Binder v Binder

An application for permission to appeal made more than two years out of time will ordinarily fail where no satisfactory explanation for the delay is given. Permission should also be refused where the underlying order displacing a spouse from the matrimonial home was made for clear and substantial reasons, including the parties’ accommodation, respective needs, conduct and the effect of continued cohabitation on the children and the other spouse.

The expiry of an earlier occupation or exclusion order does not prevent the court exercising its inherent jurisdiction to restrain a return to the property where current circumstances show that such a return would seriously harm the welfare of the spouse or children.

Binder v Binder concerned an application for permission to appeal, together with an extension of time, against an order made by Mr Recorder Elvidge on 24 June 1998. The order required the husband to vacate the matrimonial home until the conclusion of ancillary relief proceedings or further order.

The application was made more than two years late. By the time it was heard, the ancillary relief proceedings had effectively concluded, and later orders concerning the property and the husband’s exclusion had also expired. The central issues were whether permission and an extension of time should be granted, and whether the husband should be permitted to return to the former matrimonial home.

1. Application dismissed. The court refused permission to appeal and declined to extend time. The application was more than two years out of time, and no good reason had been advanced to explain the delay.
2. The underlying order was plainly difficult and draconian, but there had been no realistic prospect of successfully appealing it even if the application had been made promptly. The recorder had applied the correct principles and had identified clear reasons for requiring the husband to leave, including his alternative accommodation, the parties’ respective needs, his conduct, the wife’s fear and distress, and the destructive effect of his continued presence on the calm atmosphere in the home.
3. The original order had ended when the ancillary relief proceedings concluded. That did not entitle the husband to return. The later exclusion injunction had also expired, so the Court of Appeal considered the position afresh.
4. In exercising its inherent jurisdiction, the court was entitled to restrain the husband from returning to or approaching the property. The family circumstances had moved on, reconciliation was no longer realistic, and his return would have disastrous consequences for the well-being of his wife and children. Their continued occupation of the property without his interference therefore required protection.
5. An injunction restraining the husband from returning to the property or approaching within 100 metres was made. It was to remain in force until further order.

• Court of Appeal (Civil Division): The application for permission to appeal and an extension of time against the order of Mr Recorder Elvidge dated 24 June 1998 was dismissed. The court made a fresh injunction restraining the husband from returning to the former matrimonial home or approaching within 100 metres of it.