Kaur v Sahota [2016] EW Misc B38 (CC) (30 November 2016) [2016] EW Misc B38 (CC)

EWMISC
Kaur v Sahota [2016] EW Misc B38 (CC) (30 November 2016)
[2016] EW Misc B38 (CC) · 2016-11-30
[1]DISTRICT JUDGE WILLIAMS: Introduction These financial remedy proceedings arise from the breakdown of the marriage of the Applicant Wife, Mrs. Navdeep Kaur, and the Respondent Husband, Mr. Sukhdeep Singh Sahota; whom I shall, for ease of reference, refer to in the course of this judgment as the Wife and the Husband respectively.[2]This is the Wife's adjourned application to commit the Husband to prison for contempt of court for his alleged failure to comply with court orders dated 3rd September 2015 and 25 th September 2015.[3]This hearing is being held in open court. The Wife is in attendance and is represented by Ms McKintosh of counsel. The Husband is neither represented nor in attendance today. Background[4]By way of undisputed background, the Wife's application for financial remedies was made as long ago as 7 th of January 2015.[5]By order dated 1 st of April 2015, the parties were directed to file and exchange their Forms E by 22 nd of April 2015. The Husband failed to do so.[6]By order dated 6 th of May 2015, the Husband was directed to file and serve his Form E by 27 th of May of 2015. Again, he failed to do so and he also failed to attend the adjourned first directions appointment on 3 rd of September 2015.[7]At that hearing on 3 rd of September 2015, the Husband was ordered to file and serve his completed Form E by 1 st of October 2015, and a penal notice was attached to that order. By order dated 25 th of September 2015, the time for the Husband to file and serve his completed Form E was extended to 13 th of October 2015.[8]In his witness statement dated 7 October 2015 the process server, Mr. William Stevens, states the following:
" I did on Monday, 5 th of October 2015 speak with the Respondent on his mobile telephone number when I informed him of the documents sought to be served upon him and he was unwilling to meet me. He requested that the documents be posted through the letter box at his father's address…..which I did on 5 th of October 2015. "
[9]By application notice dated 23 rd of May 2016 the Wife applied for the Husband's committal to prison on the basis that the Husband had failed to comply with the court orders dated 3 rd of September and 25 th of September 2015 by not filing and serving his completed Form E. In support of the application, the Wife filed and served a sworn affidavit, also dated 23 rd of May 2016.[10]The committal application was listed for hearing at the Family Court at Northampton on 8 th of July 2016. The Husband attended that hearing and the order from that day records on its face the following: i) The Husband accepted that he had not previously filed and served his Form E. The Husband confirmed that he had now completed his Form E, which had been filed with the court office that day, although not served upon the Wife; and ii) The court advised the Husband to take legal advice as to the committal application as well as the financial remedy application.[11]The order dated 8th July 2016 provided as follows:
" 1. The Husband shall file and serve his Form E by 4pm on 8 th of July 2016. He is directed not to leave the Court building today without having first provided a copy of his Form E to the Applicant's counsel and is to lodge his Form E with the court forthwith having obtained a copy. 2. The proceedings are transferred to Birmingham Family Court……The adjourned First Appointment shall be listed by that court as soon as possible as will the Committal application."
[12]The committal application came before for the first time on 6 th of October 2016. The Husband, again, failed to attend court and it was the Wife's case that, although the Husband had now filed and served his Form E, it was defective in that the Husband had not provided relevant financial disclosure in support of his Form E. In particular, the Husband had not provided copy bank statements or wage slips as he was required to do so under his Form E.[13]In his Form E filed with the Court, the Husband has expressly disclosed the existence of an account with Nationwide Building Society and that he was employed by Network Global. The Form E expressly stated that the documentation required for attachment was " for each account listed, all statements covering the last 12 months " and " P60 for the last financial year….Your last three payslips ". The Husband has failed to attach to his Form E any of the supporting documentation that was required.[14]However, I was not prepared to deal with the Wife's committal application at the hearing on 6 th October in the absence of the Husband as I was concerned that the application notice did not comply with Practice Direction 37A of the Family Procedure Rules in that it did not contain a prominent notice stating the possible consequences of the court making a committal order and of the Husband not attending the hearing. I therefore adjourned the application until today.[15]The order I made on 6 th of October 2016 included the necessary notice compliant with Practice Direction 37A, including setting out the court's powers to send the Husband to prison and his potential eligibility for legal aid. The order also specifically directed the Husband by 7 th of November 2016 to send to the wife's solicitor copies of all his bank and building society statements for the period from 30 th of January 2014, together with copies of all wage slips for the same period, so that there could be no doubt as to what the Husband was still required to do in order to comply with his disclosure obligations.[16]In his witness statement dated 28 th of October 2016 the process server, Mr. Wake, confirmed that he effected personal service of my order, dated 6 th of October 2016, upon the Husband on 27 th of October 2016. As I have already indicated, notwithstanding personal service, the Husband has failed to attend today's hearing and I am told by counsel for the Wife that no financial disclosure has been served by the Husband upon the Wife's solicitors.[17]The final hearing of the financial remedy proceedings is listed for 20 January 2017. Proceeding today in the absence of the Husband[18]I have decided to hear this application in the absence of the Husband for the following reasons: i) The Husband has been served with the relevant documents including the notice of this hearing; ii) The Husband has been expressly warned of the potential consequences of his failure to attend this hearing and the Court's powers; iii) The Husband has had sufficient notice to enable him to prepare for this hearing; iv) A further adjournment would be unlikely to secure the attendance of the Husband in light of his repeated failures to attend previous hearings and his failure to follow previous recommendations to seek legal representation; v) The relative prejudice caused to the parties by proceeding today or adjourning the application to another date; and vi) The overriding objective to deal with cases justly, expeditiously and fairly.[19]When determining this application I have borne firmly in mind that the burden of proof lies on the Wife and the alleged breaches must be established beyond reasonable doubt. Conclusion[20]Having read the documents and written evidence in the hearing bundle, which evidence is not challenged by or on behalf of the Husband, I find beyond reasonable doubt that the Husband is in contempt of court for failing to comply with the orders dated 3 rd of September and 25 th of September 2015. Indeed, I find that at today's hearing the Husband continues to be in breach of those orders by not providing full financial disclosure as he was required to do with his Form E.[21]An order for committal is an order of last resort and should not be used, if a less draconian remedy would provide a satisfactory solution. However, the Husband's contempt must be seen in the context of these long running proceedings. There are already outstanding costs orders and therefore there is no real likelihood of the Husband paying any fine that this court might impose upon him. The Husband has been given every opportunity to comply and these financial remedy proceedings are now nearly two-years old.[22]Again, I find beyond reasonable doubt that the Husband's failure to comply with the court orders has been deliberate, persistent and an attempt to defeat or obstruct the Wife's claims.[23]In the circumstances, I sentence the Husband to three-months in prison. I take account of the fact that the purpose of such a sentence is not only to punish the Husband, but also to secure future compliance. The final hearing in the financial remedy proceedings is listed for early next year. Therefore I suspend the prison sentence upon terms that the Husband complies with paragraph 2 of the order dated 6 th of October 2016 within twenty-eight days of personal service of today's order upon him. If he fails to do so, this sentence will become immediately operable.