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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mamoon v Mamoon [2010] EWCA Civ 1641 (07 September 2010) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/1641.html Cite as: [2010] EWCA Civ 1641

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOW COUNTY COURT
(HER HONOUR JUDGE WRIGHT)
(LOWER COURT No. BO09D00121)

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th September 2010

Lord Justice Wilson:

1. The husband, now represented by Mr Wilkinson, applies for permission to appeal against a decree nisi of divorce granted to the wife by Her Honour Judge Wright sitting as if in the Bow County Court on 14 May 2010. The judge also made other orders to which I will briefly refer and which the husband aspires to challenge.
2. It follows that before the judge was a suit for divorce brought by the wife and defended by the husband. It was brought under s.1(2)(b) of the Matrimonial Causes Act 1973. At the hearing, which took place on 17 March, 23 March and 6 May 2010, the wife was represented by counsel and the husband, apart from on the second of those days, represented himself.
3. The wife is of Pakistani ethnicity. The husband appears to be of Indian ethnicity; but his faith, like that of the wife, appears to be Islam. They were married in England pursuant to an Islamic ceremony in February 2002. For each of them it was a second marriage. Once the wife had obtained a civil decree absolute of divorce in respect of her first marriage, they underwent a civil ceremony of marriage in England in December 2003. They lived together until April 2006. I assume that they had begun to live together at the time of the religious ceremony and that, accordingly, the marriage continued for just over four years.
4. During that time they had two children, namely a girl who was born in February 2003 and is thus now aged seven and a boy who was born in July 2004 and is thus now aged six.
5. For the court to have been required to devote its expensive resources to an enquiry into whether there should be a divorce four years after the marriage had clearly broken down is, on the face of it, highly regrettable. In his home-made skeleton argument in support of the appeal the husband wrote first that any consent on his part to a decree pursuant to s. 1(2)(d) of the Act would have been contrary to his religious beliefs and second that he defended the proceedings in the interests of the children. I cannot comment on his religious beliefs but I have to say that it came as something of a surprise to be told by Mr Wilkinson, who had taken specific instructions on the matter, that his first divorce was achieved by a petition issued by his first wife, again under section 1(2)(b), which he chose on that occasion not to defend. His second reason for defending the suit brought by the second wife is a window into the lack of realism with which he has approached these proceedings. It was patently not in the interests of the children that their parents should undergo the conflict of a protracted defended suit. But there is another feature which makes the court's enquiry into the allegations made by the wife even more extraordinary. It is that the husband is the father of a child born to another woman on 30 June 2009. True it is that, in the present proceedings, the husband had at first denied paternity of the child and had been forced to accept paternity of her only when confronted with a birth certificate upon which he had subscribed his fatherhood. He wrote in his long skeleton argument, which I have so carefully studied, that that lie was tactical. Inevitably the judge weighed that lie in the scales in assessing his credibility. But why, one then asks, was there not a straightforward supplemental petition presented by the wife under s.1(2)(b) of the Act? In her long written judgment dated 14 May 2010, which runs to 48 paragraphs across 29 pages, the judge indicates that that easy solution to the issue was considered but for some reason was rejected.
6. Although it seems clear to me that, for the purpose of achieving a decree of divorce, there was no need whatever for the judge to investigate the allegations made by the wife under s.1(2)(b) at all, let alone to the profound extent demonstrated by her judgment, I have in the end come to the conclusion that she was right to consider that the time had come, for quite other reasons, to conduct a detailed enquiry into the allegations made by the wife against the husband and into the cross-allegations, not of course included in any cross-petition but raised by way of defence, which he made against her. For although the children had continued to reside with the wife since the separation in 2006, the husband made clear to the judge that he intended to apply not just for an order for contact with them but for an order for residence of them. Written across the case in large letters over the last few years has been an assertion by the husband, made not only in the legal proceedings but by him to a variety of other people outside them, that the wife has substantial mental difficulties which not only lead her to tell lies but render her unfit to care for the children. Subject, of course, to whether any of her findings can be reversed in this court, it seems to me that the judge's mammoth judgment, by which she comprehensively dismissed the husband's allegations against the wife and, on the contrary, made serious findings against him (in relation primarily, of course, to events prior to the breakdown of the marriage but, to a lesser extent, in the four years which have followed), provides a valuable platform for judges who hereafter need to determine the issues of residence and any other issues raised between the parents in respect of the children. The judge's findings may indeed also impinge, to a limited extent on issues of ancillary relief, if such there will be, between the parties.
