Family - application for periodical payments, lump sums and/or transfer of property.

[2013]JRC185A

Royal Court

(Family)

24 September 2013

Before     :

Mrs Judy Marie O’Sullivan, Registrar, Family Division.

 

Schedule 1 Children (Jersey) Law 2002

Reasons

Advocate V. Myerson for the Applicant.

Advocate H. J. Heath for the Respondent.

judgment

the REGISTRAR:

Background

1.        This is an application by E, ‘the mother’ for a Schedule 1 application for periodical payments and/or a lump sum and/or a transfer of property and/or a settlement of property and/or secured periodical payment for the benefit of A born in September 2006, just 7 years old, against F ‘the father’.  The mother is 40 and father is 48 years of age but will be 49 in October.  The parties met in 1997 and the mother says they began to cohabit in 1997 although the father says this was in 1998.  The parents were never married. 

2.        The mother filed her application on the 21^st November, 2012.  The father had submitted an application for parental responsibility on the 11^th October, 2012, and they entered into a parental responsibility agreement on the 19^th October, 2012.  The father applied on 19^th December, 2012, for shared residence or an order for contact with A and a contact order was made by consent on the 26^th February, 2013.  The father has contact with A in Week 1 during the school term after school on Tuesday until Wednesday morning and then after school on Friday until 5pm on Sunday in Week 2.  During the school holidays he has contact with A at 9:00 am on Tuesday until 6 p.m. on Wednesday and Week 2 from 11.30 a.m. on Friday until 5.00 p.m. on Sunday.  Provision is also made regarding Christmas Eve, Christmas Day, Father’s Day, A’s Birthday, their respective birthdays and as to removal from Jersey.  The father accepted in cross-examination that the mother is the primary carer of A and that the consent order made was in accordance with the recommendations of the Jersey Family Court Advisory Service officer so that each parent has one week-end with A. 

3.        The mother is represented by Advocate Victoria Myerson and the father by Advocate Heidi Heath.  Several bundles of documents have been filed including Affidavits of Evidence in Chief, Open Positions Statements and Skeleton Arguments.  I heard from the mother, the father and from Captain Clarke, the chief pilot at Aviation Beauport.  The hearing took place on the 24^th and 25^th June, 2013.  Having been informed by Advocate Heath that a judgment was shortly expected on a Schedule 1 case in which she had appeared before the Royal Court, now known as I-v-J [2013] JRC 156, the matter was adjourned for oral submissions to be made after that judgment.  Submissions were heard on the 16^th September, 2013, and 18^th September, 2013, and on the 27^th September, 2013.  Additional documents were produced but I have not considered the affidavit of Cecilia–Anne Scally dated the 1^st August, 2013. 

Open Positions

Child Maintenance

4.        The mother was seeking child maintenance of £570 per month but this has risen to £700 per month with the father paying A’s school fees of £339 per month.  In addition she asks that the father pays half of school/educational trips of approximately £5 per month which at present may comprise a visit to the zoo or somewhere else in Jersey, reasonably incurred extra-curricular activities which are currently violin and swimming lessons of £27.62 per month, medical costs not covered by the mother’s insurance and dental costs which currently are £10 per month.  This totals £1,081.62 per month.  The paternal grandfather has been paying one half of A’s school fees, of the mother the other half. 

5.        The father proposed in June 2013 that he pay £565 per month child maintenance but is now proposing £410 per month to continue until A reaches 16 or finishes her secondary education, with a review if A goes to higher or tertiary education.  There is a provision for a RPI review with father paying half of A’s school fees, plus half of school expenses up to £750 per annum but not limited to extra tuition, school uniform, computer equipment, sports and musical equipment and school trips, the sums to be agreed in advance.  The father wants a review in respect of a material change of circumstances to include a change in A’s residence and to share tax allowances, with the father proposing that if he does not utilise the whole of the allowance or in part, this can go to mother. 

Accommodation

6.        The mother wants the father to provide her with the sum of £300,000 towards the purchase of a home for A to revert to the father when A attains 18 or leaves tertiary education.  In addition she wants the father to bear the moving costs including stamp duty.  The house she requires to be in her sole name and the lump sum and any interest shall be repayable on the earliest of the following determining events i.e. A attaining 18 years, or ceasing full-time tertiary education. 

7.        In addition the mother requires £10,000 towards the costs of furnishing and any repair works needed for a home for A.  Once the determining event has taken place, the house is to be sold and proceeds applied first to conveyancing costs, estate agents fees and repayment of £300,000 together with any proportionate increase, with the balance if any paid to the mother. 

8.        The father makes no proposals in respect of any monies for a property. 

Lump sum

9.        The mother was seeking a lump sum of £60,000 towards her liabilities “incurred as a result of the inadequate financial provision” the father made in respect of A and in respect of legal fees, but the figure has risen to £86,285 due to increased legal costs. 

10.      The father offers a lump sum of £4,000 but does not specify what the money is for. 

Costs

11.      In his open position, the father asks that there be no order as to costs.  However in his skeleton argument, it was argued that the mother should pay his costs as she declined on more than one occasion to attend mediation, failed to set out her open position, cost him his full-time job and cost him his lodger.  The mother was seeking a lump sum above to include legal fees, or a costs order but not on an indemnity basis.  Costs were ordered against the father on the 15^th May, 2013, due to his failure to make some disclosure, and the mother’s lawyers are seeking £2,103.98 in respect of that order. 

History of child maintenance payments

12.      Between September 2008 to September 2010, the father claimed he paid child maintenance of £500 per month plus half of A’s swimming fees, nursery fees and nanny’s fees and when questioned about this said that the payment was not irregular.  However, the mother says there was no standing order and the contributions were sporadic.  From September 2010 to December 2011 it appeared that the father’s parents were making payments of £950 per month as to £500 for maintenance and £450 for nursery fees.  The father in his affidavit at paragraph 74 said “£950 per month was paid  ...  by my generous father” and indeed a standing order was going from the grandfather’s account.  However the father was reimbursing his father.  In his affidavit at paragraph 65 the father wrote “I did not agree with paying that amount and setting a precedent” and in cross-examination conceded that it was deliberate that he let the mother think his father was paying whereas it was him that was in reality paying.  He said that “at some stages he did not have a standing order” but he was referred to a standing order payment to his father in September 2011 of £950 appearing in his bank statement, so he was concealing the fact that he was reimbursing his father.  I therefore find that he did mislead the mother as to who was paying and is prepared to manipulate matters for what he sees as his own advantage.  In January 2012 he reduced child maintenance to £769.78 per month to take into account one further night A spent with him.  In April 2012 he reduced payments to £678.49 per month plus half of school fees, and in May 2012 went on holiday without making provision for maintenance.  The mother contacted his father who gave her £500 and the father then gave her £178.49 and continued to pay £678.49 per month until 1^st April, 2013, when he reduced maintenance to £500 per month.  The mother pays half the school fees and the father’s father the other half. 

Contact arrangements

13.      Both in his affidavit of evidence in chief and in the skeleton argument filed on his behalf it was contended that there was a complete lack of flexibility by the mother with regard to contact arrangements and as a result the father had to sacrifice his full-time career.  The mother denied she had been inflexible prior to the making of the contact consent order on the 26^th February, 2013.  In cross-examination the father maintained that the mother was not flexible about contact and it was due to her “intransigence” that freelance work was imposed on him.  The father was referred to evidence of changes in arrangements as set out in a letter from the mother’s lawyers dated the 17^th October, 2012, and although the father said he could not remember these, there is no letter from his lawyer refuting these.  The father did not provide documentary evidence about contact arrangements, (having been asked prior to the hearing by the mother’s lawyers to do so in a schedule of deficiencies), save for 5 e-mails, one of which was undated asking for extra contact but no replies regarding these e-mails were provided from the mother by him.  He was invited to provide examples of inflexibility in cross-examination but he said “I do not have any” whereas the mother had produced contemporaneous notes of changes from 29^th February, 2012, to July 2012 and for November 2012.  The father was referred to the mother’s notes and was taken through examples where he conceded there had been flexibility by the mother on the 4^th, 18^th and 30^th April, 2012, the 2^nd and 12^th May, the 4^th June, the 3^rd July the 3^rd, 6^th and 30^th November, 2012.  The changes did not just involve work but also when the father was away on holiday or he wanted to go Kite Surfing.  The father did accept that she had picked up the pieces when changes were required, and although he did accept working freelance suited him, he would not accept that she was not to blame for his working on a flexible basis.  Having heard Captain Clarke’s evidence he did say that it was a combination of inflexibility and rigidity of working requirements but when pressed said that the reason he was on flexible hours was due to the inflexibility of the mother.  The mother gave evidence of the “multiple” last minute changes by the father with contact arrangements for a variety of reasons, the detrimental impact of changes on A and the recommendation from the JFCAS officer that there should be a set pattern of contact.  As a result of the JFCAS officer’s recommendations a consent order regarding contact was made. 

