Af Against Ff

JudgeSheriff R.A. Davidson
Neutral Citation[2016] SC FORT 16
CourtSheriff Court
Date11 December 2015
Docket NumberF5/14
Published date04 March 2016


[2016] SC FORT 16



In the cause






Act: Ms. Coutts, Advocate.

Alt: Ms. McAlpin, Solicitor, Fort William

Fort William, 11 December 2015

The sheriff, having resumed consideration of the cause, finds the following facts admitted or proved:-

1. The pursuer is AF, aged 45, who resides in Lochaber. He works on a self-employed basis as a handyman/carpenter. His family come from England and he is English by birth.

2. The defender is FF, aged 42, who resides in Argyll. She is a self-employed gardener. Her family come from Australia and she is Australian by birth and is the holder of dual UK and Australian nationality and associated passports.

3. The parties were married in Las Vegas, Nevada, United States on 10th. January, 2003.

4. There are two children of the parties’ marriage, namely TF born in Inverness and MF born in Inverness. TF is 6 and MF is 4.

5. The parties have lived almost all of their married life in Scotland and both have continued to reside in Scotland following their physical separation on or about 13th. May, 2013 at which time the defender left the matrimonial home and moved ultimately to her present address.

6. The two children reside primarily with the defender with the pursuer having regular residential contact in terms of interim orders made by this court on 28th. May, 2014.

7. Parties have not had sexual relations with each other nor have they cohabited otherwise for a period in excess of a year. They are agreed that their marriage has broken down irretrievably and that there is no prospect of a reconciliation. The defender consents to the pursuer’s crave for divorce.

8. The pursuer’s last self assessment tax calculation is dated 11th. October, 2013 and shows a “profit from self-employment” of £8,150 and a personal allowance of £8,105, producing a tax liability of £9.00. He was often paid in cash, including the rental income from a caravan, and the cash was kept in various locations.

9. The defender has been in employment throughout most of the period of the marriage including employment as a waitress, child-minder, cleaner, roads worker and gardener. However, she currently suffers from a number of physical conditions which make it difficult for her to continue work as a gardener. She had been advised by a physiotherapist to stop undertaking gardening work but nonetheless continued to do some. She had earned about £3,500 in the last twelve months from this employment.

10. The principal item of matrimonial property is the former matrimonial home. The property was the subject of a brief walk through inspection by John H. Miller, BSc. (Hons) FRICS, a Consultant with Messrs. D.M Hall, Chartered Surveyors, Oban. His letter dated 7th. October, 2014 (6/4/1 of process) is the only valuation of the property lodged as a production by either party and, notwithstanding its date, appears to be accepted by the parties as a reasonable estimate of the market value of the property as at the relevant date at a figure of £180,000.

11. The property is burdened with a rural housing burden in favour of the Highlands Small Communities Housing Trust who assisted the parties to fund the construction of the property. The rural housing burden contains a right of pre-emption in favour of the Trust which is to be exercised by them subject to them so doing within a period of 42 days of notification and a complex formula for the calculation of the price at which they would be entitled to exercise this right. It is to be noted that the valuation by Messrs. D.M. Hall at £180,000 specifically excludes what is therein described as “the implications of this burden.”

12. The pursuer built the matrimonial home in about 2009. In the course of that year he undertook very little else in the way of employment and had very little income. The parties survived on the earnings of the defender who also undertook a substantial amount of administrative work relating to the house and the purchase of materials for its construction and who also did some labouring work.

13. The parties used their joint savings, the money from the Highlands Small Communities Housing Trust and loans from the pursuer’s father to fund the purchase of the land and the construction of the house. The loans to the pursuer’s father have been fully repaid by the pursuer from funds inherited from the estate of his late uncle to the extent of £56,000. The defender’s family did not make any contribution to the acquisition of the land or the construction costs.

14. Production 5/3/27 is a disposition in favour of both of the parties by the Highlands Small Communities Housing Trust of the plot on which the house was built and that ‘in consideration of the sum of £30,000 paid to us’ by the parties.

