Wilde v Wilde
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE NOURSE,LORD JUSTICE BINGHAM |
| Judgment Date | 01 December 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J1201-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/1213 |
| Date | 01 December 1987 |
[1987] EWCA Civ J1201-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHESTER COUNTY COURT
(HIS HONOUR JUDGE CROWTHER, Q.C.)
Royal Courts of Justice.
Lord Justice Purchas
Lord Justice Nourse
and
Lord Justice Bingham
87/1213
1986 D. 897
MR. KEVIN BARNETT (instructed by Messrs. Gamons of Chester) appeared on behalf of the (Petitioner) Respondent.
MISS S. LEIGH (instructed by Messrs. Lovell Son & Pitfield, agents for Messrs. Walker Smith & Way of Chester) appeared on behalf of the (Respondent) Appellant.
This is an appeal by Keith Francis Wilde ("the husband") from an order of His Honour Judge Crowther, Q.C. made on the 30th September, 1987 in the Chester County Court. The respondent, to whom I shall refer as "the wife", is Colette Wilde. The judge ordered that the husband should vacate the erstwhile matrimonial home at 28 Tegid Way, Saltney, Chester, and should thereafter be restrained from returning until after the hearing of ancillary relief issues or further order. The appeal raises an important issue, namely the power in the court to grant an ouster injunction in relation to the matrimonial home after the dissolution of the marriage.
The circumstances are unusual. The parties were married on the 9th April, 1977. There are two children of the family: Adam aged 8, and Laura aged 6. The marriage lasted until 1986. The wife's petition seeking the dissolution of the marriage was dated the 3rd October, 1986. On the 5th January, 1987 a decree nisi on the ground of the husband's unreasonable behaviour was pronounced and on the same day orders were made giving the parties joint custody of the two children with care and control to the wife and reasonable access to the husband. The decree absolute was dated the 17th February, 1987. Ancillary to the main suit proceedings are still on foot concerning the disposition of the matrimonial home and other matters. The matrimonial home was held in joint names but is subject to two legal charges in favour of outside institutions. Since the divorce the parties have continued to live at the matrimonial home maintaining separate households. They have adjusted their personal lives so as to reduce to a minimum the periods when both are simultaneously present in the house. This produced an obviously tense and potentially explosive situation. The husband was working full-time. The wife had been fully employed but ceased working in March or April 1987. Each has formed an association with a member of the opposite sex. They came to an arrangement that generally the wife stayed away from the home at weekends when she went to stay with her friend. The children spent part of the weekend at the matrimonial home with the husband and part of the weekend with the paternal grandfather. Occasionally the wife saw the children at the weekends also. During the week the wife was generally at home. On those occasions when she spent a night away from the home she left after putting the children to bed and arrived back in time to get them up in the morning ready for school. There was some dispute between the wife and the husband about the details of this regime. On some weekends, however, the wife stayed at the matrimonial home. Matters came to a head on the 19th September, 1987 which was a Saturday. There appears to have been a misunderstanding as to who would be present at the matrimonial home that weekend. The husband thought that the wife had left for the weekend; the wife thought that the husband had gone with the children to his parents' home. The husband invited his ladyfriend to spend a night at the matrimonial home. The wife went out with friends and arrived home at about three o'clock in the morning and could not gain access to the home.
On the 24th September the wife gave notice that she would apply to the court for an injunction restraining the husband from molesting her and that he vacate the matrimonial home and not return thereto save for the purposes of agreed access. This application was heard on the 30th September when the judge, having heard evidence and argument, made the order against which this appeal is brought.
In his judgment the learned judge referred to the history of the marriage leading up to the incident. He declined to resolve the issue of fault in relation to the incident and said:
"I would have taken the view that it was simply indicative of the tension that has existed between the parties"
He continued:
"Each party has played his or her part faithfully in relation to looking after the children and in some respects they have done well. Inevitably where the parties are going through divorce and living in the same house there have been tensions in trying to overlap and overlink their care of the children. There have been incidents of quarrelling and recrimination.