14.      On the 6^th November, 2013, a letter was sent by the father’s lawyer offering the mother 3 options, namely to work part-time, freelance or on a full-time basis but with flexibility regarding contact arrangements.  In response on the 7^th December, 2012, a proposal was put forward by the mother as to contact by him on alternate week-ends with contact every Wednesday.  In the letter her lawyers wrote “if there cannot be flexibility on the part of the employer it seems incredible that your client has couched his proposals in the terms he has”.  The father issued a shared residence and contact application on the 7^th December, 2013, and an order was made by consent, the parties having seen a JFCAS officer, as set out in paragraph 2 above.  The mother accepted that following the making of the consent order in February 2013, she did not want the father to continue to make changes as she wanted the order to be complied with, save in exceptional circumstances, and she gave evidence as to how much happier A was following the contact order. 

15.      The father’s contention that he had had to sacrifice his full-time career owing to the inflexibility of the mother was not put to the mother by the father’s advocate in cross-examination.  Indeed, the submission by the father’s advocate was that this was dealing with matters that had passed and there was no need to attribute blame and explore the reason behind him working on a flexible basis.  However it was the father who was attributing blame and he continued to do so during the hearing and the mother had to answer the allegations made by the father in his affidavit and skeleton argument. 

16.      I find that there was flexibility by the mother regarding changes to arrangements to accommodate the father prior to the order made by consent with the father on the 26^th February, 2013.  I therefore do not find that the changes in his income are as a result of inflexibility on the part of the mother. 

Mother’s income and earning capacity

17.      The mother has had a varied employment history.  She worked in Channel Television when they first met, and from November 1997 to 1998 she became a Customs Officer.  From 2005 to 2006 she worked for Russia Today, a television station, and returned in February 2006 to recommence cohabitation.  In September 2006 A was born.  The parties separated in or about November 2008 and in December 2008 she started a part-time job with a PR Company, Direct Input.  In October 2001 she started work with a radio station where she still works.  She now earns approximately £24,000 per annum but may earn additional sums to cover for sick or absent members of staff or if she works an early shift.  Her gross salary at December 2012 was £27,844.58 and the mother works 40 hours per week, and she had no salary increase in April 2013.  Her net earned income is approximately £2,000 per month, although on analysing the payments in her bank account her salary averages out at about £2,167 per month.  In 2012 she was entitled to a reimbursement of GST in the sum of £218.36 as a result of her low income.  The father considered she was not maximising her earning capacity, that she has a good earning capacity “some of which is presently unused.”  He said that there must be progress for someone like her but agreed she should not have to work in Russia where she had earned more.  He produced no evidence in support of his contention that she was not maximising her income.  She works 40 hours per week and is the primary carer for A so cannot work more hours.  I therefore find that the wife is maximising her earnings. 

Income needs of mother

18.      The mother’s net income is approximately £2,167 per month but her total monthly outgoing are £4,225 per month, of which £1,318 are specifically related to A.  Because her net income is approximately £2,167 per month, this leaves a deficit of £2,058 per month.  The father maintained that the mother’s income needs were inflated and she “spends significant sums on herself”.  He considered that the £450 per month she spent on groceries and toiletries for herself and A was more than it needed to be - £103 per week - but I do not find this excessive.  She spends £25 per month on shoes but he accepted he did not have much of an idea how much shoes cost.  He writes that “A is not the cause of E’s financial difficulty, E’s’ financial imprudence is” and he warms to this theme by saying “her spending habits do not reflect the behaviour of a person with a sound state of mind.”  She has not put down any expenditure for holidays or trips away from Jersey; a holiday she and A took to Hong Kong was paid by her brother.  He considers that BUPA fee of £84.62 for herself and A is an unnecessary expense for her and A but she says she has negotiated a good fee and that there is hereditary cancer in her family.  A may require significant dental work in the future.  She was unable to quantify how much school trips could cost in the future, but as she is only 7 she would not be on trips for some time.  She gave evidence that she buys things on Amazon such as toilet rolls which are cheaper than in Jersey.  She pays the whole of the costs of A’s swimming lessons of £24.50 per month and also violin lessons which are now £123 per term, as the father wants to pay for those activities of his choice for A and apparently the lessons she has were arranged without him.  His main concern was that she wasting money on a nanny costing £840 per month (a maximum of 20 hours per week at £10 per hour) but she was not challenged as to the cost of hiring an au pair.  She gave evidence as to the unreliability of the father and although in the past his parents have helped with A they are elderly.  She gave evidence that it will be cheaper to have an au pair on the basis that food and accommodation is covered.  However her current accommodation is such she cannot house an au pair.  The father did accept that the mother had a shortfall each month and was making up for lack of income by borrowing and using a credit card, which included a £10,000 loan to consolidate her debts.  I do not find that the expenditure she states is excessive and nor do I find that that it can be said that her expenditure is that of someone who does not have “a sound state of mind.”

Mother and A’s accommodation

19.      In September 2001 the mother bought J as a buy to let property and it is where she now lives with A.  It is valued at £275,000 and the mortgage at December 2012 was £113,287 so the figure will be lower.  Notional cost of sale of 2% amounting to £5,500 leaves a net equity of £156,213.  It is a small two bedroom cottage with combined kitchen, living and dining area.  The second bedroom where A sleeps is approximately 7 feet by 7 feet and so small that a full size single bed does not fit into it, so she presently sleeps on a cabin bed.  I accept that as A is 7 years of age she will shortly require a full size bed.  There is limited storage space, no room for a desk for her, no room to play in her bedroom or elsewhere in the property, and when friends came round to the house, they had to sit on the floor to eat as there is only a small table and a few chairs.  There is no outdoor play area and no garden.  There is a special small size bath and no room for a tumble dryer.  The property requires a new heating system.  The father’s view is that J still meets A’s needs, but I find, having heard the evidence that this is not so; there is not even room for a full-sized bed or for her to do her homework.  The mother therefore needs alternative accommodation for herself and A.

Additional lump sum claim for furbishing and equipment

20.      The mother is looking for an additional amount of £10,000 toward furnishings and equipping a home for A and renovations.  She gave evidence that she had little furniture because of the size of J and does need a desk for A, a dressing table for her, a full size bed for her, a wardrobe for her, kitchen/dining table and dining chairs, tumble dryer, a fridge/freezer, 3 piece suite and if a 3rd bedroom, a bed and wardrobe for that.  She said it was hard to quantify what monies would be needed if she had to refurbish a bathroom or kitchen but costs can be considerable. It was pointed out by the mother’s advocate that the father had spent £5,000 on a bathroom in his own property. 

Other assets and liabilities of the mother

21.      The mother has a car worth £3,000.  The mother has loans, credit card debts and legal fees outstanding of £50,063 at the time of the hearing in June but this has now risen to £86,285 on a legal aid basis and she produced up-to-date statements and other documentation.  The personal loan has decreased to £10,985 due to payments made by her.  Her overdraft has now increased to £4,453.94.  It was submitted that her debts had increased since the start of the hearing because her financial position is untenable and I accept that this is so because her income does not meet the outgoings.  Her family loans are £13,759, which includes a £500 loan from her brother.  She does not have the means to pay her debts.  It was not put to her that the loans she has are soft loans. 

Father’s employment and earning capacity

22.      The father worked as an Air Traffic Controller from 1996 to September 2008 where he earned about £70,000 to £80,000 per annum and as a result of that employment has a Public Employees Contributory pension fund of £661,204.  The father left Air Traffic Control to work as a private pilot but just before his induction the company he was going to work for went bankrupt.  He was questioned about returning to air traffic control as apparently he could have gone back and it was put to him that he had had conversations with Air Traffic about this as they would have taken him back but his response was “I don’t know.”  There is an issue between the parties as to the father’s employment status thereafter as mother says he did not work from November 2008 until August 2009, although father says he spent two months working for Nigel Mansell, was made redundant, used some monies going on two holidays but in the middle of December 2009, he started working for another local man so he was off work for 8 months or so.  From about mid May 2010 he worked for Aviation Beauport, a charter business, on a permanent full-time basis earning £50,000 per annum. 

23.      The mother’s case is that the father intended to work freelance but this was denied by the father, who said he had wanted to go part-time and earlier in the year of 2012 Aviation Beauport had said he could go part-time.  Reference was made to an e-mail he sent in December 2008 to the mother regarding a cohabitation agreement he proposed in which he said:-

“I would be more of a house husband, freelance pilot, and property maintenance man in the mornings and us going playing with A in the afternoons. And yes if the sun is out I may sit in it. I suggest we would need to tell social security that I am looking after the house or I am supposed to pay £400 a month.”

The mother was asked to explain the reference to social security in the e-mail and this e-mail was also put to the father.  The mother explained the father had attended at social security with A, attempting to claim a carer’s allowance at a time when A was not living with him and he was not her primary carer.  

24.      In the e-mail he said that he was desperately keen to pursue his sporting interests before he got too old – “don’t begrudge me the trips. I may go back to more formal employment when I am wrecked”.  The father was then 44.  

