Alexander Valeryavich Timokhin v Anna Annatolyevna Timokhina
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 17 January 2023 |
| Neutral Citation | [2023] EWHC 58 (Fam) |
| Court | Family Division |
| Docket Number | Case No: ZC22P04037 |
[2023] EWHC 58 (Fam)
THE HONOURABLE Mrs Justice Roberts
Case No: ZC22P04037
Appeal Case No: FA-2022-000281
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
Appeal from decision of Recorder Nice
sitting in the Central Family Court on 30 September 2022
Royal Courts of Justice
Strand, London, WC2A 2LL
Matthew Brunsdon-Tully (of Wedlake Bell, Solicitors) for the Appellant
Edward Devereux KC and Jennifer Perrins (instructed by Goodman Ray) for the Respondent
Hearing date: 8 December 2022
These parties are parents to two children, now aged 18 and 11 years. Since May 2018 they have lived in London with their father, the appellant in these proceedings. The respondent is their mother who resides in Russia. She has had no contact with her children for over four years. The breakdown of the parties' marriage and the consequent arrangements for their children have given rise to complex litigation in the Russian courts. In April 2022 the appellant issued proceedings in this jurisdiction under Sch 1 of the Children Act 1989 seeking financial provision on behalf of the two children. Their mother was the respondent to those proceedings. This is an appeal against an order made by Recorder Nice on 30 September 2022 whilst sitting in the Central Family Court in London. By her order, the judge imposed a temporary stay on the appellant's pending Sch 1 application. That stay was put in place “until such time as the Russian litigation is concluded including the determination of any appeal or appeals by either party from decisions made in that litigation”. The appellant was ordered to pay the respondent's costs in the sum of £13,374.72.
On 18 October 2022 the appellant launched his current appeal against both orders. On 25 October 2022 I made directions on the papers and listed today's hearing which was to be used to determine both the application for permission to appeal and, if successful, the substantive appeal.
Mr Matthew Brunsdon-Tully represents the appellant father for the purposes of this appeal. Mr Edward Devereux KC has appeared with Ms Jennifer Perrins on behalf of the respondent mother who joined the appeal hearing via a video link from St Petersburg where she continues to live.
I shall come to the Russian litigation shortly. As far as the English Sch 1 proceedings are concerned, the appellant accepts that the scale of his existing wealth is such that he does not need financial assistance from the respondent in order to provide their children with the privileged lifestyle they enjoy and will continue to enjoy. Their 18-year-old daughter is currently studying in the United States but returns to her London home during vacations. Their son is a boarder at a private school in this jurisdiction. There remains a dispute between these parents as to the scale of the wealth held by the respondent mother who continues to own a property in central London which, on the appellant's current estimate, is likely to be worth in excess of £6 million. He justifies the issue of the Sch 1 proceedings on the basis of principle and his entitlement as a parent to look to the children's absent parent for an appropriate contribution towards the cost of raising their children. There is no challenge in this jurisdiction to his entitlement to issue proceedings on the basis that both he and the children were habitually resident in England on the date when they were issued.
The background and the ongoing Russian litigation
Both parties are Russian nationals. They married early in 2004. Their daughter was born later that year and their son joined the family some seven years later in 2011. They separated in 2017 and were divorced in Russia in February 2018. Shortly before their separation the parties entered into a post-nuptial agreement, or marriage contract, which was intended at the time to govern their financial affairs both during the subsistence of the marriage and in the event of a subsequent breakdown (“the Russian PNA”). It is the subsequent disagreement about the interpretation and implementation of the Russian PNA which has been ongoing in the Russian courts since 2018. Throughout that period the children have remained in their father's sole care in London.
