Tina Norman (the wife) v Robert Norman (the husband)
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lady Justice Gloster,Lord Justice Lewison |
| Judgment Date | 03 March 2017 |
| Neutral Citation | [2017] EWCA Civ 120 |
| Date | 03 March 2017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B6/2015/2451 |
[2017] EWCA Civ 120
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GUILDFORD COUNTY COURT
HHJ Raeside
MK03D00837
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Gloster
Vice-President of the Court of Appeal, Civil Division
Lord Justice Lewison
and
Lady Justice King
Case No: B6/2015/2451
Jeffrey Littman (instructed by Public Access Counsel) for the Appellant
Michael Glaser and Phillip Blatchly (instructed by Bishop & Sewell LLP) for the Respondent
Hearing date: 19 January 2017
Approved Judgment
This is an application for permission to appeal with the appeal to follow if granted in relation to a proposed appeal against an order made by Her Honour Judge Raeside on 13 March 2015. By her order the judge dismissed the proposed appellant's, Tina Norman, ("the wife") application to set aside a consent order made in financial remedy proceedings between herself and the proposed respondent Robert Norman ("the husband") on 11 January 2005 ("the 2005 order")
The issue before the court is whether, notwithstanding that the application before the judge was effectively the wife's third application to set aside the 2005 order, justice nevertheless demands that it should now be set aside.
Background
This case is an example of one of those fortunately rare cases, where one of the parties to a marriage is wholly unable (they would say as a consequence of their former spouse's behaviour) to move on with their life following the breakdown of their marriage. The parties were married in 1993; there are two children of the marriage, A, now 22 and S now 19. At a hearing on 26 May 2010 His Honour Judge Rylance held that they separated on a date in 1998. The husband filed his divorce petition on 4 June 2003 on the basis of five years separation. This was therefore a five year marriage.
Litigation is continuing 18 years later, over three times the length of the marriage. The hearing before this court was the wife's third appeal to the Court of Appeal. She has twice (unsuccessfully) applied for leave to appeal to the Supreme Court.
The parties have given substantive oral evidence only once over the period of time involved. An assessment of the parties and their credibility is found in the judgment of District Judge Raeside (as she then was) dated 15 October 2009. She said in relation to the wife:
"I have no doubt at all that the reason that the children did not see their father is because the wife has stood in the way of contact, and it is clear from the way that she answered my questions that she has no interest at all in promotion the children's relationship with their father or his family. She has immersed herself totally in the children's lives…and she will not allow the husband to play any part in that except financially. She spends her time pursuing litigation before the court or the CSA to extract money from the husband; and the rest of the time she supports the children in their various activities. She admitted honestly that she didn't really think she had time to work. To be fair to the wife, the husband's financial affairs have not been straight forward, and he has been involved in a large number of unusual schemes; he has not been as straightforward and open with the CSA (or in these proceedings, with the Court) as he might have been which has caused the wife to be endlessly suspicious and dogged in her pursuit of support for the children and herself."
"…she has had to try to make sense of the husband's complicated finances, and she has not been helped by the fact that at the beginning at least, the husband was very grudging about the information provided. It has been a fatal combination; a determined and dogged wife who believes nothing that her former husband tells her; and a husband who feels persecuted by his former wife who hounds him before the courts to the point of illness, and who is less than forthcoming to the wife in terms of his disclosure as a result."
It is against this unpromising backdrop that a wholly disproportionate amount of court time has been occupied in relation to the breakdown of this marriage.
The 2005 Order
This is not a so called "big money" case. During the marriage the husband had however been a high earner relative to the average wage of the country, earning in the region of £100,000 per annum. The wife is a science graduate with some training in accountancy. Although not working at the date of the consent order made in January 2005 which lies at the heart of this appeal, the wife had been in work as recently as 2002, some three years after the breakdown of the marriage. It was anticipated by both the husband and the wife that she would move to financial independence relatively quickly following the making of the consent order in 2005.
