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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> K v K [2015] EWHC 1064 (Fam) (21 April 2015) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2015/1064.html Cite as: [2015] EWHC 1064 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
K |
Applicant |
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- and - |
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K |
Respondent |
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Mr Andrew Bagchi
QC (instructed under the Public Access Scheme) for the Respondent
Hearing date: 20 March 2015
____________________
Crown Copyright ©
Sir James Munby, President of the Family Division :
"UPON the court recognising the wishes of J
The court of its own motion makes a shared residence order in favour of the father and the mother in respect of J
the manner in which J is to share his time between the parents is to be decided exclusively by J himself after consultation with both parents."
The order provided that otherwise the order of 22 March 2013 and, in particular, the order under section 91(14) should remain in force.
"I never harassed Mrs K; I never molested Mrs K. It was just a divorce tactic that [her] solicitors dreamt up. In April 2009 Mrs K begged me, begged me with tears running down her eyes, begged me to stay in the marriage And what was going on in the background? From January, you see it from the legal fees being paid, January to June she was plotting with the divorce from hell."
" my reaction when I read this is that it is simply bad on its face. It does not comply with the rules
If it is to be said that perjury has been committed, one has got, at the minimum, to specify in the application form the precise occasion on which it is said that perjury was committed and there has then got to be proper evidence in support. So far as I can see there is not a proper particularisation of the alleged contempt and there may be, for all I know, evidence which he would wish to rely upon, but you cannot start committal proceedings simply by saying, "I am going to rely upon all the evidence in the case". You have to identify what the evidence is
I am certainly not going to proceed with that today. The question may be whether it is capable of salvage by amendment or whether it should be struck out and [the father] can start again. We can come to that in due course. I am not going to deal with that substantive application today."
"it is really more indicative of issues that have gone on and it's not something that I wish to follow at any future point in respect of committal in respect of perjury."
"THE PRESIDENT: That is your committal application. Is that an application which you are actually actively pursuing?
A: No, your Lordship. It's struck out.
THE PRESIDENT: Very well. In that case, I will make an order reciting that [the father] informs me that he does not propose to pursue that application. I will strike it out."
"In substance [MrBagchi]
takes the same point in relation to each of your two applications. He says that they are simply repetitions of applications you have made in the past; that the applications to similar effect you have made in the past were dismissed; that there was no appeal; and that nothing has happened since the applications were last made and dismissed to justify bringing the same matter back to court. I think I have correctly summarised that."
The father agreed. I continued:
"That being so, I think the convenient way forward and this is as much for your benefit as for my benefit if MrBagchi
at this stage could take me through the documents so that we can understand by reference to the documents precisely why he said I should proceed in that way. That, I think, would be helpful."
"The second part of what MrBagchi
has been doing for our assistance is to indicate what the basis of his complaint is about your current applications. He has set it out very clearly in his skeleton argument and set it out again very clearly now. He says that the applications which you are making to me today are indistinguishable from the applications you made to Mrs Justice Hogg last July. He has taken me to the key passages in the transcript of the proceedings before Mrs Justice Hogg which show that you explicitly raised in front of her, for example, the question of school fees; and he has taken us to the order in which she dismissed all your applications."
The father agreed that, as a matter of historical analysis, historical fact, Mr Bagchi
was correct. I continued:
"Now, his point is that you cannot simply go from one judge to another. You cannot renew the applications which were dismissed before by Mrs Justice Hogg. He says your remedy, if you did not like the order she made, was to appeal and you did not appeal. Therefore you are stuck with, and I am stuck with, Mrs Justice Hogg's order of July last year. He says that is the end of your applications unless you can point to some new development which has taken place since July of last year Is there some new development? Has there been some change since July 2014? What is it?"
"[The father]: the emotional threat that I was under is a threat that was made straightaway at the beginning of the divorce "If I don't get what I want I will see to it you will never see your children again" I was being blackmailed all the way through.
THE PRESIDENT: How were you being blackmailed? What was the blackmail?
A: That I would never see my children again unless she got what she wanted."
I returned to the point a little later (transcript pages 23-24):
"THE PRESIDENT: One of the things which you quite clearly said to me and I am going to repeat it so that I can make sure I have not misunderstood is that at the time when you were going to court on the financials your wife was blackmailing you saying "sign up to this, agree to this or you will never see the children again".
A: Correct.
THE PRESIDENT: That is correct. So that is what your wife was saying at the time the order was made at the FDR.
A: Correct. What I am also saying is that through her (inaudible) she is actually linking contact with the children with the financial situation.
THE PRESIDENT: Thank you for clarifying that, but that is something, in other words, which you have known about for five years. It is something you knew about long before the hearing before Mrs Justice Hogg last July. What has happened since July to enable you to bring the matter back again? The answer is S.
A: Yes.
THE PRESIDENT: Is there anything else apart from S? Is it just S?
A: On that side of things."
"THE PRESIDENT: There are many people in many different parts of society who, for various reasons they may be cultural, they may be religious, they may be social still treat adultery as a very serious matter and do not want to be seen, to be understood by their friends, to be guilty of adultery. I entirely understand that. That is still a very powerful feeling amongst many people in our society. My point is a rather different one. Whatever the views outside these walls, adultery, whether admitted or proved, does not actually at the end of the day, unless it is very, very unusual or very, very extreme, have any impact upon either what the court does in relation to non-molestation injunctions, or in relation to children or in relation to the money.
A: That is not what I am saying, your Lordship. I probably have not expressed myself the way I need to. The adultery it doesn't matter. It's immaterial. It's just a non-issue. It is the determination to hide that adultery, for the world not to see and to create a completely different reason for divorce. That is what I am saying. Adultery is not an issue here. It is the desire to create a different history. "[He] was this type of guy. [He] was that type of guy. That is why I am coming to court for a non-molestation" to use the children and so on. That is what it is all about. The adultery is the beginning of it That was the magnetic bit about the desire to hide it and the desire to use the children with the new story, the new [father]".
"THE PRESIDENT: I just do not follow that. How does this affect the financial orders that were made in court?
A: What she is trying to do is she did not get all the money, so she is suing X, who then have to sue me and the money goes back that way. If I was to explain the transaction to you, you would understand.
THE PRESIDENT: How does that affect the validity and force of the order which the District Judge made in this court in this case?
A: Because in fact it's undermining the order. It is a total breach of it, is it not? Her complaint that she is making is in breach of what really we should have no financial claims against each other, but in effect what she is doing is she is making a claim against me but in an indirect way, but it is pretty obvious."
Note 1 I fucked your wife in a hotel and we fucked 3 times that afternoon what more do you want to know that you dont already? and We fucked lots and we both enjoyed it. What you going to do now? [Back]