Mark Austin v Christina Haynes
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lady Justice Nicola Davies,Lord Justice Underhill |
| Judgment Date | 15 December 2021 |
| Neutral Citation | [2021] EWCA Civ 1919 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B6/2021/1325 |
[2021] EWCA Civ 1919
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT
HIS HONOUR JUDGE OLIVER
ZC18P04019
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Moylan
and
Lady Justice Nicola Davies
Case No: B6/2021/1325
Adal Ibrar (instructed by Direct Access) for the Appellant
Mark Calway (instructed by Russells Solicitors) for the Respondent
Bernard Devlin (instructed by Direct Access) for the Interested Party
Hearing date: 25 August 2021
Approved Judgment
The father appeals from the order made by His Honour Judge Oliver, sitting as a Deputy High Court Judge, (“the Judge”) on 9 July 2021.
The relevant provisions of that order are:
(a) an interim charging order made against the father's interest in a property in London in respect of sums due: (i) under a financial provision order, made under Schedule 1 of the Children Act 1989 on 11 December 2018 (“the 2018 order”); and (ii) under orders for costs made in proceedings between the parties, together totalling £203,136.43;
(b) the variation of the 2018 order so as to require the father to make “the housing fund” referred to in that order available to the mother by 9 October 2021; and
(c) a passport order requiring the father to lodge his passport with the mother's solicitors or the Tipstaff by 6.00 pm on 9 July 2021 and to be held by them until 6.00 pm on 13 August 2021, being the day after the date of the hearing fixed to determine whether a final charging order should be made.
The father is represented by Mr Ibrar, who appeared below with Ms Julyan SC. The mother is represented by Mr Calway, who did not appear below, the mother then being represented by Mr Day. Mr Devlin appeared on behalf of the legal owner of the London property, Hamersley Invest Anstalt, which was not represented at the hearing below.
At the outset of the hearing of the appeal, the court raised with Mr Ibrar the issue of whether the father was in breach of the passport order which had been made by the Judge. This was for the purposes of deciding whether, if he was, what the appropriate response might be, including as to whether the father should be permitted to proceed with his appeal. It soon became apparent that, at the conclusion of the hearing below before the Judge, at which the father was present in person, the father did not give his passport either to the mother's solicitors or the Tipstaff as required by the Judge's order but immediately left England and returned to Switzerland where he lives.
Mr Ibrar sought to explain the father's conduct by saying that, although the father had heard the Judge make the passport order, he had not been served with the order and the Judge had said that he was making the order without notice. Despite the unconvincing nature of this explanation, rather than engage further with this issue, we decided to allow the appeal to proceed to be determined on its merits.
I set out the grounds of appeal in more detail below but, in summary, it is contended that: (a) there was procedural impropriety which vitiates the orders made by the Judge; (b) the father did not have a fair hearing in respect of the mother's enforcement application which led to the making of the interim charging order; (c) the Judge was wrong in law to make the charging order; (d) the Judge was wrong in law and principle to vary the financial provision order as referred to above; and (e) the Judge was wrong in law and principle to make the passport order.
We informed the parties at the hearing that the appeal against the interim charging order would be dismissed. In summary, this was because the Judge had been entitled to make the order and because, as a result of its being treated as having been made ex parte and, in any event, any objections to the court making a final charging order would be determined at the further hearing. This meant that we did not need to hear from Mr Devlin. My reasons for agreeing with that decision are set out below, as are my reasons for proposing that the balance of the appeal should also be dismissed.
Background
This case has a long history much of which can be found in Williams J's judgment, BSA v NVT [2020] EWHC 2906 (Fam).
The mother and the father were in a relationship for some 17 years until 2017. They have two children now aged 14 and 10.
The father lives in Switzerland having moved there from England in 2001 “to ensure tax efficiency in the lead up to the sale of a company”, as he explained in his Form E. The company was sold in 2005 and “between 2005 and 2010 [the father] settled trusts into which the proceeds of sale were received”. As at the date of his Form E, 25 May 2018, the father estimated the gross value of the assets held by the trusts at approximately £66 million. The father is a discretionary beneficiary of the trusts.
The mother lives in London in a property owned by one of the trusts settled by the father (“the London property”).
Following their separation, the mother made an application for financial provision under Schedule 1 of the Children Act 1989 (“the CA 1989”). The 2018 order, made by consent by Deputy District Judge O'Leary, set out the terms of the parties' “Agreements”. These included: (i) that the mother and the children would continue to live in the London property “until the completion of the purchase of the new home”; (ii) that the father “will make a housing fund of £2,750,000 available for the purchase of a new home for the [mother] and the children”; (iii) that the father would pay a lump sum of £200,000 to the mother of which £50,000 was to be paid by 24 December 2019 and £50,000 by 24 December 2020; and (iv) that the father would pay the outgoings of the London home, £1,000 per week to the mother (until she moved to the new home when it would increase to £47,500 per year per child) and £30,000 per year towards the cost of a nanny. It was also agreed that upon completion of the purchase of the “new home”, the mother would give vacant possession of the London property.
The order recorded that the father wanted “to take tax advice about the most tax-efficient method of providing the housing fund” so that “it is not possible to include in this order detailed terms about the mechanism by which the housing fund will be provided”. In the event of the parties reaching an agreement about this “mechanism”, a “further order to that effect will be lodged”.
On 13 February 2019 a further consent order was made by Deputy District Judge O'Leary, following the parties agreeing how the housing fund would be provided. This order sets out the terms of the agreement reached by the parties and gave the parties liberty to apply to the court for the purposes of implementation.
The father has not provided the housing fund of £2.75 million.
No date was included in the 2018 order in respect of the provision of the housing fund. The variation effected by the Judge's order was, as referred to above, to require the father to make the housing fund available by 4.00 pm on 9 October 2021.
On 23 July 2019 the mother, acting in person, issued an application for the enforcement of the father's obligations under the 2018 order (“the 2019 application”). This was a general application notice in Form D11 rather than the specific Form 50K (as referred to below). It was supported by an attached statement (in the form of a letter) which set out which provisions of the order the father at that date had not fulfilled. They were the provision of the housing fund, certain outgoings and the costs of a nanny. The application was also supported by a formal statement from the mother dated 23 September 2019.
On 6 September 2019, the mother applied for a costs allowance, the equivalent of a legal services payment order. I have described this as an equivalent application because the provisions of the Matrimonial Causes Act 1973, which provide for a legal services payment order, do not apply to the proceedings in this case.
On 17 September 2019 the court gave directions requiring each party to provide statements and up-to-date financial disclosure. The father failed to comply with this order.
On 7 October 2019 the mother issued her first application for a judgment summons in respect of the non-payment of the housing fund.
On 8 October 2019 the matter came before the Judge. His order recorded that “the court was unable to use this hearing to determine the application dated 23 July 2019” because the father had failed “to make … financial disclosure as ordered”. The order required the father to make specific disclosure and listed a further hearing on 6 December 2019. The Judge also made a costs allowance order requiring the father to provide the mother with a total of, approximately, £46,000.
There was then a long delay in the proceedings because of the time taken to determine the father's application for permission to appeal the order of 8 October 2019. His application was first refused on paper by Knowles J on 3 March 2020. Two of the father's grounds of appeal challenged the directions given by the Judge in respect of the mother's enforcement application and her committal application because, as set out in Knowles J's order, “the matters said to have been breached by the father were recitals to the December 2018 consent order and thus not terms ordered by the court itself”. Knowles J rejected this contention. She noted that the 2018 order was “a standard family court consent order”...
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