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Forder v Forder [2005] EWCA Civ 1572

Application for permission to appeal, out of time, orders relating to ancillary relief. Application dismissed.


Neutral Citation Number: [2005] EWCA Civ 1572






Royal Courts of Justice


London, WC2A 2LL

Thursday, 24 November 2005

B E F O R E:



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TIMOTHY FORDER Claimant/Respondent


MICHELLE FORDER Defendant/Appellant

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(Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

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MR JAMES BOGLE (instructed by Messrs Gregory Rowcliffe Milners, London) appeared on behalf of the Appellant

The Respondent did not attend and was not represented

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(Approved by the Court)

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Crown Copyright©

1. LORD JUSTICE WARD: This is an application brought by the former husband, Mr Forder, for permission to appeal out of time against the orders made by Coleridge J on 29 November 2002. The judge was there dealing with heated and bitter problems in the resolution of the ancillary relief claims, following the breakdown of the marriage. They were not straightforward proceedings because a partner of the husband intervened in those proceedings and there were issues about the extent to which she had a beneficial interest in the matrimonial home, and/or a charge over it.

2. The orders made by the judge included declarations that, prior to the order, the properties at 14 and 15 Napier Place and the property in France were held on trust by the respondent for himself and the intervener in shares as to one-third to the intervener and two-thirds to the respondent.

3. The judge also had proceedings under section 37 of the Matrimonial Causes Act to deal with, those relating to the charge of the first intervener over 15 Napier Place, which he set aside. He disposed of monies that were held in the Kingston County Court largely to pay off the debts mainly of the husband. His crucial order was that the husband transfer to the wife all his legal estate and beneficial interest in the matrimonial home, 14 Napier Place, but subject to a charge as security for the payment to the first intervener of a lump sum equal to 17 per cent of the gross proceeds of the sale of that property, and he ordered that that charge should not be exercisable until the earlier of the passage of 10 years - that is to say, November 2012 or the remarriage or cohabitation of the petitioner with another person for 12 months. That was to take place as a clean break.

4. There were four children of the family, and it is plain that from the judgment of Coleridge J that he inevitably had to give first consideration to their welfare. He made it plain he was concerned to provide them with the minimum of further disruption if it is reasonably feasible (see page 929D to E of the report in [2003] 1 FLR 911. To similar effect, he was taking the children's interests into account in identifying the needs which were for a secure home for the children and their main carer, the wife. For that reason he did not divide equally, but gave the wife a home and left the husband with a certain amount of money said to be about £30,000 which has since disappeared into the sands of mounting debt. So the current position is that the wife lives in that former matrimonial home, subject to a mortgage which was probably over £100,000 and may have been remortgaged on terms of which we know not the detail. The husband lives in a converted garage provided by his extremely generous brother.

5. This is a Barder application, Barder v Barder [1988] AC 20, being the well-known case decided by the House of Lords. At page 40, dealing with the merits, Lord Brandon, who gave the main speech, said that the order in that case had been agreed upon a fundamental, though tacit, assumption, and he identified it in these terms:

"The assumption was that for an indefinite period, to be measured in years rather than months or weeks, the wife and the two children of the family would require a suitable home in which to reside. That assumption was totally invalidated by the deaths of the children and the wife within five weeks of the order being made."

6. It is the husband's case that there has been a fundamental change in this case because, it having been envisaged by the order that the children would live indefinitely with the mother in the matrimonial home, events in the children's lives have changed. Those changes are that by about September 2003, H, the eldest boy, now 13, had fallen out with his mother and was refusing to go back to her. There were horrific proceedings, including the involvement of the tipstaff, over which I need not dwell. The upshot of it was that H effectively remained with his father and his position was cemented in that regard by an eventual order of Bennett J made on 17 June 2004.

7. By then the other three children were becoming unsettled in their mother's home. E, now 12; E2, now 11 and B, now 9, began to assert the strong wish to live with their father. That led to proceedings before Bracewell J concluded on 29 July 2004 when she made a joint residence order but on the basis that the children would be living with their father from their collection from school on Monday through to 1.00 on Saturday, spend the rest of their weekend living with their mother with her having further periods of residence during the school holidays.

8. We are told, and of course I accept, that that order has been frustrated by E2 voting like his brother with his feet and refusing to visit his mother by 21 August 2004. B followed suit in September and by Christmas 2004 E, also, was refusing to visit her mother. There is a report from the Surrey Children's Services dated 12 July 2004 in which that social worker expresses the view that the children are now implacably opposed to having any contact with their mother.

9. So the first problem is to identify when the supervening event occurred. It was not when H moved. In my judgment, it could at best only be when the children moved to spend most of their time with their father following Bracewell J's order in July. It may even be that the true impact of these developments is to be dated Christmas of 2004 when the last child refused to visit her mother, with the result that it could be argued that she has no need for a large home at which to offer contact to the children.

10. Lord Brandon had laid down certain guidelines for the exercise of the court's discretion in deciding whether or not to permit an extension of time for the granting of an appeal. At page 43 of his speech, he stated that the conditions to be satisfied were:

"The first condition is that new events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed. The second condition is that the new events should have occurred within a relatively short time of the order having been made. While the length of time cannot be laid down precisely, I should regard it as extremely unlikely that it could be as much as a year, and that in most cases it will be no more than a few months. The third condition is that the application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case. To these three conditions, which can be seen from the authorities as requiring to be satisfied, I would add a fourth, which it does not appear has needed to be considered so far, but which it may be necessary to consider in future cases. The fourth condition is that the grant of leave to appeal out of time should not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in property which is the subject matter of the relevant order."

