B1/01/2083
Neutral Citation Number: [2002] EWCA Civ 1047
IN THE SUPREME COURT OF JUDICATURE                       
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EASTBOURNE COUNTY COURT
(Her Honour Judge Coates)

                                    Royal Courts of Justice
                                    Strand    
                                    London WC2
 
                          Wednesday, 26th June 2002

B e f o r e :

LORD JUSTICE THORPE

MR. JUSTICE WALL

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PATRICIA RHODA CIVITA

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VITTORIO GIANQUALBERTO CESARE CIVITA

Applicant
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(Computer Aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0207-421 4040
Fax No: 0207-831 8838
Official Shorthand Writers to the Court)
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MISS J. BAZLEY (acting pro bono) appeared on behalf of the Applicant.

MRS GAGE (SOLICITOR) appeared on behalf of the Respondent.

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J U D G M E N T
1.	MR. JUSTICE WALL: This is an application by Mr. Vittorio Gianqualberto Cesare Civita for permission to appeal against an order made as long ago as 20th July 2001 by Her Honour Judge Coates sitting in the Brighton County Court in proceedings for ancillary relief between Mr Civita and his former wife, Patricia Rhoda Civita. Mr. Civita also needs an extension of time for filing his notice of appeal.
2.	As the judge commented at the outset of her lengthy and careful judgment, the assets of the family were really quite straightforward. There were two properties, both registered in the sole name of Mr. Civita, and both were unencumbered. The first was the former matrimonial home at 1, Crossway, Lewes, in which Mr Civita was living with the eldest of the five children, Lucrezia, who is now 33. There was a second property at 12, Arlington Gardens in Saltdean, which was uninhabited. Mrs Civita was living in council accommodation with the three youngest children of the family, of whom only one, Cassandra (Cassie) was still a minor. She is 14. The judge found that 1, Crossway was worth £97,500 but that it had been neglected by Mr. Civita and that if it was cleaned and cleared it could be worth up to £107,000. The judge calculated the net equity (subject to solicitors' costs) as being between £95,000 and £104,250. The judge found that 12, Arlington Gardens was worth £45,000. That low figure was due to its dilapidated state. The judge assessed the proceeds of sale at £43,750.
3.	Mrs Civita had the option to purchase her council accommodation at the discounted figure of £57,800. Her plan at the date of the hearing before the judge was to build on an extra bedroom for Cassie's use at an estimated cost of £28,000. Alternatively, if she had to purchase alternative accommodation, the judge assessed the likely cost would be in the order of £100,000 to £110,000.
4.	Mrs Civita was in modest employment. Mr. Civita was unemployed. The judge found that there was no question of periodical payments either way. Mr Civita was not contributing to Cassie's maintenance. This was a 30 year marriage. There were five children, only one of whom was still a minor.
5.	The order made by the judge was in the following terms. The property situated at 1, Crossway, Lewes was to be transferred to Mrs Civita forthwith. There was permission for a district judge at the court to sign any of the documents necessary for the transfer of the property into Mrs Civita's name. Mr. Civita was to deliver up vacant possession of the property to Mrs Civita by Friday, 28th September 2001. There was an order for the sale of the property and the proceeds of sale to be paid to Mrs Civita absolutely. There was a direction that Mr. Civita was not to damage the property or do any act that could diminish its value. On the transfer of the property and on the assumption that there had been no diminution in value arising from Mr Civita's deliberate actions, 12, Arlington Gardens was to remain his sole property and Mrs Civita was to have no interest in it. However, if, as a result of any diminution in value as a result of deliberate action by Mr. Civita, there was to be an order that 12, Arlington Gardens was to be transferred to Mrs Civita and subject to an order for sale; Mrs Civita was to be paid such sum as represented the diminution in value of the property with any remaining proceeds going to Mr. Civita. There was then the usual certification in relation to the Legal Services Commission and an order that once the order had been implemented there was to be a clean break, including no applications under the Inheritance Act. There was no order as to costs, save detailed assessment of both parties' publicly funded costs up until 22nd May 2001. Mr. Civita was to pay the costs of Mrs Civita incurred from 22nd May 2001 and such order was not to be enforced without the permission of the court. The judge also refused permission to appeal. I will return to the judge's reasons for making that somewhat unusual order in due course.
