Chauhan v Chauhan [2005] EWCA Civ 640

Case No B4/2005/0500B4 2005 0326[2005] EWCA Civ 640
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE TICEHURST
HIS HONOUR JUDGE MESTON)
Venue Royal Courts of JusticeDate Tuesday, 10 May 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE SCOTT BAKER
Between
CHAUHANAppellant-v-
Between
CHAUHANRespondentC (Children)
(Computer-Aided Transcript of the Stenograph 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 Appellant appeared in person assisted by Dr K S Badsha for in person for The Respondent was not represented and did not attend
J U D G M E N T

LORD JUSTICE SCOTT BAKER:

[1]Mr Chauhan is seeking permission to appeal two orders. The first one is that of His Honour Judge Ticehurst made on 7 February 2005. That was an order for directions in a long running custody dispute. The second one is that of His Honour Judge Meston made on 18 February 2005 when he refused Mr Chauhan permission to appeal earlier orders made by district judges.[2]First, the judgment of Judge Ticehurst. The relevant background is this. Mr and Mrs Chauhan have three children, H born in May 1996 so she is about 9, B born in March 1998 who is 7 and T born in December 1999 who is 5 years old. The Chauhans' marriage broke up in 2002, since when there have been acrimonious custody proceedings. Judge Ticehurst referred the Chauhans to family mediation but to no avail.[3]The case came back before him for a directions hearing. One of the directions he made was that CAFCASS prepare a report on the children's welfare. There had been two previous CAFCASS reports which Mr Chauhan claimed were biased and contained factual errors. Mr Chauhan wanted the interviews with himself by the CAFCASS officer and with his wife by the CAFCASS officer to be tape-recorded, with a copy of the recording of each interview to be provided to both parties. CAFCASS officers belong to the National Association of Probation Officers which, says Mr Chauhan, has an anti- sexism policy which conspires with mothers and is anti- father. Tape-recording would prevent bias or at least illustrate it if, in fact, it existed. Judge Ticehurst did not accept the applicant's submissions and felt that tape- recording might add an artificial aspect to the process so as to hinder the value of their report. If there were said to be errors this was a matter that could be explored and/or tested in the evidence.[4]Mr Chauhan's grounds of appeal can be summarised as follows. CAFCASS, as an organisation, is biased, biased against Mr Chauhan as it has prepared reports without meeting him and without meeting with the children; it has ignored findings of the Court of Appeal that the mother is manipulative and deceitful, and produces reports which do not reflect conversations he has had with them; taping interviews with CAFCASS would provide proof of its integrity and would protect Mr Chauhan's rights to have a fair hearing under Articles 6 and 8 of the European Convention on Human Rights; Mr Chauhan is being discriminated against on the grounds of gender which is contrary to Protocol 12 to the ECHR, the Sex Discrimination Act 1975, Article 14 of the Human Rights Act 1998, Article 2 of the European Convention on the Rights of the Child and the Civil Procedure Rules. He submits that His Honour Judge Ticehurst's order breaches all of these provisions.[5]It is rare indeed that the Court of Appeal will interfere with orders for directions made by lower courts in preparation for a substantive hearing. There is no reason, in my judgment, to suppose that Judge Ticehurst cannot ensure that Mr Chauhan has a fair hearing with regard to the children, whatever the contents of the CAFCASS report. It would be most unusual to make the kind of order that Mr Chauhan is seeking, namely a tape-recording and disclosure of the tape to both sides. I cannot recollect such an order being made in my experience, either on the Bench or at the Bar. In any event, assuming, for present purposes that the judge had jurisdiction to make the kind of order sought by Mr Chauhan, it would plainly lie in his discretion whether to do so or not, and it seems to me that in no way can Judge Ticehurst's discretion be seriously challenged in the circumstances of this case. This court only grants permission to appeal in the event that the appeal for which permission is given would have a real prospect of success. I cannot see that any appeal against Judge Ticehurst's decision would have a real prospect of success. In these circumstances it would be inappropriate for me to grant permission.[6]I turn then to the decision of Judge Meston. On 14 February 2005 Judge Meston heard applications for permission to appeal; first, from orders made by District Judge Naylor on 21 June 2004 on an application by Mrs Chauhan to enforce a matrimonial proceedings order by attachment of earnings; and, secondly, by District Judge Murphy on 10 November 2004 on various applications, in the main by Mr Chauhan, for variation of the periodical payments order and transfer of proceedings to the High Court. In each instance the district judge had refused permission.[7]The hearing before the circuit judge would, if leave were granted, ordinarily be by review rather than by re-hearing. The threshold for interference by the circuit judge would be if the circuit judge thought the district judge was plainly wrong or if there had been some serious procedural irregularity. Mr Chauhan now seeks to appeal the decision of the circuit judge to this court. That would therefore be a second appeal, the first appeal being from the district judge to the circuit judge. Only in very rare circusmtances does this court grant permission for there to be a second appeal. It is obviously common sense that an appellate process in any jurisdiction cannot be permitted to go on and on for ever. The threshold for granting permission for a second appeal is if the appeal raises an important point of practice or procedure or if there is some other good reason for granting permission. Thus it is apparent that an applicant seeking permission for a second appeal to this court has to cross a high threshold before permission is granted.[8]The parties were married on 31 December 1994. There are three children. They separated in December 2001. There were cross decrees of divorce in May 2002, and a decree absolute was granted in January 2003.[9]On 6 December 2002 a consent order was made with regard to financial matters by District Judge Murphy. The thrust of that order was that the applicant was to pay £806.25 per month for the three children, that sum having been fixed by the Child Support Agency in accordance with the ordinary practice, and £400 per month to his wife. She was to have complete ownership of the house in exchange for payment of £15,000 to the applicant; and the necessary transfers have been, as I understand it, completed. There were other provisions with regard to the circumstances in which the wife's maintenance was to come to an end.[10]In December 2003 the wife sold the house and moved to the West Country in Devon to the considerable disadvantage of the applicant. Views have already been expressed by the courts, and I do not now repeat them, about the wife's conduct in taking that step.