7. So in the end I bury my initial concern about the need for the judge's enquiry and I turn to explain in somewhat greater detail the context in which Mr Wilkinson raises his challenges to the judge's findings.
8. Indicative of a very worrying trend is the fact that, like another applicant who by counsel appeared before me today, the husband not only seeks to challenge the judge's findings in this court -- it is of course his right at any rate to seek to do so -- but accuses her of bias against him. He has even gone to the length of complaining about her to the Office for Judicial Complaints. Perhaps not in the present proceedings but on a more suitable occasion we in this court will have to comment on the tendency of more and more disappointed litigants to express their feelings by making a charge of bias against the judge. It is, of course, a very serious charge to make against a professional person and should be articulated only in, as I am happy to say, the very rare cases where prima facie grounds for the charge exist.
9. On 5 November 2009 a district judge embarked upon hearing the defended suit. It seems that, possibly over the short adjournment, he concluded, rightly or wrongly, that a defended suit must still be heard by a circuit judge. Accordingly he discontinued his hearing and directed that a transcript of the oral evidence which he had taken from the wife be prepared for the use of the circuit judge who would hear the suit.
10. On 25 November 2009 the matter first came before HHJ Wright. She gave directions that the suit be heard on 27 January 2010. As all family lawyers would expect, she made pointed enquiry of the parties about the need for a defended suit. In particular, according to the husband, she indicated to him that he might wish to take a pragmatic view as to whether he should continue to defend the suit. But his response was negative. In the interests of preserving court resources the judge also reduced the time estimate of the hearing from two days or one-and-a-half days to one day and she reserved the proceedings to herself. It was the judge's comments and directions on 25 November which led the husband to consider, however absurdly, that the judge was biased. He does not even provide a transcript of the proceedings on that date by reference to which Mr Wilkinson might have at least tried to substantiate some element of criticism of what the judge said and did on that date. The husband is highly critical of the judge's decision to reserve the proceedings, and, in particular of course, the hearing, to herself. For some reason he had taken the view that he would prefer HHJ Hornby to hear the suit. But litigants do not choose their judges and the husband may or may not realise that, where practicable, a judge who has had dealings with a case is expected by this court in the interests of saving time to continue to take charge of it.
11. For some reason which is unclear the husband delayed until shortly prior to 27 January before issuing his application for the judge to recuse herself from hearing the suit on account of bias. She thereupon vacated the date 27 January and appointed 1 February as the date when she would hear his application. On receiving evidence, however, from the husband that he could not get time off work that day she adjourned the hearing of the application to 17 March and directed that, were it then refused, the hearing of the suit would proceed forthwith. Thus it was that on 17 March the judge heard the application for recusal, rejected it and heard the oral evidence of the wife and of the husband. Even though she had the benefit of the transcript of the proceedings before the district judge on 5 November, at which the husband had already cross-examined the wife fairly extensively, the judge allowed him to cross-examine her at some considerable length. One of the husband's grounds of appeal is that the judge's reduction of the time for the hearing to one day unduly confined his cross-examination; the allegation is not particularised; and he does not explain the areas in relation to which he would have aspired to cross-examine but which the time allowed precluded. The confinement, of course, was not undue at all; it was highly necessary. The husband also complains that it was unfair to him, as well as to court staff, that on 17 March the judge should allow the hearing to continue until about 5.40pm. At that point the judge adjourned until 23 March 2010 for final submissions to be given.
12. On 23 March the judge extended another considerable indulgence to the husband. For on that occasion, as I have indicated, he appeared by counsel; and of course counsel was unaware of the evidence given on 17 March, by reference to which he would need to cast his final submissions. So, no doubt very reluctantly, the judge acceded to an application by counsel for another adjournment so that the husband could obtain a transcript of that evidence. In the result, at the resumed hearing on 6 May 2010, the husband was, as before, without counsel. The delay of six weeks had proved fruitless. The judge then heard the oral submissions of the husband and of the wife's counsel, together with their written submissions; and she reserved judgment until she handed it down on 14 May.
13. I have referred to the fact that on 14 May the judge made orders beyond the grant to the wife of a decree nisi. For example she gave directions for the assembly of the issues of residence and otherwise in relation to the children. In that regard I note the inclusion in my bundle of a further order, by a different judge, dated 16 July 2010 by way of further directions in relation to those issues, including for a further hearing for directions to take place next week.
