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(Family Division; Mostyn J; 10 June 2010)
Appeal against a fact-finding decision. Over the 17 day hearing there were 89 allegations in issue including assault on the mother and physical abuse of children. The judge found for the mother on every point and proceeded to make an interim shared residence order. The appellate court would only be able to conclude that a fact-finder had got the wrong answer if (i) the conclusion was demonstrably contrary to the weight of evidence; or (ii) the decision-making process was identified as plainly defective, so that it could be said that the findings in question were unsafe.
With hindsight the whole exercise was completely futile, but the court couldn't overturn the decision on that basis only. The balance of probability was slightly misstated by the judge who had also made very adverse findings against the father based on some litigation misconduct by the father. The litigation misconduct did not necessarily demonstrate an intrinsic mendacity on the primary issue. The judge had failed to take account of the various points on which the mother had changed her account. The whole judgment was rendered unsafe and should be set aside. Should not be a further fact-finding hearing as equal shared care had already been agreed.
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