Family Law Hub

Cattin v Cattin [2012] EWCA Civ 1562

  • Case No: B6/2012/1700

    Neutral Citation Number: [2012] EWCA Civ 1562

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE FAMILY DIVISION

    (MRS JUSTICE PARKER)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Tuesday 6th November 2012

    Before:

    LORD JUSTICE MCFARLANE

    - - - - - - - - - - - - - - - - - - - - -

    Between:

    CATTIN (Appellant)

    - and -

    CATTIN (Respondent)

    - - - - - - - - - - - - - - - - - - - - -

    (DAR Transcript of

    WordWave International Limited

    A Merrill Communications Company

    165 Fleet Street, London EC4A 2DY

    Tel No: 020 7404 1400 Fax No: 020 7831 8838

    Official Shorthand Writers to the Court)

    - - - - - - - - - - - - - - - - - - - - -

    Mr Fredemou Singarajah appeared on behalf of the Appellant.

    The Respondent did not appear and was not represented.

    - - - - - - - - - - - - - - - - - - - - -

    Judgment

    (As Approved)

    Crown Copyright (c)Lord Justice McFarlane:

    1. This is an application for permission to appeal brought by Silvana Cattin, who I will refer to as the wife in the course of divorce proceedings in this jurisdiction brought by her husband, Jean-Christian Cattin.

    2. The application for permission to appeal relates to a determination made by Parker J on 12 June 2012. The judge on that occasion was considering an application by the wife to stay the English divorce petition. The judge, having heard argument and having delivered a detailed judgment, refused the application for a stay by a notice of appeal dated 4 July 2012. The wife seeks to appeal that determination.

    3. The brief factual background to the matter is that the couple married in July 2007. The wife is a Brazilian national and the husband is Swiss by origin, but, as the judge found, from 2008 onwards the family, which initially comprised, before the marriage, the wife and an older child of hers and the husband, but two or three months after the marriage a child of the two of them was born on 26 September 2007.

    4. By 2008 the family, now four in number, set up home in the UK and the husband had found a job working as an airline pilot. They remained resident here until February 2010. On 15 February 2010 the family flew to Brazil for what the husband anticipated would be a short holiday during the half-term break. Soon after arrival in Brazil the wife unilaterally approached the court there, obtained orders in her favour, restricting the husband's ability to have contact with the children and starting interim measures relating to a "separation order". In due course the husband flew back to the UK without the wife or the two children. He issued proceedings under the Hague Convention relating to international child abduction on the basis that the wife was wrongfully retaining the younger child in Brazil. So far as I understand, those proceedings, despite the passage of two-and-a-half years, have still not been resolved in Brazil.

    5. The husband also issued divorce proceedings in this jurisdiction. His petition is dated 19 March 2010 and was issued in the Principal Registry on 22 March 2010. On 24 March 2010 the wife converted her pre-existing Brazilian proceedings into full blown divorce proceedings. It was accepted by the judge that the effect of the Brazilian procedure was that the divorce petition, being an amendment of her original application made in February, should be backdated to February, and so the Brazilian divorce was therefore issued first in time, prior to the English divorce issued in March.

    6. The application made by the wife and heard by Parker J on 12 June was to stay the English divorce process. As I have indicated, that application failed; the judge, for the reasons given in her judgment, exercised her discretion against the wife and therefore the English divorce process was allowed to continue. The degree nisi was issued on 11 July 2012 and decree absolute was pronounced on 30 August 2012. The couple are therefore, in the eyes of the English court, now divorced.

    7. The ability of the Court of Appeal to entertain an appeal from a decree absolute is severely limited, and no appeal can be entertained by the Court of Appeal from a decree absolute by a party who had the time an opportunity to appeal the decree nisi but did not so appeal.

