DN v UD
| Jurisdiction | England & Wales |
| Judge | Mr Justice Williams |
| Judgment Date | 29 January 2020 |
| Neutral Citation | [2020] EWHC 627 (Fam) |
| Date | 29 January 2020 |
| Docket Number | Case No: ZC18P04013 |
| Court | Family Division |
[2020] EWHC 627 (Fam)
IN THE FAMILY COURT
Sitting at the Royal Courts of Justice
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Williams
Case No: ZC18P04013
Mr Charles Howard QC & Ms Laura Moys (instructed by Freemans Solicitors) for the Applicant
Mr Christopher Pocock QC & M Katherine Kelsey (instructed by Hall Brown Solicitors) for the Respondent
Hearing dates: 20 th – 29 th January 2020
Approved Judgment
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
This is the final hearing in an application brought under s.15 and Sch 1 to the Children Act 1989.
The applicant is DN (‘the mother’). She is represented by Freemans Solicitors and by Leading Counsel Charles Howard Q. C. together with Junior Counsel Laura Moys.
The respondent is UD (‘the father’). He is represented by Hall Brown Solicitors and by Leading Counsel Christopher Pocock Q. C. together with Junior Counsel Katherine Kelsey.
The mother is 54. She was born in the Soviet Union and was (and may still be) a Russian national. She obtained a degree in economics in Moscow and moved to N City (also in Russia) to work for a company called P Co. which produced food products. At that time it was owned by the father and another. The father is 57 and a Russian national. From what he told me he seems to have built a business empire and considerable fortune from scratch – he is a self-made man. The parties met whilst the mother was working as a finance director at his factory and they began a relationship in July 1996. The father was married at this time to HD. The mother became pregnant with their first child, DD, shortly thereafter. DD was born on 18 April 1997 and is now aged 22. The parties went on to have two further children, TD (born 5 January 2001 and who has just turned 19) and GD born on 2 March 2005 and who is now aged 14.
The parties have cohabited intermittently over the last two decades. Their relationship has not been conventional in that the father has married three other women (divorcing two of them) over that same period. He has three children from his other relationships: SD from a short lived relationship who was born on 1 September 1986, ED with his first wife who was born on 6 May 1999 and ID with his third wife ND who was born in August 2017.
In about 2000 the father set up a Lichtenstein foundation – (“the Foundation”) for estate planning purposes. The sole beneficiary of the Foundation was the father and it appears to have held most of the father's assets either through a Marshall Islands registered company (“the Company”) or directly.
The father purchased properties as homes for the mother and children in N City until 2010. The mother and the children moved to England in the summer of 2010 and they have lived here permanently ever since. Initially the family lived in rented accommodation. The family home (“the London Apartment”) was purchased by the father in April 2011 and was thereafter extensively renovated at a cost of some £800,000. The mother and children moved into the property in March 2014 following completion of the renovation. The family home is valued at c.£10 million, the price reflecting the exclusive nature of the address. The father continues to live in Russia and has visited the family in the UK about four times a year for four days or so each time.
Since moving to the UK in 2010, the mother and children have visited Russia for several weeks during the summer and for periods at Christmas and Easter. When in Russia they have usually resumed occupation of the family home that they occupied prior to the move to London in 2010. The property in N City was vandalised at some point between 2 January 2018 and April 2018. The mother discovered that it had been vandalised on 9 April 2018. She accused the father of being responsible for orchestrating the vandalism but at the fact-finding hearing in the Children Act proceedings Recorder Genn did not find the mother's allegation established. The property does however now require very extensive repairs. Damaged items will need to be replaced. It is currently uninhabitable and neither the mother nor children have returned to it since the damage was caused.
The mother's sister, niece and mother live in a country in Eastern Europe. The mother and children visit them during holidays. The father's eldest son SD now works as the managing director of the food factory although the father retains 100% ownership. ED, who studied in England for several years has left university without completing his degree and is considering his options. I believe the father said he is doing some work for him.
In addition to returning frequently to Russia, the father, the mother and the children have taken regular holidays together. In 2016 the family went on a yachting holiday in Croatia. Following this holiday a dispute emerged over the investor visa monies. I shall consider this in more detail later as it is relevant to one aspect of the mother's claim. In any event the mother returned £690,000 to the father and retained £300,000 as ‘security’. The mother says that intimate relations between herself and the father ended in 2016. The father says that it ended much earlier.
In late 2017 the father gave DD £607,000 in order to purchase a property in London. Recorder Genn found as a fact that this was a gift and that it had not been intended that DD transfer to the father his alleged beneficial interest in the N City Property in return. However a dispute arose between the father on one side and DD and the mother, TD and GD on the other which very quickly turned highly acrimonious. The mother says the father had, over a period of years, become emotionally and physically abusive to her and the children. This abuse reached a crescendo in December 2017 and January 2018 as the dispute over the sums given to DD exploded into threats by the father towards the mother and DD. The threats became backed up by actions when the Foundation sought to evict the mother and children from the London Apartment.
The father's abusive behaviour eventually became the subject of a fact-finding hearing which took place before Recorder Genn in October 2018. Extensive and serious findings were made against the father at this hearing. On 25 January 2018 the mother applied without notice for an occupation order and non-molestation orders under the Family Law Act 1986 along with a prohibited steps order to prevent GD being removed from the jurisdiction. These were granted by DJ Hudd. The Family Law Act orders expire in March 2020. The father does not oppose their extension.
On 8 February 2018 the mother issued these Schedule 1 proceedings. The history of the proceedings is contained within the chronology attached to this judgment. Following the hearing before Recorder Reardon (as she then was) the case was allocated to a judge of High Court level. An FDR was listed before Mr Justice Francis on 6 February 2019 which went part heard but was not resumed. On 30 July 2019 the mother's application for a legal services payment order and the pre-trial review came before me and I case managed the application to a final hearing to commence on 20 January 2020.
The mother has not worked since she and the children moved from Russia to London in June 2010. She was on maternity leave from the father's company for several years before returning part-time from about 2008 until 2010. She, TD and GD continue to live at the family home. DD lives at his flat in West London and I believe is studying at college. TD is living at home and is currently at university. GD lives at home and is at school. She is soon approaching her GCSEs.
The father has adopted the ‘millionaire's defence’ within these proceeding and has conceded that he has sufficient resources to meet any award which the court might reasonably make. He has not been required to go through extensive disclosure and give a comprehensive picture to the court of the precise scale of his wealth. The affordability of the orders sought by the mother is not in issue, nor is any potential impact of those orders on the father's ability to meet the needs of his immediate family. It is the reasonableness of the mother's claim and the court's jurisdiction to make various orders that is the issue between the parties.
List of Agreed Issues
At the hearing on 30 of July 2019 the parties agreed that the following were the key issues for the final hearing:
i) Whether the applicant and children should remain in the family home and, if so, the legal framework for their occupation;
ii) Whether, conversely, the family home should be sold and a new property purchased for the applicant for the benefit of the children (and, if so, the appropriate level of any such replacement housing and the legal framework for the applicant and children's occupation);
iii) Whether there should be an order for the settlement of the contents of the family home (including antiques owned by the respondent) or they should be returned to/retained by the respondent;
iv) Whether (and in what sum) the respondent should pay the...
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UD v DN (Schedule 1, Children Act 1989; Capital Provision)
...background history is set out in detail in the judgment below, which is reported as DN v UD (Sch 1 Children Act: Capital Provision) [2020] EWHC 627 (Fam). I will, therefore, only set out a brief 8 The mother and the father were in a relationship between 1996 and 2017/2018. They have three ......