Jersey Unreported Judgments

[2010]JRC166B

royal court

(Family Division)

14^th September 2010

Before     :

J. M. O'Sullivan, Deputy Registrar, Family Division.

 

IN THE MATTER OF WW

Application by the petitioner mother to vary child maintenance on an interim basis.

Advocate R. E. Colley for the Petitioner.

Advocate M. R. Godden for the Respondent.

judgment

the deputy registrar:

1.        The respondent ("father") is currently paying under a court order dated 18^th January, 2008, child maintenance at the rate of £578 per month and in addition he is paying the school fees for both children.  Because this is an interim hearing, both parties accept that the matter before the Court today is only in respect of interim maintenance, and not in respect of school fees, or other matters relating to expenses for the children. 

2.        Both parties have filed open positions.  The petitioner ("mother") is seeking the sum of £2,036.66 per month for the two children, an increase of £1,458.00 per month whilst the father proposes £1,239.33, an increase of £661.33 per month.  She is represented by Advocate Colley and the father by Advocate Godden who each made submissions on behalf of their respective clients. 

The mother's financial position

3.        A C4 filed by the mother and her Advocate confirmed her earned income is £24,912 per annum or £2,076 per month.  Her expenditure however is £4,457 per month.  She is currently overdrawn by about £1,000.  She pays rent of £1,500 per month for her and the two children to her father. 

4.        The respondent in his open position criticised her expenditure of £2,400 per year for children's clothing, £3,120 per annum for holidays for herself and the children, £100 per month for hair and beauty for herself, £100 per month for clothes, £100 on entertainment, and he claimed he was paying half the children's swimming costs which the mother disputes, and he contends that she had never asked him for payment for dancing and gymnastics. 

5.        Advocate Colley for the petitioner submitted the sum spent on children's clothing which included school uniforms was not excessive, and the mother is entitled to spend some sums on herself.  It was submitted she had tried to speak with the father about the payment for dancing and gymnastics without success. 

6.        Advocate Colley pointed out that the mother, with her income and income support of £599.99 per month, has a shortfall of £1,782 per month but in reality she cannot afford some of the items she wishes to spend on the children, particularly holidays.  It was accepted that her overall expenditure needs to be reduced as the summer club is not £260 per month, but she had paid £260 for the summer club for which the respondent has yet to reimburse her despite promising to do so at the last hearing. 

The father's financial position

7.        The main area of dispute is as to what is the amount of the fathers' income.  Today bank statements have been provided for the first time in respect of the father's joint bank account he holds with his partner, Miss Fitzmaurice. 

8.        The father is a Senior Treasury Manager at one of the local banks and has a net monthly salary of £6,574 per month.  In addition, he received a bonus of £13,826 in June 2010 and also £28,792 in June 2010 totalling £42,618 or £3,551.50 per month net.  Advocate Godden informed me in Court today that he has a monthly income of £10,125. 

9.        In addition to this, the father has a small amount of income from half the rental from E less half the mortgage he pays for it. 

10.      It was submitted that his expenditure will reduce to £7,339.10 per month from £9,267 per month as he is no longer paying rent, having moved to F with his partner.  Advocate Colley referred to the bank statements in the bundle which do show that he is able to spend relatively large sums of money.  For example in June 2010 he spent £915 at Fotosound; spent £991 in respect of a Football Club in May 2010, and then in August £159; he eats out regularly, and goes to the UK from time to time.  He has criticised the mother for her expenditure which is much more modest than his.  He is offering to pay an extra £661 per month, saying "he will have to reduce his expenditure in other areas in order to meet this sum."  This is clearly not the case.  Given it was accepted that his monthly excess income over expenditure is £2,725, i.e. £10,125 income less £7,400 expenditure, even if one were to accept that the figure of £7,400 expenditure is correct, this will still leave him with excess income of £2,064 per month, having paid the additional maintenance offered. 

11.      Advocate Colley submitted that his expenditure was actually lower than £7,400 per month.  She submitted that the figures he gives for the Sky and TV payments should be half the amount stated as should the other outgoings made on the F property which should be split with his partner.  This was not challenged by Advocate Godden, so I am presuming that the expenditure listed should be halved. 

12.      Advocate Colley also queried why he was solely responsible for the £25,000 Acorn Loan, in respect of works on the F property, as it is a jointly held property.  Advocate Godden had submitted that this was because his partner had paid in more when it was purchased.  If the purchase price was £575,000 and £150,000 put in by the father, with a mortgage of £435,000, this would leave her with less to put into the property.  No doubt this matter will be clarified at the final hearing. 

The Law

13.      The father argues that the time the children spend with him should be taken into account in any calculation of the amount of child maintenance he needs to pay.  However, in the case of S-v-G [2003] JRC 091A the Registrar states:-

"I am not prepared to reduce the amount in accordance with the amount of access enjoyed by the husband or of the contributions made by him.  He endorsed the passage from the Solicitors Family Law Association comment on the UK CSA formula.

"While there are, of course, costs to the non-resident parent in having a child stay for periods of time, there is no corresponding reduction in the costs of the parent with care in running the household which is the child's main home and buying their clothes."

14.      He went onto comment that this court should not be tied rigidly to the CSA formula but it is a useful guide.  I agree with the Registrar and am not going to adjust the level of child maintenance downward for nights spent with the father. 

15.      I was referred to the case of L-v-D & R [2004] JLR 334 by Advocate Godden.  This was an appeal arising from a decision of the Registrar who had made an interim order reducing payment to the wife which had caused the wife financial difficulty.  I was referred to the passage of the now Bailiff who said:-

"Until the court ...had determined that there had been a material change of circumstances, it was not clear that there should have been any variation."

16.      The father has already offered to vary the maintenance by increasing the level of maintenance paid by a figure of £661 per month, it being clear that his income is more than when he signed the statement of information form in January 2008 and the question is therefore is this the figure the court should make on an interim basis, or should it be more as requested by the mother.  

17.      The father's lawyer criticised the mother for pursuing her application for interim maintenance so soon near the final hearing.  The mother's lawyer did submit that she had expected a final hearing in August.  I do not accept that the mother can be criticised, bearing in mind this and that despite having agreed to pay £260 at the last hearing, the father's lawyers said he did not know what the figure was and therefore did not pay for the summer club. 

18.      The mother is seeking an additional payment totalling £2,036.66 whereas the father is seeking £1,239.  The mother has a shortfall in her expenditure.  The father currently pays £578 per month.  The father's weekly income as agreed by his lawyer is £2,336.53 per week.  If I take the CSA figure for those earnings £2,000 per week, for two children the weekly maintenance is £400 per week or £20,800 per annum giving a figure of £1,733 per month, an increase of £1,155 which the father can well afford.  However, it still leaves the mother a shortfall of expenditure over income and yet leaves him with £1,570 per month.  

19.      If I use the CSA formula of 20% in respect of his actual income of £2,336 per week, this amounts to £467 per week £2,024 per month, an increase of £1,446 per month, still leaving him with a balance of £1,278 per month.  This means that on an income of £121,500 per annum he is paying child maintenance of £24,288 and should enable the mother to meet her expenditure.  My concern is that the children do not suffer hardship given that the father is able to afford more maintenance, and has accepted there should be a variation at this time.  I therefore am ordering that he pay, on an interim basis, child maintenance for the two children totalling £2,024 per month. 

20.      I have not been addressed on the question of costs, and will leave this matter over until the next hearing. 

Authorities

S-v-G [2003] JRC 091A.

L-v-D & R [2004] JLR 334.