Hadkinson v Hadkinson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SOMERVELL,LORD JUSTICE ROMER,LORD JUSTICE DENNING |
| Judgment Date | 25 July 1952 |
| Judgment citation (vLex) | [1952] EWCA Civ J0725-3 |
| Court | Court of Appeal |
| Date | 25 July 1952 |
[1952] EWCA Civ J0725-3
LORD JUSTICE SOMERVELL
LORD JUSTICE DENNING and
LORD JUSTICE ROMER.
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
MR. GILBERT BEYFUS, Q.O., and MR. LESLIE BROOKS (instructed by Messrs. Carters) appeared on behalf of the Appellant (Petitioner).
MR. R. F. LEVY, Q.C., and MR. ROGER ORMROD (instructed by Messrs. W. F. Prior & Co) appeared on behalf of the Respondent (Respondent)
I will ask Lord Justice Romer to deliver the first Judgment, to which I have nothing to add.
This is an appeal by a wife who has now re-married, arising out of a divorce suit which she brought successfully against her former husband, against an Order made by Wallington J. on the 29th May, 1952, ordering her to bringthe child of the marriage within the jurisdiction of the Court. On the appeal being opened, and before the merits of the matter were argued, Mr. Levy, on behalf of the father, the Respondent to the appeal took the preliminary objection that the Appellant was not entitled to be heard by the Court on the ground that she has been at all material times and still is in contempt. After this objection had been argued by both sides we intimated that in our opinion it should prevail but that we would express in writing the reasons upon which we based our conclusion.
The facts relevant to this question can be shortly stated. On the 21st December, 1950, a decree nisi was granted to the Appellant (hereinafter referred to as "the Mother") and by that decree it was ordered that the child of the marriage (a boy now aged about 13 years) should remain in her custody until further order of the Court; and it was further directed that the child should not be removed out of the jurisdiction of the Court without its sanction. We were told that previous to the making of this Order an arrangement was made between the mother and the father, through their solicitors, that the father should have reasonable access to the child and, in particular, that the boy's school holidays should be shared between the parents.
The decree nisi was made absolute on the 3rd February, 1951, and the mother re-married towards the end of the following April. Her present husband lived and still lives in Australia and she joined him there the following autumn, leaving the child in this country. In December, 1951, without informing the father or his solicitors of her intention so to do, and without applying to the Court for its sanction, she caused the child to be removed from England to Australia. Her original intention, we were told, was merely to have the boy with her for his Christmas holidays and to return him to this country at the end of them. Be that as it may she has kept him in Australia ever since and has sent him to be educated at a school there.
On the 26th February, 1952, the father issued a summons asking in effect for an order upon the mother to bring the child back within the jurisdiction and return him to the school at which he was being educated prior to his departure. The summons came before Wallington J. who, after hearing Counsel for the father and mother respectively, and reading ( inter alia) an affidavit of the mother, made the Order against which this appeal has been brought. By that Order the mother was directed to return the boy within the jurisdiction of the Court to the school which I have mentioned and to the care of a named gentleman, not later than the 31st August, 1952.
Apart from the sudden and complete disruption of the child's life which the mother's action in removing him to, and keeping him in, Australia entailed, two comments upon her conduct are obvious. First, her action was in direct violation of the Order of the 21st December, 1950 and constituted, prima facie, a gross contempt of Court; and, secondly, it nullified the arrangements to which she had agreed for access by the father. This second consideration need not, at present, be explored further beyond noting that the mother must have been fully aware that this consequence would ensue even if, as she says in her affidavit, she was unaware that she was disobeying the Order of the Court. It is this disobedience which is the matter now in issue before us and with which I now propose to deal.
It is the plain and unqualified obligation of every person against, or in respect of whom, an Order is made by a Court of competent jurisdiction, to obey it unless and until that Order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an Order believes it to be irregular or even void. "A party who knows of an Order, whether null and void, regular or irregular, cannot be permitted to disobey it ……. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an Order was null and void — whether itwas regular or irregular. That they should come to the Court and not take upon themselves to determine such a question. That the course of a party knowing of an Order which was null and irregular and who might be affected by it was plain. He should apply to the Court that it might be discharged. As long as it existed it must not be disobeyed" (per Lord Gottenham L.O. in Chuck v. Cremer, I Cooper, 338).
Such being the nature of this obligation, two consequenoes will, in general, follow from its breach. The first is that anyone who disobeys an Order of the Court (and I am not now considering disobedience of Orders relating merely to matters of procedure) is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to the Court by such a person will be entertained until he has purged himself of his contempt. It is the second of these consequences which is of immediate relevance to this appeal. The rule, in its general form, cannot be open to question. There are many reported cases in which the rule has been recognised and applied and I need refer only to ( Garstin v. Garstin 4 Swaby & Tristram, 73) and ( Gordon v. Gordon 1904 Probate, 163). No attempt indeed was made before us by Mr. Beyfus on behalf of the mother to challenge the Rule itself; he sought only to bring the present case within one of the exceptions to which the Rule is undoubtedly subject. Before explaining why, in my opinion, Mr. Beyfus has failed in this attempt I will deal briefly with the first submission which he made and which was to the effect that the wife is not in contempt at all. This contention was based solely on the fact that, in the Order under review, the mother was not directed to bring the child back within the jurisdiction forthwith but not later than the 31st August next. This was relied on by Mr. Beyfus as impliedly authorising the retention of the child outside the jurisdiction until that date. I am quite unable to accept that as a legitimate or reasonable inference from the Order. It would have been clearly wrong tohave insisted upon the immediate return of the child without any regard to matters affecting the boy himself, e.g. his current and future educational and holiday arrangements; and I have no doubt that it was considerations of this kind that led the learned Judge to fix a future date for the child's return to this country and that he was in no way intending to exonerate the mother from her contempt.
Is this case, then, an exception from the general rule which would debar the mother, as a person in contempt, from being heard by the Courts whose Order she has disobeyed? One of such exceptions is that a person can apply for the purpose of purging his contempt and another is that he can appeal with a view to setting aside the Order upon which his alleged contempt is founded; neither of those exceptions is relevant to the present case. A person against whom contempt is alleged will also, of course, be heard in support of a submission that, having regard to the true meaning and intendment of the Order which he is said to have disobeyed, his actions did not constitute a breach of it; or that, having regard to all the circumstances, he ought not to be treated as being in contempt. The only other exception which could in any way be regarded as material is the qualified exception which, in some cases, entitles a person who is in contempt to defend himself when some application is made against him (see e.g. Parry v. Ferryman — referred to in the notes to Chuck v. Cremer, 1 Cooper 205). The nature and limits of this exception were explained by this Court in Gordon v. Gordon (supra). In that case an Order was made in divorce proceedings against a wife at the instance of her husband to hand over to him the child of the marriage and she was ordered to pay the costs of the application out of her separate property notwithstanding that such property was subject to a restraint upon anticipation. On the husband attempting to serve the Order it was found that the wife had gone she away with the child in spite of an undertaking which/had given notto do so. Thereupon a further Order was made for the attachment of the wife for contempt and another Order for her committal. These Orders could not be put into effect, however, because the wife was abroad. She subsequently, whilst still in contempt, appealed against so much of the Order first above mentioned as directed her to pay costs out of property of hers which was subject to a restraint upon anticipation.
The Court entertained her appeal on grounds which Vaughan Williams, L.J. expressed (at page 171 of the Report) as follows: "Taking it generally", he said, "it has not been disputed in the discussion before us that this rule, that a person who is in contempt cannot be heard, prima facie applies to voluntary applications on his part — when he comes and asks for something; and not to cases in which all that he is...
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