Green v Adams
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 03 May 2017 |
| Neutral Citation | [2017] EWFC 24 |
| Docket Number | Case No: FD15F00056 |
| Court | Family Court |
| Date | 03 May 2017 |
[2017] EWFC 24
IN THE FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: FD15F00056
The Applicant (represented with leave of the Court by Mr Holden)
The Respondent (represented with leave of the Court by Dr Pelling)
Hearing dates: 25–28 April 2017
Approved Judgment (Corrected)
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Mostyn This judgment was delivered in private. The judge directs that this version of the judgment may be published. However, no report of this judgment may identify by name the parties' son (who is referred to as "N").
This is my judgment on the mother's application for further, relatively modest, capital provision, for her son N, born on 22 March 2001, now therefore aged 16. She seeks:
i) £15,000 to replace her car.
ii) £3,000 to cover the cost of a forthcoming trip to Israel by N.
iii) £1,500, being a 50% contribution, towards the cost of a trip to China last year by him.
iv) £500, being a 50% contribution, towards the cost of a kayak purchased last year for him.
v) £600 for the cost of a new laptop for him.
vi) Total: £20,600.
In addition, although this was not mentioned in her final position statement, the mother claimed £44,000 reimbursement of rent paid on her behalf by her mother between October 2009 and May 2012 which she says she owes to her mother, certainly morally, but probably not legally. In his final submissions Mr Holden withdrew this element of the claim.
The claim is a yet further instalment in virtually continuous litigation between the mother and father which began in July 2003, a year after the parties separated. It is not necessary for me in this judgment to set out the details of the extraordinarily ferocious litigation combat which has been engaged in by these parties. There are many judgments, some reported, in the County Court, Family Court, High Court and in the tribunal system. The details are well known to the parties and it is not necessary for the purposes of my decision for me to spell them out.
The mother's claim was launched as long ago as 5 April 2013. It included a claim for periodical payments on the basis that a maximum assessment had been made by the CSA. The hearing began in December 2013 before Judge O'Dwyer. It was adjourned to January 2014, but not completed, and was re-fixed for 5 days in July 2015. It was derailed by the mother's intimation that she intended to apply under section 423 Insolvency Act 1986 to set aside a disposition to a new trust made by the father. That application was issued on 24 July 2015, in the High Court. The Family Court directed that the mother's Schedule 1 claim should be listed for directions before the same judge dealing with the Insolvency Act claim. I gave directions on 12 October 2015. The matter came before me on 25 February 2016 when the Insolvency Act claim was compromised. I directed in the Schedule 1 case that a FDR take place before Mr Justice Jackson on 26 May 2016 and that the claim be determined by me in default of agreement on 20 July 2016. In parallel with all this there were appeals by both parties against Child Support Agency assessments. Those appeals were listed to be heard in November 2016 and it was agreed by the parties in such circumstances that the hearing before me should be adjourned until the conclusion of those appeals. A final decision on those appeals was given on 19 April 2017 and I heard the mother's claim over four days from 25 – 28 April 2017.
Pursuant to the terms of section 8 of the Child Support Act 1991 an award of periodical payments may not be made under Schedule 1 of the Children Act 1989 unless a maximum child support assessment has been made by the Secretary of State, or unless the parties agree that the court should have jurisdiction. It is well-established that the court cannot legitimately circumvent this prohibition by making a capital award which rolls up expenditure which would ordinarily be met by a periodical payments order: see Phillips v Pearce (sic, recto Peace) [1996] 2 FLR 230. Put another way, the court does not have jurisdiction to make an award to meet the quotidian expenses of living; to meet, if you like, the cost of one's daily bread. It can only make an award for genuinely capital expenditure of a singular nature. Therefore the court has full power to make an award of capital to meet housing needs, and this has happened in this case. An order was made in May 2005 by District Judge Roberts requiring the father to settle £220,000 on N to provide him with a home and also to furnish £20,000 (later amended to £24,800) towards moving costs. This was not in fact implemented until January 2012 when the mother found a flat in Winchmore Hill which was purchased by the settlement which by then had been established. There was no capital provision made at that time for the purchase of a car because the mother already had one.
