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De Renee v Galbraith- Marten [2016] EWCA Civ 537

Refusal of permission to appeal the dismissal of the wife’s application for leave to apply for financial relief after an overseas divorce, pursuant to Part III MFPA 1984.

The parties were married in Australia in 2006 and, by the time of the hearing before Lady Justice Black, had an 8-year-old daughter. The wife was Australian with permanent right of residence in the UK. Their married life was spent in this jurisdiction until separation in 2008, when the wife moved to Australia with the child.

There were divorce and financial remedy proceedings in Australia. Both parties were represented. They agreed consent orders for spousal maintenance, child maintenance and capital division [para.6-7]. Crucially for the wife's application in this jurisdiction: "There is no residual discretion in the Australian court as to whether to approve agreements as a proper resolution of the party's financial affairs as there is in this country; indeed there is no need for the agreements to go to court at all in order to become binding." [para.8]

At some point after 2011 the wife applied to the Australian court to set aside the orders, alleging duress, poor legal advice and non-disclosure by the husband. In January 2015 judgment was given dismissing these applications. She did not appeal, but issued an application in the High Court in this jurisdiction for leave to apply for financial relief after an overseas divorce, pursuant to Part III of the Matrimonial and Family Proceedings Act 1984.

That application came before Parker J ex parte, as is the ordinary course, but she listed a hearing on notice to the husband. The judge then dismissed the wife's application. The wife appealed.

On the grounds of appeal, Lady Justice Black accepted that the threshold for granting permission in a Part III application is not high (a 'solid case'). However, she refused permission to appeal Parker J's judgment with the following reasoning.

First, there could be no formal ground of appeal on the basis of Parker J's case management decision to hold an inter partes hearing. The authority of W v M [2015] 1 F.L.R. 465 confirmed that the husband could have applied to court to set aside permission granted ex parte in any event. "Therefore, it must be the case that the judge can jump straight to a with notice hearing if that appears to be appropriate in the circumstances of the case." [para.14]

Second, although the wife alleged that there was new material or evidence of non-disclosure, Parker J had taken the view that the Australian court found this to be groundless. Insofar as there was evidence subsequent to that date, the wife had recourse to the Australian court. Black LJ, although noting several unfortunate errors of fact in Parker J's judgment, could see no justification for fresh proceedings here [paras. 17-18 and 25].

Third, the wife's counsel argued that Parker J had failed to realise the dissimilarity between Australian law and English law, as regards the approval of consent orders, and failed to recognise that the Australian law had permitted inadequate financial provision which the English court needed to step in and alleviate [para.21]. Black LJ rejected this argument: the wife's duress allegation was rejected in Australia, so it could be assumed she was accepting the agreements represented proper provision at the time they were made; the agreements had not ousted the jurisdiction of the Australian court – the wife was able to apply to set aside the order; and there was no evidence or analysis before the English court that the agreements were – in any event – unfair [paras.19-24].

Summary by Tom Dance, barrister, 1 King's Bench Walk


Neutral Citation Number: [2016] EWCA Civ 537


Royal Courts of Justice
London, WC2

Wednesday, 13th April 2016

B E F O R E:


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1. LADY JUSTICE BLACK:  I have in front of me an application by a wife (I call her that even though the parties are now divorced) for permission to appeal against an order made by Parker J on 6th November 2015, dismissing the wife's application for permission to apply for financial relief in these courts after an overseas divorce pursuant to Part III of the Matrimonial and Family Proceedings Act 1984 and also the wife wishes to have permission to appeal against the order that she pay the husband's costs of the application.

2. I have been greatly assisted by a skeleton argument provided by counsel who has been instructed on behalf of the wife relatively late in the day.

3. For reasons I need not go into, before I got that skeleton argument I had already read, and thought carefully about, the wife's own three statements that she had filed in support of her application for permission to appeal.  I have been able therefore to approach the appeal knowing both what the wife herself would wish to say about it and what her counsel does advance on her behalf today.

4. The parties were married in Australia in 2006.  They have an 8 year old daughter, A.  The wife has, according to her counsel's skeleton argument, Australian nationality but a permanent right of residence in this country.  The husband is a British citizen.  Their married life was spent in England.  In 2008 they separated.  Since then the wife has been living in Australia with A.  The husband says this is her choice.  She says she was forced into it because he had been intimidating and violent towards her.

5. Parker J records in her judgment that the wife made an application to the Australian courts in 2009 for financial orders.  The wife challenges this and says that it was in fact the husband who began divorce proceedings in Australia.

6. In the context of their separation and divorce the parties entered into three agreements in 2009:  one was about spousal maintenance, one about child maintenance and one about capital.  The wife was represented by lawyers at all times during the making of those agreements.