14. But on 14 May, having found as a central fact that the husband had, over the years, made it his business untruthfully to present the wife, whether to social workers, to the police, to the children's school or to other professionals, as suffering severe mental problems, HHJ Wright also decided, perhaps of her own motion, that the wife needed protection against the continuation of such behaviour by way of injunctions under the Family Law Act 1996. Thus it was that she ordered first that the husband should not intimidate, harass or pester the wife; second that he should make no further report or allegation to anyone about the wife's mental health without leave of the court and/or of the guardian ad litem whom she was appointing to represent the children in the proceedings under the Children Act 1989; and third that he should not contact any psychiatrist, psychologist or other professional in respect of the wife's mental health.
15. Mr Wilkinson tells me today that the husband objects that the orders referable to the proceedings under the Act of 1989 and the injunctions under the Act of 1996 were imposed on him by the judge at the hearing on 14 May without his having a proper opportunity to consider them and to make submissions about them. The curiosity about that submission is that the husband is a highly intelligent and articulate individual and that his skeleton argument, which takes surely every point that could possibly be taken by way of challenge to the judge's orders, makes no reference to it. There is no transcript of the proceedings on 14 May by which I could assess whether there had arguably been an unfair imposition of these orders upon him without his having an opportunity to make representations about them.
16. There is, however, one feature of the injunctions under the Act of 1996 to which I would wish to refer. Although such is not a point taken by Mr Wilkinson, their terminology of the second and third limbs of the injunctions is on any view extremely wide; and I am simply unclear whether the judge received any focussed argument upon the terminology of the injunctions as opposed to upon whether they should be made in principle. I accept, for example, that to require a husband not to make any allegation to anyone about a matter, even a matter found by the judge to be without substance, is arguably too wide. But this court is not in the habit of entertaining appeals against orders the width of which has not been subject to argument at first instance; and, if the husband wished to argue before the judge that a prohibition against statements which he might wish to make even, for example, to his own family members fell outside the proper ambit of an injunction under the Act of 1996, I would expect the judge to be prepared in the future to consider it and, if persuaded, to vary the terminology of the prohibition. So in my view, and (I confess) after some thought, I do not consider that the width of the terminology of this subsidiary order made by the judge is a matter for appeal at this stage.
17. In an enquiry under s.1(2)(b) the court is not limited to the consideration of matters occurring prior to the breakdown of the marriage but of course the primary focus will be upon such matters. In his extensive presentation to the judge and in his written presentations to this court about his conflicts with the wife following separation, the husband has in my view not remained fully aware of that obvious fact. There was one allegation made by the wife which in the end the husband had to accept. The allegation was that early in 2005, when the wife was visiting Pakistan with the children but prior to the breakdown of the marriage, the husband had used dating websites in respect of which he had made payments visible on his credit card statements. At one point the husband had lied to the effect that his use of the websites had been made on behalf of other family members. In his oral evidence to the judge however the husband had to accept that what he had said in a statement in 2006 had been correct, namely that it was he who had used dating websites at that time. He denied however that he had committed adultery at that time and alleged that his wish then was to meet other women purely for social purposes.
18. But the nub of the case against the husband was that he had perpetrated violence on the wife, not grave violence for which she had needed to seek urgent medical attention but nevertheless serious violence which struck as much at the marriage as it did at her. The wife alleged for example that early in 2004, while she was pregnant with the second child, the husband not only threatened to kill her father but kicked and pushed her. She alleged that on an occasion on 30 April 2005 he physically attacked her, broke her telephone and started to throw furniture at her, as a result of which she called the police. She alleged that on the next day, following another incident of violence, the police were again called to the home, albeit on this occasion by the husband, but that it was him whom they asked to leave the property as a result of which he left for about three weeks. She alleged that it was in 2005, for example in a letter to the then Commissioner of the Metropolitan Police, that the husband started to parade her to all and sundry as mentally unbalanced. She alleged that in October 2005 he slapped her in the face following an argument about some missing keys; that, according to her, she then said to him "So now you are hitting me in front of the children"; and that he replied "Yes, so when they grow up they will know how to treat you". She alleged that in November 2005 in the course of an argument in a shopping centre, he started to push and kick her. She alleged that on 19 January 2006 he pulled her out of bed and downstairs as a result of which her gold chain was broken and she sustained scratches on her neck. She alleged that on 7 March 2006 he pushed her out of bed, followed her downstairs, pulled and bent her arm and called her a bitch.
