Re T (Order for Costs)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall |
| Judgment Date | 21 March 2005 |
| Neutral Citation | [2005] EWCA Civ 311 |
| Docket Number | Case No: B4/2004/2244 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 March 2005 |
[2005] EWCA Civ 311
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
HER HONOUR JUDGE KUSHNER QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Potter and
Lord Justice Wall
Case No: B4/2004/2244
ALO2P0031
Crown Copyright ©
This is the judgment of the court.
Introduction
With permission granted by Black J at an oral hearing on 5 November 2004, Mrs. ST (the mother) appeals against an order made by Her Honour Judge Kushner QC sitting in the Manchester County Court on 9 June 2004. The judge ordered the mother to pay the costs incurred by her former husband Mr DT (the father) of four hearings in the proceedings between them relating to their son J, who was born on 5 November 1999. Those proceedings, which had begun as an application by the father for contact with J, concluded on 17 February 2004 with an order that J reside with him. The mother also sought permission to appeal against the residence order, but permission was refused by Black J at the oral hearing on 5 November 2004.
The four hearings for which the judge ordered the mother to pay the costs were those, which took place on 9 December 2002, 15 May and 21 August 2003, and 13 May 2004. The last of these was a discrete hearing in which the father sought orders for costs relating to the previous three hearings. The significance of the first three hearings will shortly become apparent.
Both the mother and the father appeared before us in person. For reasons which will become clear as this judgment progresses, that could not have been an easy experience for either of them. We were, however, impressed by the clarity of the arguments each addressed to us, and the courtesy which each extended to the other and to the court.
Any order for costs between parents in private law proceedings relating to their children is, as the judge recognised, unusual. It is, accordingly, necessary to set out the background facts. We do so by reference to the judge's various judgments.
The facts
The mother is 33 and the father 34. They married on 10 August 2001 after a number of years of cohabitation. The father is an information technologist: the mother is not in gainful employment, although she is currently at college and hopes to start her own business later in the year.
The mother has another child, A, who was born from another relationship on 13 January 1991. A does not appear to have seen very much of his natural father over the years, and the judge found that the father had treated A as his son for many years.
When the case came before her for the first time on 4 December 2002, the judge found that there had been a continuous dispute about contact by the father to both children since the parties' separation in March 2002. She referred to "various agreements and orders which all have faltered almost immediately". She added:
"The mother says that this has either been due to force of circumstances, such as illness, or due to the father's conduct; the father maintains it is part of a campaign conducted by the mother and assisted by the maternal grandmother to distance and in fact eradicate him from the lives of both boys.
In addition the mother maintains that the father is in breach of various undertakings made by him on 31 October 2002 relating to publishing material about these proceedings and the mother and maternal grandmother".
Convinced that any agreement between the parties relating to contact would founder sooner or later (probably sooner) the judge decided on 4 December 2002 that "a fact finding hearing was essential to lay various disputes to rest once and for all. Further directions could then be made and progress hopefully ensured." The judge then adjourned the case for five days: evidence was rapidly assembled, and the fact finding hearing duly took place on 9 December 2002.
Following the finding of fact hearing, the judge handed down a careful, clear and well-structured reserved judgment on 22 January 2003. Under the heading THE HISTORY, the judge made perceptive assessments of both parties. The mother she described as: —
"…. an emotional woman who, when feeling vulnerable, has a tendency to misinterpret or magnify the actions of others in such a way that, unless they are unequivocally in her favour, she assumes are deliberately working against her. This is evident in the way she has approached contact and in particular the way she has dealt with the outside agencies which have been involved with the family along the way."
Of the father she said: —
"For his part (the father) inappropriately uses his professional skills when trying to deal with emotional and relationship difficulties. Graphic examples of this can be seen in the questionnaires he sent to A and in his outrageous recourse to the Internet when he ran into difficulties with contact. This demonstrates a certain ruthlessness in his personality, which can only partly be explained by the feelings of frustration he must have felt from time to time. I can accept the evidence that (the mother) felt beleaguered in the period between the beginning of 2002 and the separation when at the very least she was undermined by allegations by her husband that she was ill."
The judge then proceeded, with commendable clarity, to make findings of fact in relation to the issues raised by the mother against the father. She did so under a number of headings. These were (1) domestic violence; (2) inappropriate treatment of A; (3) events following the commencement of proceedings.
In relation to domestic violence, the judge found one incident in 1993 or 1994 established, which the father admitted, and in which he had inflicted a blow to the mother's leg. The judge also found in relation to this incident:
"One thing seems clear from the evidence, namely that it was a cause of shame to (the father) and (the mother) wore short skirts so that the bruise was visible to others in order to "rub (the father's) nose in it."
Whilst finding that the father's conduct in relation to two of the other four incidents alleged by the mother did not reflect well on him (in relation to two of them the father was drunk) the judge made clear findings that the incidents identified by the mother did not amount to domestic violence. Furthermore, there had been no physical violence since the marriage. The judge was thus clear that domestic violence did not feature as an issue relevant to contact. To the contrary, she found that:
"A consideration of the increasing importance of domestic violence to the mother's case is an example of the sure but steady magnification of an issue by her……. "
By December 2002, the judge found that "domestic violence was centre stage as the consideration for the contact centre according to the mother". She had written a letter of complaint about Pro Contact (the specialist Contact Centre in Manchester, which was facilitating contact) stating that the reason for using a contact centre in the first place, was domestic violence towards herself. The judge commented that there were other similar examples where "certain issues have gathered momentum in the mother's mind and which have affected her conduct and attitude to individuals and to the issue of contact."
The judge found that the father had "tried very hard to achieve contact with A after the separation". The mother had alleged that the father had behaved inappropriately towards A in a number of ways, including inappropriate physical chastisement. The judge made a finding that in the parents' household (where smacking of children was permitted) there may have been occasions when the father struck A harder than was necessary or desirable. However, the independent evidence, she found, demonstrated a healthy and affectionate relationship between the father and A, and nothing to suggest inappropriate chastisement or apprehension on the part of A in the father's company. The judge felt that "this is probably another example of isolated incidents being inflated out of proportion.
In the longest section of her judgment, under the heading EVENTS FOLLOWING THE COMMENCEMENT OF PROCEEDINGS, the judge traced the history of the litigation since its initiation by the father on 22 April 2002. It is, once again, a clear and very evenhanded account. She is critical of the mother for her failure to honour agreed contact arrangements. She understands the father's frustration, but is heavily critical of him for inappropriate questionnaires which he sent to A without the mother's knowledge with boxes to be ticked indicating how A felt about the father and contact with him. Her most severe criticism of him is contained in paragraph 6.9 of her judgment when she says: —
"I accept that the father must have been feeling an increasing sense of frustration as contact was thwarted time and time again and as the allegations started to flow. However, there is simply no excuse for correspondence of the type he sent to (the mother's) friends and even that pales into insignificance alongside the diatribe posted on the PAPAS web-site about the mother and the paternal grandmother, irrespective of truth."
The judge made a number of specific findings. Principal amongst them was her rejection of an allegation by the mother that whilst J had chicken pox, the father held him down and burst one or more blisters with a pin during contact. Since many of the mother's complaints derived from what she reported J as saying to her, it is significant, particularly in the light of subsequent events, that...
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