25.      The mother said he had said to her that if she pursued an application for finances he would reduce his working hours and seek more contact.  She said that in 2011 he had told her he wanted to go freelance and reference was made to an e-mail he sent on the 2^nd May, 2011, to her saying he had spoken to (Captain) Phil Clarke about doing this and the father wrote to Advocate Myerson on the 13^th May, 2011, saying “I have written to the management at Aviation Beauport asking them to confirm that they will allow me to work on a freelance basis.” but in cross-examination he said this was a mistake and it should have read “part-time” but subsequently in cross-examination he said that he didn’t know if he wrote or spoke to Aviation Beauport and then said he didn’t remember writing.  He said in cross-examination he wanted to be part-time rather than on a flexible basis so he could look after A half the time.  In a further e-mail in August 2011 he made reference to working freelance when not looking after A and in an e-mail to the mother’s brother on the 6^th August, 2011, said “Hopefully I will be able to work as a freelance pilot when I am not looking after A. I will also be able to spend far more time maintaining my small property empire.”  In his affidavit of evidence in chief at paragraph 42 the father stated that Aviation Beauport agreed during the summer of 2012 that he could work part-time for half of each week.  Attached to the father’s affidavit of evidence in chief were 3 letters from Captain Clarke.  Captain Clarke thought that the first time that part time working was mentioned was in 2012 but he then said the father had talked about it before, but in June 2012 was the “first time he said I would do it”.  He said that the father had asked to work half the time and he said that the letter written by him on behalf of Aviation Beauport of the June 2012 reflects the discussions about working part-time.  The father was to work from the 1^st August 4 days per week for a trial period of 3 months with a salary of £26,000.  Captain Clarke gave evidence that the trial period was put into effect.  It was intended to be a temporary trial of 3 months and they “bent over backwards” to accommodate this.  Captain Clarke gave evidence that it became difficult to accommodate the arrangements.  In his affidavit of evidence in chief, the father wrote that by the autumn he wrote that “Aviation Beauport had become increasingly frustrated with the situation“.  In November 2012 he had suggested three options to the mother with regard to working part-time, freelance or full-time if flexible arrangements as to contact could be made.  The mother said that the proposals side stepped her concerns for A as to last minute changes to contact and the father then put in an application for shared residence and contact on the 7^th December, 2012.  In his application for residence or shared residence dated the 7^th December, 2013, he stated, “I have now adjusted my working hours and I can now care for A for 50% of the time,” but this was at a time when according to his evidence he was still working full-time.   He wrote in his affidavit “During December 2012 I was told I could only work for the company on a freelance basis.”  Captain Clarke was referred to the letter written by him on the 18^th December, 2012, at page 166 in the bundle, to the father in which he had written that they had being trying to accommodate the father’s fixed access arrangements but that it did not fit in with the business model and by way of example he, Captain Clarke, had had to work on his 60th birthday.  As a result, the father’s employment was being terminated on 3 months’ notice and from the 1^st April, 2013, he could only work freelance.  Captain Clarke was asked whether it must have been disappointing and he replied “Yes, but he felt he (the father) had to do this.”  He was asked if he was surprised to hear that on his, Captain Clarke’s, 60th birthday which he had to work, the mother and A were in Hong Kong and was asked what reason the father had given said “I’m not sure if he provided me with a reason.”  He was asked whether the reason given by the father for not working on the 60th birthday was that the father wanted to spend time with his daughter and Captain Clarke said “if he was not available, he was not available”.  This was subsequently put to the father and he then said he was on holiday. 

26.      He was prepared to mislead his employer about why he was unable to work on Captain Clarkes’ birthday and include in his evidence filed at Court a letter giving an example of the mother’s apparent intransigence which was not correct.  Captain Clarke was referred by Advocate Myerson to the letter written on the 4^th January, 2013, to “To whom it may concern”.  In that letter he said that at the latter part of June (2012) “it was agreed that, for a trial period…every attempt would be made to allow F off the same regular days each week.”  He went on to write “To have F approach me again a few weeks ago to say that this arrangement was not working for the mother of his child and he needed to work on a part time basis with the same three days off each week (one of which was a Saturday) was the final straw…   have bent over backwards to accommodate F.”  In his letter he went on to say that “Due to this intransigence, (by the mother) I felt I had no option but to write to F and explain that the only way out was for him to work for us on a freelance basis”.  Captain Clarke giving evidence said that he thought that the mother’s inflexibility was the crux of the problem but agreed that the information as to the mother’s intransigence had come from the father.  However the father in cross-examination said his freelance work started on the 1^st April, 2013, and he “saw little point in working part-time when I had not got her part-time” and he was working full-time until April 2013.  His bank statements from June to July 2012 to December 2012 do show a salary from Aviation Beauport of £3,191.75 per month so he was working full-time.  The evidence and letters are inconsistent and there were discrepancies between the father’s affidavit evidence and evidence given in cross-examination.  He said that the decision for him to work only on a flexible basis was because Aviation Beauport was frustrated with the situation whereas it was he who told Aviation Beauport he wanted to change the arrangements and on the 7^th December, 2012, on his residence application stated that he had adjusted his working hours and could care for A 50% of the time.

27.      The father accepted that he had said to his parents that if the mother sought increased child maintenance he would work part-time and seek shared residence.  It was accepted by the father  it was his wish to work on a part-time basis, which wish was expressed as early as 2008 and that when the father was served with the mother’s application for finances on the 29^th November, 2013; he then started his application for shared residence/contact on the 7^th December, 2013.  I find that the father was prepared to manipulate facts and his employer to his own advantage to carry out his wish to reduce working hours, and carried out his stated intention to put in an application for shared residence shortly after being served with the mother’s schedule 1 application, and stated he had adjusted his working hours so he could care for A 50% of the time when it was not correct. 

28.      Can the father now work full-time and is he maximising his earning capacity?  At the hearing in June 2013 the father stated his gross income was £2,500 per month from Aviation Beauport i.e. he charges £250 per day as a freelance working 10 days a month.  He pays tax at 20% so his net income is £2,000 per month and with Social security deducted £1,850 per month. 

29.      Aviation Beauport had “lost” money but according to Captain Clarke finances “seem to be improving in the second quarter.”  He said that the father was a good employee and does need to pass a medical from time to time to continue working.  Captain Clarke gave evidence that a pilot gets 36 days a year off but must be available for the remaining days, which could be at 2 hours’ notice.  The father needs 5 days leave every 2 weeks to guarantee his availability to look after A under the current arrangements.  The majority of money paid to the pilots is to ensure that they are on standby, given, because it is not a scheduled airline, they cannot predict what will happen.  He said that it is difficult for the father to be on standby if he has A and it is difficult for anyone to have much of a family life.  However he said that Aviation Beauport is understanding, hence the letter of June 2012.  Before he became freelance, the other pilots were working around his schedule of contact, and it was the father who said to his employer that the arrangements were not working, not the other way round.  The father gave evidence that if he is working freelance he can plan what he can do and if he does 10 days a month he can look after A 2/3rds of the time.  This means that either his work is predictable and therefore, if work is available he could work more, or if unpredictable he could not guarantee to be available to look after A.  In cross-examination after hearing Captain Clarke’s evidence that father said “I’d happily work full-time if I could have sufficient time with A.  I could look after her every week-end.”  He conceded he could earn £50,000 per annum but he said “It is far better for me to be freelance”.  I find that the father has engineered his work so he is currently working only 10 days a month but his earning capacity is greater than 10 days a month and he could according to his own words work full-time.  Furthermore, just as the father’s advocate submitted the mother could seek alternative employment, although this was not put to her, it would be an option for the father to find alternative employment. 

Father’s Properties and income and expenditure on them

30.      The father now owns 3 properties and lives at B on La Route de la Haule, St Lawrence, which he purchased in August 2004.  In April 1997 the mother was a lodger of the father at C, Victoria Avenue, but this property was sold by the father.  In addition to B, the rents out his other properties, D, La Chemin des Moulins, St Lawrence and G, Victoria Avenue, St Helier.  He gave evidence that looking after the properties takes up a lot of his time, the worst thing being if a tenant leaves and the place then needs redecorating.  He provided a schedule of expenses for 2010 and 2011 in respect of the properties prepared for tax purposes as he gets relief of 20% on the expenditure.  He also provided a schedule of current income needs which includes expenditure on the properties.  

D

31.      This was purchased in 1998 by the father from his sister and he and the mother moved into it, it having three double bedrooms, house bathroom, kitchen, lounge and utility area and garage.  There is a garden and separate one bedroom flat for rental accommodation and parking for 3 cars.  It is valued at £525,000 and the mortgage at December 2012 was £128,363 (although the figure will actually be lower as the father continues to pay the mortgage.)  Notional cost of sale of 2% amounting to £10,500 leaves a net equity of £386,137.  The main house is let at a rent of £1,440 per month and the flat is let at £670 per month after Slomans have deducted their 10% fee management fees of £160 per month.  The total gross income he receives is £25,320 per annum or £2,110 per month.  