6.	When the application for permission came before me, sitting as a single judge on 14th June 2002, Mr. Civita was in person. His home-made notice of appeal accused the judge of violations of his human rights and bias. He sought to re-open the judge's findings of fact. He wanted to introduce fresh evidence and sought a retrial. He opened his skeleton argument prepared on that occasion with a vituperative attack on his former wife, which I need not trouble to read out. On the basis of that material, it seemed to me that Mr. Civita's application for permission was unlikely to have any prospect of success.
7.	To his credit, however, he had had the good sense to consult a member of the bar, Mr. Malcolm Chisholm. On 12th June 2000 Mr Civita produced an additional case summary which contained these paragraphs:
“Concerning the 'net effect' of the order -
(1) The order provided Mrs Civita with more than she needed in the form of the entirety of the proceeds of the parties' former matrimonial home, when to buy her council property would only cost her £57,800.
(2) In making that order the judge gave undue emphasis to Mrs Civita's desire to continue to provide accommodation for Andromeda and Alessandro who are adults and apparently in employment.
(3) The order was made at the expense of Mr Civita, Lucrezia and Gaudenzio in that the effect of the order was to render them homeless since he and the children cannot live in the property due to its condition.
Therefore the judge was 'plainly wrong' in the exercise of her discretion within the dicta set out in G v G.”
8.	Although that document went on to repeat a number of Mr. Civita's unsustainable criticisms of the judge, I was persuaded that Mr Civita's application warranted an oral hearing of the application of permission to appeal, with appeal to follow if permission was granted. I warned Mr. Civita in clear terms that the court could not re-open findings made by the judge and would be unlikely to entertain any allegation that the judge was either biased or had misconducted the hearing. I emphasised that we would be likely to want to look at the result in order to see if it could be argued that the order of the judge could be said to have exceeded the generous ambit of discretion within which reasonable disagreement was possible without this court being able to say that the judge was wrong.
9.	In the event, as I understand it, Mrs Civita has obtained public funding for today, and both have been represented by advocates who have put clear and cogent arguments before us. I am grateful to Miss Janet Bazley particularly who, in the best tradition of the bar, appeared for Mr Civita pro bono, who produced an admirable skeleton argument and conducted a difficult case with great skill.
10.	Before dealing with the arguments, however, it is necessary to look briefly at the background to the case and at the judgment in the case. Miss Bazley has produced a most helpful chronology, from which I take the essential facts. The husband is now 60 and the wife either 59 or 60. They were married in 1968. They have five children, Lucrezia 33, Gaudenzio 26, Andromeda 23, Alessandro 20, and Cassandra, born on 28th May 1988 and is thus 14. The matrimonial home at 1, Crossway, Lewes, was bought in April 1978. Arlington Gardens was bought in May 1992. There was a substantial dispute before the judge as to the beneficial ownership of 12, Arlington Gardens. Mr Civita's case was that the property had been purchased from family funds and in particular from funds provided by Lucrezia. The judge rejected those allegations, although he found that there had been a contribution of something in the order of £2,000, but otherwise the property was owned beneficially by Mr. Civita. The parties separated in June 1998. Mrs Civita left the matrimonial home with Andromeda, Alessandro and Cassandra, then aged 19, 16 and 10. She needed to take protective measures to prevent the two properties being sold by Mr. Civita and did so.
