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Home > Judgments > 2010 archive

Winter v Winter [2010] EWHC 3825 (Fam)

Committal proceedings and judgment summons relating to breaches of orders for the payment of child maintenance. Sentence of one year’s imprisonment imposed, suspended on terms.

The parties married in 1992 and had three children. Following the breakdown of the marriage Mrs Winter applied to remove the parties' child permanently to Sweden.   There were also financial issues arising from the breakdown of the marriage. These were resolved initially by consent. Mr Winter applied successfully to reduce periodical payments to the wife and children. District judge Walker ordered him to pay £410 per month for the children and nominal payments to Mrs Winter. Mr Winter did not pay any maintenance for the children.

Mrs Winter sought to enforce the order. On 18 December 2009 Mr Winter agreed to bring into the jurisdiction £32,000 from the sale of a property in Sweden. Mr Winter failed to do so and applied the monies elsewhere.   Mrs Winter sought to commit Mr Winter for breach of the order that he bring £32,000 into his UK bank account and a judgment summons in relation to the order for maintenance.

The judge considered that Mr Winter had breached numerous court orders and was in contempt for his failure to comply with the 18 December 2009 order. His approach to the courts was disrespectful. The judge sentenced Mr Winter to a period of one year's imprisonment suspended on terms. Those terms were effectively to ensure that Mr Winter paid £32,000 in various tranches. In particular, they provided that if he should fail to make any of the payments ordered, the full sum would become due, and if he should fail to pay the full sum, the prison sentence would become immediately operable.

The judgment summons was adjourned pending an appeal by the husband's on this matter. 

Summary by Ayeesha Bhutta, barrister, Field Court Chambers


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Case No:  FD06D03687

Neutral Citation Number: [2010] EWHC  3825  (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL

Wednesday, 30 June 2010

BEFORE:

MRS JUSTICE BARON


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BETWEEN:

KARL HAKEN WINTER
Applicant/Claimant

- and -

ANN SOFI WINTER
Respondent/Defendant

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MS E D BREESE-LAUGHRAN appeared on behalf of the Claimant

MR S CALHAEM appeared on behalf of the Defendant

 

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Approved Judgment
Crown Copyright ©

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1. MRS JUSTICE BARON:  I am dealing with two separate applications in relation to one set of facts.  They relate (i) to a committal application for the breach of an order made by Deputy High Court Judge Mr Philip Moor QC on about 18 December 2009 and (ii) a judgment summons for the breach of an order made by Walker DJ.

2. The factual matrix is relatively simple.  Mr Karl Haken Winter, a Swede by birth, married Ann Sofi Winter in about 1992.  They have three children whose ages range between 16 and 13 years, namely Julia, Cornelia and Alexander.  During the course of a fairly lengthy marriage both of these parties made their home in the United Kingdom and all three children were born here.  The children went to well known private schools and the family lived an extremely good lifestyle. 

3. Mr Winter worked very successfully as a banker with special knowledge in the field of mergers and acquisitions.  He told me that he came to the United Kingdom in 1994 and started his first job earning a lowly salary at the rate of £42,000 per annum.  However, in his last successful year, his earnings had risen to £775,000.  So he, obviously, was a successful commercial man.

4. When the marriage came to an end, Mrs Winter decided that she wished to return to Sweden.  That obviously caused Mr Winter a great deal of concern and the stage was set for a very expensive piece of litigation as Mrs Winter sought to persuade a judge that the children should go to Sweden with her.  At first instance HHJ Richardson ordered that the children should remain in England but the Court of Appeal allowed the wife's appeal and she left this country in early July 2009.

5. Prior to the Court of Appeal hearing there were lengthy negotiations in relation to the division of assets.  The former matrimonial home, which obviously was a substantial property, was sold.  And according to Mr Winter he agreed that his wife should receive the bulk of the equity of that property.  He understood that she received about £560,000 net.  On the other hand, he believes (and I do not know whether he is right or not for I have not seen papers which confirm the fact) that he was left with indebtedness in excess of £250,000.

