Kalpoo v Kalpoo
| Jurisdiction | Trinidad & Tobago |
| Judge | Mohammed, J.A. |
| Judgment Date | 24 May 2012 |
| Neutral Citation | TT 2012 HC 183 |
| Docket Number | FH 2410 of 2010 |
| Court | High Court (Trinidad and Tobago) |
| Date | 24 May 2012 |
High Court
Mohammed, J.
FH 2410 of 2010
Ms. Leera Bahadoorsingh for the Petitioner
Respondent absent; Ms. Naveeta Sawh for the respondent absent
Family Law - Matrimonial property division.
This is an application by the Petitioner/Wife by way of Notice of Application filed on March 31, 2011 for ancillary relief. More particularly, the Petitioner seeks the following:
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(a) That the respondent be ordered to pay the Petitioner one half the value and worth of all matrimonial property and assets based on her interest therein, including the home situate at No. 59 Kalpoo Avenue, Felicity Chaguanas; or, in the alternative
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(b) That an order for sale of the matrimonial home as provided for by virtue of the powers of Section 12 Married Persons Act 1977 be granted and for distribution of the proceeds of sale in respect of her interest in property settlement;
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(c) That the respondent returns to the Petitioner her personal items and souvenirs referenced at paragraph 19 and 20 of her supporting affidavit filed herewith;
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(d) Costs.
The parties married on the December 27th 2006. At the time of the marriage, the Petitioner was 28 years old and the respondent/Husband was 47 years of age. The marriage was a relatively short one, as unhappy differences arose between the parties, with the Petitioner filing for divorce on December 17, 2010. On February 17, 2011, a decree nisi was pronounced in favour of the Petitioner on the fact of the respondent's behaviour pursuant to s.4 (1) (b) of the Matrimonial Proceedings and Property Act Chap. 45:51 (MPPA). Thus far no application has been made for the decree nisi to be made absolute.
At this juncture, it appears appropriate to outline the procedural history of this matter so that one may fully appreciate the way in which this matter developed and the course of action taken in determining the matter before me.
As was mentioned above, a decree nisi was granted in favour of the Petitioner on the February 17, 2011. The order on that day gave directions for the parties to file and serve specific documents: the Petitioner was directed to file and serve her proposed Application for Financial Relief in questionnaire Form 8 together with her supporting narrative affidavit on or before March 31, 2011. The respondent was directed to file and serve his Evidence of Financial Position in questionnaire Form 9 along with his narrative response affidavit on or before April 29, 2011. The matter was then adjourned to May 26, 2011 for a status hearing. Both parties and their attorneys-at-law were present in court on the date on which the said directions were given and thus all parties were fully aware of the terms of the order as well as the scheduled date for the next hearing.
The Petitioner's Form 8 Application for Financial Relief and supporting narrative affidavit were filed on March 31, 2011, in compliance with the court order of February 17, 2011. However, the respondent did not file either his Evidence of Financial Position Form or his response affidavit by the 29th February 2011 or at all, thereby failing to comply with the directions of the court set out in the order of February 17, 2011. No application was made by the respondent for an extension of time so as to allow him to carry out the stipulated requirements of the said order. Moreover, neither the respondent nor his attorney appeared at the next hearing on May 26, 2011. No reason was put forth for their non-appearance. I therefore imposed a sanction against the respondent and ordered that, for his non-compliance with the order of the Court made on the February 17, 2011 and for his non-attendance at the hearing without excuse or permission of the Court, he be debarred from defending the Petitioner's Application for Financial Relief.
