F v F

• Jurisdiction: Bermuda
• Judge: Baker P,Bell JA,Bernard JA
• Judgment Date: 08 July 2015
• Court: Court of Appeal (Bermuda)
• Docket Number: Civil Appeal 2014 No 9 & 12
• Date: 08 July 2015

[2015] Bda LR 66

In The Court of Appeal for Bermuda

Before:

Baker P; Bell JA; Bernard JA

Civil Appeal 2014 No 9 & 12

Between:

F

Appellant

and

F

Respondent

Appellant in person

Mrs G Marshall for the Respondent

The following cases were referred to in the judgment:

Re L and B (Children)UNK [2013] 2 All ER 294

Wellman v WellmanBDLR [2013] Bda LR 63

A v AUNK [1996] 1 FCR 186

Leave to appeal — Recusal application — Slip rule — Opportunity to be heard — Bias

JUDGMENT of Bell JA

Introduction

1. This is an appeal from a judgment of Wade-Miller J dated 12 March 2014, in which she dealt with applications on behalf of the Appellant, the petitioner in the original matrimonial proceedings, to whom I shall refer as ‘the Wife’, and the Respondent, the respondent in those proceedings, to whom I shall refer as ‘the Husband’. As appears from the heading of this judgment, the Wife appeared in person, both before the judge and on this appeal, and the Husband was represented by counsel. There were originally two applications before the judge; on 7 March 2013 the Husband had made an application for lump sum provision, while on 18 March 2013 the Wife had made application for relief in a number of respects, although for the purposes of this appeal they can be divided between her application for lump sum provision and transfer of property, on the one hand, and maintenance for the children, on the other. In relation to this latter, the emphasis was primarily on the children's school fees, and the proportions in which these should be divided between the parties. The Wife had filed two affidavits, and the Husband one, and both parties gave oral evidence.

2. As appears from the judgment, the Wife is Bermudian, and the Husband is an American citizen. At the time of the judgment the Wife was said to be 41 and the Husband 40 years of age. The parties were married in July 1997, after they had cohabited for two years. They separated in December 2012; decree nisi was pronounced in February 2013 and was made absolute in April 2013. Accordingly, as the judge found, the marriage had lasted some 16 years. There are two children of the family, aged ten and seven. The Wife has care and control of the children and they reside with her in the former matrimonial home. They attend private school. Following the breakdown of the marriage the Husband left Bermuda, and now resides in New York.

The Judgment and Leave to Appeal

3. The judgment is dated 12 March 2014, following hearings which took place on 13 and 14 November, and 17 December 201So there was a delay of almost three months between closing submissions and judgment, a matter on which the Wife made complaint in her submissions. This complaint was justified — see the Guidelines for Judicial Conduct. On delivery of judgment, the Wife immediately made application for leave to appeal, and although her application referred merely to ‘ancillary relief’, her application included a draft notice of appeal which contained some ten grounds, covering property adjustment, lump sum provision and maintenance for the children. At various times subsequently the Wife filed a variety of documents purporting to set out her grounds of appeal in different ways.

4. When the application for leave to appeal came before the judge, she took the view that in respect of her order for ancillary relief, leave to appeal was not necessary, and refused leave on that ground. The formal order includes the judge's handwritten note that in respect of ancillary relief, ‘leave is not necessary’. The judge also refused leave in respect of maintenance for the children, and in regard to this aspect of the case her note reads:-

‘The Wife may proceed to file her grounds of appeal to the Court of Appeal and to argue her grounds of appeal’.

One would have expected, firstly, that the judge would have appreciated that leave to appeal is necessary in relation to an appeal from an order granting ancillary relief, which is always capable of amendment by subsequent application, and hence not final. In respect of child maintenance, where the judge refused leave, one would have expected her to indicate to the Wife as the prospective appellant that she could renew her application for leave directly to the Court of Appeal. Not surprisingly, the Wife did not make any subsequent application for leave in respect of ancillary relief or maintenance for the children. So no leave to appeal was granted by the lower court.