7. The spousal maintenance agreement was to continue until December 2012, when A reached 5 years old; Parker J wrongly said in her judgment that that agreement was to endure for a period of 5 years.  The child maintenance provision continues in accordance with the agreement and is presently set at a rate of a little over £800 a month.  As to capital, the wife received Aus $172,500.  This amounted on the exchange rate in force at the time of the agreement to approximately £72,500.  Parker J wrongly set out in her judgment that the figure was £172,000.

8. The agreements were binding in Australian law subject to satisfying certain conditions which they did satisfy.  There is no residual discretion in the Australian court as to whether to approve agreements as a proper resolution of the party's financial affairs as there is in this country; indeed there is no need for the agreements to go to court at all in order to become binding.

9. The wife's proposed argument on appeal depends very heavily upon that difference between the two countries.  As we shall see she considers the agreements were not fair and did not make proper provision for her and for A.

10. In October 2011, for a short time, there were schedule 1 proceedings on foot here, brought by the wife, but they were either withdrawn or dismissed by consent.  The wife brought other proceedings in Australia however.  She applied there to set aside financial agreements on the grounds of non disclosure or duress, in that she had felt under very great pressure, she said, when signing the agreements.

11. In the event that she succeeded in that application to set aside the agreements, she was seeking further financial provision in Australia.  She alleged not only that she was under duress but also that she had poor advice at the time of the agreements and, as I have said, she was alleging that the husband had not disclosed all of his assets prior to the making of the agreements.

12. There was a hearing before an Australian judge in March 2014 and his judgment was given in January 2015, dismissing the wife's applications.  She did not appeal thereafter.  Instead, she launched the present proceedings in this country, with a view to obtaining financial relief here following the Australian divorce.  That Australian divorce was concluded in June 2009.  It is unfortunate that Parker J appears to have thought, in the later part of her judgment, although I do not think she thought the same when she was recording the facts at the beginning, that it had taken place in 1999, although I do not think that delay (between 1999 and 2015) in fact featured much in her reasoning for dismissing the wife's application.

13. The first hearing of the proceedings here was ex parte in the normal way.  However Parker J declined to deal with the matter without notice first being given to the husband.  A hearing an notice therefore took place and led to the decision which is now being appealed.

14. The wife's counsel criticises Parker J for holding a with notice hearing which he says was contrary to normal and proper practice.  However, I do not think that that is a formal appeal ground, nor do I think that it could form a proper basis for appeal.  The decision that Parker J took about this was essentially a case management decision.  I do not think it could be argued that she could not in principle hold a with notice hearing of such an application if she considered it to be appropriate; indeed we can see from the case of M and W in 2014, that if an ex parte hearing results in the grant of permission, it is possible for the other spouse to return to court attempting to set aside that grant of permission to proceed.  Therefore, it must be the case that the judge can jump straight to a with notice hearing if that appears to be appropriate in the circumstances of the case.  I would not therefore permit that procedural matter to be argued on appeal.

15. At the hearing in front of Parker J the wife attended by telephone from Australia, where it was the middle of the night.  She explains fully in her statement how difficult she found that.  But she put her points to the judge in the course of that telephone conversation.  The judge concluded that, with the exception of two matters, everything that the wife wished to raise had been raised in the Australian proceedings.  The first of those two matters is that the wife would do better over here working as an artist than she would do in Australia.  The wife is wanting to come to live over here and seems to see her financial application in these courts as perhaps a necessary precursor to doing that.

16. The second matter which had not been aired in the Australian proceedings was that the wife had discovered some mortgage numbers which she thought to be wrongly attached to an English property.  The husband explained what had happened with regard to that in a way that the judge found plausible, as we can see from paragraph 26 of her judgment.  She was not satisfied there was in truth anything new but she took the view that if there was, then it was to the Australian courts the wife should take the matter.  In fact, although the wife herself in her statements concentrated very much on this new material that she says that she has found, her counsel has, very sensibly in my view, focused matters rather differently in the course of his submissions both in writing and orally today. 

17. Parker J's reasoning in dismissing the application was, putting it shortly and in my words rather than hers, that the wife had received provision under the Australian agreement, the Australian system was based on very similar principles to our own and the remedies open to the wife there had included an application of the type that the wife made to the Australian judge (Scarlett J) in 2014, determined in 2015, which had entitled the wife to air her allegations that the husband had been guilty of non disclosure and fraud and, I would add also that her allegation that she had been under duress in making the agreement.

18. The judge's reasoning continued that the wife had not persuaded the Australian judge of these allegations on the material that she had then and that she should not be allowed to have a rehearing of that here.  Any new matters that she had uncovered since that set of proceedings in Australia were the province, in Parker J's view, of the Australian courts and she considered that it was not open to the wife to use our courts to pursue those matters.  Having considered all the factors in the legislation, she did not consider that there was, as she put it, a solid ground for making an application here and she concluded in paragraph 40 that there was no gap which needed to be filled by the English court.

