England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 April 2015

Sir James Munby, President of the Family Division :

1. The Applicant, who I shall refer to as the father, and the Respondent, who I shall refer to as the mother, married in 1996. They were divorced in 2010 on the mother's petition alleging unreasonable behaviour by the father. They have two children: M, a girl, born in April 1997, and J, a boy, born in January 1999.
2. There has been much litigation between the father and the mother. I confine myself to an abbreviated chronology focusing on those matters relevant to the applications that are before me.
3. The ancillary relief proceedings concluded with the making of a consent order by District Judge Gordon-Saker on 25 February 2010. The father, as he confirmed to me, was represented on that occasion by counsel. There is no need for me to go into the details except to note that paragraph I of the order made provision for payment by the father of the children's school fees. That part of the order was subsequently modified, as to the mechanism rather than the substance, by a Deed of Agreement executed by the mother and the father on 12 July 2010.
4. The litigation in relation to the children culminated in an order made by Hogg J on 22 March 2013 in which she dismissed the father's application for contact with M (the order reciting that M "does not currently want to have any contact" with him) and dismissed his application for a residence order in relation to J (the order reciting "the court recognising the wishes of J"). The order also contained an order against the father under section 91(14) of the Children Act 1989. The order further recited that the father's two applications were "totally without merit". At the same time Hogg J granted the mother a non-molestation order and other injunctions against the father. There is a transcript of the judgment given on that occasion by Hogg J which I have read. I have also read the transcript of the proceedings before Hogg J on 20 March 2013. For present purposes what is important is that the father (transcript page 19) accused the mother of having committed adultery, which she denied.
5. At an oral hearing on 15 October 2013 at which he heard the father in person, McFarlane LJ refused the father permission to appeal against the orders that Hogg J had made.
6. It might be thought that that would have been the end of the litigation. In fact the father brought matters back to court almost immediately, there being a hearing before Hogg J on 20 December 2013. This phase of the litigation culminated in an order made by Hogg J on 16 April 2014, the central provisions of which were as follows:

"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.

7. The father returned to the fray, making further applications on 1 July 2014. Those applications were supported by a witness statement dated 1 July 2014 in which the father, expressing himself in language which was extremely crude, vulgar and defamatory, made the most outrageous and fatuous allegations about both Hogg J and Baker J (who had dealt with the litigation at one stage). Anyone who may hereafter have occasion to consider any application by the father should read that statement. The applications came before Hogg J on 22 July 2014. There is a transcript of the hearing, which I have read. In the light of what he has more recently said to me, it is important to note what the father was saying to Hogg J at the end of his submissions:

"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."

8. Hogg J made an order which, listing the various applications made by the father, dismissed or refused each and every one of them. In particular, Hogg J on that occasion dismissed applications by the father seeking relief in relation to the school fees.
9. Nothing daunted, the father continued, making two applications, each dated 6 January 2015, one being an application to vary the financial order and the other relating to M and J. He filed a witness statement dated 4 February 2015. On 9 February 2015 I made an 'own motion' order requiring, inter alia, that the father identify the relief he was seeking and the facts he was relying upon.
10. Following that order, the father filed two further applications: (a) on 11 February 2015 an application seeking variation of my order and additional directions; and (b) an undated application seeking the committal of the mother "for perjury". The mother responded with an application issued on 6 March 2015 seeking the father's committal to prison for various breaches of the injunctive order made by Hogg J on 22 March 2013. That application was supported by an affidavit the mother swore on 6 March 2015.
11. By the time the matter came on for hearing before me on 20 March 2015, the father had filed, in addition to his statement of 4 February 2015, a further witness statement dated 12 February 2015, a document dated 12 February 2015 headed 'Initial Disclosures Sought And A Request to Bespeak the Court Files', in which he identified various disclosure orders he sought against the mother and certain other relief he was seeking, a witness statement dated 9 March 2015, responding to the mother's evidence (see below), a letter dated 13 March 2015 sent by the father to the mother's counsel, Mr Andrew Bagchi QC, an undated 'position statement' in which he identified the many orders he was seeking, and a 'final position statement' dated 19 March 2015. The mother had filed a witness statement dated 2 March 2015 in response to the father's applications. I also had the skeleton argument dated 9 March 2015 that Mr Bagchi had prepared on her behalf.
12. I have read all this material. There is no need for me to rehearse it in any detail.
13. The father appeared before me in person; the mother was represented by Mr Bagchi.
14. Because of the committal applications, the matter was listed for hearing in open court. There is a transcript of that part of the hearing. I made it clear that I was not prepared to hear the mother's committal application then and there and gave directions for it to be heard before me on a date to be fixed.
15. In relation to the father's committal application I said this (transcript page 5):

"… 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."

16. The father's response (transcript page 5) was that he did not intend to pursue the committal application:

"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."

17. I then moved into chambers to hear the other applications. There is a separate transcript of that part of the hearing.
18. The father again repeated that he did not wish to pursue his committal application (transcript page 3):

"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."

19. At the end of the hearing I made an order dismissing the father's committal application and giving directions in relation to the mother's committal application. At my request, Mr Bagchi drafted an appropriate form of order, which I approve as drafted. As to the rest I reserved judgment.
20. A careful reading of the mass of material filed by the father indicates that he is simply attempting to re-litigate, yet again, matters already determined against him and that, as to the vast bulk of it, there is nothing whatever new in what he is saying.
21. Referring to the father's two principal applications issued on 6 January 2015, I therefore said this (transcript page 4):

"In substance [Mr Bagchi] 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 Mr Bagchi 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."