Mr. Wilde says that the situation is undesirable but tolerable. Mrs. Wilde says the situation is intolerable."
He made the following relevant findings of fact:
"Having regard to the drama of the incident of 20th September I am sure that it is impossible for her to return to the home.
It is not acceptable that the children should return to the house to live with their father on his suggestion of shared care with the mother as she comes and goes while living a considerable distance away with her mother.
It seems to me as plain as can be the wife is now in unsuitable accommodation for her and the two children. The children are overcrowded and a long way from their schools and a long way from their personal possessions and friends. They are not where they should be. Whilst 28 Tegid Way, the matrimonial home is available that is where they should be to have the benefit of school and familiar surroundings.
The question is, where should the parties be?
…
I am satisfied, firstly, that it is in the interests of the children to return to the home. Secondly, that the mother who does not work should look after them and in this I am agreeing with the decision of my colleague who granted her care and control on the 6th January 1987 and, thirdly, that Mr. Wilde has short term accommodation for himself with his father."
At the hearing before the learned judge he was referred to the the case of Webb v. Webb [1986] 1 Fam.L.R. 541 which, it was accepted by counsel for the husband, was an authority to the effect that where the interest of children was involved there was jurisdiction in the court to grant an ouster injunction notwithstanding the determination of the marriage by decree absolute. This power, it was alleged, arose under section 37(1) of the Supreme Court Act 1981 which reads:
"37(1) The High Court may by order (whether interlocutory or final) grant an injunction…in all cases in which it appears to the court to be just and convenient to do so."
Miss Leigh now frankly concedes that it was an error to have accepted Webb v. Webb as being an authority for the proposition and seeks by way of an amended notice of appeal to challenge the jurisdiction of the court in the circumstances prevailing in this case to grant an injunction under section 37(1) of the 1981 Act. In view of the importance of this matter, we granted her leave to amend the notice of appeal to enable the point to be argued.
It is first necessary to consider Webb v. Webb. This was a decision of the Court of Appeal on an appeal from an ex parte order of the county court judge refusing a non-molestation injunction restraining a former husband. The county court judge had indicated that he thought that on the merits such an order ought to have been made but held that he had not got jurisdiction to do so. The Court of Appeal dealt with the matter as an interim measure only granting an injunction for a period of seven days only and commented that, if the question of jurisdiction was challenged then it could be argued on the inter partes hearing. Although the Court of Appeal indicated that they thought that there was jurisdiction, the matter was not fully argued before them and the judgment must be read in the light of the qualification to which I have just referred. To this extent the headnote which states, "There was jurisdiction to grant injunction sought even though the marriage had been dissolved by decree absolute", might be somewhat misleading.
Although the terms of section 37(1) of the 1981 Act are extremely widely drawn, there is now highest judicial authority for saying that the power granted by that section is only to be exercised to enforce an existing legal or equitable right: see per Lord Hailsham of St. Marylebone in Richards v. Richards [1984] 1 A.C. 174 at page 200:
"The rights conferred by section 37 were however subject to one serious limitation which applies to all equitable remedies of this class, whether statutory or arising from inherent jurisdiction, namely that an injunction could only be used in support of a legal right (and therefore only doubtfully in a number of ouster applications in the matrimonial jurisdiction) and despite statements (mostly obiter) to the effect that the court might apply different principles where the welfare of children was in question (cf. Stewart v. Stewart [1973] Fam. 21, 23, Adams v. Adams [1965] 109 S.J. 899, Phillips v. Phillips [1973] 1 W.L.R. 615, neither the extent of the jurisdiction nor the criteria for its exercise were fully explored."
Elsewhere in his speech Lord Hailsham had considered the question of inherent jurisdiction in the context of section 37 of the 1981 Act, see page 199:
"I do not think it necessary to proceed to consider whether, apart from the section, the court...
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