[11]On 1 March 2004 the applicant did not pay the £400 that was then due for his wife's maintenance. On 7 March he wrote to the Plymouth County Court, saying that he wanted to apply to vary the maintenance order. That was an error because Salisbury was the correct court to which to make the application. He did not get any reply from Plymouth or to follow-up letters he wrote complaining to the Lord Chancellor's Department.[12]On 8 April the wife issued an application for an attachment of earnings order to enforce the periodical payments order. Her application was transferred to Southampton where the husband lives. The wife claimed arrears, the arrears of £800 due for March and April. The applicant has not paid the March payment or indeed, as I understand it, anything since then. On 19 May 2004 the applicant provided a statement of means in answer to the attachment of earnings application. Unfortunately he said nothing about his attempted application to vary the order. Meanwhile the child payments were reduced from £806 a month to £341, presumably as a result of reassessment by the Child Support Agency.[13]On 21 June 2004 the attachment of earnings application came before District Judge Naylor. He heard both parties. He said there should be a protected earnings rate of £1,500 a month and a normal deduction rate of £400 a month. He said that the applicant had had ample time to apply to vary the order. He made no order in respect of the arrears. On 25 June the applicant did at last apply to vary the periodical payments order. Judge Meston said it was, in reality, an application to discharge the order.[14]On 28 June the applicant lodged notice of appeal at Southampton against Judge Naylor's order and for the consent order of 6 December 2002 to be "dissolved outright" and costs and damages for the actions of his wife and of the court. Judge Meston gave directions for the applicant's application to be listed for application for permission to appeal and appeal, if granted, before a circuit judge. The case was fixed for 3 September, but was later adjourned at the request of the applicant because of his pending variation application.[15]On 18 July 2004 District Judge Murphy gave directions on the applicant's application to vary the periodical payments order. He refused the wife's application for a transfer to Plymouth and directed the filing of statements of means and fixed a final hearing on 10 September. He suspended the periodical payments in the interim giving the wife, who had not appeared, liberty to apply to set aside the suspension. On 15 July District Judge Naylor in Southampton also suspended the attachment of earnings order pending the outcome of the application to vary due to be heard on 10 September in Salisbury. This appears to have been done of the court's own motion, that is without application. There were then further financial statements filed by both sides, and a questionnaire was lodged by the husband but not answered by the wife. A skeleton argument, on the part of the applicant, was lodged by the husband alleging fraud and perjury on the part of his wife.[16]On 10 September before District Judge Murphy the wife did not attend and the applicant declined to give oral evidence. The district judge ordered that the periodical payments order of 6 December should be varied to 5p per annum from 1 December 2004 in place of the £400 a month. He directed that the applicant's application for remission of arrears, in part or in full, and consideration of whether there should be a clean break should be adjourned to a further hearing on 10 November and that the wife should, within 14 days, show cause in writing why there should not be a clean break and why arrears should not be remitted either in full or in part or in respect of the arrears accruing after the application to vary. It was directed that if the wife did show cause she should attend the hearing. The applicant applied for, but was refused, permission to appeal.[17]On 27 October District Judge Naylor said that the attachment of earnings order should remain suspended pending final outcome of the proceedings to be heard in Salisbury on 10 November. The applicant did not pursue his application for permission to appeal. But on 17 September he issued an application for transfer to the High Court complaining about the District Judge's conduct of the hearing. He said that the district judge should have found the wife in contempt of court, should have remitted the arrears, should have made a clean break order and should have given him half of £217,500. Various steps occurred thereafter as recorded in paragraphs 28 to 32 of Judge Meston's judgment.[18]On 10 November 2004 the district judge ordered that the application to transfer to the High Court be refused, that the implicit application for the district judge to recuse himself also be refused, permission to appeal be refused and that the application to stay the application pending appeal be refused. He further ordered that the wife's claims for periodical payments for herself should be dismissed as from 1 September, the remission of the arrears should be adjourned generally with liberty to restore, and that there should be an attachment of earnings order in substitution for the earlier order as follows, that the normal deduction rate should be £200 per month and the protected earnings rate £250 per month, but that it should be suspended on payment of £200 per month from 1 December 2004 to 1 November 2005. There was to be no order as to costs save that the applicant was to pay the wife £60 by way of court fees on the attachment of earnings application and that was to be paid within two months.[19]On 12 November the applicant lodged notice of appeal claiming, in the alternative, either he did not need permission or if he did that he should be granted permission to appeal. The grounds of appeal against District Judge Naylor's order are these:(1) the district judge twice refused to let the applicant read out his argument,(2) he refused to see his evidence,(3) he paid no regard whatsoever to his financial situation,(4) he ignored Lord Justice Ward's criticisms in judgment of Mrs Chauhan's highly deceitful nature,(5) he did not ask the wife for any proof of her financial situation,(6) he ignored the fact she had made £120,000 in December 2003 from the sale of her home provided by the applicant for the children's best interests, and(7) that the district judge's order would force him into bankruptcy.[20]District Judge Murphy's order was sought to be appealed on the following grounds:(1) the district judge was informed that the wife had not obeyed any orders and that therefore the applicant was disadvantaged without essential information;(2) the district judge was biased because he introduced matters not raised by either party;(3) the district judge and the wife were in private communication to the applicant's disadvantage;(4) the district judge paid scant regard to the Human Rights Act 1998, and, in particular, to Articles 6, 8 and 14 of the Convention;(5) that the district judge's actions further contravened Article 17;(6) the district judge refused to stay all the proceedings pending appeal; and(7) the district judge showed little respect for the applicant's rights.

