No B1/2000/2665
Neutral Citation Number: [2000] EWCA Civ 412
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL 
AND AN EXTENSION OF TIME
								Royal Courts of Justice
								Strand
								London WC2

								Friday, 28th July 2000

B e f o r e:

LORD JUSTICE KENNEDY

LORD JUSTICE WARD

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BINDER

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BINDER

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 (Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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The Applicant appeared in person

The Respondent was not represented and did not attend

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J U D G M E N T
1.	LORD JUSTICE WARD:  This is an application by Mr Binder for permission to appeal against the order made by Mr Recorder Elvidge on 24th June 1998. By that order Mr Binder was to vacate the matrimonial home at 12 Lytton Close, London, N12 until the conclusion of ancillary relief proceedings or further order of the court. Paragraph 6 of that order emphasised the duration of the order and expressly provided that the order remain in force 
“until the conclusion of the ancillary relief proceedings or further order of the court”.
2.	There are formidable obstacles in Mr Binder’s way. One is that he is subject to a Grepe v Loam order but, for my present purposes, I am happy to entertain his application and he has not been prevented by that order, but it must remain in force. I want that to be clearly understood.
3.	The second difficulty is that this application is now over two  years out of time. The order which he seeks permission to appeal was made in June 1998. No good reason has been advanced to excuse that time or explain why this order was not appealed then or shortly thereafter. That, by itself, is almost the end of the matter. I have looked carefully at Judge Elvidge’s order because I know how passionately Mr Binder feels about the injustice of it. They are always hard orders to make and he is not the only person who has been the subject of it, unfortunately. But a moment’s thought from a man who is an intelligent man will lead to the conclusion that if the marriage is to break down, even though one party does not want that, then they have to separate sooner or later.
4.	The judge did not actually proceed on that basis. He recognised, as he said in his judgment, that it was a draconian order to make. He did not have the benefit of the judgment of Lord Justice Thorpe, to which we have been referred, but he applied  exactly the same principles. He did not make the order unless he found clear reasons for doing so.
5.	What were they?  They were that if someone had to go then the husband had some accommodation though, I accept, pretty squalid accommodation at the back of his shop. The wife would have nowhere effectively to take herself and the children, Joseph the youngest then being only 2 years old. Secondly, he looked at their respective needs. He found that the breadwinner of the family was Mr Binder who then - perhaps not now - had a successful antiques business and he found that Mr Binder would be able to support both the family and himself, each of them perhaps at some reduced standard of living. He looked next at the conduct of the parties and - although this was not a case of extreme violence which unhappily comes before the court - he characterised the behaviour as fairly boorish and difficult;  perhaps the worst allegations of physical violence was smearing tooth paste over the wife and emptying a waste bin over her head. As the judge said, we hear of much greater violence than that, but they were upsetting for the wife and she has the responsibility of looking after the six children. He had to look at the proposal for dividing the house into two. He took account of the fact that the husband had agreed to leave in the past. He found the wife to be frightened and upset. He found, importantly, that the husband was behaving in a way which destroyed the calm atmosphere that had been engendered over the month of his absence. So, he came to the sad but inevitable conclusion that Mr Binder had to go.
6.	If this application had been made to me the day after Mr Recorder Elvidge made it, I would be compelled to say that though sympathetic to the husband - to be kicked out of one’s home is a horrid thing to have happened - there would be no prospect at all of appealing it so I would dismiss his application. Coming, as it does, two years late, without explanation, even more I would have to dismiss the application.
7.	I must draw attention to the terms of the order I emphasised at the beginning. The order was directed to last only until the conclusion of the ancillary relief proceedings or further order. As I understand it from the papers placed before us, on 28th July the senior district judge made orders - subject to the decree being made absolute - that the husband transfer the property to his wife within two months of that date. He made orders that maintenance pending suit be converted into periodical payment orders. In effect, he made the ancillary relief order.
8.	The result is - though I do not think anyone has realised it - that the order came to an end a year ago.
9.	THE APPLICANT:  So I can go back home.
10.	LORD JUSTICE WARD:  No. On 19th August 1999 Mr Binder was before District Judge White. The judge made an injunction restraining Mr Binder from entering the former matrimonial home or approaching within 100 metres of that property. That order, too, was of limited duration and lasted for only 6 months or so. It came to an end on 19th February 2000.
11.	What then is to happen?  I asked Mr Binder whether he wished to go back;  he told this court he did because he loved his wife and children. I understand all of that. He wants to be back in the bosom of the family. But the family has moved on. The family has accepted that there has been a divorce and in those circumstances there is no prospect whatever of reconciliation and of restoration of the family as Mr Binder wants.
12.	For him to go back to the home today as he would like to do would have disastrous consequences for the well‑being of his wife and children. I am afraid that that could not be tolerated. The wife and the children must be allowed to continue to live in that property alone.
13.	For the reasons given by Mr Recorder Elvidge, which apply more so today than they did two years ago, in the exercise of the inherent jurisdiction of this court, I would make an order similar to that made by District Judge White, and restrain Mr Binder from returning to that property or approaching within 100 metres of it. That is an injunction which must be obeyed and will remain in force until further order. The application will be dismissed but there will be an injunction on those terms preventing Mr Binder going back to that property.
14.	LORD JUSTICE KENNEDY: I agree.
Order:  Application dismissed