Recorder Chandler KC’s final order was 67% to H and 33% to W, the non-compliant party, and an SPP order in W’s favour even though she did not attend, had not made full disclosure and adverse inferences had been made. This was his answer in this case to the age-old question, ‘What should the court do where one party deliberately flouts orders, refuses to provide disclosure and breaches a series of penal notices whereby, as a result of that default, the court does not have the full picture?’

Summary

H 38, W 37. Married June 2016, separated December 2021, a 5.5-year short marriage. Three children of the marriage, ages 7, 6 and 2. The children spent equal time with H and W following the child arrangements order made in October 2013.

Recorder Chandler KC sets out at [1]–[5] the court’s quasi-inquisitorial role and what limited powers the family court has where its aim is a fair outcome and not the tramlines of adversarial pleadings.

At the final hearing, Recorder Chandler KC had a husband acting in person (due to a lack of funds), and a wife who did not attend and who had breached a series of orders for disclosure. On top of which, there was no bundle, forcing the Recorder to dig through the Portal for documents. Neither party had filed a position statement, and H’s open offer only came to light after the Recorder was able to ascertain from H that his ‘non-prejudice’ (sic) offer filed on the Portal was actually his open offer. When the Recorder states that he did his best to salvage the final hearing ([7]), that was an understatement.

The Recorder determined that even in light of the lack of bundle, W’s non-disclosure and non-attendance, and the overriding objective, meant the case should proceed, or as Recorder Chandler put it:

‘it would be in my view grossly disproportionate to allow this case to proceed to a further, eighth, hearing when in all probability the court will again be presented (with due respect to the Husband) with badly prepared [sic], where the Wife has failed to comply with orders and disclosure and might again not attend.’

Litigation chronology

See [17]–[24]. Of the six previous hearings, all were ineffective due to either W’s non-attendance or her failure to disclose. Costs were reserved in four of those six hearings.

Assets, liabilities, income and outgoings.

The Recorder sets out the summary of assets as determined by him at [43]–[45] and income and outgoings as determined by him at [46]–[53].

Section 25

At [54]–[71], the Recorder goes through the s 25 factors. This is a reminder to all practitioners that even where there is non-disclosure and non-attendance in the family court, the judge must still go through the process of considering the s 25 factors. The Recorder did make findings of litigation misconduct.

The Recorder also drew an adverse inference regarding W’s ability to earn, he saw the force in H’s argument that W had not complied with the orders and penal notices for a reason, which was likely to be that she saw some advantage to keeping the court in the dark as to her current financial arrangements. That inference was based on the facts, as the Recorder could best determine them, based on his limited information.

Held

After considering the needs of the minor children, the Recorder awarded 67% of the assets to H and 33% to W. The departure from equality was justified i) because H’s property was a pre-marital asset to which the concept of equal sharing does not apply, and ii) because of W’s litigation misconduct.

The Recorder ordered SPP for four years at the rate of £1,200 pcm based on H’s figures. After four years (when the youngest would be 6), SPP would become nominal and expire when the youngest turned 18.

No separate costs order was made as the Recorder had taken into account W’s litigation misconduct in the overall redistribution of the assets.