N M M T v M O T
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CHARLES |
| Judgment Date | 11 May 2006 |
| Neutral Citation | [2006] EWHC 2494 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD05P00258 |
| Date | 11 May 2006 |
[2006] EWHC 2494 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Charles
Case No: FD05P00258
Mr N Francis QC appeared on behalf of the Applicant (Wife/Mother)
Mr C Howard QC and Mr C Umruruike appeared on behalf of the Respondent (Husband/Father)
Approved Judgment
: This matter comes before me pursuant to a direction I gave on the last occasion that the case came before the court (which was on 3rd March). The matter has come before me for a further review with a time estimate of half a day. As I said in my judgment on that last occasion history has always demonstrated that time estimates in this case have been too short. We have done it again, the hearing has lasted more than half a day.
There have been a number of issues arising in respect of the order I made on 3 rd March, which has not been finalised. The terms of the order were, as I understand it, agreed between counsel acting for the parties. Points were then raised by the solicitor acting for the father and there is a letter I have seen dated 31st March indicating that amongst others a jurisdictional point would be raised before me today. During the course of the hearing I have indicated that it seems to me that it would have been more appropriate if that jurisdictional point had been brought immediately and directly to my attention. However, there was certainly, as it appears, implied consent by both sides that the matter should be dealt with today with other points.
One of the other points raised related to paragraph 3(a) of the draft concerning the amount to be paid per month to cover the cost of a classroom assistant. So far as that was concerned, on the last occasion the figure to be put in for it was left to those who were finalising the order in this way: either the cost would be averaged over a year or there would be gaps, recognising that the classroom assistant would not been working during each day of the year. I have seen correspondence in which the solicitor acting for the father was provided with information that the figure appearing in the order is the averaged figure. I was told by leading counsel acting for the father that his instructing solicitor had not seen that letter. The figure referred to in that letter is £1,607.40 per month and is referred to in later correspondence, but it is certainly possible that that amount is something that came to the knowledge of the father's solicitor through the draft order rather than through correspondence.
This is not the first time in the history of this case that points have been raised as to receipt of information by the solicitor acting for the father. I profess that I am troubled as to the attitude taken and have expressed my disquiet during the course of the hearing. My disquiet flows in large measure from the provision in my order for the payment of a capital sum of £250,000 to be there by 10th May, ie yesterday, which was fixed deliberately by reference to the date fixed for this hearing. Again, very sadly, not for the first time in the way of which this case has been presented an application is made to me today without any evidence being put in in support of it for an extension of time for the father to pay. I do not propose to repeat things I said during the course of the hearing. If people wish to know my views as to the quality of the presentation of that application, they can look at the relevant extract from the transcript which took place shortly after lunchtime today. What I do repeat is an expression of my frustration and annoyance at yet another failure to present evidence in support of an application of this type by this father. I will return to whether or not an extension should be given or not in a moment or two.
There have been a number of points of detail raised in respect of the draft agreed by counsel instructed before me on the previous occasion, which have, I am happy to say, resulted in agreement being reached between the parties now as to the terms of the order and various minor amendments to it. As a check I have gone through these matters immediately before delivering this judgment with counsel and have directed that the order in its amended form is to be agreed by leading counsel. If leading counsel are not able to agree the precise terms of the order they have my permission to each send me their respective positions in writing and I will myself resolve the terms of the order. I invite them to do that as quickly as is practically possible.
That leaves a number of, I think it is three, issues outstanding today. The first and shortest issue is whether or not the provision as to the payment in respect of a classroom assistant should be altered to give a later start date. I refuse that application. To my mind the factual basis of it is not a solid one, it coming from an interpretation of a report by Miss Savage. Further, and in any event more importantly, given the track record of this father as to making payments, it is clear that the mother and her advisers had to proceed with caution to see that money was actually on stream before putting in place the classroom assistant. One payment has been made and, equally importantly, an accounting exercise can simply be carried out at the end of the day to ensure that monies paid with the purpose of meeting the cost of that classroom assistant have been so applied, and if they have not then monies could be repaid. The provision in the order will provide that those monies are to be paid to the solicitors acting for the mother. One of the agreed provisions in the order is that receipted invoices would be provided.