That car has since been replaced following an accident and the replacement, purchased with insurance money, now has done over a hundred thousand miles and according to the mother is on its last legs. I have no doubt that this may legitimately be sought under Schedule 1. The next four items are more borderline but I am satisfied that they may equally be characterised as singular items of a capital nature. Therefore, provided that the merits justify it, I am satisfied that a total of £20,600 can legitimately be claimed by the mother.
Can the father afford to pay £20,600? Of course he can. He is a rich man, as I will explain. Yet even though he has millions which may be properly regarded as his resources he has paid a mere pittance in child support. According to figures submitted on his behalf he has paid only £3,819.40 between 29 April 2009 and 22 April 2014. In addition he has paid £111.28 since 3 January 2017, pursuant to a recently made minimum assessment of £7 per week. And that has been it. I acknowledge that he has paid and continues to pay a sum which together with tax rebates in favour of N make up half of his school fees (although there are arrears at the present time); the mother's own mother pays the other half of the school fees. But even allowing for this, the lack of support for day to day living is a most disturbing state of affairs. It is an indictment of the child support system that it has not been able to furnish reasonable maintenance in the mother's hands for N.
The appeals which were heard in November 2016 related to a variation to a child support assessment sought by the mother under the ground of "assets" as specified in regulation 18 of the Child Support (Variations) Regulations 2000. The tribunal was concerned with three separate periods beginning respectively on 29 April 2009, 16 November 2011 and 5 July 2013. It decided that for those periods the father had assets for the purposes of that regulation (and I emphasise that last phrase, "for the purposes of that regulation") which it computed to be around £830,000. Deemed income at the rate of 8% is applied to those assets. However, that deemed income will not be sufficient to give rise to a maximum assessment. Dr Pelling has calculated that this will give rise to arrears of £44,140, from which should be subtracted the modest sums mentioned above leaving a debt of just over £40,000.
In circumstances where there is not in existence a maximum assessment, and where there is no prospect of one being made, it is apparent that there is no jurisdiction for the court to make a periodical payments order in favour of the mother for N. That aspect of her claim is therefore dismissed.
In his skeleton argument Dr Pelling at paragraph 11 said this:
"Furthermore, and crucially the first-tier tribunal has made a decision which as it stands means that there are CSA arrears of over £40,000 and while this figure may be mitigated by the just and equitable considerations, it is virtually certain that there will remain a large capital debt of several tens of thousands of pounds and in excess of the level of lump-sum the applicant is seeking. The court cannot ignore this and the CSA debts would take priority over anything additional the court might award. It is submitted in conclusion that in the particular circumstances of the whole case there is no basis that the court to make a second capital award to the applicant, and that to do so would really be oppressive."
In fact three days after Dr Pelling wrote this the tribunal adjudged that it would be just and equitable to maintain its provisional decision.
My initial view was that the position of Dr Pelling had considerable merit. I read his argument as asserting that the issue of the scale of the assets to be attributed to the father had been adjudicated between the parties and was therefore res judicata. I assumed that Dr Pelling was saying that the issue had been decided already with a substantial award in the mother's favour; that this was therefore an abusive duplicative action which should be halted in its tracks. I therefore indicated my provisional initial view that I should award the mother sufficient to meet her legitimate capital needs but that she should be required to give credit for such award against the arrears as computed by Dr Pelling when they fell for payment at the behest of the Child Support Agency. However, to my astonishment, Dr Pelling performed the most extraordinary volte-face in court. Although there was no hint of an intention to appeal in what he had written I was told that it was indeed the intention of the father to appeal the decision of the tribunal and that he anticipated succeeding to the extent of...
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