W v J (Child: Variation of Financial Provision)
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE BENNETT |
| Judgment Date | 24 October 2003 |
| Neutral Citation | [2003] EWHC 2657 (Fam) |
| Court | Family Division |
| Docket Number | Case No. FD00P10295 |
| Date | 24 October 2003 |
[2003] EWHC 2657 (Fam)
Mr. Justice Bennett
(In Private)
Case No. FD00P10295
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
MS. D. BANGAY (instructed by Messrs. Levison Meltzer Pigott) appeared on behalf of the Applicant Father.
MR. C. HOWARD Q.C. (instructed by Messrs. Fisher Meredith) appeared on behalf of the Respondent Mother.
By an application dated 10th June 2003 the mother asked the court to vary the order made by consent on 10th April 2001 by Hogg J. whereby the father of T, who was born on 12th March 1997 and is therefore now six and a half years old, was ordered to pay periodical payments for T at the rate of US$14,000 per quarter, which, converted into sterling, is the equivalent of £2,700 per month or £32,400 per annum. The mother seeks an upward variation of an additional £146,000 per annum, which is the estimated legal costs she may incur between July 2003 and March 2004. The hearing is listed before Hogg J. on 22nd March 2004, estimated to last ten days.
Mr. Howard Q.C. on behalf of the mother has submitted that the court has jurisdiction to make such an order pursuant to either s.15 and Schedule 1 of the Children Act 1999 or the inherent jurisdiction, and that in its discretion the court should make such an order. Miss Bangay, for the father, submitted that the court has no such jurisdiction or, if it does, then the court should decline to exercise its discretion in favour of the mother.
So far as I or counsel are aware, there is no authority which touches upon the issue in this case, that is to say whether the court can and should order one parent to make, by way of periodical payments, provision to the other parent for the latter's legal fees in a contested dispute as to residence, leave to remove the child from the jurisdiction and financial provision for that child.
Any such application now made by the mother cannot be made under the Matrimonial Causes Act 1973 for the simple reason that T's parents never married. However, two recent authorities have undoubtedly given an impetus to the mother's application. In A v. A (Maintenance Pending Suit) [2001] 1 F.L.R. 377 Holman J. decided that s.22 of the Matrimonial Causes Act 1973 did give the court power to award a wife petitioner by way of maintenance pending suit £4,000 per month towards her legal expenses in prosecuting her suit. The judge found that "maintenance" was a word of sufficiently wide meaning to permit such an order. In G v. G [2003] 2 F.L.R. 71 Charles J. agreed with Holman J. and awarded the wife £10,000 per month to defray her legal costs in order to prosecute her ancillary relief claim.
Before turning to the submissions, I should outline, first, the nature of the current litigation between the mother and the father and, second, the background.
The most recent bout of litigation has a sad backdrop. The mother is an American citizen but lives in London with T in accommodation provided by the father. In July 2002 the mother and T went to Florida ostensibly for a holiday. In fact, on 2nd August 2002 she underwent a mastectomy for breast cancer. On 4th September 2002 the mother issued a summons for leave to remove T from the jurisdiction for a period of 18 weeks so that she could undergo medical treatment. On 9th September Sumner J. granted that leave from 16th September and she was to return by 20th January 2003. The mother was ordered to disclose certain medical reports. She disclosed a report on 19th July 2001 from which it is apparent that she was plainly warned that she might well have breast cancer.
On 13th September 2002 Sumner J. dismissed the father's application to set aside his order of 9th September but varied the dates to 19th September and 23rd January 2003 respectively. The judge expressed his concern that the mother had manipulated matters by engineering the discovery of her cancer in Florida so that she could portray a failure by, and a loss of confidence in, her English doctors. On 16th September the Court of Appeal refused the father permission to appeal, stating that, despite strong evidence of manipulation, the need for the mother to be treated prevailed.