15. The relevant date for the determination of what constitutes matrimonial property is agreed to be 25th. March, 2013, notwithstanding that the parties continued to reside in the matrimonial home until 13th. May, 2013. Their relationship broke down primarily on account of the pursuer’s misuse of marijuana and cannabis and his failure to assist the defender practically or financially notwithstanding the birth of their two children.

16. At 25th. March 2013, aside from the matrimonial home and its contents, the parties had the following matrimonial property:-

(i) An account in the pursuer’s name with the Bank of Scotland in the sum of £180.07

(ii) Three accounts in the defender’s name with the Bank of Scotland with a total credit balance at the relevant date of £11,867.22.

17. The pursuer claims to have a current income of £156 per week. His charge out rate is £12 per hour so this represents a 13 hour working week. He pays £18 per week to the Child Support Agency for his children and spends approximately £30 per week socialising.

18. The pursuer’s father would assist him financially to acquire the defender’s interest in the matrimonial home.

19. The pursuer also has an interest in a heritable property in Derbyshire which formed part of the inheritance he received from his late uncle but no evidence was led as to the value of that interest.

20. The defender does not oppose in principle the transfer of her interest in the matrimonial home to the pursuer.

21. The defender is in receipt of some housing benefit in relation to the rent for her present property but also requires to pay £100 towards the rent from her income. Her grocery bills for the last twelve months had averaged £388.84 per month.

22. Since the separation, the parties’ children have primarily resided with the defender at her address as specified in the instance, but have had regular contact with the pursuer.

23. By concession, the pursuer accepts that it is in the best interests of the children that the defender should continue to be their primary carer subject to him continuing to have contact with them on a regular basis.

24. Since each of the children was born, the pursuer has demonstrated a lack of confidence and a reluctance to participate in their physical care, especially during their respective infancies. The practical care of the children was left to the defender and there was no criticism of her practical care for them except in relation to diet, which criticism was unfounded.

25. Once they had ceased to be infants, but during their respective pre-school periods, again the pursuer demonstrated little interest in either of them, spending most of his time at work, engaged in leisure pursuits or asleep. The burden of care fell primarily upon the defender and her requests for assistance were ignored by the pursuer.

26. The pursuer’s interest in the children has developed since the parties’ separation and the children now enjoy contact periods with him. He has all the necessary practical skills to be able to care for their physical needs during periods of contact.

27. The defender can be aggressive, domineering and controlling particularly in relation to the care of the children.

28. The parties are incapable of communicating civilly with each other in relation to the welfare of the children despite attending at a mediation service and being assisted by an experienced child care worker employed by Highland Council Social Work Department.

29. At contact handovers historically, the pursuer has from time to time behaved in an aggressive and foolish manner.

30. The behaviour of the parties’ child, TF, is a cause for concern. There have been times when he has been beyond parental control. From the time of his admission to the first nursery he attended, he has been violent towards other children and occasionally towards nursery staff. When the head teacher of the nursery attempted to discuss these issues with the defender, the defender was dismissive and tended to underplay the enormity of his behaviour which included lashing out at other children, nipping, biting and striking them. She saw no merit in the setting up of a multi-disciplinary meeting as proposed by the head teacher to attempt to find a means of addressing the child’s difficulties. She blamed the nursery staff, claiming that TF was stigmatised and subject to negative comment, without justification. Her attitude was that she would not be told by anyone else how to bring up her child. The head teacher informed her that parents of other children were removing them from the nursery on account of her child’s behaviour and when the head teacher declined to identify the particular parents, she was accused by the defender of withholding information. She was regarded by the head teacher as not setting acceptable boundaries for her son.

31. Without consulting the pursuer, the defender removed TF from this nursery and enrolled him in another nursery. The pursuer appeared content to leave these arrangements to the defender.

32. In the early months of 2013, TF assaulted a child, RN, who was of a similar age to...

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