19. At the heart of the proposed appeal as presented by the wife's counsel is the argument that the judge came to her decision on a false factual matrix and, perhaps more importantly, without taking into account the essential and crucial differences between the approaches of the courts in each jurisdiction.  That difference lies in the lack of an independent jurisdiction in the Australian court (on duty, if you like), to assess and approve agreements in order to make them binding.  The argument culminates in a submission that the wife is in real need which is not met by the agreements which were unfair and that the English proceedings should be permitted in order to address this. 

20. The threshold for granting permission is not high; as Parker J recognised a solid case is all that is needed.  Some of the errors of fact in Parker J's judgment to which counsel has invited attention I have already mentioned and I will not return to those.  I should also mention in terms of factual errors that it is asserted that Parker J was wrong to say that the wife could appeal the Australian order.  That seems from argument today to be based on the analysis that the Australian judgment would be unlikely to be overturned by the Australian Appeal Court.  Without more information it is difficult, however, to presume that nothing more could be done in Australia.

21. I turn therefore to the errors of legal approach which are said to have been made by Parker J.  They resolve around her treatment of the Australian position as a reason to refuse permission, upon the basis that she failed to realise the dissimilarity between Australian law and English law and to recognise that the Australian law had permitted inadequate financial provision which the English court needed to step in and alleviate.  She was also wrong, it is argued, not to distinguish M and W (2014), on various grounds and, in particular, that the wife there had got 50% of the assets in New Zealand whereas counsel's instructions from the wife are that that was not so here.  One of the difficulties in evaluating the wife's case is that there is nowhere to be found in the documents that she has produced an analysis of the values of the properties that the parties had in order that anyone could see whether, even from the eyes of an English lawyer, the provision that was made at the time appeared to be fair or not.

22. The argument is that Parker J should have looked at the specifics of the agreements that were reached in this case and concluded that they were not an obstacle in the way of the wife's case in these courts, or at least not such an obstacle as to amount to a knock out blow which meant that she should not have leave to proceed further.

23. I am not persuaded that there is mileage in the proposed grounds of appeal, either those which the wife herself advanced in her documentation or those advanced by counsel on her behalf.  There is no dispute that the Australian provision is a material factor in the consideration of whether leave should be given.  The wife was advised when she was reaching the Australian agreements.  She could have proceeded to seek provision in Australia from the courts there if she did not consider that the proposed provision was fair and appropriately met her needs as they were at the time.  There is nothing in the materials that she has provided which establishes that the provision that was made in those agreements was in fact unfair.

24. Given that the later allegation of duress was rejected in Australia, it can be assumed I think that she was accepting at that time that proper provision was being made at the conclusion of the marriage.  Although the court had no input in 2009, it can be assumed that her lawyers were looking after her interests.  If they were not, then that is a matter between her and them.  I would observe that the marriage was a short one, albeit there was a child which is obviously an extremely important factor.  Even in an English court sizable capital provision for the wife might not have been made.  The mere size of the capital that she received does not therefore speak for itself.  Periodical payments for a spouse for a shortish period until a child reaches school age would not be surprising either in an English court, and as for A's payment, they continue as would be anticipated.  Furthermore, even in the English court, considerable weight would have been given to agreements reached in the circumstances of these agreements when the court decided what provision to make for the wife and child and although I think counsel would disagree with this, it may be as a matter of practicality that a judge would lean towards approving agreements made between represented parties unless some obvious unfairness was apparent.  The fact that the wife has more need now would not be a reason, even in this country, to re open a previous settlement which had been endorsed by the court and then taken the form of a consent order.

25. Moreover it is important to recognise that the agreements in Australia did not in fact oust the Australian courts completely.  When the wife realised subsequently how dissatisfied she was with the provision, she was able to air before the Australian court her complaints of non disclosure and duress which were examined and were not established.  I do not think that Parker J can be said to be wrong in taking the view that any new material relating to these matters was something for the Australian system and not a justification for fresh proceedings here. 

26. It is unfortunate that in reaching her conclusion, Parker J made some errors of fact.  However, I do not see them as material to her conclusion which was very much based upon the former Australian agreements and proceedings.  It was not the figure for the wife's capital provision in Australia that influenced her but the agreements reached, and the circumstances in which they were reached, and the subsequent proceedings.  The error with regard to the figure would not therefore found a successful appeal.

27. All in all, it seems to me that the judge was entitled to place the weight that she did upon the existence of the Australian provision.  Although I fully understand the difference between between the Australian scheme and the scheme in this country, that is not sufficient to undermine the decision that the judge took.

28. So in those circumstances I must refuse permission to appeal.