In addition to the complex financial proceedings ongoing in Russia, these parents have litigated in both jurisdictions in relation to the children. The respondent accused her former husband of abducting the children from St Petersburg to London. In July 2018 at the conclusion of contested proceedings in the Central Family Court, District Judge Gibson made orders that both children were to live with their father. Whilst he was given leave to remove the children and return to live in Russia, that plan was never put into permanent effect. Having moved back to Russia in the immediate aftermath of the 2018 proceedings, the father travelled back to London with the children the following year. On her case, their mother had no notice of their removal. By October 2019, all three were living in central London and both children were attending private schools in this jurisdiction. The respondent mother remained in St Petersburg from where she launched ‘welfare’ proceedings in her local family court. In parallel, she engaged the 1996 Hague Convention and sought the summary return of the children pursuant to the Child Abduction and Custody Act 1985. In 2020, Cobb J made an order for the children's summary return to Russia. In the meantime the local court in Petrogradsky had determined that their son should live his mother and their daughter with her father. There were appeals launched in both jurisdictions. In addition, the appellant father launched an unsuccessful asylum claim on behalf of their younger child.
With litigation in relation to the children ongoing in both jurisdictions, in November 2021 the matter came before MacDonald J on the appellant father's applications to set aside the order for summary return made the previous year by Cobb J and to prevent the registration/recognition in this jurisdiction of the Russian court's order that their son should live with his mother. In a comprehensive judgment handed down in January 2022, MacDonald J set aside the order for summary return and allowed the appellant father's appeal against the registration in this jurisdiction of the Russian order directing that their son should live with his mother in Russia 1. The respondent's appeal against those orders was refused in April 2022. Some two weeks later, in April 2022, the appellant initiated his current Sch 1 proceedings.
The relief sought by the appellant father in his Sch 1 proceedings
The Sch 1 proceedings were commenced shortly before their daughter's 18 th birthday although it is accepted that, following DN v UD [2021] EWCA Civ 1947, [2022] Fam 289, the court retains jurisdiction to make orders following her majority.
In those proceedings, the appellant father sought a raft of orders in respect of financial provision for the children including the following:
(i) backdated child support payable as a lump sum of just under £340,000 based upon a calculation of 50% of the costs he had incurred on their behalf, including school fees, staff costs, tutors, drivers and holidays;
(ii) an unquantified lump sum relating to the children's expenses going back to May 2018. The specific sum sought is not calculated but is said to be attributable to expenses relating to food, clothes, toys, computers, stationery and medical expenses;
(iii) ongoing periodical payments for the children;
(iv) the transfer of the Hampstead property held in the respondent's sole name into their joint names. Thereafter the property was to be held on trust for the two children during their minority (but under his control and direction) with a view to an outright transfer of the property to the children once each attained the age of 21 years. In this context he does not seek to argue that the Hampstead property is required as a home for the children nor does he seek a settlement of that property on the children.
Relief sought by the parties in the Russian proceedings
The financial consequences of the parties' Russian divorce have still not been resolved. Complex litigation is ongoing in that jurisdiction. Whilst it appears to be accepted that there is in those proceedings no free-standing application for child support per se, there is a degree of elision, or overlap, in the subject matter of the litigation. In the context of the Russian proceedings the appellant is seeking to “claw back” from funds made available to the respondent mother under the PNA a sum of £967,416 on the basis that she should be required to repay a rolled-up lump sum representing backdated maintenance from the date in 2018 when he became responsible for looking after the children in April 2018. In the Russian proceedings he seeks to set off this sum of just under £1 million against a similar sum which he would otherwise be due to pay her under the outstanding terms of the Russian PNA. The respondent mother is seeking to enforce that outstanding payment together with interest and penalties. It follows that, if this element of his matrimonial claims is upheld, there is likely to be a finding within the English proceedings that the respondent has made a substantial contribution towards the cost of maintaining these children.
Overarching these issues is the respondent mother's separate application to set aside the Russian PNA in its entirety. Whilst she has failed thus far, her appeal in relation to this issue has now been remitted to the Supreme Court in Russia for review in the context of her financial claims flowing from the divorce.
The respondent mother's application in the English proceedings
On 24 June 2022 the respondent mother...
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