32.      The father’s evidence was that he is making a loss of £7 per month on letting D.  On a tax rate of 20% he said the tax payable is £422, with a net rental of £1,688 per month.  In his evidence in chief he said that there should be a discount for periods when D may not be let of 15% .i.e. income times 85, a figure therefore of £253, a sub-total of £1,435 per month.  The mortgage payment is £980 per month.  The total figure for maintenance rates and expenses is £462, and if the 15% discount is accepted, a loss of £7 per month.  His advocate in her submissions provided a schedule showing a net loss of £7 per month.  However the tenancy of D is until March 2014, the tenant having been there since April 2012 and no notice period is provided.  The D flat has been let to the same tenant since December 2008.  I therefore can see no reason why there should be a 15% discount.  

33.      It was only conceded by Advocate Heath during re-submissions made by the mother’s advocate that the figures put forward by the father were incorrect, save that he still maintained that there should be a 15% discount.  He had accepted in cross-examination that the level of payments on D fluctuates.  His gross income from D is £2110 per month.  The mortgage payment for D is £863.88 capital and £116.12 interest so the tax deductible interest is £116.  The maintenance and rates figure is £462 which together with the £116 amounts to a profit figure (i.e. income less expenses figure) of £1,532.  Tax on this at 20% is £306 and less the mortgage of £980 gives a net profit per month figure of £362 per month, rather than the minus £7 per month, a difference of £4,428 per annum.  It was submitted by Advocate Myerson that the father had been a landlord for some years and therefore knows how tax is calculated, particularly as he had previously been fined for non-payment of tax in respect of his rental income.  I accept this submission and also that in his evidence he sought to establish a limited income which did not accord with the facts. 

G

34.      In October 1999 he purchased G, which has two double bedrooms, a single bedroom, two bathrooms, kitchen and lounge.  It has a sea view, garden area and balcony.  It is valued at £470,000 with no mortgage.  Notional cost of sale of 2% amounting to £9,400 leaves a net equity of £460,600.  He lets the property out at a rental of £1,550 per month or £18,600 per annum. 

35.      The father’s evidence was that on a tax rate of 20% the tax payable is £310, the net monthly income being £1,240.  If the 15% discount for non-letting is accepted of £186, the total is then £1,054 per month.  There is no mortgage but the figure for maintenance and rates is £231, and thus there is a net profit of £823.  The current tenant however has signed a 7 year lease from the 15th March, 2013 with no notice period.  I therefore do not accept that there should be a 15% discount on the rent. 

36.      It was only conceded by Advocate Heath during re-submissions by Advocate Myerson that the figures put forward by the father were incorrect, save that he still maintained that there should be a 15% discount.  The correct calculation for G is a gross income figure of £1,550 per month, less maintenance and rates of £231, a figure of £1,319.  Tax on this is £264 and the total net profit figure is £1,055 per month rather than the £823 per month put forward by the father, a difference of £232 per month or £2,784 per annum.  Thus the total net income from his lettings is £1,417 per month or £17,004 per annum.  

B

37.      In September 2004 the father purchased the property which is on the sea front at Bel Royal where he lives.  It is a two-bedroom open planned style apartment with parking, a double garage, balcony and sea view with access on to the cycle track and beach.  He did have a lodger but in February 2011 the lodger was asked to leave so A could have her own bedroom. It is valued at £750,000 and the mortgage at December 2012 as £251,668 so the figure will be lower.  The notional cost of sale of 2% amounting to £15,000 leaves a net equity of £483,332. 

H

38.      The father has a reversionary interest in H which has not been quantified, shared with his brother and sister.  The property is subject to a lease made by his father and aunts in favour of I Limited which the father, his sister and brother have also signed so that in the “event of the death of their father and aunts, the tenant would know that the lease would continue for the remainder of the term.”.  The youngest of his father and aunts is about 85 year’s old.  I accept the mother’s contention that there is a value in his reversionary interest although I am unable to quantify this. 

39.      His total net equity in the above properties, excluding his interest in H, is £1,330,069. 

40.      It was put to the father that if, as he maintained, D was costing him money each month, the sensible thing would be to sell it but he did not want to do this. 

Other assets of the father

41.      The father had £2,402 in total in his bank accounts.  He has an endowment policy with a surrender value as at September 2012 of £35,658, maturing in September 2017.  He has two cars and a motorbike all valued at £18,000.  His pensions have a CETV of £665,195. £661,204 of his pension is Public Employees Contributory Retirement Scheme pension and he has an option of drawing a cash sum of 25% of his pension tax free at 60 so in 11 years’ time when A will be 17. 

Income needs of father

42.      Given the trenchant criticism of the mother’s spending when she is A’s primary carer a total of £2,747 on herself and providing a home for A and £1,015 per month on A’s particular needs, I note the father in his affidavit of means dated January 2013 put his own income needs as £4,865.50 per month saying in the future it would be £5,598 per month.  However by June 2013, in his affidavit of evidence in chief he says that his income needs for himself come to £6,650 per month and £217 for A, a total of £6,867 per month.  In his affidavit of evidence in chief, he wrote that his concern is that he could not meet his income needs in the future as his “net income will be no more than £30,000 going forward” (£2,500 per month).  He then said his income would be £1,850 from Aviation Beauport, he would have a net loss from D and with the income from G would have a net income of £2668 per month, which is not correct. 

43.      On analysing his schedule of expenditure he has allowed for £800 for “income tax if not deducted from salary” but tax is deducted.  At paragraph 121 of his affidavit of evidence in chief, he confirms the combined expenditure for D and G is £694 and yet then adds for D the following expenditure of £31 for house insurance, £17 for rental advertisement, £17 for parish rates, management fees of £160 (already deducted to arrive at the net income figure) garden maintenance of £10, planning applications of £30 per month.  In addition for the net income figure for D, the mortgage of £980 per month has already been deducted.  With regard to G, the house content is £25 and replacement items £17, a total of £42.  The father criticised the mother for her expenditure but I note he has allowed for holidays of £200 per month for which she has no provision, he has put replacement household items twice, totalling £200 per month, whereas she has allowed for £10 per month.  He says he is paying £250 per month to Appleby for legal fees but has paid nothing as yet and he has provided for repayments to his father. 

Liabilities of the father

44.      The father says his legal fees of £37,665 are unpaid.  He has family loans now totalling £77,851.  The father was fined £110,000 for “wilfully and negligently submitting incorrect Income Tax returns.”  He borrowed £85,000 from his father in respect of the fine and made 3 payments to him totalling £30,000, the last payment being in August 2011.  He thus owes his father £55,000 for this, but there is no set time for repayment and no interest due.  The father says that the fact that he has made repayments to his father shows that the borrowing is not a soft debt.  The mother however claims the sums borrowed from his father are gifts as there are no formalities or requirements for payment.  I do accept the father considers he is under an obligation to repay monies but is not doing so at present, and rather than taking action to recover money from him, his father has lent him more money.  He has a further loan of £22,581 used for legal fees, child maintenance and school fees between June 2010 and April 2013 and in addition owes outstanding tax for 2012 of £13,226.  The father was ordered to use his best endeavours to obtain an affidavit from his father as to financial support received by him and what monies will be available to him in the future.  No affidavit was provided, although a letter was provided dated the 23^rd December, 2012, by the father stating he was owed £6,497.50 in addition to the £55,000.  It has been submitted that his father was complicit in the arrangement over the £950 maintenance per month, in that his father paid the maintenance to the mother and he reimbursed his father, and his father is also trying to help him by claiming the sums are due when they are not. 

45.      A started at K School in May 2011.  At present 50% of the fees are paid by A’s paternal grandfather and 50% by the mother.  The father wrote “At present I am not content to pay for A to be privately educated whilst I am so unhappy about the access arrangements.”  However he does now agree to pay half the fees but also suggested the mother pays 3/14ths and also he said if he asked “nicely” his father may continue to pay towards A’s school fees. 

Property particulars

46.      The mother estimates that an appropriately sized house would cost about £450,000.  She proposes that she sells J, which has a net equity of £156,213, and she has provided documentary evidence of a borrowing capacity of £138,000.  She is looking to the father to provide a lump sum of £300,000 towards the purchase of a property.  She provided a list of properties of about £450,000 with one of £415,000.  The father’s property is worth £750,000 whereas the mother is looking at 3 bedroomed properties costing in the region of £300,000 less than his home.  She says it is cheaper to hire an au pair than to pay for childcare, hence she wants a third bedroom.  She was not challenged on this but the father pointed out that he or his parents could assist with child care arrangements.  The mother said that last minute changes in respect of contact took place not just because of his work but also because of his social life.  The father provided property details ranging from £279,000 to £309,000 of flats and 2 bedroomed cottages, and in areas that the mother did not wish to live with A.  Only 1 had a garden patio but no parking.  He was asked whether he thought the properties he suggested were suitable for A and the mother but his response was that he would like her to spend more time with him.  

47.      The father says he cannot borrow any more money to give the mother and I accept that on the current structuring of his finances, this is correct.  He was asked about selling either G or D and said he could not live without the rent from either property.  This was at odds with the evidence that he had given which was that he was making a net loss from D of £7 per month.  

