Kirsten James v Stephen Seymour
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 19 April 2023 |
| Neutral Citation | [2023] EWHC 844 (Fam) |
| Docket Number | Case No: FA-2022-000329 |
| Court | Family Division |
[2023] EWHC 844 (Fam)
Mr Justice Mostyn
Case No: FA-2022-000329
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
James Finch (instructed by direct access) for the Appellant
Alex Tatton-Bennett (instructed by Charles Russell Speechlys LLP) for the Respondent
Hearing date: 5 April 2023
Approved Judgment
This judgment was delivered in public. The judge has made a direction that the children of the parties are not to be named, nor any photograph of them printed, in any report of the proceedings or this judgment. This direction does not prevent the parties being named. All persons, including representatives of the media, must ensure that this direction on is strictly complied with. Failure to do so will be a contempt of court.
I shall refer to the appellant as ‘the mother’ and to the respondent as ‘the father’.
The mother is 50 and is a journalist although she is not currently working. She has a degree in Russian and Eurasia Affairs, a Masters in International Relations and a PhD. She lives in Oxfordshire with her husband who she married in August 2022 and the parties' two children who are 12 and 10 years of age. The parties' children are privately educated and the father pays for their school fees and extras.
The father is 47 and works in private equity. He lives in London with his wife who he married in January 2020 and their two children, a 2-year-old and 1-month-old.
The parties married on 14 December 2010 and their marriage lasted for 2 years. The mother petitioned for divorce in February 2013 which was duly granted.
The mother applied for financial remedies which were settled by a consent order made on 3 July 2014. The total assets of the parties comprised a house with equity of £700,000. The order provided for the mother to receive a total of £525,000 in cash to be paid by the father in instalments in part linked to the size of the father's bonus over a period potentially as long as 10 years. The father was to pay (a) child maintenance of £10,000 per annum per child and (b) spousal maintenance of £52,000 per annum until 2024, thereafter decreasing to £40,000 per annum payable until the younger child reached the age of 18 or finished her full-time secondary education if earlier (i.e., potentially for a further 16 years).
In 2014 the mother removed the children from their schools, moved to Oxford with them and withheld contact with the father. Proceedings under the Children Act 1989 ensued which were resolved by consent in September 2014, the father having agreed to the relocation and contact resuming.
Unfortunately, there have since been repeated proceedings relating to the children. There have been three separate sets of proceedings regarding the father's general or holiday contact with the children. In addition, in 2018 the mother applied for permission to relocate the children to Pakistan where she had obtained employment. This application was refused by Theis J in April 2018. The mother took up the position nonetheless and the father assumed primary care of the children. In October 2018 the mother retained the children in Pakistan following an agreed holiday visit by the children to her there. The mother sought to ratify this unlawful conduct by applying again for the children to be allowed to relocate to Pakistan; this was refused by Theis J in February 2019. The mother thereafter returned to this jurisdiction and a child arrangements order was made by Theis J which provided for the parties to share the care of the children, so that they lived principally with the mother and spent time with the father every other weekend and in the school holidays. That order was in force as at the date of the hearing in September 2022 before HHJ Vincent with which I am concerned. Those contact arrangements had again been breached by the mother and a yet further set of Children Act proceedings were in train as at the date of that hearing.
In 2015 the mother applied to vary the consent order of 3 July 2014 to accelerate receipt by her of the cash element so as to rehouse herself and the children. A consent order dated 17 July 2015 varied the dates on which the father was to make payments to the mother. £350,000 originally ordered to be paid in instalments potentially stretching to 2024 was now to be paid no later than February 2018. The quid pro quo was a variation of the global annual spousal and child maintenance to bring forward the step-down from £72,000 to £60,000 from August 2024 to February 2020.
By July 2015 the mother had received a total of £490,000 from the father under the terms of the 2014 and 2015 orders, at which point she purchased a cottage in Oxfordshire for £460,000.
In January 2020 the father remarried. At the time of the hearing before the judge he and his wife had a child born in October 2020.
