Waite v Waite

A court may, in its discretion, entertain an application made by a person who is in contempt of a court order. The contempt does not make the application irregular or require it to be set aside. The relevant question is whether the court should entertain it when heard; purging the contempt may remove the reason for refusing to do so.

A committal order may be enforced where the contemnor was in clear breach before later challenging the underlying order. A variation of periodical payments requires evidence of changed circumstances. Conduct preventing implementation of an order may be relevant, but exercising a right to seek permission to appeal is not, by itself, a proper reason for refusal.

Mrs Waite sought permission to appeal parts of an order made by His Honour Judge Hamilton in ancillary relief proceedings. The order dismissed her applications to set aside an earlier financial order, vary periodical payments and challenge related enforcement arrangements, and gave effect to a suspended committal order. She also challenged consequential directions permitting the sale of the former matrimonial home and authorising a district judge to execute documents if she failed to do so.

The applications arose after Mrs Waite failed to give up possession of the home as ordered. Her husband had initially been in arrears with periodical payments, but those arrears were paid before the committal application was determined. The central issues were whether the committal application could be entertained, whether fresh evidence justified reopening the financial order, and whether variation of periodical payments was established.

1. Committal appeal dismissed. The court had a discretion, when hearing an application, whether to entertain an application by a person who was in contempt. The contempt did not make the application irregular or require it to be set aside. Since the husband had purged his contempt by the date of judgment, there was no reason not to entertain his application.
2. Mrs Waite was in clear breach of the suspended committal order when she failed to give up possession by the specified date. Her later application challenging the ancillary relief order did not precede, and could not retrospectively justify, that breach. The judge was entitled to enforce the suspension.
3. Permission to appeal the financial orders refused. The recorded conversation supplied no evidence capable of supporting the alleged fraud or material undervaluation. The alleged debt to the husband’s father, even if fictitious, would not have made a material difference to the order after account was taken of the husband’s other liabilities and the allocation of the matrimonial home’s value.
4. The variation application, treated as one under section 31 of the Matrimonial Causes Act 1973 rather than section 27, failed for want of evidence of a change in circumstances. The judge was entitled to consider the absence of attempts to obtain employment and the failure to implement sale arrangements intended to provide capital. The exercise of a right to seek permission to appeal was not, by itself, a proper reason to refuse the application.
5. Permission to appeal the consequential sale directions was refused. The appeal and all three applications for permission to appeal were dismissed.

• Court of Appeal (Civil Division): dismissed the appeal against His Honour Judge Hamilton’s order of 13 August 2001 and dismissed the applications for permission to appeal the financial and consequential sale orders.
• Birmingham County Court: His Honour Judge Hamilton dismissed the applications to set aside the ancillary relief order, vary periodical payments and challenge the related enforcement arrangements, and gave effect to the suspended committal order.
• Birmingham County Court: His Honour Judge MacDuff made a suspended 14-day committal order on 21 May 2001 for failure to give up possession of the former matrimonial home.