22. Mr Bagchi accordingly took me through the history, essentially as I have summarised it above. I then said this to the father (transcript page 12):

"The second part of what Mr Bagchi 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?"

23. That was my view at the time. Nothing since has made me change it. For the father to seek to re-open matters already concluded against him he must show that something has changed since the last hearing before Hogg J in July 2014, show that there is fresh evidence available to him now that was not available to be put before Hogg J and which puts a different complexion on matters. That, in my judgment, the father has signally failed to do.
24. The father's response, in essence, was threefold.
25. First, the father said that emails sent to him in December 2014 by S, the man he had always suspected of having committed adultery with the mother, proved that she had indeed committed adultery as he had always alleged and never been able to prove but which she had denied on oath before Hogg J on 20 March 2013. The father said that this supported his case that the mother had subjected him to "blackmail" and "duress" in relation to the order made by District Judge Gordon-Saker on 25 February 2010. Leaving on one side the fact that these emails are not, strictly speaking, evidence against the mother, and the fact that it never seems to have occurred to the father that, judging by their tone and contents, they may have been designed and sent as a false admission intended simply to infuriate and insult him,^[1] I failed, and I still fail, to see where this takes the father. Let it be assumed for the sake of argument that the father now has proof of the mother's adultery. Where does it take him? He has disavowed proceeding against the mother for perjury. How does it establish a case of "blackmail" or "duress"? How does it impinge upon the order made by District Judge Gordon-Saker?
26. My attempt to understand how the father puts his case appears from the transcript. So far as concerns the allegations of blackmail and duress, the father was clear that this was based on what the mother had said to him at the time the order made by District Judge Gordon-Saker was being negotiated (transcript pages 21-22):

"[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."

27. So the allegations of blackmail and duress are nothing new.
28. This part of the debate concluded with the following interchange (transcript page 30):

"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]".

29. With all respect to the father, I remain at the end of the day quite unable to see how the mother's adultery, even assuming it could be proved (and she continues to deny it), has any bearing upon the case or how, even if it could be proved, it would impinge in any relevant way upon the order made by District Judge Gordon-Saker. So the emails from S take the father nowhere.
30. The second part of the father's response to my question, was that he now had proof, in the form of documents which he obtained only in late 2014, (a) that the mother was, as he put it, "in breach of contract" in relation to the order made by District Judge Gordon-Saker and (b) that she had not had the resources to fund the costs of the litigation.
31. The basis of the first allegation is that the mother is embroiled in litigation with X, which acted prior to 2007 in some transactions relating to properties owned by the mother and the father, the likely consequence of which, the father says, given certain, as he would have it unfounded, allegations the mother is making against him, is that he will end up with a liability to X. Let it be assumed that his fears are well-founded; I simply fail to see where this takes him. I put the point to him (transcript pages 17-18):

"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."

32. There is no basis for the assertion that, in suing X, the mother is acting in breach of the order made by District Judge Gordon-Saker, nor does the litigation impinge in any relevant way upon the District Judge's order. So the newly discovered documents in relation to that take the father nowhere.
33. So far as concerns the mother's asserted inability to fund her cost of the litigation, the father accepted (transcript page 18) that this had nothing to do with his application in relation to the order made by District Judge Gordon-Saker. His assertion that it bore on his application in relation to the children was elaborated (transcript pages 18-23) in a way which I found difficulty in following but which, at the end of the day, left me entirely satisfied that the newly discovered documents took the father nowhere.
34. The third part of the father's response to my question was based on the fact that in January 2015 he was arrested by the police for alleged breach of the non-molestation order and has subsequently been charged with an offence contrary to sections 42A(1) and (5) of the Family Law Act 1996. That may be, but it cannot form the basis of any claim to have any of the orders varied or discharged.
35. I have very carefully considered all the materials put before me by the father and everything he said in the course of his oral submissions. There is nothing of substance in any of the new materials, the recently discovered documents, which in any way impinges on the various orders which the father now seeks to challenge. In major part, the arguments he has put before me simply replicate arguments which the court has considered and rejected on previous occasions. Insofar as he is able to rely upon new materials, recently discovered documents, they take him nowhere.
36. In my judgment, the father's applications are all totally without merit. All must be dismissed.
37. This further attempt by the father to re-litigate, yet again, matters which have already been concluded against him, demonstrates not merely the continuing need for the section 91(14) order but also the need for a corresponding order to prevent him making further applications without permission in relation to the financial matters dealt with in the order made by District Judge Gordon-Saker. In relation to that I propose therefore to make a Grepe v Loam order: see Grepe v Loam (1887) 37 ChD 168, Ebert v Venvil and Another [2000] Ch 484 and Bhamjee v Forsdick and others (Practice Note) [2003] EWCA Civ 1113, [2004] 1 WLR 88. The Grepe v Loam order should provide, and the section 91(14) order should be amended to provide, that all future applications, including any applications by the father for permission to apply, are reserved to the President of the Family Division unless released by the President to a judge of the Division.
38. I invite Mr Bagchi to draft for my approval a further order to give effect to this judgment.

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 don’t already?” and “We fucked lots and we both enjoyed it. What you going to do now?”    [Back]