Jennifer Ann Watson (Appellant (Petitioner) v Glyn Alexander Watson (Respondent
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,MR. JUSTICE EWBANK |
| Judgment Date | 23 February 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0223-4 |
| Date | 23 February 1983 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 83/0086 |
[1983] EWCA Civ J0223-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE EPSOM COUNTY COURT
(His Honour Judge Mark Smith)
Royal Courts of Justice
Lord Justice Purchas
and
Mr. Justice Ewbank
83/0086
82 D 291
MR. S. GILL (instructed by Messrs Cotton, Gumersall & Palmer, Epsom, Surrey) appeared on behalf of the Appellant (Petitioner).
MR. I. ALLBUT (instructed by Messrs Bowles & Co., Epsom, Surrey) appeared on behalf of the Respondent (Respondent).
This is an appeal from part of the order made by His Honour Judge Mark Smith at the Epsom County Court on 18th November 1982. The part of the order subject to this appeal reads as follows:
"The Petitioner's application that the Respondent do forthwith vacate the matrimonial home situate at 28 Pams Way, Ewell, Epsom, Surrey be dismissed."
There are then set out a series of undertakings, which involved both parties. I will return to the details shortly.
The facts behind this appeal may be briefly stated as follows:
The parties were married on 21st December 1974. There were two children, Joanna who was born on 25th October 1977 and is now 5 years of age, and a son, Daniel, born on 28th November 1979 and is therefore three years of age.
The marriage broke down and the wife presented a petition dated 27th May 1982 in the Epsom County Court alleging irretrievable breakdown of the marriage and asserting behaviour on the part of the husband that would make it unreasonable for her to be expected to continue to live with him. In her petition she claimed custody of both children, maintenance, a lump sum provision and a property adjustment order in relation to the matrimonial home, which appears to be the sole asset of substance in the family. It is in joint names, in equal shares we are told, although that is not of critical importance. At the moment both the husband and the wife continue to live there.
The acknowledgement of service indicated that the dissolution of the marriage was not to be disputed, that the husband was not disputing that the wife should have the custody of the children, which included their care and control, but very properly and reasonably he claimed access. As the parties were still living under the same roof, the question of access was a formal one only, but he reserved his rights.
On 3rd September 1982 the wife made an ex parte application in person which came before His Honour Judge Lermon. She claimed, and was granted, what can compendiously be called a non-molestation order, there being a return date in two weeks' time, 17th September 1982.
By that time, by a notice of application dated 8th September 1982 the wife, then assisted by solicitors, gave notice of the application that she intended to apply on 17th September, for orders (1) that the husband should be restrained from assaulting, molesting or interfering with her, and (2) that he be ordered to vacate forthwith the matrimonial home situate at 28 Pams Way, Ewell.
The matter came before the judge on 17th September 1982 when it was compromised, the husband giving an undertaking not to assault or molest the wife, and a second undertaking not to enter what was described as the small bedroom. The application was adjourned generally. The significance of the small bedroom was this. There were three bedrooms at the matrimonial home; the matrimonial bedroom (as it is sometimes called), a medium sized bedroom which was occupied by the two children, and a small extra bedroom. The wife was content, for the sake of peace and quiet, to set up in the small bedroom on the husband's undertaking not to enter it.
Matters did not work out well from the wife's point of view. There were the petty and irritating difficulties that so often arise out of this kind of situation and an allegation which I find unnecessary to rehearse in detail that on one occasion the husband put his foot over the door—the sort of irritating difficulties which arise when parties are under stress in the breakdown of a marriage. But the wife was not satisfied with that arrangement.
Let me dispose of one matter immediately. It has been submitted in support of a respondent's notice that the wife has been motivated in her claim for what is known as an ouster injunction, by tactical considerations, and we have been referred to one of a number of decided cases in this court, O'Malley -v- O'Malley [1982] 1 WLR, 244, which was followed in the same report by other judgments in this court on the same subject, Myers -v- Myers and Samson -v- Samson.
If it were to be established that the wife was applying for an injunction ordering the husband from the house without reasonable grounds to do so, then it could well be said that it was a tactical manouvre and should find no favour with this court. For reasons which will appear later in this judgment, I am not satisfied that that allegation in this case has been made out.
The three authorities to which we have been referred clearly demonstrate one principle. That is that each case must be considered on its own merits and, having considered it on its own merits, if it does appear to the court that the process is being abused in the way that is indicated in O'Malley v. O'Malley, then, as I have already said, the party involved will find little sympathy in this, or any other, court.
To return to the brief facts of the matter, the decree nisi on the wife's petition was pronounced on 27th October 1982 when, with the consent of the husband, she was granted custody of the two children, which includes care and control, and the husband was afforded reasonable access to them. Again, as the parties continued to reside in the same house, the question of access has not yet arisen in any material way.
On 9th November, by notice, the wife restored her application and the matter came before the learned judge on 28th November 1982. There were affidavits to which it is not necessary to refer in detail. Both the wife and the husband gave evidence and were cross-examined. The learned judge then delivered a judgment which indicated that he was not prepared to accede to the wife's application for an ouster injunction and he then invited counsel to put forward suggestions as to how the two parties could remain living under the same roof. This brings me back to the order of 18th November and I recite some of the arrangements for the purpose only of indicating how complicated life was to be under what can only be described as a legal regime.
There were undertakings not to molest or interfere on the part of the husband, nor to enter (in this case now the main) bedroom in the matrimonial home, the wife's position having been promoted from the small bedroom to the main bedroom; both parties to exchange bedrooms by 24th November 1982; the husband to remain at home every Thursday evening from 7 until 8 the following morning unless, at the petitioner's option, this date is varied; the respondent to vacate the house each Friday from 7 pm to 10.30 pm unless, at the respondent's option the day is varied; by the respondent to vacate the house every other Sunday from 10 am to 8 pm commencing on 21st November 1982. The petitioner's non-molestation order was again adjourned generally. The learned judge then went on to deal with other matters. The only relevant part of that part of his order was that he gave directions. The date for the pre-trial review was therefore vacated because it was no longer necessary and the matters were to be set down on certificates of readiness. That included, of course, the dispute over the matrimonial home, a valuation of which was to be agreed if possible, otherwise evidence was to be limited to one witness each.
The evidence of the petitioner discloses that she had been suffering in health. She had had palpitations in May. She had recently had severe headaches. The doctor said that she was suffering from stress which would clear when her affairs were settled."Joanna seems okay outwardly, but she has been wetting her bed. Doctor said this was stress and it would clear up when things settled." In cross-examination she said that the children got on well with the father. She described the bed-wetting by Joanna—"not every night, but sometimes two or three times a night". Joanna had witnessed rows between them and she was unhappy, although "no rows recently. There used to be. But" (and this is important) "atmosphere is unpleasant. She was prescribed Vallium and there had been no real breaches of undertakings.
I depart from a consideration of the evidence to add one further matter of history. In March 1982 the wife had left with the two children and stayed with her parents in Sussex. She had only returned on 19th July because Joanna, who was then nearly five, had to go to school.
The other matter of the wife's evidence about which I wish to comment, is a submission made by Mr. Allbut that it would be better if there had been some medical evidence in the form of a...
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