GG

JurisdictionJersey
CourtRoyal Court
JudgeSir Philip Bailhache,Jurats Fisher,Nicolle
Judgment Date09 November 2010
Neutral Citation[2010] JRC 202
Date09 November 2010

[2010] JRC 202

ROYAL COURT

(Samedi Division)

Before:

Sir Philip Bailhache, Kt., Commissioner, and Jurats Fisher and Nicolle.

Between
A
Appellant
and
B
Respondent

Advocate M. J. Haines for the Appellant.

Advocate R. E. Colley for the Respondent.

Authorities

Mental Health (Care and Treatment)(Scotland) Act 2003.

Downes v Marshall [2010] JRC 115B.

Re T (order for costs) [2005] 2 FLR 681.

J v M [2002] JLR 330.

White v White (2000) 3 FCR 555.

THE COMMISSIONER:
Introduction
1

This is an appeal by A (“the wife”) against decisions of the Deputy Registrar of the Family Division (“the Deputy Registrar”) of 27 th July, 2009, in relation to ancillary matters, and in relation to the costs of the associated residence and contact proceedings concerning the only child of the marriage, C. We shall refer for convenience to the respondent to this appeal, B, as “the husband”.

2

The parties met in January 1999 and were married in the United Kingdom in August 2001. The wife was then 41 and the husband was 35. C was born in 2003. At the time of the marriage, the wife owned a two bedroom flat which she had bought in 1987. She sold the flat and applied the net proceeds of sale to the purchase of a property which was bought by the husband and the wife in joint names. The purchase price was £124,500. According to the wife, she contributed £43,000 and the husband contributed nothing. According to the husband, he put in £10,000 while the wife put in about £25,000. Nothing really turns upon this disagreement. The husband also owned a flat in Cambridgeshire, which he let to a tenant for a rent which covered the mortgage payments. In 2003, he sold that flat which, after payment of the outstanding mortgage, yielded about £25,000. During the early years of the marriage, both parties had their own bank accounts into which their respective salaries were paid, and a joint account from which the expenses of the matrimonial home and other family expenses were met. Both parties transferred money from their individual accounts to the joint account for that purpose. The net proceeds of sale of the husband's flat were, according to the wife, paid into the husband's personal account. According to him, they were paid into the joint account to meet joint liabilities. Again, nothing really turns on this disagreement.

3

C was born with Downes Syndrome and needs special care. From the time of her birth, the wife no longer worked and remained at home to look after her. In 2006, the husband obtained employment in Jersey, and the family moved to the Island. In 2007, C was enrolled at a local school. In January 2007, the parties bought a house in St Helier, for £365,000. It was purchased with the benefit of a mortgage from the Royal Bank of Scotland. The parties had sold their property in England, and applied the net proceeds of sale which were approximately £65,000, towards the purchase price. The property is now valued at £400,000 to £425,000. The median point, which both parties have agreed, is £412,500. After deducting the outstanding loan from the Royal Bank of Scotland of £212,000, the net equity in the property is £200,500.

4

In September 2007, the wife's mother, D, came to Jersey to spend a three week holiday with her daughter and son-in-law. D is a widow. According to her affidavit, which was not before the Deputy Registrar but was admitted for the purposes of this appeal, she became concerned about the level of debt that the parties had, and she agreed to lend £60,000 to them, free of interest, in order to reduce their liabilities. The affidavit of D, and the oral evidence of the wife, both describe this advance as a “loan”. According to the evidence of the husband, both before the Deputy Registrar and before this Court, it was a gift. The husband stated that there was no discussion about it; he was merely told one evening during D's holiday that money had been paid into the mortgage account. There was no documentary evidence which assists in determining whether the advance was a loan or a gift, and it remains in dispute between the parties. We have not heard oral evidence from D or from any other witnesses who might be able to throw light upon the nature of the transaction. In the event, we do not find it necessary to resolve the dispute for the purposes of this appeal.

5

During 2008, if not before, the marriage was under strain. The wife felt alone and unhappy. She had few friends, and she suspected the husband of being unfaithful to her. In 2008, the family went to the United Kingdom and the wife went to visit her mother. The husband returned to Jersey and expected the wife and C to return a few days later. They did not do so. The wife then applied to the English court for a residence order in relation to C.