    8. I am greatly assisted this morning by counsel Mr Singarajah, who appeared before the judge in June, who has been instructed late in the day to once again act on behalf of the wife in these proceedings. He has confirmed to me that his client knows that the decree absolute has been pronounced and he accepts that she was served with the notice of the decree nisi in the ordinary way, albeit that she remains in Brazil. If that account is correct it would seem to me that the consequences of the limits on this court's jurisdiction, which flow from Section 18(1)(d) of the Supreme Court Act 1981, would prevent the wife now asking this court to entertain an appeal against the decree absolute.

    9. That short procedural history of recent events begs the question of why on earth the wife now seeks to continue to prosecute her appeal against the refusal of a stay. The process has carried on without the stay and has been concluded. They are now divorced, and for the reasons I have given it is now very difficult to contemplate how the end result, the divorce, could now be set aside.

    10. Mr Singarajah, who has first hand knowledge of the Brazilian system and who has had consultation with the lawyers acting for the wife in Brazil, tells me that there are procedural consequences in Brazil and that it is necessary for the wife to satisfy the Brazilian court that she has issued all effective channels open to her to challenge the English court exercising jurisdiction in relation to this marriage. That said, Mr Singarajah is, however, unable to explain to me what those consequences might be: a stay is a procedural interim measure of its nature; it has sometimes profound and important effect, but that effect is during the currency of the proceedings; once the proceedings have come to an end, as these have with a final order -- and it is difficult to think of a more final order in terms of status, marriage and divorce than a decree absolute -- the question of whether or not a stay should now or in the future be granted is entirely academic. Mr Singarajah sympathises with those observations and is not in a position to challenge them.

    11. For those reasons alone I consider that this application for permission to appeal is now, as at 6 November 2012, totally without merit and can only be dismissed, but, with respect to Mr Singarajah who has carefully put together grounds of appeal, I propose very briefly to refer to those.

    12. The background of the judge's adjudication was that she had discretion whether or not to grant a stay. That discretion arose under Schedule 1 paragraph 9 of the Domicile and Matrimonial Proceedings Act 1973. In essence, the key test in paragraph 1(b) is for the court to look to the:

    "the balance of fairness (including convenience) as between the parties to the marriage is such that it is appropriate for the proceedings in that jurisdiction to be disposed of before further steps are taken in the proceedings in the court or in those proceedings so far as they consist of a particular kind of matrimonial proceedings"

    The provisions makes it plain that the court may order a stay "if it thinks fit", and the provision requires the court to have regard to all of the factors.

    13. It is plain from the detailed judgment given by Parker J that she did indeed consider a range of relevant factors, in particular she found that the family were habitually resident in England and Wales until the abrupt change of circumstances in February 2010 and that the husband remained habitually resident in England and Wales and that it was likely that the youngest child remained habitually resident in England and Wales, the husband not having consented to the child's retention in Brazil.

    14. Secondly, many of the allegations that the wife sought to make about the husband's behaviour during the course of the marriage occurred while the family were living in England and Wales. They had only been in Brazil but two or three days prior to the Brazilian divorce process starting; and the judge stated at paragraph 37, in terms of the balance of convenience, this:

    "...it is quite unimaginable that the issues could be tried properly in Brazil, bearing in mind the number of potential witnesses who would need to be called there, all, of course, in translation as opposed to the evidence of perhaps one police officer from Brazil if the case were tried here."

    Other factors were in play, but the judge indicated that she had no hesitation in refusing the stay sought by the wife for the reasons that she gave more fully in her judgment.

    15. The three grounds of appeal set out in paragraph 18 of Mr Singarajah's skeleton are as follows. Firstly, that the court failed to give sufficient weight to the fact that the Brazilian proceedings started before the English proceedings, and reference is made to the case of Otobo [2002] EWCA Civ 949. I deal with that point very briefly. Mr Singarajah accepts that the words of Thorpe LJ relied upon there are obiter dicta. Plainly whether or not one set of proceedings are started before another is a factor in the case, but it is not necessarily a determinative factor. Parker J was clearly aware that the Brazilian process started some month prior to the English process, but the reasons that she adumbrates within her judgment indicate that she felt that that factor was well outweighed by the other more important matters to which she made reference.

