Waiwaiku v Waiwaiku [2004] EWCA Civ 20

Case No B1/2003/2426[2004] EWCA Civ 20
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND COUNTY COURT
(HIS HONOUR JUDGE YELTON)
Venue Royal Courts of JusticeDate Wednesday, 14th January 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE WARD
Between
KOKULO NYANPEE WAIWAIKUAppellant-v-
Between
LEONA VIKI WAIWAIKURespondent
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Applicant appeared on her own behalf for The Respondent did not appear and was not represented
J U D G M E N T

LORD JUSTICE WARD:

[1]This is an application very courteously brought by Mrs Waiwaiku who is in some distress, both emotionally and financially, because His Honour Judge Yelton sitting in the Southend County Court allowed on 6th November 2003 an appeal against part of the order for ancillary relief made by Deputy District Judge Evans on 23rd July 2003. The District Judge's order was made after a two-day hearing at which the former husband and wife appeared in person. He ordered that the husband (as I shall call him, I hope not as to cause offence) should transfer to the wife his interest in the former matrimonial home and his interest in two policies of insurance which were collateral to the mortgage. He made a pension-sharing order giving the wife 50 per cent of the husband's pension rights, a substantial benefit now to be enjoyed by both under the National Health scheme. He ordered fourthly, and this is the relevant order, that the husband should pay a lump sum of £30,000 to the wife, in effect to cover or assist her in covering debts she had incurred in the aftermath of the breakdown of the marriage. He also ordered that he pay periodical payments at the rate of £1,350 a month.[2]The husband appealed against the lump sum order and the periodical payments order, and he succeeded only in persuading Judge Yelton to revoke the lump sum of £30,000. It is against that order therefore that the wife now seeks my permission to appeal.[3]In a nutshell her case is that the husband has concealed his true financial position in two main respects. Firstly, that he has capital resources available to him which would enable him to pay that lump sum and, secondly, that he under-declared his income. Mrs Waiwaiku is convinced of both of those matters.[4]At the hearing before the Deputy District Judge she advanced a similar case, but the District Judge was constrained to find, as appears from page 9 of his judgment:
"Those [i.e. her allegations of his financial position] are grotesquely enormous figures which I am absolutely convinced bear no relation whatever to the true financial situation before me."
He found on page 11 of his judgment:
"I am sure that they have told me truthfully what their own position is."
That is an important finding. It is a finding of credibility against which it is usually extraordinarily difficult successfully to appeal. The result of the finding was that the Deputy District

Judge found on page 12 of his judgment:

"There is no sum from those savings accounts which can be divided in two, and no half to be given to her. It simply is not there."
In paragraph 17 of his judgment he said this:
"I have dealt at some considerable length with this because the wife's contention that there nearly 116,000 is unaccounted for was critical to her view of the entire matter. I have looked into it and I have thought about it and I have considered it and I have considered what both of them have said about it, and I simply do not accept that there was 116,000 which has evaporated from the family savings and I approach the rest of the case on that basis."
[5]As a result, the assets which he found were available for distribution were very limited. Firstly, there was the matrimonial home which in round figures had an equity of £60,000, a little less in fact. It was subject to a mortgage to the building society, who had two collateral insurance policies charged to it. Those policies were ordered to go to the wife. Their value together is some £16,000. But the property is also charged with £13,000, one of the debts the wife has accumulated among the £36,000 overall that she owes her creditors.[6]The only other asset is the home the husband purchased after the breakdown which has a net equity in round figures of £30,000 or a little less. He was held by the District Judge to have debts of £20,000. The District Judge's objective with a long marriage, as this was, was to secure equality as best he could. In fact his order gives a greater proportion of the assets to the wife than to the husband, but in the circumstances rightly so. I say "rightly" because as the District Judge also found with regard to the husband's income the following. At page 4 of his notes of his judgment, he said this:
"As stated above I accept the documentary evidence adduced by the husband showing an equivalent monthly figure net of tax as £4,715. An earlier figure of £7,100 stated in a schedule produced on his behalf is simply a mistake. I reject the wife's suggestions that the husband's earnings have been under-declared in his Form E."
Again, at page 6:
"I feel sure that with appropriate independent financial advice and assistance from specialist lenders, the husband should be able to satisfy these capital requirements [his debts] quite readily and without any significant reduction in his income."
Finally, at page 7:
"I conclude that he has a robust and substantial earning capacity as a GP and solid - if not rosy - earning prospects for the future. He has debts, but these could easily be rolled up into a re-mortgage. I also think he has substantial untapped borrowing potential based on his professional standing as a GP."
[7]In his judgment Judge Yelton again heard argument and counterargument and indeed, as I read his judgment, some evidence of the husband's current income. He concluded at page 5 of his judgment, after summarising the District Judge's judgment:
"That is the financial position of the parties as found by the Deputy District Judge and I have outlined it because there is no serious challenge, other than that which I have just dealt with, as to the future, to these findings in that respect."
[8]So