11.	What takes the case then entirely out of the ordinary was that in May 1999 there was a long hearing before the President of the Family Division sitting in Lewes, in which the local authority brought care proceedings in relation to Cassandra who was the only child who was of an age for whom such proceedings could be taken. Those proceedings, of which there is a transcript of the President's judgment, were before the judge. She took a number of findings that the President had made and incorporated them into her judgment. For this purpose it is sufficient to say that the President found against Mr. Civita that there was sexual, physical and emotional abuse of the children and also some findings about their mother's care of them. The result was a care order made in relation to Cassandra. Mr. Civita attempted to appeal that order and was unsuccessful.
12.	Mrs Civita was able to move in July 2000 to her present accommodation, and it is very much to her credit that in August 2000 the local authority was able to place Cassandra back with her, albeit still under the care order. She sought ancillary relief, the proceedings starting in September 2000, and it was not until, as I indicated earlier, July 2001, a substantial period, before the application was finally determined by the circuit judge. As again as I have indicated, another year has gone by since that order was made. As I indicated also, the judgment of the judge is a long and very careful judgment. She begins by recording the basic facts and identifies the two properties with which she had to deal. She deals briefly with the circumstances of each of the parties. Having done that and having given the respective positions of the parties, at that stage she goes on to say that:
“What makes this matter complicated, and very complicated, and the reason why this matter is before me as opposed to a district judge, is the background to this case and the assertion by mother that when I look at the provisions of section 25 of the Matrimonial Causes Act 1973 this is a situation where conduct should be taken into consideration. For that reason, it is necessary for me to go into the background of the case in some detail.” 
13.	That she proceeded to do. For the purpose of this judgment I pass over much of it because, particularly in relation to the argument about the beneficial ownership of property and the amount contributed from Mr. Civita's side of the family, particularly from his grandmother's estate, it resulted in findings by the judge which cannot be challenged.
14.	However, when she comes to May 1998 she deals in some detail with the circumstances in which the local authority Social Services Department became involved in the case. She records Alex escaping from the matrimonial home. She says that is not too high a way to put it, seeking assistance from a neighbour. The neighbour alerted the Social Services Department. Alex catalogued abuse upon him and his siblings. Mrs Civita and the children left. The care proceedings came before the then President, Sir Stephen Brown. The President made strong findings about Mr. Civita. He described him as domineering, voluble and controlling. He described the family:
“What has emerged quite plainly from the very detailed investigations which have been made into the family is an atmosphere of total subservience.” 
15.	The President had the benefit of assessments from a number of distinguished experts, including Dr. Kennedy from the Cassel Hospital. He referred to the possibility of Mr. Civita suffering from paranoia and Dr. Hunt, an expert called by the father, as “paranoid behaviour”. Dr. Kennedy said that:
“I have never seen such an abnormal family in 23 years of practice. The father dominates and the family have to express their strained smiles; everybody has to be happy' (that is a reference to the videos).
As to the mother, he said: 'She has changed so much since that time. She has experienced over the years a kind of cumulative trauma of being bullied' and was, on leaving, in a condition which he described as being rather like being 'shell-shocked'. He says that she had lost all her self-esteem and will require -- in any event-- treatment, psychotherapy, in order to restore her personality and her self-confidence.”
16.	The judge records that Sir Stephen Brown, in a long and careful judgment, accepted the mother's evidence where it conflicted with that of the father, and it was clear that the relationship which the father enjoyed, particularly with his daughters, in the first instance Lucrezia, was entirely unhealthy. She was described as being enmeshed with the father. Lucrezia, although a 32 year old woman, presented in court as a small child. The President was also satisfied that Mr. Civita had conducted himself in a sexually inappropriate way towards Andromeda and Cassandra. All of the children had been psychologically damaged by his behaviour.
17.	The judge took the view, and in my judgment rightly, when she came to analyze the facts, that this was conduct within section 25 of the Matrimonial Causes Act of a nature which it would be inequitable to ignore.
18.	Unfortunately, the father's behaviour towards the family did not cease when the parties separated. There was an abundance of evidence that Mr. Civita found out where his wife and younger children were living, and had written letters to neighbours and former neighbours of the family which were in totally scurrilous terms and which demonstrated a very powerful continuing feeling of the strongest antipathy towards his wife. I do not think that it is necessary for me to read out the contents of those letters. They are in the papers to be read, if need be.
