N v N
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Bodey |
| Judgment Date | 22 January 2015 |
| Neutral Citation | [2015] EWHC 514 (Fam) |
| Court | Family Division |
| Docket Number | Case No. BT05D00020 |
| Date | 22 January 2015 |
[2015] EWHC 514 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. Justice Bodey
Case No. BT05D00020
Mr. B. James (instructed by Bottrill & Co.) appeared on behalf of the Appellant.
Mr. D. Evans (instructed by Hopkin Murray Beskine) appeared on behalf of the Respondent.
I start this extempore judgment at five past five, having risen at 3pm after hearing the case during the course of today. I do so because the parties are self-funding and I do not wish to bring them back on another day.
A. INTRODUCTORY
This is an appeal by Mrs N (whom I shall call for convenience "the wife") brought with the permission of Mr. Justice Coleridge, granted on 11 th April 2014 against an order of District Judge Marin at what was then the Barnet County Court on 12 th February 2014. The respondent to the appeal is Mr N (whom for convenience I shall call "the husband").
The order of the District Judge dismissed the wife's applications for the determination and enforcement of alleged arrears of child maintenance and for variation of a previous child maintenance order. The basis for the dismissal of enforcement of the alleged arrears of child maintenance was that this issue had been decided against the wife in the Courts of Illinois, USA, and that, for the wife to seek to re-litigate them in this jurisdiction offended the principal of res judicata and/or amounted to an abuse of the process of this court. The dismissal of the application for a variation of child maintenance was on the basis that the application was an abuse and should be struck out under Part 4 of the Family Procedure Rules 2010.
The wife has been represented at this hearing by Mr. James and the husband by Mr. Evans. I am grateful to them both for the polite way in which they have placed their submissions before me. I have received from them both quite extensive written submissions and oral submissions. I have read a court bundle of documentation comprising essentially judgments and orders in both jurisdictions. The hearing has, of course, proceeded on submissions.
Before I allow an appeal I have to be satisfied that the decision of the lower court was "wrong or unjust because of a serious procedural or other irregularity in the proceedings in the lower court" (Rule 30.12.3 FPR 2010).
B. BACKGROUND.
The case has an extremely unhappy background. The parties were married in 1996 and separated in or before December 2004. Divorce proceedings followed in this jurisdiction. Both parties are now in or about their late forties. There are two children of the family who are now aged seventeen and twelve respectively. The wife lives with the children in this country and the husband lives in the United States. The wife is now working part time as a teacher. The husband is a computer software engineer whose income fluctuates a good deal from year to year.
On 13 th June 2007 the matter of ancillary relief (as it then was) came before District Judge Marin at the Barnet County Court. The wife was in person and the husband was represented by counsel. The District Judge was highly critical of the wife. He dismissed her claim for a lump sum of £160,000, which he regarded as absurd and unrealistic. He spoke of her having pursued "a single minded litigation crusade against the husband" and "of putting forward convoluted calculations which made no sense, misusing the figures to produce calculations far removed from financial reality". He accepted all of the husband's evidence about his means. He found there were no assets to speak of. He rejected the wife's wish to withdraw her application for ongoing maintenance for herself and the children and accepted the husband's submission that those matters should be dealt with there and then in this jurisdiction. He referred to the wife having issued proceedings for those reliefs in America the previous year, which he spoke of as "forum shopping". He said that the only reason he could see for her wishing to pursue those aspects in America was "…to prolong the litigation with the husband in circumstances where she is constantly forcing him to instruct lawyers in two jurisdictions and incur heavy costs". He dismissed her capital claims. He ordered a nominal order for her maintenance and imposed a condition on her making any application to vary it that: (a) there must have been a substantial change in the husband's financial circumstances; (b) that a District Judge must have given her permission to make a variation application; and (c) that there would have to be no similar proceedings on foot in the United States of America.
Pausing there, the wife has now applied for such permission to commence variation proceedings regarding her nominal maintenance and, whatever the outcome of this appeal, that will be dealt with by a District Judge who will decide whether the wife should have leave, as required of her by District Judge Marin in 2007.
As to child maintenance, the District Judge (on 13 th June 2007) made an order in terms which need to be set out in full:
"The respondent do forthwith pay or cause to be paid to the applicant for the benefit of the children of the marriage periodical payments at the same rate as that indicated by the Child Support Agency, or its successor agency, until each child shall respectively attain the age of eighteen or cease full time education. Such payments shall be made at the rate of 20% of the respondent's net annual income while payment is being made for both children and shall reduce to 15% of his net income when payment is for just one child. The payments are to be made monthly commencing forthwith and are currently to be made at the rate of £160 per month per child. In the event that the applicant obtains an order for child maintenance in the USA, the amount the respondent must pay in accordance with this order is to be reduced on a pound for pound basis by the amount he is bound to pay by the USA order."
Before parting with the case in 2007, District Judge Marin referred to the wife's having made clear to him that she intended to appeal every order which he might make and he stated that "the litigation prospects of this case are therefore bleak".
Coming up to date for a moment: the parties have put their heads together to compute whether there are arrears under that order calculated as the appropriate percentage of the husband's net income and, if so, how much those arrears are. The answer is now agreed, namely that there are arrears of child maintenance. The husband puts them at £11,500. The wife puts them at £22,500, a difference of £11,000. That difference depends on what deductions from the husband's gross pay in America are to be made to get to the net. A candidate for disagreement is medical healthcare insurance and there are others.
The wife applied for permission to appeal those orders of 13 th June 2007. On 2 nd August 2007 her application came before Her Honour Judge Pearl sitting at the Barnet County Court. The wife abandoned all aspects of her appeal, save for her appeal against the costs order which had been made by District Judge Marin against her. Judge Pearl dismissed that appeal stating that there were no grounds for it. She referred to the wife's "relentless and pointless pursuit of this litigation". She ordered the wife to pay the husband's costs again. I take account of the fact that the wife has not paid such costs.
In October 2007 Lord Justice Wilson (as he then was) heard an application by the wife to appeal that decision up to the Court of Appeal. The wife was still acting in person as she had been before Judge Pearl. He dismissed her application describing it as "entirely misconceived".
Thereafter the wife issued proceedings in Georgia, USA, where the husband (an American Citizen) was then living, asserting that there were then arrears. She sought to register the June 2007 order in Georgia; to commit the husband for contempt (it is not clear in what particular respect, but I imagine concerning the provision by him of certificated tax returns); and to vary the maintenance order of June 2007 in favour of herself and the children.
On 24 th March 2008 the Superior Court of Fulton County, Georgia, observed that the wife's application was:
"…a mere four months after the entry of the English Court's final judgment of divorce and approximately two months after she exhausted her appellate avenues under English law. The court finds and concludes that her petition to modify was merely an attempt to re-litigate an outcome which the English Court rendered as to child support and which she did not like…and…that her petition to modify was frivolous, vexatious, lacked substantial justification and was merely interposed for harassment and to obtain a better outcome utilising a different forum."
That court dismissed her applications.
On 22 nd April 2010, by which time the husband had moved from Georgia to Illinois, the wife procured an order from the Court of Du Page, Illinois, registering the English court order of 13 th June 2007:
"…The English order shall be given full force and effect by the Courts of Illinois."
On 21 st July 2010, the wife brought proceedings in Illinois for modification of the child support and for an order to compel the husband to provide certified tax certificates, which he had been ordered to do by DJ Marin's order of 13 th June 2007. Subsequently, that application by the wife for a variation of child maintenance was withdrawn. On 25 th November 2011, the wife amended her petition to the...
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