Judge Meston said at paragraph 39:

"It is a sad feature of the husband's communications with the court and of his various written submissions that he expresses his views about the wife, of whom he seems to think nothing but the worst, and the views about the judges, against whom he seeks to appeal, in extreme language. This tendency, combined with extensive citation of legal propositions and authorities, makes his written arguments difficult to penetrate in search for any point of real merit."
I would entirely endorse those observations of Judge Meston from what I have read and heard from Mr Chauhan today. Judge Meston said this at paragraph 44 of his judgment:
"In summary, the broader picture shows that both parties have now financially stretched themselves by taking on substantial mortgage commitments. The husband has a legitimate grievance that the wife abruptly moved from the family home near Salisbury in which he expected her and the children to remain and that she moved to Devon and then to Cornwall, making his direct contact with the children more difficult and expensive. He maintains that she had earlier obtained a residence order in August 2002 and then obtained his consent to the ancillary relief order in December 2002 by deception, misleading the court as to her true intentions and possibly also as to her true means. The wife too has a legitimate grievance in that the husband [the applicant] unilaterally stopped the agreed periodical payments altogether and obtained a reduction in Child Support payments having taken on a very substantial mortgage commitment. She also maintains that he distorts events and has harassed her with legal proceedings as to which the district judges made no findings and about which I make no observations on these applications for permission to appeal."

Judge Meston concluded at paragraph 49:

"I am not satisfied on the material presented to the court that the applicant had no other choice but to stop all of the nine payments as he did and when he did, apart from the reduced CSA payments, or that he paid sufficient regard to the priority to be given to compliance with an order of the court to make payments until further order. I am not persuaded by the applicant's arguments that the decisions made on 21 June 2004 and 10 November 2004 were wrong or that there was any serious procedural or other irregularity. Even if the order of 21 June 2004 was wrong because more regard should have been paid to the husband's attempts to apply to vary the order, the order never took effect and no longer exists, so any appeal would be pointless. On 10 November 2004 District Judge Murphy was justified in refusing to transfer the proceedings as he did, and he dealt with the applications in accordance with the overriding objective under Rule 2.5 (1) (b) of the Family Proceedings Rules. I do not consider that the proposed appeals would have any real prospect of success."

Judge Meston refused permission to appeal against the orders.

[22]As I have already stated, in this court permission can only be granted if there is some important point of principle or practice raised by the case or some other good reason is apparent for granting permission.[23]Mr Chauhan has submitted before me this morning that Judge Meston was seeking to cover up the deficiencies of district judges on the Western Circuit. He says he was biased. There is not a shred of evidence to support this unfounded allegation. Judge Meston's judgment was conspicuously clear and fair. It shows that he had a complete grasp of the case and the issues that were involved. The judgment is not only clear, it is comprehensive, moderately expressed and, in my judgment, dealt with the issues before him.[24]It is regrettable, in my judgment, that Mr Chauhan appears to have lost the ability to see the issues that he undoubtedly has with his former wife objectively. His approach as disclosed in the documents and put to me today is in my view unbalanced and if persisted in likely to achieve nothing. I hope very much that he can now put the past behind him and proceed to endeavour to resolve any remaining issues with his wife in a moderate and sensible manner. That is not to say that the merit is all one way. There are plainly, as I have seen from the papers in this case, wrongs on both sides.[25]This application is refused.

Order

Applications refused. A transcript of judgment to be supplied to appellant at public expense.