6. What is uncontrovertible is that from about August 2008, after the wife and children had left the jurisdiction, Mr Winter paid no maintenance in respect of the children.  Indeed, shortly after his wife had agreed to reduce her entitlement to capital under the original settlement (and consent order made by HHJ Everall in respect of the financial proceedings).  Mr Winter made an application for a downward variation of the periodical payments that were due to his wife and children.  That application came before Walker DJ.  She reduced the wife's payments to a nominal order and ordered the husband to pay something in the region of £410 per month in respect of the children, but he has paid nothing under the terms of that order.  So it is that by January 2010 the arrears under that order total some £26,000-odd.  The precise terms of the District Judge's order may be found at appendix 1 to this judgment.

7. In the light of the difficulties that the wife suffered as a result of non-payment, she sought a number of worldwide freezing injunctions which were made by this court.  The husband appealed the order made by Walker DJ and that application came for hearing before Black J.  She dismissed his appeal.  Unfortunately, the order emanating from her decision, which was broadcast towards the end of November 2009, was not published by the court officers until early January 2010.  That sort of delay is, in my view, not acceptable but may be explained by the intervening vacation.

8. In fact, before that the case was before the court in mid-December before Mr Moor QC, sitting as a High Court Judge, in relation to a continuation of a freezing order.  On that occasion the debate was whether accounts would remain frozen.  The issue arose because an asset owned by the husband in Sweden, namely a flat, was due to be or had just been sold.  It is clear from schedules which the husband has produced recently that the flat was sold in late November 2009 and, according to him, netted some £107,968.  The wife wished to secure that sum, or at least what was due to her on behalf of the children, namely the £24,000 to £26,000 of arrears, depending on the month the figure was calculated.

9. When the matter came before Mr Moor QC there was a debate as to whether funds should be returned to the United Kingdom.  The reason for this was that although there was a worldwide freezing order it had not been effective in Sweden, I suppose because the wife had had insufficient funds to register the English court order in that jurisdiction, with the result that the Swedish banks did not regard themselves as bound by the English order.

10. In the course of the debate before the learned Deputy Judge, it is clear beyond peradventure from the transcript that the husband agreed to bring £32,000 worth of assets into the jurisdiction and place them in his Barclays bank account.  It is also absolutely clear from the transcript and the context of the debate between the Deputy Judge and Mr Winter that the father understood perfectly clearly that when those funds came to the United Kingdom they would remain in a frozen bank account.

11. The order was termed very precisely.  It provided that the husband, Mr Winter, was to make sure that (i) the £32,000 was held in the relevant bank account by no later than 25 December 2009 and (ii) he informed the wife's solicitors of the details by the same date.  That part of the order was deemed to be made "By consent".  Mr Winter has told me that he never saw the draft and never agreed the precise terms of the order.  Well, he had agreed in court to doing both of the matters set out in paragraphs 1 and 2 of the order.  He may not have agreed the precise wording but he knew precisely what was expected of him.  That order is appended as annex 2 to this judgment and speaks for itself.

12. On 25 December, or about that time, Mr Winter decided that he would not obey the order.  He took a calculated risk simply to disobey it.  He told me that the reason was simple.  He felt that if the funds came into the jurisdiction he would not have access to them.  He says that he needed them in order to settle a dispute with previous partners in relation to a partnership called H2W.

13. He had, apparently, borrowed in excess of £40,000 from that partnership, he says, to fund the unfortunate litigation against his former wife.  Those parties were demanding return of the monies with interest as a result of that partnership having, in fuller terms, fallen by the wayside.  So he decided that he would not obey the court order but would use part of the £32,000 to pay off that liability (which he had negotiated down to £25,000 payable by 26 January) on the basis that he would thereby avoid threatened bankruptcy.