I was invited, in fact I think by both sides, to direct that the payment should be made directly to the relevant preparatory school. I have refused that. I confess I recoil from the prospect of involving that preparatory school in debate and dispute as to whether payments have been made in this case.
The next issue I should deal with is the issue, to my mind properly raised as I understand it as soon as it was brought to their attention by leading counsel now instructed on behalf of the father, that on the previous occasions that this matter has been before me I was not referred to the decision of Bennett J in W v J (Child Variation of Financial Provision) [2004] 2 FLR 300. Mr Howard, who today appears for the father, has checked the position relating to the transcript of the whole hearing to check that W v J was not referred to and I have no recollection of it having been referred. It was common ground it was not.
The transcript of the hearing when I initially decided that the interim payment should include an element for cost shows that I dealt with this in paragraph 47 of my judgment. It is apparent from that paragraph that I did consider the jurisdictional point and whether or not the statutory language of Schedule 1 permitted me to include within an interim payment a provision in respect of costs. It is also apparent from it that at that stage I was referred to a decision of the Court of Appeal reported in The Times Law Report, that is re S, which has now been reported at [2005] 2 FLR 94. As appears from paragraph 47 of the transcript that I have just referred to, it was in fact, as I recall it in my view, correctly accepted that the provisions of Schedule 1 enable the court to make an order for the benefit of the children which is directed to costs incurred for their benefit.
At the heart of Bennett J's decision in W v J is his acceptance of the argument advanced in that case by counsel (as set out in paragraph 46 of his judgment) and the submission as he accepted was this:
“That a parent seeking the up-front payment of his or her legal fees against the other parent is seeking a benefit for him/herself and not for the child. The purpose of such an application will vary from case to case. It may be to relieve the applicant parent from borrowing such monies from the bank or other financial institution. It may relieve the applicant parent from having to go to friends or family to lend him or her sums of money to pay his/her legal bills. It may be to relieve the applicant parent of having to apply for assistance from the Legal Services Commission. These are examples of how in my judgment such an application as mounted by the mother in this case can be seen to be for the applicant parent's benefit rather than the child's.”
So at the heart of that submission as accepted by Bennett J is that the application for a contribution towards legal fees or the payment of legal fees is for the benefit of the adult applicant and not for the benefit of the child.
A similar approach was taken to the word “benefit” within the schedule by Bracewell J in re S. That appears from paragraph 12 of the judgment of Thorpe LJ in that case citing from Bracewell J where he says:
“She is cited as saying that order appears to not to relate to the sort of financial provision which was envisaged in Schedule 1. On the contrary, it is giving sums of money to the mother to enable her to do something which would be for the benefit of the child. It is not money which is...
To continue reading
Request your trial
-
Keren Lomas v Leo Trott
...provision for a child, on the basis that such a payment was capable of being for the benefit of the child. Thus, in M-T v TUNK[2006] EWHC 2494 (Fam), Charles J had to consider the provisions of Sch. 1 of the Children Act 1989. That schedule allows the court, on the application of a parent o......
- R v R
-
CF v KM
...130). 17 I was also referred to an article in [2009] Fam Law (one of the authors of which is the solicitor for the mother in M-T v T [2006] EWHC 2494 (Fam) and [2007] 2 FLR 925) which concludes that there is no jurisdiction to make an order for an interim lump sum, and the arguments and con......
-
B v B
...(11) M v. M (Maintenance Pending Suit), [2002] 2 FLR 123; [2002] EWHC 317 (Fam), considered. (12) M v. T, [2007] 2 FLR 925; [2006] EWHC 2494 (Fam), referred to. (13) Moses-Taiga v. Taiga, [2006] 1 FLR 1074; [2008] 1 F.C.R. 696; [2005] EWCA Civ 1013, considered. (14) S (A Child) (Financial P......