Gibbins v Gibbins

Appellate courts should not interfere with findings of fact, particularly credibility findings based on seeing and hearing witnesses, unless compelling evidence shows that the trial judge abused that advantage. An inconsistency in earlier interlocutory material does not by itself justify intervention where the trial judge considered the evidence afresh and made clear findings. The judgment also observed, obiter, that divorce established by the fact that a spouse cannot reasonably be expected to live with the other carries no great stigma or grievous blame; blameworthiness ceased to be the basis of divorce in 1967.

The wife petitioned for divorce on the ground that the marriage had irretrievably broken down because of the husband’s behaviour. Recorder Powell granted a decree nisi on 13 March 2002 after hearing evidence and preferring the wife’s account of several incidents.

The husband sought permission to appeal. He relied principally on an alleged inconsistency in the wife’s affidavit concerning incidents on 11 September and 2 October, and also referred to an earlier District Judge’s judgment from interlocutory proceedings. The central issue was whether the Recorder’s findings of fact could properly be disturbed on appeal.

Application for permission to appeal dismissed.

1. The judgment said that the earlier District Judge’s decision was not under appeal. The relevant decision was Recorder Powell’s decree nisi, and the Recorder had correctly approached the matter afresh on the evidence before him.
2. The Recorder had heard the parties’ evidence, assessed their credibility and made clear findings on the alleged incidents. He was entitled to prefer the wife’s evidence, including her account of the incidents involving violence, restraint, and the final dispute. The medical evidence provided support for the account of the final incident.
3. The Court of Appeal should not interfere with findings of fact unless there is the most compelling evidence that the trial judge abused the advantage gained from seeing and hearing the witnesses, including their demeanour and general presence. The discrepancy in the wife’s affidavit, and the correction of the date during the earlier proceedings, were matters for the Recorder to evaluate. They did not establish that his findings were wrong.
4. There was no realistic prospect of successfully challenging the factual findings on which the decree nisi depended. The application was therefore hopeless and was dismissed.

Lord Justice Ward added that the legal basis of the divorce was the establishment of the fact that the wife could not reasonably be expected to live with her husband. He observed that this did not carry great stigma or impute grievous blame, since blameworthiness had ceased to be the basis of divorce in 1967. That observation was intended as consolation and was not necessary to the disposition.

1. Court of Appeal (Civil Division): On 10 July 2002, Lord Justice Ward dismissed the husband’s application for permission to appeal.
2. Recorder Powell: On 13 March 2002, granted a decree nisi after hearing the evidence and finding the wife’s account of the relevant incidents credible.
3. District Judge O W Williams: Earlier interlocutory proceedings included applications for injunctions. That judgment was not the decision under appeal.