EA v AP
| Jurisdiction | England & Wales |
| Judge | Mrs. Justice Parker |
| Judgment Date | 24 June 2013 |
| Neutral Citation | [2013] EWHC 2344 (Fam) |
| Date | 24 June 2013 |
| Court | Family Division |
| Docket Number | Case No. FD12P04098 |
[2013] EWHC 2344 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mrs. Justice Parker
Case No. FD12P04098
Mr. P. Marshall QC (instructed by Withers) appeared on behalf of the Applicant.
Mr. T. Scott QC and Mr Brent Molyneux (instructed by Gordon Dadds) appeared on behalf of the Respondent.
This case concerns proceedings in Italy and England, to which the Brussels regime applies. The parties are married, Italian, but have lived all their married life in London. The whole family is undoubtedly habitually resident here, whether an English or autonomous European Union test is applied. The husband is a hedge fund manager. His fund is of high worth, perhaps £30 million. The parties have valuable London properties. Their income is high. The wife says that she can establish that the parties' expenditure on themselves and their children was well in excess of £300,000 per annum. The husband applies to stay the wife's application for Schedule 1 provision for their two children, aged 9 and 4. He contends that the only jurisdiction in respect of provision for the children is in Italy where his matrimonial proceedings first in time were issued. The wife concedes that were the Italian court seised of child maintenance then there would be no jurisdiction here, but she says that it is not seised. As with most if not all such jurisdictional contests, there is considerable jockeying for position. Each perceives that the jurisdiction of his or her choice gives advantage.
The husband's petition for separation, a necessary precursor to divorce in Italy, was issued in Milan on 28 th February 2012. It is based upon the parties' Italian nationality. There is no dispute that the husband was entitled to issue such a petition and it properly engages the Italian jurisdiction. The husband sought the following orders/relief:
(a) pronouncement of legal separation;
(b) acknowledgement of financial self-sufficiency and that neither shall pay maintenance (i.e. spousal maintenance);
(c) joint parental responsibility with residence to the wife and contact to the husband;
(d) allocation of the family home, which I note is in London;
(e) quantification of the husband's liability to pay child maintenance, depending upon whether the family home was released or assigned to the wife;
(f) an order that the husband pay 50% of the school fees plus extras, as previously agreed; and
(g) an acknowledgment that the husband and wife adopted a matrimonial regime of separate property plus consequential directions, a matter likely to be of some importance in Italy, I imagine, since the matrimonial home is in the husband's sole name, although other properties are not.
The wife's petition, based upon the parties' habitual residence in this jurisdiction, was issued in the Principal Registry of the Family Division on 12 th March 2012, apparently in ignorance of the husband's petition. She sought all forms of financial provision, namely, capital provision, lump sum, transfer of property, pension, and so on, and maintenance for herself and the children and lodged her Form A on the same date.
Since Italy was first seised under Article 16 and England and Wales was second seised, a mandatory stay of the wife's petition and of her financial remedy application under Article 19 of Council Regulation (EC) No 2201/2003 Brussels II bis had to be granted. A consent order was made and has been continued at subsequent hearings.
The husband has issued s 8 Children Act proceedings. Jurisdiction for this certainly lies in the courts of England and Wales because this is where they are habitually resident. A shared residence order of nine nights to the mother and five to the father during the school term and half of the school holidays was made on 25 th October 2012. This may or may not have a financial implication in respect of the CSA calculations. I do not suggest that that is the motivation for the making of the order.
In the meantime, on 2 nd October 2012, the wife applied for child support from the Child Support Agency, as it then was. Just under three weeks later, before there had been any substantive hearing in Italy, she issued her Schedule 1 application on 21 st October 2012 seeking:
(a) a periodical payments order, that is, child maintenance to include a "top-up" order plus a school fees order;
(b) a lump sum order;
(c) a secured periodical payments order;
(d) settlement of property for the benefit of the children; and
(e) transfer of property for the benefit of the children.
This application has considerable potential to overlap with the subject of the proceedings in Italy because the property to be settled for the benefit of the children, or transfer of property order, would also be the subject of the proceedings in Italy, both on the wife's application for herself, and on behalf of the children. I say that not by way of adverse comment but to reflect the reality.