19. On any view the final separation in April 2006 occurred as a result of the wife's taking legal proceedings for the husband's eviction from the home. Following a without notice hearing, there was an on notice hearing at which the husband agreed to leave. Later, as he says ill-advised by his then lawyers, he agreed an extension of an injunction which had been made against his molestation of the wife. At all events the judge paid, and was entitled to pay, some regard to the fact that some of the allegations advanced made by the wife in the suit had been articulated by her against the husband in those early proceedings.
20. The judge punctiliously recited the wife's allegations and, equally punctiliously, the husband's responses to them. He denied all the allegations advanced and alleged that they were the product of a mentally troubled woman who lacked all credibility. According to him she was ruthless in making allegations against him in order to further her own ends. He relied on the total absence of medical evidence corroborating physical injury. The judge did however attach some importance to attendance notes made by the wife's GP to the effect that, as early as February 2004, she was alleging that she had problems with the husband's behaviour and temper and that in March 2004, when she had been pregnant with the younger child, she had again complained to him about the husband's conduct. Indeed at the end of the marriage, in March 2006, the wife told the GP, according to his note, that the husband had been violent towards her and that the police had been called.
21. Another piece of corroborative evidence which the judge was clearly entitled to weigh was an email sent by the wife to the husband as early as April 2005 and placed in evidence by him. In that email the wife complained that the husband had been using abusive language towards her, calling her for example, a whore and a bitch and she protested that she did not want the older child, then aged two, to pick up such unpleasant words.
22. In the event the judge's finding was that the husband had been threatening, violent, intimidating and aggressive on many occasions towards the wife, both when she was alone and also in front of her parents and the children. The husband had made what was frankly an astonishing assertion to the judge, i.e. not only that the marriage had not irretrievably broken down but that, were the petition to be dismissed, he would leave the mother of his young child and resume married life with the wife. Inevitably the judge found that the marriage had been irretrievably broken down for at least three years.
23. What then are the grounds of the proposed appeal? As I have indicated, the skeleton argument of the husband, prepared when he was acting in person, is a comprehensive document and runs to 20 pages. Fortunately for me, although I have read that document once carefully, and reread it albeit somewhat less carefully, I have had the benefit this afternoon of a professional distillation of the husband's arguments offered to me by Mr Wilkinson. He points out that there was evidence before the judge that in the years following the separation a number of persons, such as police officers and the head teacher at the school attended by the children, had apparently believed that the wife had acted inappropriately in various respects towards him and/or others. But the thrust of the judgment was that, very successfully and very maliciously, the husband had during those years presented a picture to such professionals that the wife was mentally unbalanced and that accordingly it was her behaviour, rather than any behaviour on his part, which was out of order.
24. Mr Wilkinson complains that the judge disregarded the effect of a psychiatric assessment of the husband, conducted by Dr Falkowski in February 2007 at the end of which he had concluded that there was nothing, other than the wife's own allegations, to suggest that the husband had problems with anger. In my view the judge went into surprising detail in analysing that ancient report. In the event her analysis was that, in providing his life history to the psychiatrist, the husband had not even told him that the marriage to the petitioner was his second marriage and had not mentioned to him what he said to the judge had been a profoundly serious assault perpetrated upon him by relatives of his first wife. Insofar as Dr Falkowski's report was in any way significant, the judge addressed it fairly.
25. The judge found, and the husband accepted, that the wife had had no treatment for any psychiatric condition for the last ten years. She did record that in 2000, at around the time of the breakdown of her first marriage and at a time when her mother had also suffered a stroke, the wife had had behavioural therapy for a few sessions over a few weeks. In the judge's view, in my view clearly justified, such was insufficient to raise a case of substantial, continuing mental problems. Mr Wilkinson is reduced to complaining for example, that in one paragraph of her judgment the judge recited the wife's brief receipt of that therapy as an established fact whereas in another paragraph she recited it as having only "possibly" occurred.
26. Mr Wilkinson is also reduced to complaining that, whereas the judge considered it unnecessary for her to have medical evidence of the alleged injuries suffered by the wife before finding that she had indeed suffered them, she nevertheless relied on the fact that there was no medical evidence to support the husband's allegations referable to the wife's mental health. Mr Wilkinson will be the first to accept that it is almost fatuous to argue that, because a judge decides to make a finding without a specific type of evidence in one area, she is not entitled to attach significance to its absence in another.
27. This application for permission is entirely without merit and must stand refused. It follows that the wife is now free to apply for the decree to be made absolute.

Order: Application refused