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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> I -v- J (Family) [2013] JRC 156 (05 August 2013) URL: http://www.bailii.org/je/cases/UR/2013/2013_156.html Cite as: [2013] JRC 156 |
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Family - application by the mother for financial provision from the respondent for B.
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Before : |
J. A. Clyde-Smith, Commissioner, and Jurats Fisher and Olsen. |
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Between |
I (the Mother) |
Applicant |
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And |
J (the Father) |
Respondent |
Advocate A. T. H. English for the Applicant.
Advocate H. J. Heath for the Respondent.
judgment
the commissioner:
1. The Court sat for three days to hear the application of the applicant ("the mother") for financial provision from the respondent ("the father") for their daughter B, who is now aged 10 and who resides with the mother. The application is made pursuant to Schedule 1 of the Children (Jersey) Law 2002 ("the Children Law") and was originally filed on 26th September, 2011.
2. The relationship between the parties ended in November 2010, when the father moved out of the family home, which he owns and which is adjacent to his garage business. After some nine months, the mother moved out with their two children to rented accommodation and the father returned. Today, the mother remains in rented accommodation with her partner and the father in the former family home with his partner, from where he continues to run his garage business. Their elder child, A, lives with the father.
3. The father pays maintenance for B at the rate of £250 per month and has staying contact with her during school holidays and during school terms every other weekend and on Wednesday night every week.
4. The relationship between the parties has been acrimonious and there have been continuous proceedings, mostly conducted before the Registrar, since 20th May, 2011, when the father first made an application for parental responsibility for B (which the mother gave him by agreement) and a residence order in respect of A. An application by the father for a shared residence order in respect of B (inter alia) made on the 10th January, 2013, was heard in June of 2013 [and has been dismissed]. It was the third residence application brought by the father in respect of B.
5. The father, who in his own words is not an academic man, represented himself before the Registrar (save for one occasion) and accepts that he did not conduct himself well. For reasons which it may become necessary to explore in any hearing over costs, he did not comply with financial disclosure orders made against him.
6. The Act of Court of 31st May, 2012, records that the father had not complied with a disclosure order made on 16th February, 2012, and he was given until 19th June, 2012, to do so. He failed to comply with that order and the mother therefore applied to the Registrar for the matter to be referred up to the Royal Court and an order to that effect was made by the Registrar on 14th November, 2012.
7. That order appeared to galvanize the father into instructing Miss Heath to represent him and the Royal Court started the process of disclosure anew with directions to that end being issued (in accordance with a draft prepared by Miss Heath) on 15th January, 2013.
8. At a directions hearing on 19th April, 2013, Mr English for the mother informed Commissioner Clyde-Smith that the mother had engaged a forensic accountant, with funds from the Legal Aid vote, to assist in analysing the accounts of the father's company, X Limited ("the company"). It was made clear at that hearing that if the mother intended to call the accountant as an expert witness, proper notice should be given to the father so that the father could consider whether to call his own accountant in response. At the commencement of the hearing the father objected to the evidence of the accountant being heard, as he had not received adequate notice and had not had time to instruct his own accountant to give expert evidence in response.
9. The Commissioner upheld the father's objections because the mother had failed to give adequate notice as directed and to adjourn the case to enable the father to call his own accountant was not in the interests of B (the experts in the shared residence order application had been unequivocal over the need, in the interests of both children, for the proceedings between the parents to be brought to a close as soon as possible) and, having regard to the overriding objectives set out in Article 4 of the Children Rules 2005, would be disproportionate. The accountant could and did assist Mr English in his cross-examination of the father.
10. The Court received the affidavits of the mother and father as their evidence in chief, and heard them under cross-examination, and received other affidavits and documentation to which we will refer. We have taken account of all of the evidence before us for the purpose of determining the issues, even if we do not make express reference to every part of it. We will set out the relevant facts as we find them. For the avoidance of doubt, in so far as the matters set out differ from the evidence of the mother or the father, this is because we have preferred the evidence of the other of them or because we consider that the documents produced confirm our findings of fact.
11. The mother (who is 50) has no qualifications and works as a self-employed carer for a 97 year old lady. Her normal hours are from 9:00am to 2:00pm and she earns £300 per week gross or £15,600 per annum. She works additional hours, including evenings, weekends and bank holidays for which she earns £12 per hour. In 2012, this provided a further £3,600 income gross. B often has to accompany her to work in school holidays and at weekends. Her total annual income is therefore approximately £19,200 per annum to which must be added the £3,000 per annum she receives by way of maintenance for B, which brings her total income to around £22,200 per annum. She pays no Income Tax but being self-employed, has to pay her own Social Security contributions which equate to £160.29 per month, or £1,923.48 per annum.
12. She has no assets other than a 10 year old Audi car which she values at £2,000 and the sum of £50,000, which she says is still due to her from the father for her shares in the company which she has transferred to him. She lives in rented accommodation with her partner who has children from a previous marriage, whom he supports financially. His monthly income is £2,804.22 or £33,650.64 per annum. He owns a property in Plymouth worth £177,000 purchased through an inheritance, a lump sum from his pension and his divorce settlement. It is his intention to go and live there when his youngest child (who is 15) completes her full-time education.
13. She assesses the monthly income needs of herself and B at £2,593 and B's monthly additional needs at £1,000, a total of £3,593 per month or £43,116 per annum, which set against her monthly income gives rise to a substantial shortfall.