Towards the end of the marriage the husband bought a property in his own name with a substantial mortgage. The judge found that the husband had paid £50,000 off the mortgage on the former matrimonial home leaving the wife with a mortgage of only about £7,000. In 2000 the wife moved to her present house using the entire proceeds of the former matrimonial home in order to buy it. The judge further held that the wife subsequently took out two mortgages on her property, one to assist with paying costs in lengthy Children Act proceedings and one in 2008, it would appear to provide her with some sort of capital buffer.
Proceedings commenced and Forms E were exchanged. At the first directions appointment, the housing and therefore capital needs of the wife and children had as a result of this arrangement been resolved, the husband having given to the wife the whole of equity in their home.
The issue with which the parties and their legal advisors were concerned at that First Appointment hearing in January 2005 related therefore only to ongoing maintenance for the wife and in particular the length of time it would be appropriate for her to continue to receive maintenance given the brevity of the marriage and that she had been in work until 2002. An agreement was reached, each of the parties having the benefit of legal representation, and a consent order drafted. The order of 11 January 2005, contains the following recital:
"It is both parties intention that the wife will become financially independent from the husband within five years of this order."
The balance of the 2005 order provided the wife with maintenance by way of periodical payments for herself at the rate of £1,000 per calendar month for a period of five years. It was agreed that in addition to maintenance the husband would pay the wife a lump sum of £6,000 as a contribution towards her costs.
The 2005 order did not contain a direction pursuant to section 28 (1A) of the Matrimonial Causes Act 1973 which provides:
"Where a periodical payments or secured periodical payments order in favour of a party to a marriage is made on or after the grant of a decree of divorce or nullity of marriage, the court may direct that that party shall not be entitled to apply under section 31 below for the extension of the term specified in the order"
The wife was therefore entitled to apply for an extension of the five year term.
The 2009 Order
On 29 February 2008 the wife applied to extend the term for the payment by the husband of periodical payments to herself. This application led to a three day hearing in September 2009 with financial disclosure and each party giving oral evidence. On 24 November 2009 DJ Raeside made an order ("the 2009 Order") allowing the application of the wife to the extent that the term was extended beyond the five years provided for in the 2005 order, that is to say from 24 December 2009 to 1 April 2012. The District Judge now imposed an order under section 28 (1A) MCA 1973 preventing the wife from making any further application to extend the term.
The wife appealed the district judge's order of 2009 varying the 2005 order to the circuit judge (His Honour Judge Rylance). The appeal was allowed and, by an order of 26 May 2010, HHJ Rylance further extended the term and removed the S28(1A) bar. The husband, in his turn appealed HHJ Rylance's order and on 4 July 2011 the matter came before the Court of Appeal for the first time. On 4 July 2011, the order of HHJ Rylance was set aside by the Court of Appeal and the 2009 Order made by District Judge Raeside was reinstated with the result that periodical payments for the wife would end on 1 April 2012 and she was thereafter prohibited from applying for a further extension of the term. The wife's application to appeal to the Supreme Court was refused.
Proceedings in relation to periodical payments however represented but one thread of the litigation between these parties at that time. At the September 2009 hearing District Judge Raeside had two further applications before her both of which she held over until the conclusion of the substantive variation application. One of those applications was to set aside the 2005 consent order in its entirety. At the variation hearing in 2009 the district judge, having varied the order to the extent set out above, urged the wife, before pursuing her application to set aside the 2005 order, to:
"…think carefully about the situation as it really was in January 2005, and think about what other order might have been made".
The wife, notwithstanding the district judge's note of caution, decided to pursue the application to set aside, in its totality, the 2005 consent order. District Judge Raeside therefore had a further hearing, giving judgment on 10 February 2010 ("the 2010 Order"). The wife on this occasion was represented by counsel, Mr Becker. The district judge dealt with the wife's application to set aside the 2005 order...
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