James William Murray Guthrie v Irene Elizabeth Guthrie

• Jurisdiction: Bahamas
• Judge: Madam Justice Crane-Scott, JA
• Judgment Date: 11 February 2019
• Neutral Citation: BS 2019 CA 54
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCivApp. No. 13 of 2015
• Date: 11 February 2019

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

SCCivApp. No. 13 of 2015

Between

James William Murray Guthrie

Appellant

and

Irene Elizabeth Guthrie

Respondent

APPEARANCES:

Mr. Robert Adams with Ms. Shantelle Munroe, Counsel for the Appellant

Ms. Cassietta McIntosh, Counsel for the Respondent

A v. B [2010] 2 BHS J. No. 19 mentioned

B v. A [2012] 1 BHS J. No. 30 mentioned

Charman v. Charman [2005] EWCA Civ 1606 applied

Collie v. Collie SCCivApp No. 19 of 2015 considered

Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam) mentioned

Dean v. Dean (1991) BHS J. No. 164 mentioned Estrada v Al-Juffali [2017] 1 FLR 669 mentioned Fitzgerald (by his Receiver Jerome K. Fitzgerald) v. Fitzgerald [2015] 2 BHS J. No.33 considered

G v. G (Minors: Custody Appeal) (1985) 1 WLR 647 considered

Hamlin v Hamlin [1985] 2 All ER 1037 followed

Imerman v Tchenguiz and others; Imerman v Imerman [2011] Fam 116 mentioned

Iqbal v Iqbal [2017] EWCA Civ 19

Johnson v. Johnson SCCivApp No. 20 of 2015 mentioned

Jupp v. Jupp SCCivApp No. 37 of 2011 mentioned

M.G.O. v. F.C.O. SCCivApp No. 10 of 2015 mentioned

Miller v. Miller; McFarlane v. McFarlane [2006] UKHL 24 applied

Missick v. Missick [2012] 3 BHS J. No. 75 mentioned

Parra v Parra [2003] 1 FLR 942 considered

P v. L [2011] 2 BHS J mentioned

P v. T [2013] 2 BHS J. No. 97 mentioned

Re B (a minor) (2001) UKHL 70 considered

S v. V and another [2011] 2 BHS J. No. 99 mentioned

Sawyer v. Sawyer SCCivApp No. 134 of 2014 considered

V v. D [2011] 1 BHS J. No. 71 mentioned

Wachtel v. Wachtel [1973] 1 All ER 829 considered

White v. White [2001] 1 AC 596 considered

Williams v Lindley [2005] 2 FLR 710 mentioned

Civil appeal — Ancillary proceedings — Property adjustment order — Matrimonial Causes Act — section 29(1) — Meaning of property — Whether overseas property may be considered — Exercise of in personam jurisdiction — Equitable sharing principle — Matrimonial property — Non— matrimonial property — Quasi — inquisitorial role of judge in matrimonial matters — Contested proceedings — Purpose of cross-examination

The parties are both citizens of the United Kingdom and are domiciled in The Bahamas. They were married in The Bahamas on 7 July 2007. On 6 July 2011 the appellant/husband filed a Petition seeking, inter alia, the dissolution of the marriage on the ground of cruelty. The respondent/wife filed an Answer and Cross Petition on 25 November 2011 seeking the dissolution of the marriage also on the ground of cruelty as well as settlement of the matrimonial property. On 28 May 2013, following a hearing, the Petition was dismissed and a decree nisi granted on the ground of the appellant/husband's cruelty towards the respondent/wife. The decree was subsequently made absolute and the marriage was finally dissolved on 30 December 2013.

The appellant/husband applied by way of Notice of Application for Ancillary Relief filed on 19 June 2013 for division of matrimonial assets. Both parties filed Affidavits of Means and other affidavits identifying the properties they each regarded as matrimonial assets, responding to each other's allegations and substantiating their respective claims to the property adjustment orders they each sought.

Although the application was contested, and notwithstanding that the parties' affidavits revealed numerous disputes about factual issues, neither party was cross-examined on the contents of their affidavits and the hearing proceeded on the basis of legal submissions presented on behalf of each party. Closing submissions were also made. The Judge's written Ruling was handed down on 26 September 2014 and is the subject of the appeal.

Held: Appeal allowed; judge's order set aside in its entirety. Application for ancillary relief remitted to the Supreme Court for rehearing before another judge as soon as practicable. Each party to bear their own costs of the appeal and in the court below.

