Vasey v Vasey
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER,LORD JUSTICE DUNN,LORD JUSTICE DILLON |
| Judgment Date | 07 November 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J1107-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 84/0414 |
| Date | 07 November 1984 |
[1984] EWCA Civ J1107-6
IN THE SUPREME COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION (DIVISIONAL COURT)
Royal Courts of Justice
Lord Justice Waller
Lord Justice Dunn
and
Lord Justice Dillon
84/0414
Ref. No. 338/84
MR. STUART LIGHTWING (instructed by Messrs. Smith Roddam & Co, Solicitors, Bishop Auckland, County Durham) appeared on behalf of the Appellant
MR. A.J. BRIGGS (instructed by Messrs. Askew & Askew, Solicitors, Guisborough, Cleveland) appeared on behalf of the Respondent
I ask Lord Justice Dunn to give the first judgment.
This is an appeal from an order of a Divisional Court of the Family Division of 14th May 1984, when they dismissed an appeal from an order of the Teesdale & Wear Valley Magistrates sitting at Bishop Auckland, whereby the magistrates had granted the custody of the one child of the marriage to the wife, with access to the husband. They ordered the husband to pay the wife £15 per week for the benefit of the child and they refused to make any order for the maintenance of the wife herself on the ground that she had deserted her husband, and that her desertion was gross and obvious conduct relevant to financial provision. The appeal, both to the Divisional Court and to this court, was limited to the magistrates' refusal to make an order for maintenance in favour of the wife.
The magistrates having held that the husband had failed to provide reasonable maintenance for the child, s.2(l) of the Domestic Proceedings and Magistrates' Courts Act 1978 gave them jurisdiction to make an order for the maintenance of the wife, as both the Magistrates and the Divisional Court held. But the Division Court dismissed the appeal on the ground that they were precluded by the decision of this court in Robinson v. Robinson (1983) 1All England Reports, 391, from interfering with the ruling of the magistrates, although both members of the Divisional Court said that they would, if sitting at first instance, have awarded the wife some maintenance, though not as much as if she had not been found guilty of gross and obvious conduct.
In Robinson v. Robinson the magistrates had found, as in this case, that conduct was a relevant consideration, and accordingly they made a substantial reduction in the maintenance order as compared with the order they would have made in the absence of such a finding. The principal ground of appeal in that case was that the finding as to conduct was not justified by the evidence and that there was no evidence which entitled the magistrates to come to the conclusion to which they did, or alternatively that their conclusion was against the weight of the evidence. Counsel for the appellant in that case conceded that if the finding as to conduct stood he could not challenge the exercise of discretion by the magistrates. The Court of Appeal emphasised, that the case was an exceptional one, since the husband had been found blameless for the breakdown of the marriage.
In this case there is no appeal against the finding of the magistrates that conduct was relevant. Indeed, there could have been no such appeal, since the wife left the husband after less than nine months of marriage and did not attempt to justify her leaving. But what is said in this court by Mr. Lightwing is that the magistrates failed to take into account matters which they were required to take into account by reason of the provisions of s.3 of the Act; that accordingly they failed to carry out the balancing exercise required by that section and consequently, by reason of the decision of this court in D v. M, (1983) Family Division p.33, an appellate court was free to carry out the balancing exercise since there was sufficient evidence to enable it to do so.
Mr. Briggs conceded, as is the fact, that on their face the magistrates' reasons did not take into account any of the matters required to be taken into account by s.1(3) except conduct. But he said that they must have had regard to other matters, because they were considering the wife's application for maintenance, and she had said that she required maintenance for herself until the child, who was born on 29th June 1983, was old enough to go to school since she had had to give up her job in order to look after him.
Mr. Justice Wood in the Divisional Court was impressed by the fact that in their reasons the magistrates said:
"We decided that she deserted her husband and that this desertion was gross and obvious conduct which should be taken into account in deciding what financial provision, if any (the wife) should receive".
The judge thought that the words "if any" indicated that the magistrates were considering a reduction of the order as an alternative to making no order at all, and therefore that they must have considered all the relevant factors in s.3(l), and the President took the same view.
S.3(l) requires the court, in considering an application under s.2 of the Act to have regard to seven specific matters, six of which are similar to those in s.25(l) of the Matrimonial Causes Act of 1973.
Paragraph (g) of the subsection provides that the justices
"…..shall take into account any other matter which in the circumstances of the case...
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