Re "P"(A Minor)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,MR. JUSTICE HOLLINGS |
| Judgment Date | 23 March 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0323-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 90/0284 |
| Date | 23 March 1990 |
[1990] EWCA Civ J0323-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EPSOM COUNTY COURT
(His Honour Judge Cook)
Royal Courts of Justice
Lord Justice Dillon
and
Mr. Justice Hollings
90/0284
MR. H. SHAW (instructed by Messrs Spencer Gibson & Son, Surrey) appeared on behalf of the Appellant/Petitioner.
MR. C. J. WILCOX (instructed by Messrs Sandoms, South Norwood) appeared on behalf of the Respondent/Respondent.
I will ask Mr. Justice Hollings to give the first judgment.
This is an appeal from the order of His Honour Judge Cook given at the Epsom County Court on 1st November 1989 whereby, on the wife's application against her husband under the Matrimonial Homes Act 1983, he ordered that "upon the undertaking of the petitioner not to assault molest or otherwise interfere with the respondent [the husband] and on the respondent's undertaking not to assault molest or otherwise interfere with the petitioner And upon the respondent's undertaking to file an application for custody care and control today there be leave to the respondent to file an affidavit in support within 14 days…and leave to the petitioner to file an affidavit in answer within 14 days thereafter if so advised." Then it was ordered that the petitioner's application under the Matrimonial Homes Act for an ouster of the respondent husband from the matrimonial home should be refused. He made an order that the care and control of the child of the family should be with the petitioner and he further ordered that there should be a welfare officer's report as to custody care and control. He made provision for reasonable access for the father to his daughter.
The parties were married on 19th September 1981 and they have one child, the subject matter of the order, "E" born on 12th February 1983. She is therefore aged seven.
The matrimonial home in which the parties lived until the inception of these proceedings was bought in March 1985 in joint names. It is a three-bedroomed terraced house.
Because the learned judge did not in his judgment review the evidence in detail I propose to make reference to the evidence and the history of the matter at this stage. The petitioner wife said in evidence that the marriage broke down in about February 1989. She said that a few months later in June 1989, she met a Mr. "B", although the evidence called on behalf of the husband was that the association had started earlier in the year and that had caused the dissension. The respondent husband left the matrimonial home in June for some two weeks. When he returned the wife left with "E" to stay with her sister, returning on 8th July 1989.
On 3rd August 1989 the wife filed her petition based upon unreasonable behaviour. On 18th September 1989 an answer of sorts was filed by the respondent personally, denying everything, but not giving details.
The evidence, which is contained in affidavits and also in oral evidence heard by the learned judge, refers to a number of incidents between the parties. For instance, an incident when the husband produced a knife on 17th July 1989, evidence as to arguments about "E" sharing his bed and evidence relating to the husband's aggressiveness and abusiveness because of the wife's association with Mr. B.
On 8th September 1989 the wife left without "E" and returned two days later. There were after that more heated arguments and fights and there is evidence, as the learned judge found, that there was bad conduct on both sides. The wife left again for one night. There was an occasion when the husband took an overdose of tablets, and this was followed by further argument on 18th September, when the wife left to stay with her friend, Mrs. "W".
The wife issued her application in these proceedings on 19th September 1989 and on that day an ex parte order was made, made inter partes on 20th September by Judge Allen. That order continued an injunction which had been made on the ex parte hearing in respect of the respondent and ordered the interim custody, care and control of "E" to be with the petitioner, that order to continue until 27th October. The wife stayed with Mr. "B" until 20th October.
In an affidavit filed by the respondent he denied many of the allegations contained in the petition, but he did admit on one occasion punching a door and a wall in the matrimonial home. There were affidavits submitted by both sides, from a Mr. Forbes for the respondent and, perhaps surprisingly for the husband, the maternal grandmother who was supporting her son-in-law in this respect. There was also an affidavit by the wife's sister. That affidavit evidence was supplemented by the oral evidence of the parties and of some of the witnesses.