    16. Secondly, it is said that in considering the balance of fairness the judge did not give sufficient consideration to the welfare of the children pursuant to Section 1 of the Children Act 1989. The judge was plainly aware of the child welfare issues; the point being made here is that the wife was making allegations of abuse and ill treatment and bad behaviour against the husband. Those were to be tested in the course of the proceedings, and the judge considered that it was necessary for those to be tested and tried in this jurisdiction. I refer to her observations. It is in the interests of any court that is making decisions about the child's future for the court to work upon facts which are either established or not established in accordance with the evidence. It was therefore to be contemplated as being in the child's interests that the fairest process and the most informing process in evaluating those allegations should be undertaken, and the judge considered that should be at a trial in England. In any event, dealing with child welfare, the bigger picture which the judge plainly had in mind was that this child had been allegedly wrongfully retained in Brazil during the half-term holiday and not returned to the home jurisdiction of England and Wales. I therefore do not consider that the judge's approach to child welfare could be criticised.

    17. Thirdly, and this is, of the points he makes, Mr Singarajah's primary submission: he submits that the wife, even prior to the decree nisi being pronounced, was no longer in a subsisting marriage in immigration terms; her right to be present in the UK had evaporated; and that she would be reliant upon the discretion of the Secretary of State to allow her back in to take part in the proceedings; and he has referred to a number of immigration decisions to support that submission. Whilst I understand the submission that is made, firstly it is not a matter that was raised before Parker J at all, and one would think that if it was a significant factor it would have been in the course of a comprehensive hearing; that does not prevent this court looking at it anxiously, as I have a duty to do. But it does seem to me that the Secretary of State having a discretion in this matter, if a lady in this lady's position wanted to come back to this jurisdiction to take part in proceedings which the English had directed should be heard in England, then it would be probable that the Secretary of State would exercise discretion to allow her in on some basis or other, and that would be particularly the case if the child had been returned to this jurisdiction following any conclusion of the Hague Convention process. Counsel says that that cannot be relied upon, it certainly cannot be guaranteed, and that therefore the court at this very early stage, as it was in June the stay application, should assume that the wife may not come back and therefore evaluate the fairness of the overall divorce process before it has really got started and grant a stay.

    18. Whilst I understand the submission that is made, that cannot be right. It would give a trump card to anyone in the wife's position at every stay application to obtain a stay simply on the basis that the Secretary of State might not exercise her discretion in their favour.

    19. The wife is perfectly capable, in any event, of giving instructions to lawyers; Mr Singarajah is here today. Even if she were not allowed into the jurisdiction this court is well used to entertaining the virtual presence of parties in the court over a video-link or some other electronic communication.

    20. So, even if I were considering this application on its merits, I would have refused it. There seem to me to be no grounds for holding that there was a reasonable prospect of success on appeal in relation to this stay decision taken by a High Court judge after careful evaluation of all of the relevant factors. But, for the reasons that I have already given, I consider that the application is totally without merit, the divorce having now taken place and the couple no longer being married in the eyes of the English court. Permission to appeal is therefore refused.

    Order: Application refused


Judgment, published: 02/12/2012

Topics


Published: 02/12/2012

Copyright 

Copyright in the original legal material published on the Family Law Hub is vested in Mills & Reeve LLP (as per date of publication shown on screen) unless indicated otherwise.

Disclaimer

The Family Law Hub website relates to the legal position in England Wales and all of the material within it has been prepared with the aim of providing key information only and does not constitute legal advice in relation to any particular situation. While Mills & Reeve LLP aims to ensure that the information is correct at the date on which it is added to the website, the legal position can change frequently, and content will not always be updated following any relevant changes. You therefore acknowledge and agree that Mills & Reeve LLP and its members and employees accept no liability whatsoever in contract, tort or otherwise for any loss or damage caused by or arising directly or indirectly in connection with any use or reliance on the contents of our website except to the extent that such liability cannot be excluded by law.

Bookmark this item