5. On 22 July 2014, the costs of the ancillary relief application were argued before the judge, and she made an order that the Wife should bear two thirds of the Husband's costs of the ancillary relief proceedings. It is to be noted that there were a variety of other proceedings going on at this time, which included the Husband's judgment summons, and an application by the Wife that the judge should recuse herself. That recusal application was refused on 25 August 2014, and on 16 September 2014 the judge refused the Wife leave to appeal her order of 22 July 2014 in respect of costs, and made an order that she should pay to the Husband the lump sum of $85,000 which was to be paid pursuant to paragraph 1 of the formal order of 12 March 2014, drafted to reflect the terms of the judgment. There does not appear to have been a formal application for leave to appeal to the Court of Appeal against the costs order.

6. The position regarding leave to appeal was dealt with by this Court on 4 June, when the matter came before the Court on the Wife's application that the hearing then scheduled to commence on 16 June should be adjourned. That application was refused, and the Court granted leave to appeal so that all matters the subject of appeal could be dealt with during the session. Those matters included costs and recusal, which the Wife indicated at the commencement of her appeal remained open so far as she was concerned.

Amendment of the Judgment

7. The manner in which the judge altered her judgment after a draft had been sent to the parties was the subject of particular criticism from the Wife, and no doubt led in due course to the Wife's complaint that she had not been treated fairly, resulting in the recusal application. The judge's assistant had sent an email to the parties on 3 March 2014, enclosing a final draft of the judgment, indicating that it was not subject to correction or further argument, save for any typographical errors which might be identified. The email asked for any editorial corrections no later than ‘4:30 tomorrow Monday 10th March 2014 (sic)’.

8. The form of judgment sent out with that email was dated 28 February 2014. Having given details of the parties, it proceeded to deal with the parties' income, their expenses, and the children's education expenses, before turning to the assets. Regarding the parties' assets (paragraphs 41 to 45), the judgment dealt firstly with ‘matrimonial assets’. This section of the judgment carried on to deal with pensions, the Husband's assets, the Wife's inherited assets, and the matrimonial home and its contents, before setting out of the judge's decisions from paragraph 58 onwards.

9. On 3 March 2014 at 5:50 p.m., Mrs Marshall sent a two page email to the judge's assistant. In it, she set out details of the parties' liquid assets, referred to as jointly owned, in the same terms as these were set out in paragraph 41 of the draft judgment. Mrs Marshall then made the point that the parties owned the matrimonial home jointly, something which the judge had dealt with in paragraph 50 of the draft judgment, before finally referring to the Wife's inherited assets. These were put by Mrs Marshall at a figure of $381,443, whereas the judge had said in paragraph 48 of the draft judgment that this was the Husband's assessment of their value, but that she accepted the Wife's assessment of $352,819.

10. Mrs Marshall then referred to the effect of the Mesher order which the judge had made in relation to the matrimonial home — see paragraphs 61 to 66 of the draft judgment, before saying that she had seen no reference in the orders made by the judge to the liquid assets of the parties in the sum of $231,453. In fact, as appears in paragraph 41 of the judgment, this was the Husband's assessment of the assets, whereas the Wife maintained that the combined assets of the parties totalled $316,081, divided as to $95,055 to those in the name of the Husband, and $221,021 to those in the name of the Wife. The judge had referred (paragraph 43) to the Wife's submission that from the sum mentioned above, $241,074 was available for distribution, and commented that, with a difference of approximately $10,000 between the parties' calculations, the court did not propose to get into the minutiae of the arithmetical calculations, and accepted that the combined assets of the parties were just under $240,000, thereby broadly accepting the Wife's figure. Mrs Marshall continued that although just under $200,000 of these assets were in the Wife's name, there had been no dispute that these were the joint funds of the parties. She then asked whether it was the intention of the judge that the Wife should retain the entirety of the joint cash savings of the parties in her name, in the sum of $199,239, in addition to her inherited assets, to which the Husband had made no claim. She asked whether there had been a paragraph that had been inadvertently left out of the judgment, dealing with these funds. Mrs Marshall then referred to the payment which was being made with reference to the equity in the matrimonial home, submitting that the Husband should be entitled to receive $120,000, of which he already had $32,214, so that on an equal division of the liquid assets, the Wife should pay to the Husband a lump sum of $87,786 by way of ‘equalization’. Mrs Marshall finished by saying that to do otherwise would give the Wife a windfall of the entirety of the joint liquid assets and asked if...