11. Looking at those four requirements, the fundamental change is the move of the children from having a home with their mother as main carer to their father as main carer. If one takes that event as having occurred after Bracewell J made her order, the relevant period of delay is from 29 November 2002 to 29 July 2004, which is a period of 20 months. If, however, one looks to the crystallising of the children's discontent and their refusal to see their mother - which arguably, as I have indicated, leads to her having less need for a home at which contact can be enjoyed by her with the children - then the delay is from November 2002 till after Christmas in 2004, a period over two years.

12. Brandon LJ said that that period should be measured in weeks or months but not years. It must, of course, as cases such as Heard v Heard [1995] 1 FLR 970 indicate, be a matter of fact and degree in each case. But here it seems to me that this delay was outside that which was contemplated by Lord Brandon and should be contemplated as reasonable in the circumstances of this case.

13. I bear in mind the difficulties the father has had in satisfying himself so that he could satisfy the court that those were moves which were made with a measure of permanence about them. The problem inevitably is that children do change their minds, and that is why the authorities are sparse where successful applications have been made under Barder simply because the children have decided to move their homes.

14. The third condition is that the application for appeal should be made reasonably promptly. Here, too, the father has difficulties. If the supervening event crystallised in July 2004 with the making of the joint residence order, then his delay until his filing of his notice of appeal in August is a delay in excess of a year and that, in my judgment, is not proceeding promptly.

15. He is caught on the horns of a dilemma. That I readily accept. If he seeks to avoid the criticism arising from the application of that third principle by asserting that he could not and should not have been expected to move the court until after the Social Services had reported in July, then that must delay the supervening event and put it back until July, which further extends the length of time between the order and the new event.

16. There is, in my judgment, a fourth obstacle in this case; that third parties should not be prejudiced. Lord Brandon spoke of parties who had acquired in good faith and for valuable consideration interest in property. But in this case the third party has apparently been denied an interest in property which, according to the declarations made by the judge, she originally held; namely one-third of the interest in this matrimonial home. For a variety of complicated reasons that was reduced to a charge of 17 per cent. For my part I simply do not see how the Court of Appeal could allow an appeal against Coleridge J's order without allowing the appeal against the whole of it. If it is allowed against the whole of it, then the whole of the problems have to be relitigated, including the extent to which she had a beneficial interest in the property before the adjustments made by Coleridge J and what charge, if any, she should have over it.

17. Now I fully accept Mr Bogle's point, that if there was any common sense prevailing anywhere all three of these interested parties would agree that the future battle should be conducted upon the basis that the same arrangement prevails for the intervener as the judge ordered. But one cannot be certain of anything in this case; and one cannot, in my judgment, upset the order without re-involving the intervener in litigation which, as far as she doubtless is concerned, ended nearly three years ago. There has to be a balance maintained between the interest of finality in judgments and the interest of justice, especially to the children. I do not for a second minimise their difficulties, but in my view finality in this case outweighs the possible re-adjustment fairly of the parties' interest with the children's welfare being the first consideration. As it is they are, thanks to the brother's generosity, adequately accommodated in converted property which they enjoy. I am far from persuaded that in this case with the history of ill-feeling that has been engendered in the children's proceedings their interests are truly served by reopening this ancillary relief order. I am extremely sorry for them but, in my judgment, the father has no real prospect of success in establishing the Barder criteria and I would dismiss his application.

18. LADY JUSTICE ARDEN: I agree with the judgment that my Lord Ward LJ has given. In my judgment, the most difficult condition in Barder v Caluori for the applicant to meet is the second condition. That is that "the new events should have occurred within a relatively short time of the order having been made." Lord Brandon goes on to say:

"While the length of time cannot be laid down precisely, I should regard it as extremely unlikely that it could be as much as a year, and that in most cases it will be no more than a few months."

Lord Brandon is noticeably much more precise about the second condition and the maximum time which is allowed for bringing an application on the basis of a supervening event than he is in relation to the third condition where he simply says that the application must be made reasonably promptly.

19. The statement made by Lord Brandon was considered by this court in Heard v Heard [1995] 1 FLR 970. As Sir Thomas Bingham MR (as he then was) said:

"That being, therefore, the statement by which such applications are in principle governed, we must apply ourselves to those conditions and their fulfilment, or non-fulfilment on the facts of the present case."

Sir Thomas Bingham MR went on to say that the words used by Lord Brandon:

"... seems to me plainly to contemplate that account should be taken of the situation in which an individual finds himself and that no unreasonably inflexible rule of thumb should be applied".

But that was, as I say, with respect to the third condition and not the second. It is the second condition which, for the reasons given by my Lord, it seems to me is not fulfilled and therefore this court cannot give permission.

20. So far as the third condition is concerned, I should say that no consideration was given in the course of argument to a possible condition that the interest of the third party should not be disturbed by the application. That is a matter which might be considered on a future application in some other case.

21. My Lord, in the course of argument, expressed some doubts about the prospects of mediation in this case. I would encourage both parties to consider some form of mediation. The children are very fortunately having their housing provided, and schooling paid for, by the brother of the father, and that is obviously of great assistance to both parents. It may help the children and the mother get back together again if the mother were to recognise the extent of the generosity on the part of the brother. It is much to be hoped that mother and the children will have their relationship restored. Any child has much to learn and gain from his relationship with his mother.

(Application dismissed; no order for costs, save detailed assessment of appellant's publicly-funded costs).