As I stated in my Judgment in Smith v Smith FH00079 of 2009, Part 15 of the Family Proceedings Rules 1998 (FPR) empowers the court to issue sanctions for noncompliance with any direction or order of the court. The relevant rule is as follows:
“15.2 The court may —
(a) strike out a petition, cross-petition, answer or application or debar a respondent to an application if it appears to the court —
(i) that there has been a failure to comply with a rule or practice direction or with a direction given by the court in the case;”
It can never be over-emphasized that parties who are before the court have a general duty to help the court to further the overriding objective as contained in Part 1 of the FPR. ( Family Proceedings Rules 1998 Part 1.3)
In the case of In the Marriage of JRD and MT TATE (2000) 26 Fam LR 731 Dawe J., debarred the husband from defending the wife's application for property settlement and spousal allowance and proceeded with the application as undefended, denying the husband even the opportunity to cross-examine the wife. The husband subsequently appealed against the dismissal of his Form 8 application, and also against the refusal to allow him to cross-examine in the undefended hearing. The court refused the husband's application for leave to appeal from the dismissal of his Form 8 application but granted the husbands application for leave to appeal out of time from the refusal to allow cross-examination. On dismissing his appeal with costs the Court held:
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(i) There is a clear obligation on parties to proceedings to make a full and frank (and prompt) disclosure of their financial circumstances;
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(ii) Where non-compliance with the orders and directions of the court will, in the opinion of the trial judge, defeat the attainment of justice, then suitable remedies must be found. These remedies may include excluding a party from any further participation in the proceedings. No litigant should harbour any doubt that manipulation of the court's processes will attract other than the strongest measures from the court; and
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(iii) It was within the trial judge's discretion to dismiss the husband's Form 8, with the result that an undefended hearing was held.
In arriving at its decision the Court identified the consequences of non-compliance with directions and orders of the Court in the following terms:
“Where, as here, non-compliance with the orders and directions of the court will, in the opinion of the trial judge, defeat the attainment of justice, then suitable remedies must be found. In this instance the remedy necessarily excluded the husband from any further participation in the proceedings. Whilst such cases are exceptional and indeed unusual, no litigant, whether legally represented or not, should harbour any doubt that manipulation of the court processes, through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the court. In doing justice to both parties, the exclusion of a defaulter, whose defaults threaten the achievement of justice, is not only an option, but, in such circumstances, becomes a regrettable necessity.” (Op cit para. 108 at p. 751)
In the case of M v M (2011) EWHC 3574 (Fam) the wife filed an application for financial relief following the breakdown of her marriage to her husband. At the first hearing of the application the Court gave directions for the wife to file an affidavit in support of her application and thereafter for the husband to file his affidavit in response by specified dates. The matter was then fixed for hearing at a subsequent date. The wife filed her affidavit as required but the husband failed to comply with the Court's directions. On the date of the hearing the husband was represented by counsel but he chose not to attend. Counsel offered no explanation for the non-compliance of the Court's directions and for the non-attendance of the husband at the hearing. On debarring the husband from defending the application and on dealing with the application as undefended Madame Justice Kim, followed the decision in Hadkinson v Hadkinson (1952) FLR 287 and applied the following principles laid down in the said case by Lord Denning LJ:
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(i) Is the husband in contempt?
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(ii) Does this contempt impede the course of justice?
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(iii) Is there any other effective means of securing compliance?
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(iv) Is the contempt willful?
The approach of the Court in the above decisions aptly states the position that this Court has taken against the respondent. The need of each party to understand the financial position of the other party is at the heart of cases concerning applications for property settlement. Unless each party adopts a diligent and disciplined approach in litigation, particularly in compliance with court orders, delays will ensue with the consequent escalation of legal costs and injustice to litigants.
It is the duty of the Court to dispense justice and to deal with cases justly. In order for the Court to discharge its function, parties who are before the Court must seek to assist the Court as far as practicable in arriving at a decision. Where an order or direction of the Court is not complied with, the court is empowered to impose sanctions.
Up to the time of the trial on October 3, 2011 neither the respondent nor his attorney appeared or communicated with the Court or sought in any way whatsoever to show any regard or interest in the proceedings before the Court.
Accordingly, the respondent has no evidence before the Court for consideration when determining the matter at hand. Notwithstanding the absence of evidence by the respondent, however, the Petitioner must still establish her case on the basis of the applicable legal principles in relation to ancillary relief
According to the Petitioner, though they eventually married in 2006, their relationship began in 1997 after having met in 1996. Back then, she was still a student and so was not...
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