On 2 nd November 2012, the CSA determined that the husband was to pay £5 per week from 4 th October 2012.
On 16 th November 2012, a hearing took place before the president of the relevant court in Milan, sitting alone, Nadia Dell'Arciprete. The father has produced a translation of the order, which reads in its relevant parts:
"It having been established: —
"that there is no doubt as to the jurisdiction of the Italian court to examine the filed petition for separation as both parents are Italian ( Article 3, EC Regulation 2001/2003); …—
"that, conversely, for the applications relating to parental responsibility over the minors the English court has jurisdiction as the state in which the children are habitually resident (Article 8 of the aforementioned Regulation), and moreover, such jurisdiction is not disputed by the petitioner following the objection raised by the respondent; —…—
"that, therefore, this court has jurisdiction to decide on the maintenance application filed on behalf of the wife (which is supplementary to the proceedings concerning status), but not to decide on the maintenance application filed on behalf of the minor children, since such an application is ancillary not to the proceedings concerning status, but to the proceedings concerning parental responsibility, in respect of which the English courts have jurisdiction; —
"that, pursuant to Article 20 of EC Regulation 2001/2003, nor can interim measures be adopted relating to the minor children as none of the parties to the proceedings (spouses and children) reside in the state of Italy (which is the requirement of the aforementioned provision)."
The judgment concludes:
"On these grounds [the court] (1) authorises the spouses to live apart and to undertake to show one another mutual respect; (2) orders the husband to pay the wife a monthly maintenance allowance of €3,200, which is to be paid in advance by the 5 th of each month (as from this month) and which is to be reassessed annually on the basis of the ISTAT cost of living indices; (3) does not issue any ruling on the custody of the minor children or the related maintenance payments, holding that this court does not have jurisdiction to do so."
The husband now says that the translation which he has provided is inaccurate in relation to para.3 of the order. He says that the word "holding" has been mistranslated. The original is "ritenendo di difetto di giurisdizione". He says that the proper translation is: "of the opinion that that it lacks jurisdiction", which is not the same as "holding". The wife says that the judgment and the order must be read as a whole and it is quite clear that the judge was ruling on jurisdiction. The husband has other points: he says that there was no jurisdiction in a single judge to make a ruling in respect of jurisdiction and that the matter could only be dealt with by a three-judge court. I was told that there was to be another hearing on 23 rd May 2013. I am sure that I would have been told had anything substantive happened then.
On 19 th December 2012, the wife applied for a variation of the CSA determination on the basis that the husband's lifestyle was incompatible with the £5 per week assessment. The following day, on 20 th December 2012, the husband applied to stay the wife's Schedule 1 proceedings. Directions were given for the hearing, which eventually came before me, and the Schedule 1 proceedings are, in effect, suspended.
The father says that the judge's view about jurisdiction over child maintenance given by the judge in November is misconceived and wrong. He did not appeal the order. He, and his Italian lawyer, who has produced an opinion for these proceedings, says that this is because there is no appeal against an opinion, as opposed to a ruling. The mother's Italian lawyer strongly disagrees. This obviously would be a matter of some dispute before the Italian courts. However, on 27 th December 2012, the husband petitioned the Supreme Court of Cassation, the Supreme Court, for a declaration that the Italian courts have jurisdiction in relation to child maintenance. The mother's Italian lawyer has submitted a response to the husband's petition. From this, it appears that the wife advanced the case as to jurisdiction which the judge adopted in November 2012 and supports it before the Court of Cassation. In the response her lawyer refers to other cases heard in Italy and it appears elsewhere, which it is said justify the judge's conclusion that the courts of the child's habitual residence are the courts which have sole jurisdiction in respect of child maintenance.
On 4 th February 2013, the husband started to...
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...in the courts of that Member State. 64 The same is true in respect of questions of delay and hardship caused by a stay. In EA v AP [2013] EWHC 2344 (Fam) Parker J was required to consider whether the wife's application under the Children Act 1989 Sch 1 should be stayed pursuant to Art 12(1......