In the course of his evidence the respondent admitted that he could not control his emotions. In respect of where he was going to live, he said that if he could not live in the matrimonial home, he had nowhere to go. In his affidavit and in evidence he spoke of his financial situation. He is in employment, but he has considerable debts.
So far as the wife and Mr. "B" are concerned (and Mr. "B" was called on behalf of the husband) both have said that they do not wish to cohabit with each other, though they wish to continue the relationship. It is plain that that relationship was the immediate cause of friction between the parties. Indeed it has always been the insistence of the husband that there should be no contact with "E" on the part of Mr. B.
The learned judge gave a comparatively short judgment, the notes of which have been agreed. I read certain parts of it. He said:
"Both parties agree that they cannot live together in the house. There have been a number of incidents, many of them witnessed by "E" and the evidence is such that "E" must have suffered because of it.
However, I am not satisfied that the unhappy environment in the home was any more the responsibility of the Respondent than of the Petitioner. I find no evidence that justifies taking the draconian step ordering him out of his home."
Then he continued:
"Before I give judgment on the question of interim custody, I would like to hear from [counsel for the petitioner] as to what the petitioner's proposals regarding accommodation are in the light of my judgment on the ouster application.
[Counsel] outlined that the petitioner would propose to return to the former matrimonial home with the protection of the cross-undertakings which the parties had agreed to give, and to invite the learned judge to make orders (unless undertakings were forthcoming) regarding such matters as use of separate bedrooms within the matrimonial home.]
As I have said, one matter on which both parties are agreed is that they cannot live together in the same house. "E" will have to live with one parent or the other. The petitioner has a relationship with [Mr. "B"] and there is an allegation that "E" does not like [Mr. "B"]. "E's" long-term future is a matter on which I am going to need the assistance of a report from a welfare officer. What is to happen to "E" in the interim? The petitioner is proposing to return to the matrimonial home with cross undertakings to continue."
As I understand it, on the basis that the ouster application was going to be refused there was a proposal on behalf of the wife that she should return on the cross undertakings of non-molestation and also undertakings as to use of separate bedrooms. The learned judge continued:
"I do not think this is realistic, particularly in view of the petitioner's continuing relationship with [Mr. "B"]—to whom the respondent has an antipathy."
The learned judge then referred to the petitioner's alternative proposal, which was to find suitable alternative accommodation elsewhere for herself and "E", either with a friend or with the assistance of the local authority.
He continues:
"The petitioner has no home for "E" other than the matrimonial home. The respondent is in full time employment on an unpredictable shift basis. Unless he gave up work he could not provide the necessary care for "E". He proposes that "E" should live with her grandparents. I have heard from the maternal grandmother that she would be happy for "E" to live with her. "E" has her own bedroom there. The grandmother says that both parties would be welcome to have full access to and play a full part in the care of "E"…. Pending a full hearing I think that would be in "E's" best interest. It is only an interim order."
I pause there to give emphasis to those last two sentences.
He continued:
"The mother wishes to seek to find alternative accommodation. No particulars of that are before me. I do find that the appropriate person to be looking after "E" is the petitioner subject to suitable accommodation and suitable undertakings regarding. [Mr. "B"]. In those circumstances, I propose that "E" should live with her grandmother until the petitioner can come back to court with particulars of suitable accommodation. "
He went on to refer to the interim order which he proposed to make.
However, as the learned judge inserted in his judgment, counsel for the petitioner submitted that interim care and control should be granted to the petitioner on the basis that "E" stayed with her grandmother until she, the petitioner, had found suitable alternative accommodation, and it was agreed that counsel should discuss this and attempt to agree a formula outside the court. When the case was called on again counsel indicated that the petitioner was now able to put before the court particulars of suitable alternative accommodation, namely a bedroom in the home of a...
To continue reading
Request your trial