G v G
| Jurisdiction | England & Wales |
| Judgment Date | 08 April 2009 |
| Neutral Citation | [2009] EWHC 2080 (Fam) |
| Docket Number | Claim No: FDO7P01569 |
| Court | Family Division |
| Date | 08 April 2009 |
[2009] EWHC 2080 (Fam)
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
Royal Courts of Justice
Mr Justice Moylan
Claim No: FDO7P01569
MR JONATHAN TOD appeared on behalf of the APPLICANT
MR FRANK FEEHAN appeared on behalf of the RESPONDENT
MOYLAN J.:
This is an Application for an interim periodical payments order under Schedule 1 of the Children Act 1989, made in the course of an Application being pursued by a mother for financial provision under that Schedule.
The parties to the Application are the mother, represented at the substantive hearing which concluded last week by Mr Tod and by Ms Teacher at this hearing, and the father represented by Mr Feehan. The hearing concluded late last week at an hour when I was not able to deliver a judgment. This judgment remains essentially extempore as a result of pressure of other work and is being delivered by me orally today.
The relevant history, for the purposes of this hearing, is as follows. The father is aged 73 and the mother is aged 36. They met and began a relationship in or about 1996 and began living together early in 1998. They lived together at the father's house, a substantial residence in an affluent part of London. They have three children, aged 10, 9 and 7. All the children are being educated at private schools and their fees are being paid by the father.
The parties separated in the middle of 2004, when the mother and the children moved to a property that was rented for them by the father. In 2006 the father purchased a property not far from his home for the occupation of the mother and the children. That property cost a total of approximately £900,000. The father contends that the property was selected by him and the mother together. The mother agrees that the property was selected jointly, but contends that she felt pressured into agreeing to its purchase.
A shared residence Order was made on 19th December 2007. Under this Order the children spend broadly equal amounts of time with each parent.
In the middle of 2006 an assessment was made by the Child Support Agency of the maximum amount payable.
On 16th October 2008 District Judge Malik made an Order for directions, including that each party should file and serve sworn Forms E; that each party had permission to serve a questionnaire; that the replies to those questionnaires were to be provided by 26th February 2009. He also gave directions for the valuation of the respective properties occupied by the father and the mother, by a single joint expert. He gave no other direction giving the parties permission to prepare or adduce any other expert evidence.
The matter was listed on the first open date after 6th January, with a time estimate of one day, for the hearing of the mother's application for interim periodical payments to include provision for legal fees and for further directions.
The mother's substantive application for financial provision for the children under Schedule 1, which also included an application for interim periodical payments, was made on 8th July 2008. In that application the mother seeks a lump sum, in particular for the purchase of a property for the occupation of herself and her children, at a cost of between £2 and £2.5 million. She was also seeking interim periodical payments at the rate of £6,250 per month for general maintenance, and an additional amount in respect of legal costs. Her legal costs were then estimated, up to an assumed financial dispute resolution hearing, in the sum of approximately £46,000.00.
The mother provided with her Application a standard form Statement of Means. In that she set out that she had an interest in a property in Oxford and other resources of approximately £4,000.00. Her current position is that her interest in the property in Oxford has been realised for £19,000.00 of which £12,000.00 has been paid and used for legal fees and £7,000.00 remains due. She has net debts, excluding the £7,000.00, of approximately £12,000.00, including £10,000.00 of outstanding legal costs, having to date paid approximately £24,000.00 in respect of her costs of these proceedings.
The mother's income is broadly as follows. She has child benefit, working tax credit and child tax credit which total in the region of £11–12,000.00 per year; drawings from her business (she is self-employed) of approximately £7,600.00 per year; and periodical payments from the father totalling just over £19,000.00 per year. Her total annual income is, therefore, just over £38,000.00 per year.
The mother's budget as attached to her Form E, which then included expenditure in respect of the property in Oxford, totalled £96,000.00. If the expenditure in respect of the Oxford property is excluded it would total approximately £90,000.00 per annum.
In her Form E the mother provides details of what she contends was the lavish (to use her word) lifestyle she and the children enjoyed prior to her and the father separating in 2004. She seeks to contrast this with what she contends to be a significantly more modest lifestyle enjoyed by her and the children since that separation. She refers to the differences in their respective homes and what she describes as being the unsatisfactory nature of the children's current home with her.
In addition, in her Form E, the mother makes a number of, what I would describe as being, pejorative comments about the father. These have led the father to the father feeling the need to file a statement in response. I make it clear that although I have read what each party has said about the other's behaviour, my decision has not in any way been influenced by such evidence or such comments. In my view none of this evidence was necessary and it should not have been included. It is not evidence which is probative of any fact relevant to the Court's determination in this case and at best probably served to increase and perhaps even inflame the parties' respective emotional responses to these proceedings and to each other in a way which is, in my view, not to the benefit of their children.
I have been provided, for the purposes of this hearing, with an updated schedule of costs on behalf of the mother. The amount has increased from that set out in the original estimate. The original estimate was in the total sum of £46,000.00, of which it was estimated that the interim hearing would cost in the region of £10,000.00. The updated schedule estimates the total likely costs for the mother of the proceedings, up to the conclusion of the financial dispute resolution hearing, as being approximately £72,000.00. That amount includes the proposed instruction of a Queen's Counsel to advise in conference and also to attend at the financial dispute resolution hearing. As I have indicated, the mother has already paid £24,000.00 towards those costs, so that if the total was £72,000.00, the shortfall would be of the order of £48,000.00.
The father, in his Form E, sets out what he contends he is paying to or for the benefit of the children. He agrees with the mother that he is paying directly to her for the children something in the region of £19,300.00 per year. He also refers to additional expenditure he says he incurs in respect of the property occupied by the mother, namely interest on the monies that he borrowed to purchase that property and also maintenance costs.
In addition, the father pays the children's school fees (as I have indicated), and for extracurricular activities, the total of those two items being approximately £53,000.00. He pays medical and dental bills for the children which total approximately £4,000.00 per year. He pays for the cost of a nanny who, as I understand it, moves between the children's respective homes, and that nanny costs approximately £22,500.00 per year. He also identifies specific expenditure for the children of clothing, of approximately £3,000.00 per year, and no doubt there are other additional expenses that he has in order to provide for the children when they are in his home.
Excluding the monies he pays to the mother, the total of the items that I have just described is approximately £83,000.00 per year. Including the payments to the mother limited to direct maintenance and not including the additional expenditure in respect of the property, the total is just over £100,000.00 per annum.
In his Form E the father puts his total wealth at between £7–8 million, made up principally of his home (at just over £4 million); business interests of approximately £3 million and other assets of £1.2 million. He seeks to deduct a potential liability of just under £1 million in respect of an interest rate hedging swap which expires in July 2011, the amount being the sum that he says he would have to pay if he were to break that contract.
The father puts his total net income at approximately £220,000.00. He is essentially in the property business. He refers in his Form E to his anticipating the coming year being a challenging trading year in which it will be difficult to maintain profits. He says specifically in respect of two of his business interests that: "Due to the economic downturn, there is no scope for further equity withdrawals", and he refers to a letter from his accountant attached to his Form E.
This letter, which is dated 25th November 2008, states: "For the years ended 31st March 2004 to 31st March 2008, your total net taxable income, taking into account losses from all of your non-corporate businesses and personal interests, did not generate sufficient profits to fund the drawings which you have taken from your businesses. Whilst we have not undertaken a full analysis of your drawings for each year that we have prepared accounts, we understand that a significant...
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