Thwaite v Thwaite

JurisdictionEngland & Wales
Judgment Date29 January 1981
Judgment citation (vLex)[1981] EWCA Civ J0129-1
Docket Number81/0010
CourtCourt of Appeal (Civil Division)
Date29 January 1981

[1981] EWCA Civ J0129-1




Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Ormrod

Lord Justice Dunn


Mr.justice Wood


Anthony Arthur Albert Thwaite
Petitioner (Respondent)
Susan Maria Thwaite
Respondent (Appellant)

MR.JACKSON, Q.C. and MR. TYZACK (instructed by Messrs. Dunn & Baker of Exeter) appeared on behalf of the Petitioner (Respondent).

MRS.CALVERT, Q.C. and MR.DIODN (instructed by Fishman, Wallace & Co.) appeared on behalf of the Respondent (Appellant).


The Judgment I am about to read is the Judgment of the court. "This is a wife's appeal from two orders made by His Honour Judge Goodall on 1st August 1980 at Exeter County Court. By his first order the learned judge set aside that part of a consent order which had been made by the Registrar on 30th April 1979 which provided that the husband do convey his interest in the former matrimonial home, 19 Howells Road, Exeter, to the wife, and that all other applications for ancillary relief be dismissed from the date of the conveyance. By his second order the judge substituted a new order for financial provision for the wife, consisting of a nominal order for periodical payments, and a lump sum of £1,000 payable within 3 months, and varied the order for periodical payments for the three children from £51 per month to £73 per month for each child. He also ordered the house to be sold and the net proceeds of sale divided equally between the husband and the wife. The house is in joint names.


Mrs. Calvert Q.C., on behalf of the appellant wife, contended that the learned judge had no jurisdiction to make either of these orders. Mr. Jackson Q.C., for the husband, submitted that in the circumstances of the case there was jurisdiction to make both orders, and that they were properly made.


The facts of the case are as simple as the procedural tangle is formidable, reflecting, as Mr. Jackson says, the confusion prevailing in the profession about consent orders in the matrimonial jurisdiction. The parties were married in 1967 and there are three daughters born in 1968, 1970, and 1972, respectively. The husband is employed by a multinational company and his work has required him to live abroad in various places for considerable periods of time. 19 Howells Road, Exeter, was purchased in joint names by means of a mortgage as a home in this country, although for most of the marriage the parties were living abroad. In 1976, they separated while living in Bombay. The wife, unexpectedly, vent to Australia where she set up house with the co-respondent, Mr. Davis. The husband remained in Bombay. The children eventually joined their mother in Australia, where she commenced proceedings in the Family Court of Western Australia for maintenance for the children. She made no application on her own behalf since, on her own admission, she was being supported by Mr. Davis.


On 17th January 1977, the husband filed a petition for divorce in England, relying on adultery by the wife. A decree nisi was pronounced on 25th October 1977, and the wife applied for ancillary relief in these proceedings. The matter came on eventually for hearing on 30th April 1979 before Mr. Registrar Lowis. The husband was then living in Trinidad and the wife in Australia, but both were present and gave evidence. These proceedings were settled and a consent order was made, the material parts of which were as follows:- On the wife's undertaking to return the children to England and Wales before 30th June 1979 and on the husband's undertaking to pay school fees for each child, the husband was ordered to convey his interest in 19 Howells Road to the wife subject to the existing mortgage within 28 days of the family being returned to this country, and all the wife's other applications for ancillary relief (including her application for periodical payments) were to stand dismissed from the date of the conveyance. In addition there was an order for periodical payments for each child at the rate of £51 per month. Liberty to apply was given to both parties.


In May 1979, the children returned from Australia to England. There was a delay by the husband's solicitors in completing the conveyance of 19 Howells Road, and on 27th August 1979, before the husband had executed the conveyance, the wife removed the children from the jurisdiction and returned to Australia without informing the husband or his solicitors, and rejoined Mr. Davis. She had bought air tickets for the children on 6th August, and had a return ticket for herself. The children went back to the same school in Australia where they had been before. They are still in Australia, although the children now attend a state school or schools.


In these circumstances the husband declined to complete the transfer of his interest in 19 Howells Road to the wife on the ground that he had agreed to the transfer on the understanding that the wife would make a home here for the children, and arrange for them to attend a local fee paying school. The basis of the agreement had, therefore, been completely destroyed by the wife's return to Australia with the children.


A spate of applications to the court ensued, beginning with an application dated 5th October 1979 by the husband to vary the consent order of 30th April 1979. On 26th October the wife countered with an application to enforce the order for transfer of the husband's interest in the house. On 12th March 1980 the Registrar dismissed the husband's application to vary his consent order and ordered him to complete the transfer of his interest in the house within 28 days.


The husband gave notice of appeal to the judge from the order dismissing his application to vary the consent order of 30th April 1979 and the order to execute the conveyance. On 15th May 1980 the husband also obtained leave to appeal out of time, against the consent order from His Honour Judge Cox. These appeals all came on for hearing, before the learned judge, on 30th July 1980. He also had before him applications by the wife to commit the husband for contempt in failing to carry out certain undertakings to hand over some books, and to pay school fees. There were also other applications by the wife relating to the children, including an application for leave to keep the children out of the jurisdiction in Australia.


The judge rejected the wife's applications to commit the husband. He allowed the husband's appeal from the Registrar's order directing him to complete the conveyance of his interest in the house, but dismissed his appeal against the refusal to vary the consent order. He thought that he had no power to allow the husband's appeal from the consent order because, as he put it, an appeal from a consent order seemed 'anomalous'. But he decided that in the circumstances he could set aside the financial provisions of the consent order under the "Liberty to apply".


On the facts, the judge found that the basis of the consent order was, as the husband alleged, that the wife would use the house as a permanent home for the children and send them to...

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