Welch v Welch

A financial remedies order should not be reopened merely because a creditor later offers to compromise a judgment debt, or because evidence existed before the original hearing but was obtained later. Such material is not a Barder event and must satisfy the requirements for fresh evidence. A later change in health or earning capacity may justify an application to vary maintenance, but does not retrospectively undermine the original order. Maintenance directed to basic subsistence may require reconsideration before being suspended to enforce a costs debt. Persistent applications which are totally without merit may justify an extended civil restraint order, but any order should preserve access to a genuine maintenance variation application.

The former wife applied to set aside financial remedy orders made in September 2014, sought permission to appeal several subsequent decisions, and challenged alleged non-disclosure by her former husband. She relied on alleged Barder events, fresh financial material, changes in the husband’s employment, and a recent assessment that she was not required to undertake work-related activity.

She also challenged the refusal of a judge to recuse himself, sought transfer of the proceedings, and sought permission to use family proceedings documents in proposed Queen’s Bench proceedings. The husband sought an extended civil restraint order. The central issues were whether the original financial order should be reopened, whether maintenance should remain suspended for costs, and whether further collateral litigation should be restrained.

1. Applications and appeals. The applications to set aside the September 2014 financial order and for permission to appeal the June 2015 decisions were refused. There was no material non-disclosure or error in the district judge’s approach.
2. Alleged Barder events. A creditor’s later willingness to accept a reduced sum was not a subsequent event affecting the basis of the order. Evidence concerning payments made in 2006 and 2007 was not subsequent material and did not satisfy the Ladd v Marshall criteria. The husband’s continued work was also contemplated by the original judgment. None of these matters justified reopening the order.
3. Health and maintenance. The wife’s recent assessment that she was not required to undertake work-related activity was not a Barder event. It might, however, justify a fresh application to vary maintenance. The original award had been directed to basic need, and the suspension of maintenance to meet a costs debt might require reconsideration where the wife had no capital and only minimal benefit income.
4. Recusal and transfer. A passing professional or social encounter between a judge and specialist counsel did not justify recusal. There was no basis for transferring the proceedings from the judge who had dealt with them throughout.
5. Civil restraint and documents. The conditions in Practice Direction 4B were satisfied because the wife had persistently made applications certified as totally without merit. An extended civil restraint order was made against further civil applications concerning the husband or the family proceedings, subject to permission from the judge. The order expressly preserved an application to vary maintenance or discharge its suspension. Permission to use family documents in proposed civil contempt and damages proceedings was refused, while disclosure to the police, Crown Prosecution Service or Attorney General remained permissible.
6. No order for the costs of the hearing was made because the wife had no funds or assets and an additional costs order would have been punitive and futile.

High Court (Family Division): Permission to appeal from the district judge’s decisions was refused, the applications to set aside the financial order were dismissed, and an extended civil restraint order was made.