19.	Having looked at the situation of the parties and the conduct of Mr. Civita in particular, the judge went on to make a number of findings of fact about money, including, as I have indicated, whether or not money had been provided, and if it had been provided from the paternal family whether by way of gift, or whether by way of loan. Those matters are matters of fact which the judge dealt with and on which she cannot be criticised.
20.	The judge then went on to consider how she should exercise her discretion in the context of section 25 of the Matrimonial Causes Act. She found that there had been an attempt by Mr. Civita in particular to obfuscate and to mislead. She found the evidence that he advanced in relation to financial issues unsatisfactory in the extreme. But, in the end, what mattered was that she found that he was the beneficial owner of the two properties.
21.	I indicated a moment ago that a number of communications had been written by Mr. Civita. The judge dealt with a number of them in her judgment. Once again, they are there in the text to be read. Their relevance will be apparent when I come to deal with disposal. At this point it is sufficient to say that Mrs Civita had found accommodation which she hoped was unknown to Mr Civita. Whilst she has the opportunity to purchase her current property, she is fearful of continuing harassment from Mr. Civita. There remains the risk that she may have to move prior to the purchase being put into effect. That is not a fanciful thought on her part, judging by the letters written by Mr. Civita and circulated, one in particular about Andy which the judge set out in some detail in the judgment. I need not read it. If read by a third party it would be likely to have the effect which the judge said it had, namely that it would lead neighbours reading it to be concerned, if they took it at face value, about what Andy and the mother were doing, none of which has any foundation in fact.
22.	I come, therefore, to the judge's assessment of the case. Dealing with the question of income and earning capacity, she said that Mrs Civita had made sterling efforts to try and be self-sufficient. She was working. Her earnings were limited. The treatment that she had received during the marriage had affected her personality. The judge found as a fact that it would be unlikely that Mrs Civita would be able to improve her income position. Mr Civita was not in a position to maintain her. The judge did not take into account allegations made by Mrs Civita that there were assets abroad. What she recognized in the mother's position was its fragility, her need to continue supporting Cassandra, and the fact that, as she was nearing 60 she would be unable to be in gainful employment for any substantial length of time. She considered carefully Mr Civita's position. He was not himself well, not in the prime of physical fitness. He was a man with various medical conditions.
23.	As far as income was concerned, clearly it was not a case for maintenance. The judge then dealt with the figures that I have given in relation to the two properties and, although she accepted that it would be sensible for Mrs Civita to buy her home, she was clear that Mrs Civita needed more than the sum sufficient to make the purchase. She accepted an estimate that if Mrs Civita were to build an extra room for the house, it would cost £28,000. Alternatively, if she were to purchase property it would cost between £100,000 to £110,000. She was shown properties in the order of £50,000 said to be appropriate for Mr. Civita.
24.	In the judge's view the appropriate order was that 1, Crossways should be transferred to Mrs Civita and that there should be an order for sale. Mrs Civita would be enabled to buy the property she was in and to have some money left over to provide a cushion for herself and Cassandra when she became 60. Mr Civita was to retain Arlington Gardens. She went on to deal with the £2,000 owed to Lucrezia for the acquisition of the property. She considered whether it was appropriate in those circumstances, at the end of a marriage of this length, to make a 50/50 split. But she concluded that, in the circumstances of the case, and having looked at all the aspects of section 25, it was appropriate for Mrs Civita to have a bigger share of the assets to meet her needs. She also made a strong finding, and one that she was entitled to make, that, if Mr. Civita were to remain in occupation of the former matrimonial home, he would do everything to obstruct the sale. She had concerns that he would cause damage to the property deliberately to reduce the amount of money which Mrs Civita was to receive. It was for that reason that she made the order that I have already read out, and will not repeat.
