Wiseman v Simpson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUSTILL,LORD JUSTICE RALPH GIBSON |
| Judgment Date | 30 September 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0930-2 |
| Docket Number | 87/0929 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 September 1987 |
[1987] EWCA Civ J0930-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BARNET COUNTY COURT
(HIS HONOUR JUDGE GOLDSTONE)
Royal Courts of Justice
Lord Justice Mustill
Lord Justice Ralph Gibson
87/0929
LORD MESTON, instructed by Messrs Pollards (Borehamwood), appeared for the Appellant (Applicant).
MR EDWARD CROSS, instructed by Messrs Freedman Sharman & Co. (Borehamwood), appeared for the Respondent (Respondent).
I will ask Lord Justice Ralph Gibson to give the first judgment.
This appeal raises questions with reference to the exercise of the discretion which the County Court judge is required to exercise under section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 upon an application for an ouster order.
The appellant is Sean Joseph Wiseman. The respondent is Debbie Ann Simpson. They are both aged twenty—one years. They are the parents of a boy, Sean David, now aged one year eight months. They are unmarried. They had known each other for some four years when the child was born in January 1986. For a time they lived together at the home of the respondent's mother. In April 1986 they were granted a joint tenancy of a two—bedroomed flat at 99 Brook Road, Borehamwood by the local council. The appellant was and is employed as a postman. The respondent has not worked since having the child.
This litigation arose out of the respondent's act in excluding the appellant from their home. When the appellant was at work on 4th June 1987 the respondent had the door of the flat removed and a new door with a different key fitted. The relationship between the parties had for some time been unhappy, as will be described, but the appellant was given no notice by the respondent of what she intended to do. The respondent had consulted solicitors and on 28th May 1987 they had written to the appellant saying that the parties were no longer living together as husband and wife and complaining that the appellant had "not made any effort to maintain" his son. They asked for proposals for maintenance. There was no suggestion that the respondent was in need of protection or had any anxiety about remaining in the flat with the child while the appellant also lived there.
On 4th June 1987 when the appellant returned home from work in the afternoon he was refused entry by the respondent who told him that she was "taking over the flat from now on".
On 8th June 1987 the appellant applied to the County Court under the Domestic Violence and Matrimonial Proceedings Act 1976 ("the 1976 Act") asking for orders restraining the respondent from assaulting, molesting or threatening or otherwise interfering with the appellant and requiring the respondent to permit the appellant to return to the home. The appellant's affidavit in support was lodged with the application.
On 18th June 1987 the respondent gave notice of her cross—application: she also asked for an order restraining the appellant from molesting, assaulting or otherwise interfering with her and that the appellant be excluded from the home.
His Honour Judge Goldstone heard the case and gave judgment on 22nd June 1987. Both parties were represented by counsel. After amendment of the proceedings the order of the learned judge included the grant of custody of the child to the respondent with provision for access for the appellant. Nothing arises in this appeal with reference to that part of the order.
The judge made no order with reference to molestation, assaults etc. in favour of either party but he granted an injunction restraining the appellant from returning to his home save for the purposes of access to the child and for collection of his personal possessions.
It is to be noted at once that the learned judge found that the appellant "is not a bad man and is not violent. Two very young people have simply ceased to be in love with each other." The judge held that he must apply section 1(3) of the Matrimonial Homes Act 1983 namely that "the court may make such order as it thinks just and reasonable having regard to the conduct of the spouses in relation to each other and otherwise, to their respective needs and financial resources, to the needs of any children and to all the circumstances of the case…"; and then, for reasons which will be examined further, he held that the respondent must stay in the flat with the child and the appellant must leave.
The appellant has appealed to this court and asks that that order be rescinded and that an order be made requiring the respondent to permit him to return to the flat. He does not ask that she be excluded.
Before examining the reasons for the judge's decision I must state the short history of this relationship according to the evidence of the parties. The appellant said that in about February 1987 the respondent suddenly told him that she no longer loved him. He acknowledged that things had "not been going well" between them. She said that they could not go on as they were. He agreed. He said that he was not prepared to move out. She said the same. In short, having acquired the two—bedroomed flat from the council to house the family, which consisted of the two of them with the child, each wished to keep the flat to the exclusion of the other.
Matters got worse according to the appellant. They "began slagging each other off": I take that to mean mutual abuse.
The appellant worked early hours and would get home about 3.15 in the afternoon. He said that the respondent began preventing him or his family from having proper access to the child but she denied that. For about a month before he was excluded from the flat the respondent ceased cooking, washing, cleaning or clearing up.
The appellant described an incident on 1st June. He got home at 3.15. He had asked the respondent to stay in the flat for about two hours after four o'clock so that his mother and niece could visit the child. Before his mother arrived the respondent began to get the child ready to take him out. The respondent refused to leave the child with the appellant. The ensuing incident as described by the appellant was as follows:
"I stood in front of the door as I did not want Sean to leave with the Respondent. Her sister then said to me 'Can I leave?' I said 'I'm not stopping you', and let her out through the front door. Her friend then left. At 4 p.m. there was a knock on the door. It was the Respondent's mother. I opened the door and the Respondent's mother said 'Is she ready?' I replied 'Yes, but Sean is staying here for a couple of hours'. The Respondent's mother said 'No he is not'. The Respondent's mother then pushed through the door, grabbed my arms and started to knee me. As she pushed me up against the wall, the Respondent ran out with Sean.
"The Respondent's mother started to shout at me and I started shouting back. A neighbour came over to complain and threatened to call the police. With this the Respondent's mother then left the premises."
The affidavit of the respondent showed that she had left the appellant on an earlier occasion in September because as she said the appellant "was continually moaning at me and trying to annoy me." She was persuaded to return for the sake of the child. Since then the parties "were continually arguing". From about February when she told the appellant that she no longer loved him they had been "continually arguing about who was to get the flat". She and the appellant had begun to live entirely separate lives. The appellant came in later from work. According to her matters came to a head towards the end of May when the appellant refused to give her any money for herself and the baby. She was forced to start going to her mother's for her evening meal. She could not get money from the DHSS because she and the appellant were living under the same roof.
The respondent asserted that the atmosphere in the flat was becoming increasingly unbearable and, according to her, the appellant was behaving in a threatening manner all the time although he did not actually assault her. Because she could not cope any longer she changed the locks in an effort to force matters to a head. As soon as she told the DHSS that the appellant was no longer living with her they agreed to pay benefits for her and the child.
As to the incident when her mother came to the flat she asserted that the appellant had held his arms out threateningly and that the baby was screaming because of the commotion. She said in her affidavit that it was intolerable for the appellant and her to continue to reside in the same flat and it was not fair on the child. Although the child is very young he was nevertheless affected by the atmosphere. She asserted that she had no choice but to take the action which she did. She had been told by the council that she could not be rehoused if she left because she would be making herself "voluntarily homeless". She had nowhere else to go. If she went to her mother's she would have to share a bedroom with her two sisters and the child.
Apart from reference to the child's development, the note of evidence taken by the judge adds nothing by way of substantial allegations. The appellant said that it would not really work to live together at the flat. The allegation of threats of violence, or of the appearance of such threats, disappeared from the case. It was not suggested to the appellant that he had been threatening and the respondent said nothing about threats. The respondent gave further information about the attitude of the council. The note appears to show that she was told that if she left it would be...
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