48.      It was suggested in submission made by the father’s advocate that rather than sell one of his properties the mother could let her property on a rental of about £807 per month but given that the mortgage payments are £850 per month and her expenditure exceeds her incomes this was not a viable option, and was not explored in depth. 

49.      No details of rental properties were provided by the father for the mother to consider and nor was the mother asked about renting a property by the father’s advocate. 

The Law

50.      Article 15 of the Children (Jersey) Law 2005 provides that:-

“The court may make orders for financial relief with respect to any child in accordance with Schedule 1.”

51.      Paragraph 12(a) of Schedule 1 provides that an order may be made requiring one of both parents to:-

“(i)     to make such periodical payments and for such term,

(ii)        to secure such periodical payments and for such term,

(iii)      to pay such lump sum, and

(iv)      to transfer such property to which the parent is or the parents are entitled, as may be specified in the order to the applicant for the benefit of the child or to the child personally.”

And Paragraph 12(b):-

“(b)     a settlement to be made for the benefit of the child and to the satisfaction of the court of property to which either parent is entitled and which is specified in the order.”

52.      Paragraph 4 of Schedule 1 provides that the court must have regard to all the circumstances including:-

“(a)      the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;

(b)       the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;

(c)        the financial needs of the child;

(d)       the income, earning capacity (if any), property and other financial resources of the child;

(e)       any physical or mental disability of the child; and

(f)        the manner in which the child was being, or was expected to be, educated or trained.”

53.      There are provisions relating to lump sums in paragraph 5, including at sub-paragraph 1:-

“Without prejudice to the generality of paragraph 1, an order under that paragraph for the payment of a lump sum may be made for the purpose of enabling any liabilities or expenses reasonably incurred before the making of the order to be met which were      incurred in connection with the birth of the child or in maintaining the child.”

54.      I have been referred to numerous cases, 38 cases in total by the father’s advocate and 12 by the mother’s advocates and have considered them all. 

55.      There are three reported cases in Jersey regarding financial provision under Schedule 1, the latest being I-v-J [2013] JRC156, a decision of Commissioner Clyde-Smith, the two earlier cases being decisions of Registrar Obbard, namely C-v-L [2009] JRC165A, and A-v-B [2012] JRC165A.  All three cases make reference to English case law, in particular the Court of Appeal case of Re P (Child: Financial provision) [2003] 2 FLR 865.  At page 877 Bodey J outlined the following considerations:-

“(a)     the welfare of the child while a minor, although not paramount, is naturally a very relevant consideration as one of all the circumstances of the case;

(b)       the length and nature of the parents’ relationship and whether the child was planned are generally of little or no relevance, since the child’s needs and dependency are the same regardless of these circumstances (J v. C (Child: Financial provision), [1999] 1 FLR 152, considered);

(c)       one of the “financial needs of the child,” to which the court must have regard under para. 4(1)(c) of the Schedule, is to be cared for by a mother who is in a position, both financially and generally, to provide that caring. It is well established that a child’s need for a carer enables account to be taken of the caring parent’s needs (Haroutunian v. Jennings (1977), 1 FLR 62, considered; A v. A (A minor) (Financial provision), [1994] 1 FLR 657, considered);

(d)       under para. 4(1)(a) and (b), the court must take into account the parents’ respective incomes, earning capacities, property and other financial resources, together with their respective financial needs, obligations and responsibilities. A child is entitled to be brought up in circumstances that bear some relationship to the father’s current resources and present standard of living (J v. C (Child: Financial provision), per Hale, J.);

 (e) the court must, however, guard against unreasonable claims, going potentially far wider than those reasonably necessary to enable a mother properly to support a child, made on a child’s behalf but which would be for the benefit of the mother rather than the child (J v. C (Child: Financial provision));

(f)        if the father’s resources permit and the mother lacks significant resources of her own, she will generally need suitable accommodation for herself and the child, settled for the duration of the child’s minority with reversion to the father; a capital allowance for setting up home and for a car; and income provision (with the child’s education expenses generally paid by the father directly to the school);

 (g) such income provision can be reviewed from time to time, according to the changing circumstances of the parties and child; and

 (h)      the overall result achieved by an order under Schedule 1 should be fair, just and reasonable, taking all the circumstances into account.”

Lump sum

56.      The Re P case was a big money case where the father described himself as immensely wealthy and conceded he could pay £10 million if ordered to do so.  Bodey LJ said that in bigger money cases, the court should not get bogged down in detailed analysis of budgets, whereas Thorpe LJ said that the father may be entitled to reasonably detailed accounts of expenditure so none goes to the personal or exclusive benefit of the mother. 

57.      The case of I-v-J is unusual in that whereas the younger child lived with the mother, the older child lived with the father.  Furthermore, in paragraph 73, the court said that the younger daughter may choose to live with her father in only a year’s time paragraph 73 (i):-

“it is possible that she will elect to do so (as did her sister) in only a year’s time. Substantial costs (stamp duty and legal fees) will be incurred in purchasing a house, only to be sold (with further attendant costs) in short order, in order to repay the father. Lump sum payments for the purchase of accommodation are more suitable where the accommodation is going to be required for a lengthy period of time, i.e. for younger children ( in A-v-B, the younger of the two children concerned was six) where it is settled that the mother will be the primary carer for the children’s minority.”

58.      In this present case, A is just 7 and the mother is the primary carer.  In the I-v-J case, the Court stated that the mother already had an adequate home, the cost of which she shared with her partner, and in the circumstances when the younger daughter may move within a year, the court did not provided monies for alternative accommodation.  J is not an adequate home for A.  If any accommodation is to be purchased it will therefore be for a lengthy period of time.  Furthermore the mother does not have a partner with whom she shares costs. 

59.      In the I-v-J case, the mother said she could borrow about £100,000 to purchase a property but provided no documentary evidence that she could do so, although she indicated this would be offered when a lump sum was made available.  The court said that “taking on such a liability would do little to increase her financial security”.  The mother in this case has produced property particulars and although has a mortgage capacity, depending on the amount of the lump sum, is likely not to have to obtain a mortgage, hence a saving of £850 per month.  This increases her financial security.  In the I-v-J case, the court was not prepared to provide the mother with a further lump sum by way of security to cover rent whilst she found alternative employment on the basis that they did not need to do so as she will find other work, she was in a stable partnership and matters could be dealt with by way of a review of maintenance.  The mother in this case is not seeking a lump sum to find alternative employment.  

60.      In the I-v-J case, reference was made to the proposition, that the “prevailing trend is to meet genuine needs in a generous way wherever possible.”  There is a genuine need for A and her mother to live in a larger property which as Bodey J said in re P should bear “some relationship to the father’s standard of living”.  Commissioner Clyde-Smith accepted at paragraph 62 that in quantifying a lump sum the Court is entitled to adopt:-

“a broad –brush approach and is not required to carry out a detailed accountancy exercise. However some form of overall analysis is always required to demonstrate, in broad terms how the figure has been reached (see DE-v-AB (Financial Provision for Children) [2011] EWHC 3729 ( Fam) at paragraph 40). In making a lump sum order for the benefit of the child, the Court must be satisfied , … that the father is able to pay that amount.”

61.      In the I-v-J case, Advocate Heath, notwithstanding she had appeared as an advocate in the case, submitted that the father’s home and business were separately valued, although from the judgment it is clear that the property combines both a home and business for him.  She submitted that the father in the I-v-J case was in a secure financial position; he had a property mortgage free and a business worth £1,120,000 and other assets, and thus in a similar position to the father in this case.  The father in the I-v-J case had an annual wage and personal expenses of £60,000 so he earned more that the father is this case.  In the I-v-J case the court had said “the father’s property and business is worth £1.12 M but it is illiquid and combines both a home for him and A and his business, from which he derives his income. There can be no question of the court making an order that would place the continued ownership of that property and the conduct of that business in jeopardy.”  However, the elder child A was living with the father and the court went on to point out that the younger child might do so within a year.  In this present case the father has 3 properties, one of which is his home.  Advocate Heath submitted that the father’s properties are his business and he needs the properties to meet his day to day living expenses even though he is making a loss on D (which she later conceded was not the case) and to build up a nest egg for financial security.  However the court’s concern is not as to whether he builds up a nest egg and an inheritance for A for the future (even were house prices to rise) but the welfare of A is a relevant consideration, and there is a need is to provide A with a reasonable home and adequate maintenance now. 

62.      In the I-v-J case, the Court was critical of the father in respect of the reliability of his evidence, they were neither impressed by “his professional ignorance” nor satisfied with his claim for a reduced income.  He had disposed of substantial sums that he withdrew from his company and the court did not accept his explanation as to what he had done with the monies.  The Court drew an inference that the funds have been hidden and are still available to the father.  The father alleged he had bad health which affected his earning capacity but the court did not believe him.  He undervalued his property and business by about £600,000.  They concluded that his account was wholly implausible and he had done what he could to defeat the mother’s claim which included litigation misconduct for failing to disclose some assets.  He was also criticised in respect of what he was saying to his children.  Notwithstanding this the mother was only awarded a lump sum of £5,000 and I note the father in this case is only offering £4,000.  Advocate Heath submitted therefore that it does not follow from I-v-J  that as a matter of course a lump sum should be provided for a house. 