Judge Yelton's view of the lump sum order was this, at page 6 of his judgment:

"It is always seemed to me to be the case, that while one does not regard borrowing capacity, lump sums normally, I say normally because there are exceptions in every case, should be made from assets which are available to one party or the other or can be raised on an asset that the party has and, when one bears in mind that the husband already has debts in the region of twenty thousand pounds, on the earnings that he has and on the assumption that I am upholding as I am the Periodical Payments Order which the Deputy District Judge made, it does not seem to me that the conclusion to which he came, that the husband could pay another thirty thousand pounds, was supportable either on the evidence before him or on the evidence I have seen since, which is that the husband has tried to borrow it and cannot. ... The question is, is it right to, is it even reasonable to make the husband pay it, which would involve raising it in circumstances in which as I have already indicated, the finances are in something of a mess in any event. Now I appreciate that the wife would say, well I want that money because I have these various debts, one of which is as I have said is charged on the property but, on the other hand, one has to have a certain amount of regard, a considerable amount of regard, to reality and I have come to the conclusion that the Deputy District Judge erred in principle in making any Lump Sum Order in addition to the Order for the transfer of the house and the endowment policies, and it seems to me that that part of his Order should be deleted."
[9]In order successfully to obtain permission to appeal to this court the cruel obstacle facing Mrs Waiwaiku, for whom I have consider sympathy, is that she must satisfy me that there is some important point of principle or practice at stake in the appeal or some other cogent reason to justify this second appeal. That is a high hurdle to surmount. I say I have sympathy for her not simply because the distress was visible, but because it appears from the whole history of this marriage that this has been a spectacularly hard-working wife and mother, and I can understand her feeling she deserves more than she has received following the breakdown of this long marriage. But sympathy is sadly not enough. There does not appear to me to be any important point of principle or practice. Nor, I am bound to say, would I see any prospect of success in the appeal if the appeal went forward. In my view Judge Yelton's approach was correct. Ordinarily lump sums are paid out of capital not usually out of income, and income here does not justify that imposition of a lump sum. Nor is there any cogent reason because, although Mrs Waiwaiku is convinced that the husband lied and cheated and has failed to disclose truthfully his capital position and his current income position, there is in fact no evidence to support her conviction that he has capital. There is some evidence before me that his income may have increased for the year 2003 according to figures she has put forward of the substantial expansion in his National Health patient list, but those do not justify a retrial by themselves. I fear that this unhappy wife, like so many, has to face the findings of fact favourable to the husband made by the Deputy District Judge. Unless and until she can produce hard evidence that he lied and cheated and that he failed in his duty to give full and frank disclosure to the court, this court cannot intervene and grant a retrial simply to have a second bite at this cherry.[10]In the absence of that evidence, I am afraid this court cannot interfere. I express no view about this, but it may be that if there has been a substantial increase in the husband's income, evidenced perhaps by a substantial increase in his child support payments, then she may have an opportunity to seek a variation of her periodical payments order, so that she may with added income be able to repay the debts which have accumulated. But it must be a matter for her to judge when the time is ripe to seek a variation of the periodical payments order and whether she has again the evidence to back-up her case that whether or not he lied in the past, so far as the present is concerned his income is so much greater than it was when the order was made that it justifies a variation, so that in justice somehow she can be assisted to pay off the debts which have accumulated.[11]Sorry as I am for Mrs Waiwaiku, I must dismiss her application. But a copy of this judgment, which will be sent to the court, can also be supplied to the applicant at public expense in order that she can further consider her position.

ORDER

Applications for permission to appeal and a stay of execution refused; Mrs Waiwaiku to be supplied with a copy of this judgment at public expense. (Order not part of approved judgment)