reduced the maintenance payable to the wife to per week and deleted the order for maintenance of the children. They also remitted the arrears which had accrued under the previous order, and which by this date amounted to no less than £179.

2

The husband appealed to the Divisional Court on the ground that the conduct imputed to him was incapable in law of amounting to cruelty. At least, I take this to be the plain meaning of grounds (1) and (3) of his Notice of Appeal to the Divisional Court. I would remark at the outset that such a submission is a difficult one to substantiate; for prima facie it runs counter to what way laid down by the House of Lords in Jamieson v. Jamieson, (1952) Appeal Cases, 525. I would refer especially to the speech of Lord Tucker, in which he said, at Page 550, in a passage which has often been quoted: "Judges have always carefully refrained from attempting a comprehensive definition of cruelty for the purposes of matrimonial suit", and experience has shown the wisdom of this course. It is in my view equally undesirable - if not impossible - by judicial pronouncement to create certain categories of acts or conduct as having or lacking the nature or quality which render them capable or incapable in all circumstances of amounting to cruelty in cases where no physical violence is averred". To be fair to the Divisional Court, however, I do not understand their decision to have been based on this ground. As I read their judment, especially the last paragraph thereof, they allowed the appeal and found in favour of the husband because they were disposed to draw different inferences from those drawn by the Justices from the facts found.

3

It is not to be doubted, that the Divisional Court were entitled to draw their own inferences of fact and on the basis of such inferences to make such order as they thought; ought to have been made by the Justices: see Rule 73 (7) of the Matrimonial Causes Rules, 1957. But where the issue is one of fact, or of the proper inference to be drawn from facts, great caution is required on the part of any appellate tribunal in differing from the conclusion arrived at by the Court below, which has had the advantage of seeing and hearing the parties and the witnesses. This applies especially, I think, in the case of appeals from Justices, where there is likely to be only an incomplete and summary record of the evidence of the witnesses and of the arguments addressed to the Court. In this connection I should like to express my concurrence with what wan said by Lord Justice Diplock in this Court in the recent case of Hall v. Hall, (1962) 1 Weekly Law Reports, 1246, at page 1254. The learned Lord Justice there said: "As was forcefully observed by Lord Thankcrton in ( Watt (or Thomas) Thomas" 1947 Appeal Cases page 484, at page 486), "matrimonial causes form a class in which it is generally most important to see and hear the witness and particularly the spouses themselves, and further, within that class, cases of alleged cruelty (and I would add constructive desertion) afford an even stronger example of such an advantage, This is so even where, as in Watt (or Thomas) v. Thomas itself, there is an accurate verbatim note of Che oral evidence. The handicap under which an appellate court labours is much greater on appeals from a magistrates' court where there is merely a note by the magistrates' clerk of what he regarded as the gist of the evidence, and which does not purport to record the actual words used by the witnesses, or even all that they said. It records, no doubt (often, as in this case, in abbreviated form), what the magistrates' clerk himself regarded as significant as the case was proceeding; but he plays no part in the actual decision, and it may well happen that the magistrates themselves,in arriving at their decision, attached significance not only to the demeanour of the witness, but also to some particular answer or turn of phrase not recorded at all in the clerk's note".

4

Before reaching their decision, the Divisional Court found it necessary to refer to over 30 of the decided cases. I do not wish to be thought to be criticising them in any way for taking this course. On the contrary, I would regard their judgment as containing a most valuable and lucid summary of the various judicial pronouncements which have been made from time to time with regard to the application of the law relating to cruelty in widely differing circumstances. I do, however, venture to repeat what I myself said in the recent case of Windeatt v. Windeatt, (1962) 1 All England Reports, 776, at page 787. I am there reported as saying: "The question (i. e. the question whether or not cruelty has been proved).is not, I think, to be resolved by looking at Law Reports and seeing how other cases in other circumstances have been decided". I think it should never be forgotten that meticulous study of cases decided in other circumstances, however similar these circumstances may be, makes it all too easy to forget that ultimately the question to be decided is one of fact. It is perhaps unfortunate that so many cruelty cases find their way into the various Law Reports which arc placed before us. In Qualcast (Wolverhampton) Limited. -v- Haynes. (1959) Appeal Cases, 743, Lord Somervell, at page 757, said: "Now that negligence cases are mostly tried without juries, the distinction between the functions of judge and jury is blurred. A judge naturally gives reasons for the conclusion formerly arrived at by a jury without reasons. It may sometimes be difficult to draw the line, but if the reasons given by a judge for arriving at the conclusion previously reached by a jury are to be treated as 'law' and citable, the precedent system will die from a surfeit of authorities". Those observations were made with regard tonegligence cases, but I venture to think that precisely the game considerations apply, and for the same reasons, in relation to eases of cruelty.

5

The argument on behalf of the husband which prevailed before the Divisional Court, and which has been repeated before us, may be briefly summarised as follows. The Justices, it is said, directed themselves solely in accordance with the decision of the Divisional Court in Waters v. Waters, (1956) Probate, 344, without recognising that the relevant test in that case was not a test of universal application. The case of Kaslefsky v. Kaslefsky, (1951) Probate, 38, was not apparently cited to them, and they omitted to consider, because they were never invited to consider, whether the conduct complained of in the present case could fairly be said to be aimed at or directed against the wife. Furthermore, it is said, the Justices never really looked at the case as a whole, and never stood back, as it were, at the end of the case in order to consider whether in the circumstances the husband's conduct could fairly be described as amounting co cruelty in the ordinary sense of that word. It was submitted that the husband's...

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