On 19th December the mother was in Florida. She sent a fax to the father in respect of Christmas contact. The fax was to the effect that the father could not have contact unless he agreed to three matters: first, to lodge an undertaking to return T to the mother; second, he agree that T should phone her mother daily; and, third, that he agree, there and then, to a variation of the Christmas contact for 2003. The matter therefore returned to court. On 20th December 2002 Johnson J. ordered contact to the father and ordered mother to pay the father's costs on an indemnity basis.
There then arose a dispute when the mother and T should return to England. The mother sought an extension because, she said, her treatment had not been completed. On 14th January 2003 Sumner J. dismissed the mother's application to vary the dates. He ordered her to pay the father's costs on a standard basis. On 16th January and 22nd January the mother was refused permission to appeal by the judge and the Court of Appeal respectively.
In February 2003 the mother applied without notice to the father for leave to take T to the United States for one week. On 17th February before Sumner J. the mother abandoned her application. The mother was order to pay the father's costs on the standard basis. On 3rd March 2003 the father applied for an order that T be not removed from the jurisdiction by the mother without leave, and, further, for an order under s.19(14) prohibiting the mother from making any further application in respect of T without the court's leave.
On 27th March 2003 the mother responded with a veritable battery of applications. They were no less than 22 in number. They are as follows:
1. An order for the father to make full financial disclosure.
2. An order for replies to requests made on 19th March 2002.
3. A full review of current financial and housing provision for T.
4. Discharge or review of para.9 of the order of Hogg J. on 10th April, which related to school fees.
5. A review of that part of the order of Hogg J. in relation to medical expenses.
6. The father was to provide documentary proof of life insurance for T; liberty to endorse a penal notice was sought.
7. An order for payment of the mother's historic unpaid bills relating to T.
8. An order for the father to give disclosure and inspection of correspondence and other documentation with Glendower School.
9. A full review of T's present educational arrangements.
10. An order that all of the father's doctors and psychiatrist provide certain specified information.
11. An order that a court-appointed social worker attend on and report on T's contact with the father.
12. A supervised contact order on terms that T be accompanied at all times on contact with the father by a nanny approved by the mother, the father to pay her costs.
13. Discharge of that part of the order of Hogg J. relating to contact on Wednesday afternoons.
14. Discharge or review of that part of the order of Hogg J. in relation to arrangements for collection and return in the United States.
15. Discharge or review of arrangements for collection and return of T for contact.
16. Discharge or review of that part of the order of Hogg J. in respect of T's passport.
17. A review of the originating summons.
18. A residency order that T reside with the mother and revocation of the wardship.
19. An order granting the mother leave permanently to remove T from the jurisdiction to reside in Florida.
20. Discharge or review of that part of Hogg J.'s order relating to an injunction restraining her from causing or permitting medical, psychiatric, psychological or social examination of, or consultation about, T.
21. The father to pay the mother's costs.
22. Such other orders as the court deemed appropriate.
On 23rd April the father issued his application for a residence order. On 6th May Hogg J. made a raft of orders in respect of evidence disclosure and ordered a CAFCASS report. On 22nd May the judge fixed a hearing in front of herself for 22nd March next year with an estimate of ten days.
I now turn to the less recent history. Miss Bangay has submitted that it is relevant to the exercise of my discretion. I should emphasise that her primary submission is that the mother's application fails in limine for want of jurisdiction.
The father is 44 and an American citizen. In 1986 he came to live and work in London. He has been here ever since. The mother is 47 and, as I have said, an American citizen, who in 1971 came to live in London. In January 1995 the father and the mother met. After T's birth, the parties lived in London, though it seems largely in separate homes. In 1999 the father says that he was having contact problems and he consulted solicitors. On 25th November 1999 the mother left for Florida, taking T with her without telling the father. In January 2000 the mother started proceedings in Florida, seeking financial support from the father for T and an order restraining him from removing T from Florida. On 14th March 2000 the father applied in the Florida court to dismiss the mother's proceedings. In April the father applied here for a parental responsibility order and in May for contact.
Unknown to the father, on 3rd May 2 000, the mother had initiated an action for damages for no less than US$73 million in the state of New York in which she stated that she resided at an address in New York. On 5th May 2000 the father was in his hotel in New York because he had come...
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