63.      However, even though the positions of the fathers may appear to be somewhat similar, the fundamental difference is that the father in the I-v-J case was already providing a roof over the head of one child and fully maintaining her and there is a possibility that the other daughter will also live with her father in only a year’s time.  

64.      Advocate Heath submitted that guidance from the case is that a lump sum must be affordable, and a court must be satisfied that the father can pay the sum ordered.  I agree that this is so. 

65.      In A-v-B [2012] JRC 165A, the mother asked for child maintenance, a lump sum to cover her mortgage of £240,000 and £24,867 to cover purchase cost and replacement items for the children.  She also sought her legal costs of just over £36,000.  The mother’s net pay was £2,868 although subject to variation and father’s net income £58,224.  The father had savings of £135,000 and his company accounts revealed cash reserves of £750,000.  The mother was awarded £150,000 towards reducing her mortgage which was to be returned to father when the youngest surviving child reached 18 or finished full-time tertiary education.  Interest of £3,000 would be paid to the father to compensate for any increase in the value of the property.  The father had already given the mother £11,000. 

66.      In the case C-v-L [2009] JRC 165A the mother sought maintenance of £690 per month, which was agreed, and a lump sum of £15,000.  Registrar Obbard declined to make a lump sum order as the mother had £9,000 of savings left and the father would have savings of about £12,500.  He was reluctant to make a costs order by penalising the mother because she failed in her application. 

67.      I was referred by Advocate Heath to the case of MB-v-KB [2007] 2 FLR 568 in which she wrote in the skeleton argument that Baron J said there is a “definitive home in which this lady and her child can live assuredly for the rest of the child’s minority”.  This was a case where the parents had been married and financial orders already been made in the matrimonial proceedings.  Baron J said that the issue of estoppel simpliciter was not appropriate especially when dealing with the developments needs of a child but what she actually wrote at paragraph 35 is that there is “there is no definitive home in which the this lady and her child can live assuredly for the rest of the child’s minority”.  With regard to the present case, an issue is whether J is appropriate for A’s needs; it is not. 

68.      In the case of N-v-D [2008] 1 FLR 1629 DJ Harper said that in making a lump sum order a court “has to be satisfied that the father is able to pay that amount.”  In the case of DE-v-AB (Financial Provision for child) [2011] EWHC 3792 (Fam).  Baron J on appeal did not reduce the housing fund of £250,000 given to the mother saying it was justifiable.  Although the mother had to sell her home, the father had to contribute £250,000 of his £358,000 equity to house the child and mother but she reduced the sum that had been ordered towards the mother’s debts from £85,000 to £40,000.  The father as a consequence had to sell his home and was left with limited capital.  The mother was able to purchase a home with a manageable mortgage. 

69.      In A-v-A (A Minor) (Financial Provision) [1994] 1 FLR 657, the house in which the family had lived was settled on trust for the child expiring 6 months after the child had attained the age of 18 or completed full-time education, including tertiary education.  The child was 10.  In T-v-S (Financial Provision for Children) [1994] 2 FLR 883 Johnson J made an order postponing sale until 21 or all the children had completed their full-time education.  In Re N (Payments for Benefit of Child) [2009] 1 FLR 1442, Munby J did say that the judge had erred in directing the property was to be settled until 21, but he went to say “any capital settlement under schedule1 should be expressed as termination upon the child reaching the age of 18 or completing tertiary education.”

70.      In the skeleton argument provided on behalf of the father I was referred to the case of K-v-K (Minors: Property Transfer) [1992] 2 FLR 220, CA an application under the Guardianship of Minors Act 1971 where there was a direct transfer of a council tenancy but there is no tenancy in this case. 

71.      Paragraph 5 of Schedule 1 states:-

“Without prejudice to the generality of paragraph 1, an order under that paragraph for the payment of a lump sum may be made for the purpose of enabling any liabilities or expenses reasonably incurred before the making of the order to be met which were incurred in connection with the birth of the child or in maintaining the child.”

And notwithstanding what was said in I-v-J it is therefore possible to backdate a claim to before the schedule I application; see A-v-B.  Advocate Heath in accordance with I-v-J submitted that it was not possible to backdate a claim, but I note that in the skeleton argument filed on behalf of the father dated the 17^th June, 2013, she had accepted that schedule 1 para 5 does permit the court to grant a “retrospective lump sum” for the purpose of meeting liabilities and expenses already incurred with the birth of the child or in maintaining the child.  The mother is in this case is claiming a lump sum on this basis.  Her debts are a HSBC loan account now standing at £10,985, her family loans are £13,759 and her overdraft has now increased to £4,453.94. 

Periodical payments

72.      In respect of this schedule 1 application, the court must look at paragraphs 4 (a), (b) (c) and (f) of Schedule 1 which are set out above.  This court uses the 2000 CSA formula as a guideline when deciding the level of maintenance to be paid as referred to in S-v-G [2003] JRC 091A and in A-v-B [2012] JRC165A the father was ordered to pay 20% of his net income for the 2 children or £485 per month for each child in accordance with the guideline.  However, in the case of SW-v-RC [2008] EWHC 73 (Fam), Singer J said that:-

“maintenance can be paid from accumulated capital or borrowing.”

And in FG-v-MBW [2012] 1 FLR 152 maintenance was ordered from capital.  In the case of DE-v-AB [2010] EWHC 3792, the court ordered maintenance on the basis of earning capacity not on actual income.  In that case Baron J had said that a father is not obliged to “bail out” the mother, “she cannot expect the father to bail her out as opposed to make proper provision for his (daughter)” and in N-v-D [2008] 1 FLR 1629 the mother is “not entitled, on any basis, to be the recipient of an financial benefit from him ( the father)”.  Although a court must guard against unreasonable claims with the disguised element of providing for the mother, the welfare of the child was a constant influence on the discretionary outcome, and one did not just look at needs referable only to the child but this encompassed enabling the mother to meet the child’s needs to include maintaining a home for the child:-

“It was not realistic simply to apportion items of budget as referable only to the child’s needs, because financial position had to be made for the mother to enable her to meet those needs.”

73.      Having heard the evidence I do not find that the mother is making “gold-digging claims” as submitted by the father’s advocate.  I was referred to Burns-v-Burns [1984] FLR 216 where a woman was claiming an interest in a house on the basis of a resulting trust.  The mother in this case is making no such application. 

74.      In respect of the father’s earning capacity in the I-v-J case, the court stated that when making financial provision “we have to be satisfied that it is truly available to that party” and as a result submitted that one must adopt a cautious approach.  It was submitted that Aviation Beauport had a bad quarter but the evidence from Captain Clarke was that finances improved in the second quarter of the year.  The father indicated he could work full-time and would do so if he could have A with him every week-end.  He also has an additional income from his property.  Advocate Heath pointed out that the mother in the I-v-J case has lower earnings than the mother in this case, but that mother had a partner with an income of £33,650 per annum so shares expenditure with him.  In the I-v-J case, the court found that the father’s income was higher than stated by him and this is the position in this case. 

75.      In the case of FG-v-MBW [2012] 1 FLR 152, Charles J confirmed this approach and said that there is not a mathematical or formulaic approach but one should look at all the relevant circumstances including affordability, the standard of living during the relationship, and present and expected standard of living. 

Legal fees

76.      The father in his skeleton argument was seeking costs on the basis she declined to attend mediation, failed to set out her position, has cost the father his full time job and cost him his lodger.  However the mother did attend mediation, set out her position at the settlement meeting which took place a few weeks before the hearing, she has not cost the father his full-time job and the reason there is no longer a lodger at the father’s home is so that A has her own bedroom when she stays with him.  It was submitted on behalf of the father that the mother made no response to the father’s offer dated the 6^th November, 2012, but that is not correct as a response was made on the 7^th December, 2012, offering the father alternate week-end contact and mid-week contact albeit not staying overnight. 

77.      The mother is seeking a lump sum to cover her legal costs or in the alternative her costs in respect of the schedule I case and residence case on a standard basis.  In I-v-J the mother was on Legal Aid and her costs at Legal Aid rates for the schedule 1 and children hearings was £140,000.  Under the Legal Aid Guidelines where a cost order is made, the advocate seeking costs is entitled to claim costs at the full rate from the other party, not just the legal aid rate.  The costs in this case on a 100% basis are £131,857 without any uplift, as well as disbursements of £500.  In this present case the mother is paying half the legal aid rate.  A concern for the Court in I-v-J was that the lump sum payment, periodical payments and arrears of periodical payments were not used toward a contribution to the mother’s costs.  The issue did not arise if the mother’s lawyers were able to confirm that none of the sums would be taken by her advocates as a contribution to their fees and the question of costs was left over.  The court declined to award the mother costs as part of a lump sum order but stated it wished to deal with the question of costs separately.  Advocate Heath further submitted that in the I-v-J case, the father’s unreasonable behaviour did not lead to a cost order but the question of costs is still to be decided.  The mother in this case is liable to her advocates for legal fees incurred on her behalf and is paying towards her costs at the rate of £200 per month. 

