Kohli v Kohli
| Jurisdiction | Turks and Caicos Islands |
| Judge | Williams, R.M. |
| Judgment Date | 30 July 2002 |
| Court | Supreme Court (Turks and Caicos) |
| Date | 30 July 2002 |
| Docket Number | No. 408/02; No. 583/02 |
Supreme Court
Williams, R.M.
No. 408/02; No. 583/02
Mr. Jonathan Katan appeared for the applicant
Mr. Conrad Griffiths appeared for the respondent
Family Law - Husband and wife — Children — Application for maintenance pursuant to section 3(b) of the Domestic Proceedings Ordinance in relation to the four children of the family — Application for maintenance for the applicant pursuant to section 3(a) of the Domestic Proceedings Ordinance — Whether the husband failed to provide or to make a proper contribution towards reasonable maintenance for any of the children — Whether the husband failed to provide reasonable maintenance for the wife — Section 5(2) and 5(3) Domestic Proceedings Ordinance.
This matter concerns applications made by the British applicant Mother, Elizabeth Kohli (aged 34) for maintenance for herself and the children of the family from the Canadian respondent father, Mr. Stephen Kohli (aged 41). The parties were married in September 1991 in Bermuda and separated at the end of December 2001/early January 2002. The family still resides in the Turks and Caicos Islands. There are no pending divorce proceedings before the Courts.
The applicant filed an application for maintenance pursuant to Section 3(b) of the Domestic Proceedings Ordinance in relation to the four children of the family namely, Thomas aged 9, Joanna aged 6, Jack aged 5 and Samantha aged 3. This application was filed on 28th February 2002 and served on Mr. Kohli on 8th April 2002. The Mother contends that the Father has failed to provide, or to make a proper contribution towards reasonable maintenance for any of the children. The matter came before the Court on 12th April and was adjourned to 3rd May 2002 for hearing. Mrs. Kohli subsequently issued a summons seeking maintenance for herself pursuant to Section 3(a) of the Domestic Proceedings Ordinance. This summons was issued on 22nd April 2002 and although service of the same is accepted the actual date of service is not clear from the Court papers or oral evidence given. On 3rd May 2002 both summonses came before the Court when the hearing was adjourned to 30th May to enable the mother to obtain legal representation. Mrs. Kohli contends that Mr. Kohli has failed to provide reasonable maintenance for her. Mrs. Kohli, as confirmed in the written submissions of Mr. Katan, is seeking a global figure of $1,700 per month maintenance. Mr. Kohli argues that no orders for maintenance should be made as the grounds for making orders pursuant to the above sections of the Ordinance have not been made out. If required to pay maintenance, Mr. Kohli indicated in oral evidence that a monthly ‘global figure’ he would feel ‘comfortable paying’ under the circumstances set out in document Schedule 2 (p58 bundle) would be $1,015.50. Mr. Griffiths' written submissions do not disclose a figure save to state that the current voluntary monthly sum of $600 is reasonable.
The hearing commenced on 30th May 2002 when the Court received the oral evidence of Mrs. Kohli. On 13th June Mr. Adrian Corr and Miss Avril Whittingham gave evidence on behalf of the Mother and Mr. George Headlam and Mr. Martin Reagan gave evidence on behalf of the Father. The matter was further adjourned to 2nd July 2002 when the Court heard Mr. Kohli's evidence in chief. Mr. Kohli completed his evidence on 3rd July 2002 and thereafter counsel presented their closing oral and written submissions.
Unfortunately, this relatively straight forward maintenance hearing has appeared to have taken a path of its own, resulting in the Court hearing rather more detailed evidence than would be the norm for this type of application within this jurisdiction. Additionally, the Court has received evidence from four expert witnesses who are in some way connected to the insurance industry on the Turks and Caicos Islands. Although a helpful non-agreed bundle was filed on the first morning of the hearing, further documentation has been produced in a disorganised manner throughout the trial. This Court is concerned about the unstructured way in which this hearing has developed and the resultant cost to these litigants especially when one considers the issues and the quantum of maintenance involved. In future, as a matter of good practice, serious thought should be given by counsel to following the relevant requirements of the Practice Direction (Family Proceedings: Court Bundles) (2000) I FLR 536 in relation to the preparation of Court bundles for hearings with a time estimate of half a day or more. Consideration may now need to be given by the Court to passing rules to adopt the forms and procedure relating to applications brought under the mirror legislation in England and Wales, namely the Domestic Proceedings and Magistrate ‘s Court Act 1978. For the record I indicate that all future domestic proceedings shall be heard in Chambers pursuant to Section 48(1) and (2) of the Domestic Proceedings Ordinance and during this matter no members of the public were noted as being present during the hearing.
