B v B (Mesher Order)
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE MUNBY |
| Judgment Date | 11 July 2002 |
| Neutral Citation | [2002] EWHC 3106 (Fam) |
| Court | Family Division |
| Docket Number | FD 01 D00561 |
| Date | 11 July 2002 |
[2002] EWHC 3106 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. Justice Munby
(In Private)
FD 01 D00561
MISS A. HUSSEY appeared on behalf of the Applicant.
MR. TODD appeared on behalf of the Respondent.
This is a husband's appeal against an award of ancillary relief made by Deputy District Judge Wilbourne on 19th April 2002. Her decision was set out in a reserved judgment running to almost 11 single spaced pages and setting out the history of the marriage and her findings in considerable detail. I do not propose to take up time rehearsing matters which can be found in the deputy district judge's judgment.
The fact is that this was a very short marriage indeed. The parties married on 22nd January and separated on 13th November 2000. What has, in very large measure, generated the litigation and the appeal which is before me today is the fact that their son, Will, was born on 26th May 2000. That, as the deputy district judge correctly observed, changes the position greatly.
Put shortly, the order by the deputy district judge awarded the wife a lump sum of £175,000 and maintenance of £1,650 per calendar month, of which £780 was agreed as being Will's and £870 was for the wife.
That lump sum was assessed by the deputy district judge against the background of a finding contained in para.33 of her judgment that the wife "needs" £220,000 to re-house herself and Will.
The husband appeals, contending that the lump sum should be reduced to £80,000, that the periodical payments for the wife should be reduced to £370, limited in time, and that the lump sum should be subject to a 30% Mesher order. So much for the broad shape of the appeal before me.
Four issues and four issues only are, in the event, pursued by Miss Hussey on behalf of the husband. First, that the deputy district judge erred in assessing the correct quantum of the wife's periodical payments. It is common ground between Miss Hussey and Mr. Todd, who appears on behalf of the wife, that this appeal falls to be considered in accordance with the principles laid down by Thorpe LJ in Cordell v. Cordell [2002] 1 FLR 207, and by Lord Hoffmann in Piglowska v. Piglowski [1999] 1 WLR 1360. That is to say, as the Lord Justice put it in para.32 of his judgment in Cordell, that I can interfere with the decision of the deputy district judge only if it is demonstrated that there has been some procedural irregularity (no such irregularity is asserted in the present case) or that in conducting the necessary balancing exercise the deputy district judge has taken into account matters which were irrelevant, or ignored matters which were relevant, or has otherwise arrived at a conclusion that is plainly wrong. That is, of course, a reference to the test laid down in the well-known case of G v. G (Minors) (Custody Appeal) [1985] 1 WLR 647.
That is the nature, and as will be appreciated, the limited nature, of my function in determining this appeal. Furthermore, in determining whether or not the deputy district judge has indeed been plainly wrong in any part of her decision-making process, I take into account and apply the principles to be found set out in the speech of Lord Hoffmann in Piglowska at pp.1373a-1373e.
I do not propose to cite the whole of that passage, all of which I have very much borne in mind and propose to apply. I would, however, in particular draw attention to the observation of Lord Hoffmann at p.1372g that reasons given by the deputy district judge
"…should be read on the assumption that unless [she] has demonstrated the contrary, the judge knew how [she] should perform [her] functions and which matters she should take into account. This is particularly true when the matters in question so well known as those specified in S.25(2). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that [she] misdirected herself."
I bear also in mind that, as Lord Hoffmann observed on p.1373, cases of this sort inevitably involve value judgments on which reasonable people may differ, and that therefore, inevitably, there will be some degree of diversity in the outcome of cases such as this.
It is by the application of those principles that I turn to consider the first ground of appeal. The deputy district judge's reasons are set out, so far as concerns this part of the case, in para.13 of her judgment. Having found and noted that the wife's original claimed income need was "far too high" the deputy district judge recorded that the wife's claim as promoted by the time of the hearing was for £1,650 per month divided in the manner in which, in the event, the deputy district judge made her order.
The deputy district judge found "I do not consider that the wife can manage on less than £1,650 per month with a young baby." I can see no possible basis of challenge to that conclusion. It is apparent that the deputy district judge had very much in mind that the wife's original claim had been for an unrealistically high figure and, no doubt in those circumstances, she approached the wife's revised and reduced claim with an appropriate degree of scepticism.
On the materials before her, the deputy district judge was, in my judgment, fully justified in coming to the conclusion which I have just quoted. It is a conclusion, moreover, which seems to me to accord with any common sense view of the likely costs of a mother, aged as this mother is (approximately 30) having to look after not merely herself but also a young baby.
Having therefore, as it seems to me, unimpeachably determined the amount which the wife needed by way of maintenance, the deputy district judge then appropriately and explicitly turned to consider whether the husband could afford to pay that sum to the wife in the light, amongst other things, of his prior commitment to a previous wife.
The husband, as appears from the deputy district judge's judgment, was, at the relevant time, in receipt of a basic salary amounting to £5,582 per month take home. In addition, he was in principle entitled to bonuses. He had, in 12 out of the 15 years in which he had been employed by his current employers, received bonuses (some of them very substantial indeed) although in the most recent years, partly no doubt as a result of conditions in the market, those bonuses had not been paid. Nonetheless, the effect of the deputy district judge's order was that out of the basic monthly salary take home of £5,582 the husband was, and continues for the moment, under an obligation to pay his previous wife a sum which, as from December 2002, will reduce to £600 per month. That has the consequence that if there is to be paid by him, in addition to that £600, the £1,650 which the deputy district judge took the view was the need of this wife and his son, he would be left with something of the order of £3,300 for his own maintenance and for the maintenance and support of his new partner and her children.
In those circumstances, and assuming in favour of the husband that his income was no more than his basic salary, the deputy district judge concluded that he was able to afford to pay this wife the sum which she had determined this wife needed. That conclusion seems to me, in the circumstances, to be unassailable. It was, of course, a conclusion which assumed in favour of the husband that his income would remain indefinitely no more than his basic salary, and that he would continue indefinitely not to receive any bonuses at all. That seems to me to be a very favourable assumption in this context. Although I am very ready to accept that it is perhaps unlikely that in future his bonuses will ever return to their historic very high levels, it seems to me in all probability somewhat unlikely that he will not, sooner or later, receive at least some bonuses.
Be that as it may, it seems to me that the deputy district judge was fully entitled to conclude, as she did, that the needs of this wife and the child amounted to £1,650 per month and that that was something which this husband was certainly able to afford.
I can detect no error of reasoning or approach in the deputy district judge's decision on this aspect of the matter.
She seems to have taken into account all relevant considerations. I am unable to detect her having taken into account any irrelevant consideration. It cannot possibly be said, it seems to me, that her decision was plainly wrong. Far from it.
I turn to the second ground of appeal, which has to be assessed according to precisely the same principles. The deputy district judge was invited, as I am invited, to impose a time limit upon those periodical payments such that, so far as concerns the periodical payments to the wife, they should continue at the assessed level only until 26th May 2005, being Will's fifth birthday, and thereafter should continue at a purely nominal level.
The deputy district judge did not agree and said that it would be wrong in principle to make a term order in this case.
In one sense, the issue may appear to be a comparatively trivial one involving, as Miss Hussey correctly put it, little more than the question of which party has the onus of bringing the matter back to court in future. But the point is nonetheless an important one, although I have come to the conclusion that the deputy district judge's decision on this point, as on the previous point, is unassailable.
The relevant principles are to be found set out in the judgment of Ward LJ in C v. C (Financial...
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