78.      In A-v-B the mother was seeking £240,000 but was awarded £150,000 and a further lump sum of £11,000.  Registrar Obbard said “the mother has been obliged to spend her time, effort and expense in pursuing her claim” and ordered the father to contribute £10,000 toward the mother’s costs, the total cost being £36,335. 

79.      In SW-v-RC [2008] EWHC 73 (Fam) the mother had a deficit of £17,000 in respect of costs order.  Singer J said:-

“on a financial application legitimately brought and pursued which is for the benefit of the parties’ child, I cannot see how an exercise of discretion as to costs hardship would be an improper consideration.”

80.      In this case the mother does not have the funds to pay her legal costs. 

81.      In the case of KS-v-ND (Schedule 1: Appeal: Costs) [2013] EWHC 464 (Fam), in a Schedule 1 application appeal, where the mother was awarded a small amount towards her costs, Mostyn J considered that overall the father had been more successful in the case than the mother.  He said that pre-proceedings conduct can only be relevant where it has a “direct causal connection to the later generation of costs.” but did accept that the economic impact of costs is a consideration. 

82.      In addition to her schedule 1 costs, the mother is seeking payment by the father of her costs in the shared residence application amounting to £3,103.43.  In the English case Gojkovic-v-Gojkovic (No 2) [1991] 2 FLR 233 it was held that while costs follow the event, it is unusual to order costs in children cases although the behaviour of a party is a material factor as to whether or not cost will be awarded.  In Keller-v-Keller and Legal Aid Board [1995] 1 FLR 259 Neill LJ said that the court still retains the jurisdiction and discretion to award costs, and this included where a party has been guilty of unreasonable behaviour or where there was such a disparity between the finances of the parties.  In CF-v-KM [2011] 1 FLR 208 the mother was seeking costs not only in a schedule 1 application but also in her application as to where the child should live and be educated.  This was an interim application.  The court held that the “equality of arms” argument could apply to both sets of proceedings and a sum was awarded in respect of both proceedings.  In M-v-H (Costs: Residence Proceedings) [2000] 1 FLR 394 on a father’s application for shared residence the mother was awarded 75% of her costs because the application was unrealistic and the father had made allegations he did not genuinely believe in, had been difficult and obstructive over mediation, had improperly encouraged the children to express a wish for shared residence and ignored the mother’s pleas for settlement to avoid financial hardship for her.  He took advantage of his financial superiority.  A court does however have to bear in mind that inappropriate costs order may have an adverse impact on a relationship.  Michael Harrison QC considered that generally it is wholly undesirable when the parents have reached agreements about residence and contact that the cost issue should turn into an acrimonious hearing.  He examined the chronology, considered that the father’s response was “tactical” and that in the end the father achieved little more that the mother had been prepared to offer.  He made a cost order in the mother’s favour. 

83.      I was referred to the case B-v-A [2010] JLR 462 by the father’s advocate.  This was an appeal against a shared residence order so I am unclear as to the relevance of this case.  In the supplemental bundle were 2 cases which were accepted were not relevant so they have not been added to the authorities bundle.  R-v-G [2006] JLR Note 20 was a case where the husband had failed to make prompt and proper disclosure of his financial position.  The husband was ordered to pay a sum due to his litigation misconduct and on appeal the costs awarded against him was raised.  In that case the issue was as to whether such an order could be made against a legally aided litigant but in this case the father is not legally aided so I am unclear as to why it was included.  In Re G (Costs: child case) [1999] 2 FLR 250 costs were awarded to the legally aided mother in a removal from jurisdiction case and the father appealed and costs were set aside.  In that case the Court of Appeal did not find that the father had acted unreasonably; hopelessness of a case and unreasonableness were not necessarily the same thing and more generosity would be awarded where the litigant was acting in person.  I was also referred to K-v-P [2009] JRC 170A an application for interim maintenance including an application for contribution to fees.  Here the wife was paying her costs on a private basis but would qualify for legal aid and Registrar Obbard did not agree the husband should contribute to her costs.  The mother in this case is legally aided.  

84.      Advocate Heath submitted that the mother is estopped in claiming costs now in respect of the previous consent order.  Despite Advocate Heath submitting that one should only look at Jersey cases in respect of costs as the situation in England was different, she referred to the case of Thoday-v-Thoday [1964] P 181 which was a case regarding a contested divorce and the wife’s appeal that estoppel did not arise.  It was held, allowing the wife’s appeal that the power to strike out a pleading was only to be exercised in a plain and obvious case.  However there was no order at all made as to costs in the residence order.  I was also referred to Minories Finances-v-Arya [1994] JLR 149 but having considered this I cannot see it is relevant to the case before me. 

85.      When deciding a Schedule 1 case a court has to look at the financial needs and obligations of each party which does include liabilities including legal costs.  

Decision

86.      J is not suitable for the needs of A, particularly bearing in mind the financial circumstances of the father as he owns three properties.  Having considered the financial positions of the parties, I accept that the father cannot, because of the way his finances are currently arranged, raise a further mortgage to pay the mother a lump sum to provide more adequate accommodation for A.  However if he sells D there will be net proceeds of sale of £386,137, having taken into account the costs of sale and the father will no longer have to service a mortgage of about £128,000.  The mother will sell J providing her with a net equity £156,213.  I reject the submission from the father’s advocate that the mother should only receive £4,000 and if J is not sufficient to meet A’s needs the mother will need to rent.  I note that the father provided no particulars of rented properties, and the mother was cross-examined about the cost of purchase not about renting.  What amount should be ordered towards the cost of a property?  I do not consider that the property particulars of about £300,000 provided by the father are suitable for his daughter, bearing in mind the location and type of property in which the father resides and which is worth £750,000.  The mother produced details of 3 bedroomed properties being marketed at £450,000.  I consider that she should be looking to purchase a home in the region of about £410,000 for A and herself, which she should be able to do with the £250,000 from the father.  I accept her evidence that she needs a further sum of £10,000.  The purchase cost is to be paid by the father which will be about £7,000.  The mother is seeking a sum towards debts and I order that she is paid a sum of £11,000 in respect of retrospective” lump sum” for the purpose to be used towards liabilities and expenses already incurred in maintaining A, evidence of which was provided.  I accept that her spending has not been reckless and there has been a shortfall of income over expenditure, and the money she owes to her family is not a soft loan, but I am aware that this will not cover all her debts.  This amounts to a total of £278,000 from the net proceeds of D of £386,137, leaving a sum of £108,137. 

87.      In respect of maintenance, the father has offered £410 per month or £4,920 per annum.  In his schedule of expenditure it states that he is spending £200 per month on holidays and £200 per month on hobbies and entertainment.  He is offering up to £750 per annum, £62.50 per month maximum on additional items for A and his latest schedule show him spending £200 per month on replacement household items (excluding G) and has provided a figure of £125 per month repairs on his own home.  He does offer to pay half A’s school fees but I have referred to this above.  He had put forward a figure of £565 per month in June of this year.  I am ordering the father pays £590 per month until she reaches the age of 18 with the usual provision that the matter can be reviewed if it appears in due course she will continue at an educational establishment or will undergo training for a trade, profession or vocation.  I accept that if he continues as a pilot he has to take a medical but there is proviso for a review in respect of any material change of circumstances and this is one and likewise should his father and aunts die.  I am not ordering that the periodical payments be secured on the father’s home as if there is an order, I consider he will comply with it.  The mother’s income will be about £2,167 plus the £590 per month maintenance a total of £2,757 and on her present outgoings a shortfall of £1,468.  If she buys a property mortgage free, there is a saving of £850 per month, if she no longer has to pay a legal fees contribution and the flexi loan a saving of £400, if she buys a drier a further saving of £15 per month, and £169.50 if the father (or his father) pays all the school fees, a saving of £1,434.54 per month, but still a shortfall.  There will also be a small reduction if the father pays half of the dental and medical costs fees, and extra-curricular lessons of about £42 and school trips.  In cross-examination she said that if she no longer has a mortgage then she could cover child care costs.  If she can hire an au pair she gave evidence that there will be a saving.  However she will need to pay sums to her family in respect of the loans and to pay off her overdraft. 

