Ashley-Nicholson v Ashley-Nicholson

Permission to appeal against a discretionary family order may be refused where the available contemporaneous record sufficiently demonstrates that the order was justified. An unsupported assertion that the applicant had no opportunity to give evidence need not be accepted where the judge’s notes record the applicant’s evidence and concessions, and the applicant had filed no evidence answering the allegations.

Material changes arising after the order should ordinarily be raised through an application to vary it, on notice, before the local court capable of investigating the new circumstances.

The husband renewed his application for permission to appeal against an order made by His Honour Judge Orel in the Derby County Court. The order required him to vacate the matrimonial home, prohibited his return and specified the property he could remove. It followed the wife’s application for non-molestation and ouster orders based on allegations culminating in sexual violence.

The husband contended that the county court hearing was unfair because he had not been allowed to give evidence and the judge had delivered no judgment. He also sought a stay. The Court of Appeal considered the perfected order, the county court judge’s notebook and the parties’ evidential conduct. It also considered medical and housing circumstances first advanced after the order.

1. The renewed application for permission to appeal and the application for a stay were refused. Thorpe LJ remained satisfied that the county court order had been justifiably made within the ambit of the judge’s broad discretion.

2. The available contemporaneous record did not support the husband’s allegation that he had been denied a fair opportunity to present his case. The county court judge’s notes recorded extensive oral evidence from the wife, including cross-examination by the husband. They also recorded the husband’s own evidence and concessions that there had been a prolonged violent argument, some violent contact and a slap.

3. The husband had filed no affidavit or statement disputing the wife’s allegations before the county court hearing. The wife’s evidence amply justified the relief ordered. In those circumstances, and having regard to the conscientious character of the judge’s notes, Thorpe LJ would not accept the husband’s unsupported assertion that he had been prevented from giving evidence.

4. The husband’s subsequent reliance on his medical condition did not undermine the order because that matter appeared not to have been raised before the county court judge. His assertion that the wife and children had since left the property was likewise a subsequent factual development requiring proper investigation.

5. The order expressly remained effective until further order. The husband could therefore apply to the county court judge for its variation on the basis of his medical needs and the alleged vacation of the property. Such an application should be made on notice so that the wife could confirm or dispute the new facts. The local county court was the appropriate forum for that investigation.

1. Court of Appeal (Civil Division): The renewed application for permission to appeal and the application for a stay were refused: [2002] EWCA Civ 1364.

2. Derby County Court, His Honour Judge Orel: On 22 August 2002 the husband was ordered to vacate the matrimonial home, not to return and to remove only specified property. Permission to appeal was refused by the judge.

3. Derby County Court, His Honour Judge Orel: On 13 August 2002 the earlier ouster order was relaxed to permit the husband limited use of specified parts of the matrimonial home pending a final hearing.

4. Derby County Court, District Judge Cochran: On 9 August 2002 a without-notice ouster order was made because the circumstances were considered sufficiently exceptional.