14. I am clear from three schedules that he has produced of the following: (1) that he had approximately £108,000 from the proceeds of sale of the flat in Sweden of which, if he had been prudent, £32,000-odd should have been earmarked for capital gains tax but which he has spent; (2) that he used some of the those monies to pay the £25,000 worth of indebtedness to his former partners and (3) that he also decided to expend the remaining monies as he thought fit rather than pay the arrears due under the terms of the order of Walker DJ, as upheld by Black J.  He has produced three schedules which purport to show where the money went.  All his schedules are appended to this judgment as appendix 3.  In essence, he paid off overdrafts in excess of £17,000.  He paid £4,500 to previous solicitors and a further £2,250 to another firm of solicitors.  He decided to pay £8,232 to his current wife and his new family on the basis that they had "lent" him monies which he was required to repay.  All of those sums, together with the £25,000 to which I have earlier referred, total £57,601.  The remainder of the money that were available to him, namely in excess of £43,000, he maintains he has expended in paying rent and other outgoings/bills which he says were necessary because he had no other source of income.

15. What is clear, however, is that he withdrew substantial sums in cash from his bank accounts.  From November through toward the end of December some £20,000 worth of cash was removed from his bank accounts and, of course, his current wife (and her family) had the benefit of over £8,000 of the net proceeds of the Swedish flat.

16. All this, against a background of knowing that he had a liability to his children I note the funds were not his former wife, (who he obviously considers has dealt with him in an unacceptable fashion) but in respect of his children.  In making these decisions he, effectively, flouted numerous court orders.  I am not going to sentence him in relation to all of his various breaches, for they are many breaches of court orders.  However what is abundantly clear is that he is in contempt of this court by seeking to ignore the terms of the order of 18 December 2009.  He made that choice, by making it, knowing that he was disobeying an order he put himself in peril of imprisonment.  Court orders have to be obeyed.

17. I am clear from the evidence which I have heard today that Mr Winter is a man who is inclined to say anything that he thinks will get him out of a difficult situation at any particular time.  Consequently, when before the Deputy Judge Mr Moor QC, he was content to promise to bring £32,000 into this jurisdiction.  When he was before Holman J, in order to secure an adjournment of this committal application, he informed the learned judge that he had not consented to the terms of the order made on 18 December 2009.  Well, if he had not consented to the letter of the order as it emanated from the court office he had most certainly consented to bringing the money into this country.  So he was playing fast and loose with a judge of this division.

18. Then when the matter came before Singer J on about 25 May 2010 he told that judge that he had lodged an appeal to the Court of Appeal, which indeed he had done but only a few days before.  He also stated that he was seeking legal aid, which indeed he had sought but again only a few weeks beforehand.

19. All the way through, by his glib presentation, he has secured adjournments or orders which he thought he could simply ignore.  Well, the time has come to put an end to his disrespectful approach to a court of law.  Courts are not toothless bodies.  They make orders in order to regulate positions between human being so that society may work in a proper fashion.

20. I quite accept that Mr Winter has had a very difficult time since the middle of 2008.  From a human perspective I have every sympathy for the position which he is in but that cannot derogate from my duty as a judge to ensure that court orders are not regarded as simple pieces of paper.  So Mr Winter will be sentenced for the contempt and he will go to prison for a period of one year unless he complies fully with the terms of an offer which he has placed before the court.  He has promised that he will make an immediate transfer of £8,610 in respect of maintenance from January to July 2010 from a facility which he has, namely a Barclays select loan account, into what he describes as his Barclays current account above.  I do not consider that the last part of that offer is satisfactory and so that sum of money will be placed into an account in the joint names of the parties' solicitors.  He is also going to provide the £32,000 into that joint account in four tranches: on 30 October 2010, 31 January 2011, 30 April 2011 and 31 July 2011.  Insofar as he fails to make any of those payments on the due date the entire sum outstanding will become due.  Insofar as he fails to make the payment in total, this sentence, which I suspend on the basis of his clearly given and offered sums, will become immediately operable.

21. I am going to adjourn the judgment summons.  I am also going to indicate that insofar as the Court of Appeal seek to remit any of the alleged arrears the matter must come back before me for consideration as to the precise sums upon which the sentence of imprisonment will then require to be suspended.  That is my judgment.