Dickson v Rennie
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holman |
| Judgment Date | 10 December 2014 |
| Neutral Citation | [2014] EWHC 4306 (Fam) |
| Court | Family Division |
| Docket Number | Case: No. FD06P00566 |
| Date | 10 December 2014 |
[2014] EWHC 4306 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr Justice Holman
Case: No. FD06P00566
Miss L. Potter appeared on behalf of the applicant (mother).
Miss R. Spicer appeared on behalf of the respondent (father).
I have heard the whole of this case in public and now give this ex tempore judgment in public. It concerns financial provision for a child, and I direct that no report of this case in the media or elsewhere may name the child concerned nor depict a picture of her, nor identify the address at which she lives, or the school which she attends.
This case is yet another illustration of two things. First, the idiosyncratic and, some might say, absurd effect that the child support legislation and scheme can have on child maintenance arrangements. Secondly, the folly with which intelligent parents can allow themselves to be sucked into a vortex of litigation in which the sums expended in legal costs lose all proportion to the amounts in issue.
The essential factual background to this case is as follows. The father is now aged 57. The mother is now aged 44. In about 1994, and long before these parties ever met, the father moved to settle and live, essentially full-time, in Jersey.
In 2003 the parties met. At that time the father was living in Jersey and the mother was living in Southern England. They lived together for about two years from early in 2004 until about March 2006. From their relationship they have one daughter. She was born in March 2005 and is now aged about nine and three quarters. As I understand it, there was a time during the period of their relationship and cohabitation when a marriage was planned but, in the end, it did not take place.
Soon after the separation the mother applied to the court for financial provision for their daughter pursuant to the provisions of Schedule 1 to the Children Act 1989. In due course, in June 2007, there was a two day "main" or "final" hearing in relation to financial matters. Both parties were represented by very well-known solicitors and counsel in this field. The district judge, District Judge Walker, handed down a detailed written judgment on 18 th July 2007. She then made an order, for reasons explained in the judgment, which made provision for a house to be provided on certain terms for the occupation of the mother and the child, plus payment of a lump sum to meet certain immediate needs, plus long term periodical payments for the child. In view of the later stance of the father, that in fact this is a situation in which the Child Support Agency (now the Child Maintenance Service) have exclusive jurisdiction with regard to setting the level of child maintenance, it is important to record what the district judge said at the end of paragraph 2 of her judgment:
"Both parties accept that the court has jurisdiction to make the orders sought and accept that an order will be made."
The district judge had clearly set out in the same paragraph that one of the orders sought was an order for:
"… maintenance payments under paragraph 1(2)(a) of Schedule 1. What is in dispute is the quantum of each of these items."
So, the very well-known and experienced solicitors and counsel then acting on behalf of the father do not seem to have taken any point at that time that the jurisdiction of the court to make provision for periodical payments or maintenance for the child was, in fact, excluded by the relevant provisions of the Child Support Act 1991, which had been in force for many years prior to 2007.
The district judge assessed the overall capital wealth of the father as being about £8,500,000 including the CETV value of his pension funds and including also the capital in a trust in respect of which he was entitled to the income. It would, I think, be wrong to suppose that the father then had capital which he was completely free to dispose of of as much as £8.5 million, but that, at any rate, was the district judge's overall assessment of his capital position, and the capital that was potentially available to him as a source of income. So far as income was concerned, the district judge appears to have accepted figures put forward by the father. She said at paragraph 8 of her judgment:
"In respect of income the father's position is that he has had an average net income from all sources from 2002 to 2006 of £130,303 per
year …"
The district judge appears broadly to have accepted that presentation of his net income position. During the course of her judgment, the district judge, who had heard oral evidence from both parties, made one or two observations which may help to illuminate the present round of litigation. She said at paragraph 24:
"… I have been particularly struck by the father's attention to detail and his determination to examine every aspect of the mother's case. It is not surprising that this should be so; he is an accountant by training and has worked all his life in business. He is someone who is willing to fund those aspects of his lifestyle that he enjoys and which he can indulge due to his financial good fortune. This mainly relates to his cars, boats and planes. I accept that in other aspects of his life he is not unduly flamboyant …"
So far as the relationship between the father and mother was concerned, the district judge said at paragraph 26:
"The father has a view of the mother as profligate. When they were living together a very significant sum of money was spent on the provision of a new kitchen, which involved ultimately its relocation within the house. The father seemed to believe that the costs had been increased by the mother's input into this, and that he had been under pressure to spend more on it than he otherwise would …"
At paragraph 27 the district judge said:
"The mother, I believe, has difficulty understanding why a man as well off as the father should approach her case in the way he has, just as she cannot understand why he should have wanted to keep such a close watch on spending …"
A little further on she said:
"He has, however, been extremely pedantic in his approach and the mother's case has been trawled over in painstaking detail … "
Overall, the district judge made this appraisal:
"I am satisfied that the father is a person of significant wealth, although he cannot be described as 'fabulously rich'. He could lead a very comfortable life, even on his present means, without seeking to pursue other business interests or seek work."
The ultimate order of the district judge made provision, as I have indicated, for a house in Southern England to be owned by the father but occupied by the mother and daughter. She made an order for aggregate maintenance of £3,433 a month, which is £41,200 a year, index linked. I do observe that that was a high level of periodical payments in relation to a child then only aged about two and a half, given that the father, although "a person of significant wealth", was not "fabulously rich". The order was index linked. The father, as I understand it, paid in full every penny that he had been ordered both to put up by way of capital and also to pay by regular periodical payments. No criticism whatsoever can be made of the father in fully discharging his legal liabilities for the next several years.
In December 2010 the father applied, as he was fully entitled to do, for the level of periodical payments to be reduced and varied downwards. That application was given added impetus when, in April 2011, the mother gave birth to another child by a different father. This had an impact on the mother's own earning capacity and led the father to feel, as he clearly still does feel, that if he were paying the very high level of periodical payments that were ordered in 2007 he would, in effect, be supporting, or contributing to the support of, another man's child. So his application to vary the level of periodical payments downwards continued, in a rather slow way, through the courts during 2011 and 2012. It is, however, significant, that in July 2012 the father consented to his application for a downwards variation being completely dismissed and, indeed, that he should pay to the mother all her costs of and incidental to resisting that application. So, the effect of events between 2010 and 2012 was, in the end, that the husband effectively reaffirmed his acceptance that he should, and would, continue to pay periodical payments at the level that had been originally ordered by the district judge in 2007, uplifted by index linking. He continued fully to do so throughout the period 2010 to 2012 and throughout 2013. I have been told that by application of the index linking fixed by the district judge in 2007 to her original base order, the correct level of periodical payments, if that order remained in force, would now be £4,009 a month, or about £48,108 per annum.
However, in March 2014 the father, who had never previously done so, made an application as the non-resident parent to the Child Maintenance Service for the level of maintenance due to be paid to or for the child to be calculated by that service. The Child Maintenance Service then performed calculations. They first calculated the level of maintenance at £7 a week, which is about £365 a year. Later, however, they performed another calculation, now recorded in a pro-forma letter from the Child Maintenance Service dated 7 th October 2014. That letter under "Step 1" assesses the father's gross weekly income as £385.48, which is the equivalent of £20,045 per annum. On the basis of...
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