However, I do note paragraph 2 of the written submissions submitted by Mr. Griffiths and agree that any potential orders have ‘far wider implications’ and may have ‘dramatic consequences.’ This has no doubt resulted in the hearing taking on the complexion of a fully contested ancillary relief case although here without consideration of capital assets. With this in mind I view it as necessary to prepare and hand down this full and rather lengthy written judgment in which I will adjudicate on issues to date, which I hope will act as a guide to any future tribunal and which will assist Mr. and Mrs. Kohli to comprehend the law and reasoning behind this Court's decision.
I feel it right to comment on a further issue which has also occupied a great deal of the Court's time in this matter and which has resulted directly from the rather haphazard manner in which expert witnesses and documentary evidence have been produced before the Court. Both counsel have quite rightly referred me, on more than one occasion, to Section 16 of the Evidence Ordinance 2001 either to support or oppose the introduction of certain documents. The Court, in cases where the welfare of the child is the first consideration, should take a flexible and generous approach when dealing with the admissibility of and weight to be placed upon this type of hearsay evidence. The Court is mindful of the reasons why the eminently sensible Children (Admissibility of Hearsay Evidence) Order 1993 was introduced in England and Wales.
The applicant indicates that as the parties' relationship came to an end that she was involved in a number of discussions with Mr. Kohli concerning future arrangements. Mrs. Kohli accepts that she vacated the former matrimonial home but was not in desertion as it was by consent. The applicant contends that the children have enjoyed equal staying access with the parents. A great deal of evidence was given concerning child guidance discussions with Dr Slattery. With respect to Dr Slattery, I pay little regard to the content of those discussions and note that he appears to have no relevant qualification in either child psychiatry or child psychology. Pages 1 to 17 of the bundle include copies of emails and letters from Mr. Kohli to Mrs. Kohli. The applicant does not accept that they are an accurate reflection of any agreement but are more a record of what the respondent wanted. Mr. Katan contended that the respondent was compared to his client in a position of strength due to his many years in the accountancy profession and because he was the paramount salary earner for the family.
Mrs. Kohli stated that she received no maintenance in January 2002, February 2002, and March 2002 and thereafter has benefited from a global monthly sum of $600 per month. The applicant accepts that she received $950, being one half of the returned damage deposit from Bimini House, the former rented matrimonial home. In December 2001 and January 2002 Mrs. Kohli collapsed the CMARSP pension apparently valued at Can$44,222.28 (US$28,638.29 (but she stated received US$22,000, Mr. Kohli estimates US$20,000 — page 2 bundle)) taken out in her sole name but solely contributed to by Mr. Kohli. She says that this was not in lieu of maintenance payments and that she had no choice but to reluctantly collapse the fund as there was no satisfactory arrangement for maintenance with Mr. Kohli and that she did not receive her first salary payment until the end of March 2002. When cross-examined she stated, “fact that I could live off the $22,000 from the pension was discussed by Mr. Kohli, he told me what to do and I accept it. It is in his nature to command.” The applicant stated that apart from using the money for living expenses in January to March 2002 that the initial expense of setting up her new home was $4,660 with an additional $460 for a bunk bed and that by the end July and after the deduction of most legal expenses only $2,600 will be left.
On the issue of accommodation, Mrs. Kohli stated that she had looked at different properties charging less than her current monthly rent of $1,400. Her evidence is that she felt unable to accept ground floor accommodation such as Mr. Kohli's Richmond Hill home for security reasons and that she did not wish to live in Long Bay which she perceived as an isolated area. Her current view, even during cross-examination when she was shown the property particulars from page 27 to 34 of the bundle, is that the average rent for a two-bedroom apartment is “$1,550 plus change.”
I was referred to the applicant's curriculum vitae which was prepared ‘to target’ her current employer (page 38 bundle). It appears from the face of that document that, prior to undertaking some voluntary work and taking up her...
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