The mother began a relationship with Mr James in early 2020. He purchased a country house in May 2021 and the mother and children then moved into it with him. She married Mr James on 23 August 2022.
On 5 January 2021, the mother applied to vary the consent order of 17 July 2015, seeking increased payments of spousal and child maintenance. It is those proceedings that were determined by HHJ Vincent and with which I am concerned on appeal.
The mother should have disclosed in the proceedings her cohabitation with Mr James as soon as it happened in May 2021. She did not do so, and only definitively confirmed that fact in her s. 25 statement dated 16 March 2022. Remarkably, the mother's case in that statement was that although she was cohabiting with Mr James she nonetheless should be awarded capitalised spousal maintenance.
The mother disclosed her remarriage to the father on 1 September 2022.
The FDR took place on 20 September 2021. Neither party had made open offers beforehand. The father made an open offer after the FDR for spousal maintenance to cease and for child maintenance to continue to be paid at the current level. The mother never made a reasoned open offer.
The variation application was listed to be heard on 15 March 2022. The mother applied for an adjournment which was refused on 3 March 2022. She was ordered to pay the father's costs of the application. However, the final hearing was later removed from the list due to the lack of judicial availability.
The final hearing took place on 15 and 16 September 2022 before HHJ Vincent. The mother accepted that she no longer had a claim for spousal maintenance. Her case before the court was that the existing child periodical payments were insufficient to meet their needs; that there was a disparity of lifestyle between her and the father; and that she had accrued substantial debt. It was submitted on her behalf that “the Mostyn formula” should apply to the calculation of child maintenance so that she should receive child maintenance of £2,184 per child per month, a substantial increase of the existing order of £833 per month per child. At the final hearing the father offered to increase this to £1,100 per month per child, as well as to pay school fees and extra-curricular activities.
Prior to the hearing the father had applied under section 33 of the Matrimonial Causes Act 1973 for repayment of £48,000 of spousal maintenance. He also had applied to enforce an indemnity given in the 2014 order. He sought an order for costs and enforcement of the costs order made against the mother on 3 March 2022.
HHJ Vincent handed down judgment on 6 December 2022. She found that the children's needs had not substantially changed since the time that the previous orders were made. She adopted the father's proposal and ordered him to pay the mother child maintenance of £1,100 per month per child, amounting to £26,400 per annum. Second, she ordered the father to pay the children's school fees as well as school travel and other extras. She held the mother to her indemnity given on 3 July 2014 in the sum of £3,598. Finally, she ordered the mother to pay half of the father's costs, summarily assessed at £66,627.70. She did not order the mother to repay to the father any spousal maintenance.
The judgment is reported on Bailii as A Wife v A Husband [2022] EWFC 154.
Permission to appeal was refused by HHJ Vincent on 9 December 2022.
The mother filed her appeal notice and grounds of appeal in the High Court on 12 December 2022. On 19 December 2022 Roberts J ordered that the application for permission to appeal (PTA), with the appeal to follow if permission was granted, were to be heard by me together on 5 April 2023.
There are three grounds of appeal:
i) Ground 1: the judge failed to follow the approach set down in leading authorities that the ‘starting point’ for a child maintenance calculation should be the figure given by the CMS formula up to incomes of £650,000.
ii) Ground 2: the assessment of the quantum of child maintenance was too low and insufficient (or no) weight was placed on the inevitable disparity of lifestyle as a consequence.
iii) Ground 3: the order as to costs was wrong.
The test for the grant of PTA is arguability. The standard for allowing an appeal is wrongness (FPR r. 30.12(3)(a)).
The mother's case advanced to me by Mr Finch was that the judge disregarded the authorities on child maintenance and did not provide an adequate reason for departing from the starting point proposed therein; that she unfairly disregarded the principle that the children's lifestyle should not be out of kilter with their father's when she overly harshly reduced the mother's budget; and that the costs order was wrong insofar as the mother's late filings had no bearing on the proceedings whatsoever.
The father's case advanced to me by Mr Tatton-Bennett was...
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