25.	Against that background, and with those powerful findings of fact by the judge, it seems to me that the conventional principles in relation to normal applications for ancillary relief, and the criteria that would normally apply to a 30 year marriage, at the end of which each party had properly fulfilled his or her responsibilities to the other, do not apply.
26.	Nevertheless, Miss Bazley was able to put forward a number of submissions on behalf of the husband, to which I must refer. She referred to the length of the marriage, the fact of the five children, and the significant contribution which the father/husband had made to the assets of the family. That is true. He was in employment. She was not. There were five children to care for. But that significant positive contribution has to be measured against the negative contribution that he made towards the marriage. Here, in addition to the financial contribution he made historically, he is not in a position to make any future contribution. His conduct has been a strong negative contribution. I do not think that Miss Bazley's reliance on White v White is of particular assistance. The judge was entirely entitled here to depart from the 50/50 objective. Miss Bazley accepts that the court must give first consideration to the welfare of any minor child of the marriage. However, she submitted that Mr Civita's housing needs must not be ignored. She cites three cases in support of that proposition, all of which are well known. That is a proposition with which I agree, and one which I do not think was offended by the judge. Miss Bazley submits that the conduct of a party should only be taken into account to the extent to which it would be inequitable to disregard it. That is right. In my judgment, the judge was right to take conduct into account in this case.
27.	Miss Bazley goes on to submit that, although there are cases in which the conduct and contributions of the parties, together with the desirability of a clean break, provide good reasons for departing from equality, the court's overriding duty is to reach a solution that is fair. She cites B v B for that proposition. She criticizes the judge as erring in her approach by finding that it was of great importance that Mrs Civita should be able to buy her house, although she was securely housed in council accommodation. She gave considerable weight to the fact that Mrs Civita had a responsibility to house Andromeda and Alessandro even though they were working full time. The judge prioritised the housing needs of Andromeda and Alessandro over the needs of the husband for a home. She ignored the housing needs of the other children, in particular Lucrezia, and it was said Gaudenzio, who were living with the husband and were acknowledged to be vulnerable. She said that the judge took into account, in reducing his share of the assets, conduct of the husband which was not financial conduct, attaching little weight to the husband's financial contribution during the marriage and failed sufficiently to take into account the husband's ill-health and his psychological fragility. She says that the judge allowed the wife too much, in the figure of £28,000, to provide an additional bedroom unnecessarily, and said, alternatively, that the capital given to the wife would provide a cushion and would be available to the wife. She says that, although she contemplated that the matrimonial home might sell for £107,000, she made no provision for Mr. Civita to gain any benefit from any additional proceeds of sale. She made an order which rendered the husband homeless when this was not necessary or justified by the circumstances.
28.	Miss Bazley argued that the net effect of the judge's order is that the wife will receive (a) in excess of £90,000; (b) the benefit of any additional sum realised from the sale of the former matrimonial home (less the cost of cleaning and clearing the property) and (c) the value of the discount to which she would be entitled on the purchase of her council house. She contrasted that with the small amount she submitted the husband would receive, £45,000, being the gross value of 12, Arlington Gardens, less the amount due to the Legal Services Commission in relation to costs. She submitted that the order does not do justice between the parties and was plainly wrong. Alternatively, it was unfair not to charge a proportion of what the wife received so that the husband would have the prospect of realising funds in some four to seven years time.
29.	Miss Bazley in oral submissions was able to marshal four further arguments. Firstly, she dealt with the figures. The judge had taken no account of the fact that Mrs Civita would be able to purchase her accommodation at a discount and thus would be able to make a substantial profit in due course if she sold. Secondly, Alessandro had obtained employment and was living away from home. Thirdly, Gaudenzio had returned from America where he had been working and was living with Mr. Civita. Fourthly, despite the findings of the judge that Mr Civita would do everything possible to obstruct the sale and certainly would not effect any of the cleaning and clearing required to maximise the price obtained for it, if he had the incentive of capital being released from the property for his benefit, it would be in his interests to co-operate, and the judge had not given him that incentive.