Costs

88.      In the I-v-J case, the court decided to deal with the question of costs separately, and therefore the issues of costs was left over, so yet more costs will be incurred in coming back to Court.  Although Advocate Heath stated that the lawyer for the mother in I-v-J will “have to forgo costs” this is not correct as the matter of costs has been left over, not dismissed.  I have been addressed on the issue of costs by both advocates and will therefore deal with the issue now.  The mother’s costs were at the last hearing £62,677 on a 50% Legal aid rate.  The mother’s advocate said that at no stage did she say that she would charge at a private client or even 100% legal aid rate and she was not seeking indemnity costs.  In the I-v-J case, the court was concerned to ensure that the lump sum order was not taken as a contribution to the mother’s legal costs.  Given the indication from the mother’s lawyers I am ordering that the father pays the mother’s costs on the schedule 1 application and in respect of financial issues prior to the application (which I have been told amount to £4,484.09) at the 50% legal aid rate, to be taxed if not agreed on the basis that the mother’s advocates do not look to the mother for any further costs.  The father is of course to also pay the costs previously ordered of £2,103.98 in respect of his lack of disclosure.  I am making the order for 2 main reasons; the mother has largely succeeded on her financial application given the father only offered a lump sum of £4,000 and because of the hardship to the mother if she had to meet her own costs from any lump sum ordered.  In addition however I have noted the litigation conduct of the father.  The mother’s advocate submits that a greater part of the preparation was in respect of the father’s assertion that the mother’s inflexibility led to the father not being able to work full-time job and time was spent on this during the hearing.  This was not put to the mother by the father’s advocate in cross-examination, and Advocate Heath submitted that there was no need to attribute blame, when it was her own client who was attributing blame and continued to do so during the hearing, which was then abandoned in the submission made by his advocate.  If that was going to be the father’s position, it should have been made clear at the start of the hearing.  It was submitted by Advocate Myerson that Advocate Heath insisted on a large number of cases being added to the bundle of authorities and then Advocate Heath announced after the first day of the hearing that she was only relying on the leading cases.  Advocate Myerson submitted that it took her 1 day to read these other cases and I sympathise with her as I too had to read them.  She said these unnecessary authorities added to her client’s cost by £4,000 adding that Advocate Heath had refused to put them in a separate bundle despite an order made by the court and the usual practice in producing authorities, so the mother’s lawyers had to incur cost in collating the bundle to include these authorities.  It was submitted on behalf of the father that the number of authorities produced for the father was because he did not know what the mother’s position was, but a few weeks before the hearing there was a settlement meeting at which the mother’s stance was the same as at the start of the hearing, and once the skeletons were filed Advocate Heath could have reviewed the authorities.  Half way through closing submissions, Advocate Heath produced a further bundle of over 100 pages, without having even notified the mother’s lawyers that she would be doing so, and Advocate Myerson was therefore not in a position to deal with this as she had not had time to consider the documents when preparing for her re-submission.  Time was spent in argument as to whether to adjourn and why the bundle was filed so late and why Advocate Myerson was not even forewarned about the contents of the additional bundle.  Advocate Heath stated that it was due to pressure caused by her status as a sole practitioner.  The mothers’ advocate submits that her client should not have to bear the costs of this and I agree that this did lead to unnecessary costs and her client should not meet these costs and the costs in respect of unnecessary authorities.  The father provided incorrect figures to the Court as to his income from his lettings when he should have known the sums were incorrect as they do not comply with Income Tax guidelines, and time was wasted at the hearing on his incorrect evidence and it was only conceded that the figures were wrong when the mother’s advocate was making her re-submissions.  The father accepted that he had responded tactically to the mother’s schedule 1 application by failing to instruct lawyers about this at the same time as instructing lawyers on his shared residence application.  While waiting to give evidence Captain Clarke was provided with an extract by the father’s advocate of the mother’s witness statement with her diary regarding contact and also had with him a roster which had been requested for months from the father but had not been provided, so time was spent in argument as to the contamination of his evidence. 

89.      Costs are not normally made in children cases, but I consider that the father should pay 50% of the mother’s cost at the legal aid rate of 50% to be taxed if not agreed.  When she put in her application for a schedule 1 order he then, as he had previously informed her he would do, applied for contact or shared residence but refused to instruct lawyers on the schedule1 application for tactical reasons.  The father agreed that he had also said to his parents that he would put in a children application if she put in a schedule 1 application, and did so very soon after her application.  The mother’s evidence that the father had told her in correspondence that if she put in an application for finances he would reduce his working hours and seek to secure more contact was not challenged by the father.  He maintained that she was inflexible about contact which I found not to be correct. 

90.      With regard to the parental responsibility application, the mother did say she had agreed he should have parental responsibility but she did not sign a parental responsibility agreement and I do not accept the mother’s submission that the father should pay her cost on that application. 

91.      What is the overall effect on the father and can he pay what is ordered?  On the basis of the lump sums totalling £277,000 and net proceeds of sale of D of £386,137, there is a balance of £109,137.  If the father then has to pay a maximum figure for the mother’s legal costs of say £60,000 there is a balance left of £49,137.  He can utilise this if he wishes to clear his legal fees outstanding and may also be able to clear his income tax liability of £13,226.  The father can, should he consider he ought to do so, make a lump sum repayment to his father by cashing in the endowment policy which has a surrender value as at September 2012 of £35,658 or use this to reduce his mortgage on his home. 

92.      The father will lose the net income from D of £362 per month but he will no longer need to service the mortgage of £980 per month or pay for the upkeep of the property, and the costs on it as set out in his up-dated schedule of needs.  If his own legal fees are paid out of the sale plus the legal fees to Appleby there is a further saving of £500 per month.  I have already the father is not maximising his income and if he so chose could earn £50,000.  I am not ordering that he pays £700 per month but I consider that the figure of £590 per month is certainly a figure he can afford.  I am also ordering that he pay A’s school fees, and he may choose to do so or ask his father to pay them on his behalf, given that his father is already paying one half and the father indicated in evidence that if he asked his father nicely, he may be willing to pay for his granddaughter’s school fees. 

93.      In summary, the father will pay the mother a lump sum of £250,000 toward the purchase of a property for A to be held in the sole name of the mother together with the cost on purchase to include stamp duty.  The lump sum will be secured by a judicial hypothec in favour of the father on the basis that the lump sum together with any increase in the value of A’s primary home proportionate to his contribution to the purchase price (if any) will be returned to him on the earliest of the determining events, namely when A reaches the age of 18 or ceases full-time tertiary education, whichever is the later, or the mother elects to sell the house.  Upon the occurrence of a determining event, A’s primary home shall be sold for such price as may be agreed between the parties of in default of agreement, as determined by the Court.  The proceeds shall be applies as follows:-

(i)        in payment of the conveyancing costs and disbursements in connection with the sale;

(ii)       in payments of estate agent charges;

(iii)      in repayment of the £250,000 provided by the father, together with any increase in the value of A’s primary home proportionate to his contribution to the purchase price ( if any);

(iv)      in payment of the balance to the mother. 

94.      In addition the father will pay a further lump sum of £10,000 toward the cost of furnishing and equipping A’s primary home and a further £11,000 for the purpose of being used towards liabilities and expenses already incurred in maintaining A. 

95.      The father shall pay child maintenance to A at the rate of £590 per month until she reaches the age of 18 or ceases secondary education, whichever is the later.  There is to be a review if she enters higher or tertiary education.  There is to be a review on material change of circumstances, and the usual cost of living increase.  In addition the father will pay her school fees (although he seemed hopeful that if he asked his father would pay A’s school fees) and one half of school/education trips; reasonably incurred extra-curricular activities, medical/costs not covered by the mother’s medical insurance and dental costs.  In addition the father shall pay the mother’s cost on the schedule 1 application as to the 50% legal aid rate on a standard basis and cost regarding finances prior to issue, to be taxed if not agreed, the costs previously ordered, and as to the residence application as to 50% of costs incurred as to the 50% legal aid rate on a standard basis, to be taxed if not agreed. 

Authorities

I-v-J [2013] JRC 156.

Children (Jersey) Law 2005.

C-v-L [2009] JRC165A.

A-v-B [2012] JRC165A.

Re P (Child: Financial provision) [2003] 2 FLR 865.

MB-v-KB [2007] 2 FLR 568.

N-v-D [2008] 1 FLR 1629.

DE-v-AB (Financial Provision for child) [2011] EWHC 3792 (Fam).

A-v-A (A Minor) (Financial Provision) [1994] 1 FLR 657.

T-v-S (Financial Provision for Children) [1994] 2 FLR 883.

Re N (Payments for Benefit of Child) [2009] 1 FLR 1442.

K-v-K (Minors: Property Transfer) [1992] 2 FLR 220 CA.

Guardianship of Minors Act 1971.

S-v-G [2003] JRC 091A.

SW-v-RC [2008] EWHC 73 (Fam)

FG-v-MBW [2012] 1 FLR 152.

DE-v-AB [2010] EWHC 3792.

Burns-v-Burns [1984] FLR 216.

KS-v-ND (Schedule 1: Appeal: Costs) [2013] EWHC 464 (Fam).

Gojkovic-v-Gojkovic (No 2) [1991] 2 FLR 233.

Keller-v-Keller and Legal Aid Board [1995] 1 FLR 259.

CF-v-KM [2011] 1 FLR 208.

B-v-A [2010] JLR 462.

R-v-G [2006] JLR N 20.

Re G (Costs: child case) [1999] 2 FLR 250.

K-v-P [2009] JRC 170A.

Thoday-v-Thoday [1964] P 181.

Minories Finances-v-Arya [1994] JLR 149.