Slade v Slade
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Wall,Lord Justice Ward |
| Judgment Date | 17 July 2009 |
| Neutral Citation | [2009] EWCA Civ 748 |
| Docket Number | Case No: B4/2009/0892 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 July 2009 |
[2009] EWCA Civ 748
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NOTTINGHAM COUNTY COURT
HIS HONOUR JUDGE MITCHELL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Wall and
Lord Justice Wilson
Case No: B4/2009/0892
(LOWER COURT NO: NG07P02132)
Miss Kathryn Taylor (instructed by Nottingham Family Law Associates) appeared for the Appellant.
Miss Jessica Lee (instructed by Fraser Brown, Nottingham) appeared for the Respondent.
Hearing date: 17 June 2009
Lord Justice Wilson:
A wife (as I will describe her although strictly she is a former wife) appeals against an order for her committal to prison for contempt of court made by His Honour Judge Mitchell in the Nottingham County Court on 3 April 2009. The judge found that she had perpetrated six contempts of court; and the overall effect of the six sentences which he passed upon her in respect of them was that she be committed to prison for 21 months. Under s.14 of the Contempt of Court Act 1981 the maximum term of imprisonment which he could have imposed upon her was two years; so he favoured an overall term only slightly shorter than the maximum. The applicant for the order for committal was the husband (as I will describe him) and he is the respondent to the appeal.
We conducted the hearing of the appeal on 17 June 2009 and, at its conclusion, we announced our decision, namely that it should be allowed and that the overall effect of the sentences passed by the judge upon the wife should be reduced from 21 months to six months. But we stated that we would put our reasons into written, reserved judgments; and Ward LJ has invited me to write the first.
The parties married in 1993; separated in 2006; and were divorced in 2007. Shortly prior to the marriage twins, a boy and a girl, were born to them and they are now aged 16. The son suffers an autistic spectrum disorder and attends a special school. At one stage following the separation he lived with the husband but early in 2008 he went to live with the wife and in effect became estranged from the husband. In the light of his disorder, he is less independent than most children aged 16; and, until the wife was taken to prison on 3 April 2009, she had continued to care for him.
On 11 March 2008, when a residence order referable to the boy was made in favour of the wife, both parents gave undertakings to the court. It was the wife's undertaking of that date which was the foundation of the judge's finding that in six respects she was in contempt of court. Her undertaking, duly signed, was that she would not, whether by herself or by instructing or encouraging any other person, harass or pester the husband and, specifically, communicate with him in any way save through solicitors. The undertaking recorded her acceptance that she should be bound by it until March 2009 and, although the absence of a specific date in March 2009 was the subject of consideration at another hearing, no part of this appeal turns upon the absence of a specific date in that no allegation of contempt was made against the wife in relation to any period after 17 December 2008, being, importantly, the date of issue of the husband's notice to show cause why an order for her committal should not be made.
In his notice the husband made eight allegations of contempt against the wife; but the judge found two of them not proved and I need say no more about them.
It would be helpful if I were to renumber the six proven allegations in order, so far as possible, to put them into chronological order.
7.1 The first contempt relates to a most serious incident on 7 April 2008. The allegation of the husband, which, to a substantial extent, the wife admitted but all of which the judge found to have been proved, of course to the criminal standard, was that at approximately 3am the wife and the son visited the husband's home; that the wife attempted to disable the external CCTV system which the husband had installed in order to deter her from misconducting herself there; that she encouraged the son to break the lock on the gate which led to the husband's back garden; that the son broke it or otherwise gained entrance to the garden; that, with her encouragement, the son there set fire to the motor bicycle which was the husband's prized possession; that the fire destroyed it and damaged the rear windows of his house, its guttering and even his computer; that she poured petrol both upon his motorcar, which was at the front of the house, and up against the house itself; that, albeit unsuccessfully, she attempted to set fire to the car by igniting the petrol; and that the wife thereby harassed the husband.
7.2 The substantial admission ultimately made by the wife in respect of the first contempt was that she went with the son to the husband's home that night and set fire to the motor bicycle. It appears, at any rate from her written evidence, that her admission was that she personally set fire to it but nothing turns on whether she did so personally or whether she instructed or encouraged the son to do so. Albeit unsuccessfully, she denied the other elements of the allegation, in particular that she poured petrol upon the husband's motorcar and up against his house and attempted to set fire to the car and that, beyond the destruction of the motor bicycle, there was any such further damage as the husband alleged. Her purported excuse for her grave misconduct was that she had learnt that the husband had raped the daughter of the marriage. The judge observed that, on the evidence before him, there was no foundation whatever for the allegation of rape.
7.3 The proper treatment by the judge of the first contempt raises a matter of some difficulty. For the wife, as well apparently as the son, was the subject of criminal proceedings in relation to the incident. On 20 August 2008 the wife pleaded guilty in the Nottingham Magistrates' Court to the offence of causing malicious damage to the motor bicycle. She was placed on probation for 12 months in respect of the offence and was made subject to a compensation order in favour of the husband in the sum of £400. It will be noted that the husband's assertion that the wife had thereby also committed a contempt of court was made in a notice issued more than eight months after the incident had occurred. In his affidavit in support of his application for committal the husband explained, entirely credibly, that the pendency of the criminal proceedings in relation to the incident, together with his hope that their result would deter the wife from further misconduct towards him, represented the explanation for much of the delay.
7.4 For the first contempt the judge sentenced the wife to a term of imprisonment for 18 months. On any view the contempt was profoundly serious; but the particular feature of the appeal against the sentence relates, of course, to the fact that, at any rate to a substantial extent, the incident had already been the subject of criminal proceedings.
8.1 The second contempt was that, whether by doing so herself or by encouraging the son to do so, the wife sent 117 text messages to the husband between 12 July and 8 December 2008 and thereby harassed and pestered him. Albeit at a late stage, the husband specified the content of the messages within a Scott Schedule. Many of them were abusive and referred to the allegation of rape to which I have referred; others threatened to expose the husband for having committed frauds of various kinds; and others referred in crude terms to the details of the sexual practices of the husband with the wife. The wife denied that she had sent any of the messages or caused the son to do so but the judge found that all 117 had been sent by her or, with her encouragement, by the son.
8.2 For the second contempt the judge sentenced the wife to a term of imprisonment for 21 months. In that all six sentences were expressed to be concurrent with each other, this sentence, being the longest, can be regarded as the primary sentence; and the wife's complaint is that it was manifestly excessive.
9.1 The third contempt was that on about 15 September 2008 the wife completed a direct debit form in favour of the RSPCA in the sum of £8.50 per month, which she herself signed but upon which she entered the details of the husband's bank account, and thereby harassed him. The husband alleged that in November 2008 he discovered the direct debit recorded on his bank statement and thereupon cancelled it. He also suggested that the details relating to his bank account had been taken by the wife from documents disclosed to her within the proceedings for ancillary relief ongoing between them. The wife denied that she had completed the direct debit instruction but the judge found that she had done so.
9.2 For the third contempt the judge sentenced the wife to a term of imprisonment for 12 months.
The fourth contempt was that, on 23 September and 1 October 2008 and on two further unidentified dates, the wife sent letters to the husband and thereby communicated with him otherwise than through solicitors. The husband exhibited the letters to his affidavit and, although the copies before us are hard to read, they seem to contain threats to cast a spell upon the husband and quotations from the bible. The wife denied that she had written the letters but the judge accepted the husband's evidence that the writing on the envelopes was hers and so found that she had written them.
For the fourth contempt the judge sentenced the...
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