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E v E [2006] EWCA Civ 843

Judge’s residence arrangements for children and ancillary relief order set aside, and re-hearing by Family Division judge directed.

Court of Appeal: Wall, Maurice Kay and Wilson LJJ (27 June 2006)

Judge's residence arrangements for children and ancillary relief order set aside, and re-hearing by Family Division judge directed.

The parties to these proceedings were married, and had four children aged between 10 and three. The marriage broke down from September 2003 onwards, and a shared residence order in respect of the children was made in July 2004. In October 2004, a consent order made by a district judge determined the amount of time that the children spent with each parent but, by March 2005, the mother made it clear that the shared residence order was not working.

In December 2005, the judge heard the mother's application to discharge the shared residence order and replace it with a sole residence order in her favour, combined with a request in ancillary relief proceedings between the parties that the former matrimonial home should be transferred into her sole name and sold. Having heard evidence that the mother proposed to move from Bognor to Bexhill with her new partner, the judge concluded that the shared residence order should remain. He also made an order for the sale of the former matrimonial home, and of the life insurance policies supporting the mortgage, and certain other adjustments, with the effect that the total assets were divided between the parties in the ratio of 65:35 in the father's favour. Both parties appealed.

Held, allowing both parties' appeals, that the judge had accepted the mother's proposed move without any proper analysis of its consequences for the children, and the orders made for the children's residence were unsustainable; further, the financial order made by the judge was not only internally inconsistent but also plainly wrong, and could not stand.

In relation to the residence order, the court was guided by principles expressed in a line of cases, the most recent of which was Payne v Payne [2001] Fam 473: where a mother with a residence order wished to relocate with her children, the judge's duty was to subject the mother's relocation proposals to rigorous scrutiny, and to balance their benefits for the children, and the effect on the mother of refusing her application, against the effect on the children of the disruption of their relationship with their father. The court found that the judge had abnegated his responsibility for deciding what was in the children's best interests, and failed to make clear the nature and strength of each child's relationship with each parent.

As to the financial order, the court reviewed in detail the parties' assets, which totalled just over £120,000, and examined the various payments between the parties directed by the judge; in particular, it identified the inconsistency that he made no order as to costs, but directed the mother to pay to the father, from the net proceeds of sale of the property, a lump sum equivalent to his costs. The court considered that the ancillary relief order made by the judge offended against both of the cardinal principles identified by the House of Lords in White v White [2001] 1 AC 596, as not only did it plainly discriminate against the mother, but it also departed from the principle of equality without any explanation by the judge of his reasons.

Accordingly, the court stated that the shared residence order would stand, as the judge had not been plainly wrong to keep the order in being; however, the division of the children's time between the parties and the order for ancillary relief would be set aside, and the applications made by each party would be re-heard by a High Court judge of the Family Division, who would have the requisite knowledge and experience of both children and money cases.

Finally, the court made it clear that, even though it had directed and set in train a re-hearing, the parties did not need to be reminded of the ongoing strain and costs of further litigation, and they should not lose sight of the fact that it was never too late to negotiate and to compromise.

Digest prepared by Peter Smith, Barrister

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