Given the state of the affidavit evidence, the learned judge could not reasonably prefer the evidence of one party over the other without seeing the parties' conflicting assertions and denials tested before her under cross-examination. In the face of the stark conflicts in the evidence on several issues which were critical to the proper exercise of the judge's discretion on the ancillary application, it was incumbent on the learned judge to have required the appellant, the respondent and any witnesses, to appear before her for cross-examination. It was an unreasonable exercise of the judge's discretion to make the findings of fact and the orders she ultimately made without the benefit of cross-examination.

The absence of cross-examination was not the only problem with the exercise of the judge's discretion. The judge erroneously excluded from her consideration two properties which she classified as “non-matrimonial assets” simply on the basis that they were held in the wife's name; and in the case of one of those properties, on the further basis that it was situated overseas. In doing so, she failed in her duty under section 29(1)(a) of the MCA to take all the parties' properties into account, before exercising her discretion to make the orders which she ultimately made. This again was plainly wrong. This appeal must succeed.

Judgment delivered by the Honourable Madam Justice Crane-Scott, JA :

Introduction and Background

1 . The appellant seeks by way of this appeal to set aside in its entirety, a written Ruling of Gray-Evans J., (“the Ruling”) handed down on 26 September 2014 following the hearing of a contested application for property adjustment orders, consequent on divorce.

2 . The appeal raises issues as to whether the learned judge correctly exercised her discretion in accordance with the Matrimonial Causes Act, Ch. 125 (“the MCA”); and whether, given the many factual disputes which arose on the parties' affidavits, it was permissible, on a contested application, for the judge to make crucial findings of fact in the absence crossexamination.

3 . Some background is necessary to set the stage for our discussion.

4 . The parties are both citizens of the United Kingdom and are domiciled in The Bahamas. They were married in The Bahamas on 7 July 2007. At the time of the marriage, the appellant/husband was a 51 year old divorce, while the respondent/wife, who was also divorced, was 57.

5 . The marriage was a relatively short one and produced no children. On 6 July 2011 the appellant/husband filed a Petition seeking, inter alia, the dissolution of the marriage on the ground of cruelty. The respondent/wife filed an Answer and Cross Petition on 25 November 2011 seeking the dissolution of the marriage also on the ground of cruelty as well as settlement of the matrimonial property.

6 . On 28 May 2013, following a hearing, the Petition was dismissed and a decree nisi granted on the ground of the appellant/husband's cruelty towards the respondent/wife. The decree was subsequently made absolute and the marriage was finally dissolved on 30 December 2013.

7 . By way of a Notice of Application for Ancillary Relief filed on 19 June 2013, the appellant/husband applied, inter alia, for division of matrimonial assets. Both parties filed Affidavits of Means and other affidavits identifying the properties they each regarded as matrimonial assets, responding to each other's allegations and substantiating their respective claims to the property adjustment orders they each sought.

8 . Although the application was contested, and notwithstanding that the parties' affidavits revealed numerous disputes about factual issues, neither party was cross-examined on the contents of their affidavits and the hearing proceeded on the basis of legal submissions presented on behalf of each party on 19 February 2014 and 14 May 2014. Closing submissions were also made on 16 May and 6 June respectively. As noted earlier, the Judge's written Ruling was handed down on 26 September 2014 and is now the subject of this appeal.

The Ruling

9 . Between paragraphs 10 through 18 of her Ruling under the sub-heading ‘The Evidence’ the learned judge reproduced the contents of most of the affidavits which each party filed in support of their respective contentions. Then at paragraphs 19 and 20 she stated:

“19. Neither of the parties was cross-examined and although I have set out most of their affidavits, much of what is alleged by one side and disputed by the other is not, in my judgment, relevant to the issues to be determined.

20. As indicated this is a property adjustment application and to my mind the issues that arise for determination are as follows:

a. What are the matrimonial assets?

b. How, if at all, interest in the matrimonial assets ought to be adjusted?” [Emphasis added]

10 . At paragraphs 21 and 22 under the heading ‘The Matrimonial Assets’ the learned judge commenced her discussion with the observation that the appellant/husband's claim was that there were four (4) properties which fell to be considered on the application for relief, namely: three (3) condominiums situated in Freeport, Grand Bahama, (#707 Harbour House Towers (Harbour House); #108 Obera Beach (Obera Beach), and #19 Beauport (Beauport)), together with a fourth property situated in Nottinghamshire, England at #2 Machin Grove (Machin Grove). She further observed that the respondent/wife had contended that the marital assets consisted instead of two of the three Freeport condominiums, namely: Harbour House and Beauport, together with a 2007 Toyota SUV or the proceeds of sale therefrom.

11 . At paragraph 23 the Judge stated:

“23. It is common ground that title to the Harbour House Towers and Beauport Condominium properties is held in the joint names of the husband and wife as joint tenants; that title to the aforesaid vehicle was also held by...