TINA LOUISE ANDERSON v DAVID MICHAEL ANDERSON [2001] EWCA Civ 70

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
(His Honour Judge Thompson)
[2001] EWCA Civ 70Case No B1/00/3774Venue Royal Courts of Justice, Strand, London WC2, Wednesday, 17th January 2001
Between
TINA LOUISE ANDERSONAppellantDAVID MICHAEL ANDERSON
Before
Lord Justice ThorpeMr Justice Penry-DaveyMR. D. O'BRIEN (instructed by Messrs Kenneth Beavis & Co., Chelmsford) appeared on behalf of the Appellant.MR. VAIN (instructed by Messrs Hill & Abbott, Chelmsford) appeared on behalf of the Respondent.Date 17 January 2001

LORD JUSTICE THORPE:

This

[1]is an appeal brought to life by the grant of an extension of time this morning against a sentence imposed by Judge Thompson in the County Court on David Michael Anderson for contempt of court, in breach of an order made on 10th July 2000 in order to protect his former wife, Tina Louise Anderson, from domestic violence. The appeal has the relatively unusual feature that it is the appeal of the wife who criticizes the sentence of Judge Thompson for undue leniency. Mr. O'Brien has done his best to advocate what is on any view a difficult appeal, and he has emphasised his client's subjective fears and subjective evaluation of the court's intervention and the ease with which she believes her former husband has circumvented the court's control by avoiding punishment for a series of breaches, each of which has necessitated a contested hearing in which she has had to be cross-examined to prove her case. I well understand that that is the way in which Mrs Anderson looks at the outcome of the 1st December, but I cannot see that a more objective reviewer would reach the same conclusion. Judge Thompson was well aware of the history which he recited accurately and fully in his opening remarks. However, he went on to stress that the father in contempt had the responsibility to care for two of the four children of the family. He then arrived at his conclusion which he expressed in these words:
". . . I am going to order you to be imprisoned for three months but I am going to suspend it. A lot of judges would not. A lot of judges would say, 'This man deserves to go away and never mind the children.' I am influenced by the fact that I do not want to take the children away from you. But you really are somebody who has got to learn to control himself."
[2]He went on to explain that, in the event of any further breach, Mr. Anderson could confidently expect immediate imprisonment, serving not only the three months suspended but some further period to reflect the further breach. At the end he said to Mr Anderson:
"Do you understand that?"
[3]Mr. Anderson said that he did. For my part, I do not see how it could convincingly be said that this discretionary sentence fell without the generous ambit vested in the sentencer. The only error that has been demonstrated has been readily conceded by Mr. Vain and has been corrected by agreement, so that the period of suspension will now be expressed until 30th November 2001. If during that time Mr. Anderson complies with the terms of the order of 10th July varied to run until 1st December, Mrs Anderson has gained something by coming to this court today. She has resolved the judge's misunderstanding as to the extent of his power. She has established that she is fully protected by a suspended committal which will not be exhausted before 1st December. She has demonstrated to Mr. Anderson that if, on any occasion between now and 1st December 2001, he oversteps the mark by breaching in any respect the protective order of 10th July, he is almost inevitably going to find himself serving an immediate custodial sentence.[4]Mr. Vain has properly announced this morning that his client has conceived the ambition of appealing the prior judgment of Judge Thompson, whereby he accepted the evidence of the wife, rejected the evidence of the husband and found the breach proved. While ordinarily there is a right of appeal without permission in any finding of contempt, Mr. Anderson has forfeited that right by his delay, and he has therefore to cross the hurdle of obtaining an extension of time before he enters the appellate field. As Mr. Vain has frankly acknowledged, that is in this case a considerable hurdle. Nothing in today's proceedings should encourage Mr. Anderson to pursue his imaginative notion that the finding of Judge Thompson is likely to be set aside. The only order that I would propose on this appeal is that it should be dismissed, save for the consensual variation of the order in the court below.[5]MR JUSTICE PENRY-DAVEY: I agree. It has not been demonstrated that the approach of the judge was unduly lenient. Save for the one consensual matter to which my Lord has referred, no error has been identified in the careful way he dealt with the matter. I agree with the order proposed.

Order

Appeal dismissed;public funding assessment of both parties' cost.

Cited in 2 later judgments