Procedural history
6

That move by the wife led the husband to issue an Order of Justice seeking the immediate return of C to the jurisdiction of this Court. An injunction was obtained requiring the wife to return C to the Island. In June 2008, the wife and C returned to Jersey. It was clear at that stage that the wife was suffering from stress and was unwell. In July 2008, she was seen by a consultant psychiatrist, E. E produced a report dated 28 th August, 2008, which was before the Deputy Registrar but which we have not seen. It appears that the doctor diagnosed obsessional traits but found no evidence of any specific mental disorder. On 10 th September, 2008, in the proceedings relating to the residence and contact order, the Deputy Registrar ordered that a joint letter of instruction be sent to E to provide an addendum to his report on the psychological health of the wife. On 6 th February, 2009, the matter came back before the Deputy Registrar, who ordered that the hearing dates of 25 th to 27 th February, 2009, be vacated; the psychological report was not available, the joint letter of instruction not having been agreed. The parties were ordered to agree those instructions within seven days. The Deputy Registrar also ordered a report from the wife's GP.

7

On 17 th March, 2009, the Deputy Registrar ordered a further case review on 27 th March and further ordered that instructions be sent forthwith to F to provide a psychological report on the wife's emotional health and well-being. On 27 th March that order was renewed, but it appears that the wife had not attended upon the psychologist. The Deputy Registrar ordered that, if the wife failed to co-operate in the preparation of that report, adverse inferences might be drawn. Affidavits of evidence and schedules of assets and liabilities and income positions were ordered to be prepared by 27 th June. Both parties were also ordered to file open statements as to the orders sought by the same date.

8

On 24 th June, 2009, in the presence of the husband's advocate but not the wife's advocate, the Deputy Registrar ordered that the wife should file her affidavit of means within seven days in default of which adverse inferences might be drawn. The Deputy Registrar also ordered:-

“that should the respondent fail to attend Court for the petitioner's application in respect of ancillary relief which is being heard on the week of the 13th July, 2009, immediately following the hearing in respect of C, then adverse inferences may be drawn and presumptions made as to her finances, and ancillary relief orders may be made in her absence and an order for indemnity costs may be made against her.”

9

On 27 th July, 2009, the matter was again before the Deputy Registrar, both in relation to the contact proceedings and in relation to ancillary relief. Counsel then acting for the wife was present, but stated that he was without instructions. The wife was not present. Counsel stated that he had been in contact with the wife's family, but they had been unable to make contact with the wife despite strenuous efforts. He said that, according to his understanding, there had been no contact between the wife and her family since March 2009. Although without instructions, Counsel made no application for an adjournment.

10

The Deputy Registrar then heard evidence from the Court Welfare Officer, G, and submissions from Advocate Colley for the husband on issues relating to contact, with which we are not concerned. Reference was also made to a report by H. The hearing then continued in relation to ancillary matters. Evidence was heard from the husband, who testified as to the disputed gift of £60,000 from D, the history of the marriage, and his financial situation. He expressed the wish for a clean break; he did not want the wife to have any sort of charge upon the house. He asked the Deputy Registrar to transfer the house into his name. He said that he thought that his legal costs had been increased by the conduct of the wife in failing to attend for hearings. There was no other evidence which was, as Advocate Colley rightly stated, “somewhat one-sided, I have to say”. Advocate Colley then addressed the Deputy Registrar on the financial order which her client was requesting. No documentation had been filed on the part of the wife and the only information available to the Deputy Registrar as to her means had come from the husband. There is no suggestion that the husband deliberately misled the Deputy Registrar, but the information upon which she relied was incorrect in a number of ways. D was said to be “relatively wealthy”; that, it seems from her affidavit, is not the case. The wife was said to have £20,000 in her bank account; we do not have the bank statement as at 29 th July, but by 25 th August, 2009, it was in fact £10. It was suggested that the wife's legal costs had been paid by D, but not that the wife was indebted to her mother to that extent. It was suggested that the equity in the matrimonial home was £160,000, when it was rather more than that. It was suggested that the wife failed to engage in the proceedings and had refused to...

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  • H (the Mother) v J (the Father)
    • Jersey
    • Royal Court
    • 3 October 2013
    ...EWCA Civ 858 . Downes -v- Marshall [2010] JRC 115B . C -v- D (Matrimonial) [2013] JRC 056 . O -v- O [2005] JLR 535 . In the matter of GG [2010] JRC 202 . White -v- White [2001] 1 AER 1 . Miller & McFarlane [2006] 3 AER 1 . Robson -v- Robson [2011] 3 FCR 625 . Morgan -v- Amy [1968] JJ 981 . ......

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