30.	Ably as the case was advanced by Miss Bazley, I have come to the clear conclusion that the discretion of the judge in this case cannot be faulted, and that any appeal by Mr Civita against the order would not have any prospect of success.
31.	I reach that conclusion for a number of reasons. Firstly, I am in no doubt at all that the judge was fully entitled to give the substantial weight that she did to the issue of conduct in section 25 of the Act, and that Mr. Civita's conduct was such that it would be inequitable to ignore it. The judge was entitled to rely heavily, as she did, on the findings of the President in the care proceedings. Mr Civita, by his conduct, has inflicted untold psychological damage on the family, not least on Mrs Civita. Fortunately, by her own efforts Mrs Civita has been able to retrieve some of the ground but that ground remains fragile. She has only very modest employment. She is nearing retirement age. She has no prospect of future support from Mr Civita. He still remains a threat to her. If he continues to harass her she may have to move abruptly from her current accommodation.
32.	If I had any doubts about the judge's findings about Mr Civita and his attitude to his former wife, they are dispelled by the terms of the application that he made to the Brighton County Court to set aside the default costs certificate relating to the divorce proceedings. In my judgment the judge was absolutely correct to find, as she did, that Mr. Civita would do everything possible to obstruct the sale of 1, Crossway, and I am equally satisfied that, even if this court were to tinker with the judge's order to try and carve out a modest lump sum for Mr Civita, that would make no difference to his attitude, such are his feelings for his former wife.
33.	In a case such as this, where conduct is such a powerful feature, the exercise of the section 25 discretion must be aimed principally at the protection of the more vulnerable party (in this case the wife). Insofar as it is properly capable of being achieved, her financial position must be protected. Here, she is caring for the one minor child of the family, whom she has been able to bring home from foster care. Although her plans initially involved creating an extra bedroom so that Andromeda, Alessandro and Cassie could all be comfortably accommodated in her home, Alessandro has left. He is, however, only 20. He comes from a deeply disturbed and damaged background. I do not know if his foray into the world will be successful. On the other side of the coin, it is said that Gaudenzio has returned from America to live with his father. There is no evidence of that apart from the father's assertion, and the timing is, to say the least, suspicious. I cannot give the latter assertion the weight I give to the housing needs of the wife.
34.	If all goes well, and if the wife does buy her current accommodation, she will be able to sell at market value after a number of years. By then she will be in her 60s and unable to work. She will also have charged against her house the costs in the ancillary relief proceedings amounting to £19,781, a sum which will be interest bearing, and an order which she is unlikely to be able to enforce against Mr. Civita. I think it likely that the substantial costs run up in the ancillary relief proceedings are, in large measure, due to the manner in which Mr Civita conducted the proceedings.
35.	On Mrs Gage's analysis, the effect of the judge's order in percentage terms is that the division of assets is 68% in favour of Mrs Civita and 32% in favour of Mr. Civita. Had the facts been different and had this been the usual division of assets at the end of a long marriage, I am satisfied that the division would be nearer equality. But I am satisfied that, for the reasons she gives, the judge was fully entitled to divide the assets as she did; that Mrs Civita needs the assets which have been given to her and that, whilst the position for Mr Civita is difficult, he retains 12, Arlington Gardens and is relieved of any further liability to his former wife.
36.	I have dealt with this application for permission at considerable length, but the length with which I have dealt with it, and the detail I have examined it in, in no way takes away from the fact that I have come to the clear conclusion that the judge's exercise of discretion is not one with which this court should interfere. I would dismiss the application for permission to appeal.
37.	LORD JUSTICE THORPE: I agree with the order that my Lord proposes and with his reasoning. This would have been an extremely difficult application for the court to determine had Mr. Civita remained in person. My understanding is that Miss Bazley has acted at the on notice hearing pro bono. I would wish to associate myself with the words of gratitude expressed by my Lord.
Order: Application dismissed with costs, not to be enforced without the leave of the court.