14. The father (who is 45) purchased the garage and adjacent residential premises in his own name in 2002 for £600,000 with the benefit of a mortgage. The garage business is operated through the company. Since April 2011, the accounts state that he only owns one-third of the issued shares in the company (upon which we comment below) but he confirmed that the Court should regard the assets of the company as a resource available to him. Indeed, he described himself as the sole owner and beneficiary of the business and it is quite clear that that is the reality, whatever the accounts may say.
15. The father draws an annual wage from the company of £22,500. In addition to this, the company meets a proportion of his personal expenses, which he estimates, and we accept, at around £13,600 per annum, a figure which needs to be grossed up to, say, £17,000 for tax. We assess his annual income from the company in these two respects at around £40,000 gross. In contention is the true profitability of the company and the extent to which the father is able to benefit financially over and above this income, and this by way of dividend, loan or other form of drawing.
16. The accounts of the company are drawn up to 30th April each year and we have the accounts going back to the year ending 30th April, 2010, (which show the comparative figures for 2009). These show the net profits of the company after taxation (after payment of the father's wage and expenses) as follows:-
2009 £112,560
2010 £153,147
2011 £50,253
2012 £4,623
2013 £2,619
17. Substantial dividends are recorded as having been paid by the company to the father as follows:-
2009 NIL
2010 £178,825
2011 £68,647
2012 £246,293
2013 £16,258
18. It is worth noting the turnover over this period and the cash held at the bank (as at each year end) as follows:-
Cash at Bank Turnover
2009 £79,516 £1,751,196
2010 £223,564 £1,794,098
2011 £45,167 £1,771,154
2012 -£23,952 £1,648,502
2013 -£6,676 £1,479,329
19. Whether withdrawals should be accounted for as dividends or shareholder loans would be for the father's accountant to advise and he would have been no doubt influenced by the change in the system of taxation from 2009 when profits were attributable to shareholders. The father's tax returns show an unearned income of £276,134 for year ending 31st December, 2010, and £246,293 for year ending 31st December, 2011. There was no unearned income for 2012 and we do not have the tax returns for earlier years.
20. The mother maintains that these figures show that the father has, on average over the last five years, an annual income of some £200,000. It is the case, that in addition to his monthly wage and payment of his expenses, the father has been in receipt of the following substantial sums drawn from the company:-
(i) £187,356.34 on 17th April, 2008, to pay off the mortgage on his property.
(ii) £45,500 drawn out in cash between 18th March, 2011, and 17th May, 2011, and paid (with a further £4500 to bring it up to £50,000) in cash to the mother, so the father maintains, for her shares in the company; an allegation the mother vehemently denies.
(iii) £118,000 paid to a former girlfriend in Hungary, C, between 11th March, 2011, and 19th April, 2011, for the most part in tranches of £10,000 each.
(iv) £100,000 paid by cheques as to £85,000 in March 2011 and £15,000 in April 2011 to Mr D.
(v) Withdrawals of £10,000 on each of 14th and 15th March, 2011, in cash at the time of the banking crisis, because, the father says, the Jersey government would not guarantee that his money would be safe in the bank.
(vi) £18,000 paid to E, a firm of stockbrokers, on 24th March, 2011, together with two further payments of £5,000 each on 12th May, 2011, and 13th May, 2011.
(vii) £25,000 on 24th May, 2011, which the father says was for work on his house.
21. The father points to the declining turnover and profits (something the mother attributes to his fraudulently diverting cash received at the business) and says that the 2010 and 2011 profits were attributable in large part to a doubling in the volume of fuel sales following an advantageous contract he had entered into with Rubis. Competition has since increased and it is now costing him more per litre to acquire petrol than other outlets are selling it for. He denied diverting cash pointing out that in any event the petrol pumps were connected electronically to the till and sales of fuel represented a large proportion of his business.
22. The father says he is anxious about the future trading prospects of the company which he says is struggling. He told us that two garages had closed in the last eight months due to the recession and fuel price wars. There was a suspected leak in one of his four petrol tanks potentially causing contamination and which may need to be repaired at substantial cost.
23. In assessing financial provision for B, we were looking at the father's future available income. We had serious reservations about much of the evidence of the father for the reasons set out below, but in terms of the future profitability of the company, we felt unable to ignore:-
(i) The reduction in the company's turnover set against inevitably increasing costs;
(ii) A general decline in the local economy - a factor taken into account by BNP Paribas Real Estate in their valuation report of 28th May, 2013;
(iii) The increase in competition in Jersey over fuel prices from larger operators. Fuel sales account for some 80% of the company's turnover.
24. We were inclined to accept that the company had enjoyed two good years in 2010 and 2011, but it was unrealistic to project those good years forward and suggest that profits of some £200,000 per annum would be generated in the future.
25. The accounts for 2013 show hardly any profit at all. Mr English questioned a write-off of £30,000 set directly against the profit and loss account for which the accounts provided no explanation. The father said his accountant had inserted this figure but he thought it might be for work to be done in the future. In our view a write-off of this kind would have to have come from instructions given by the father as the sole director and we were not impressed by his professed ignorance. In any event you cannot write off expenditure that has yet to be incurred. Writing that figure back into the profit and loss account increases the profit for the year ending April 2013 to £32,619.
26. In view of our findings below, we think the father would be capable of diverting cash in order to reduce the apparent income of the company but we think the opportunity for doing this is limited because so much of the business relates to fuel sales, the balance being in the main for repair work. He did not sell food. He told us that he sold six to eight cars a year for G which he placed on his (limited) forecourt which sales would go through their books, his interest being in the repair work.
27. The father raised his health as a further factor for us to take into account in the context of his earning capacity. He has back problems, suffers from a hernia and is having investigation undertaken into suspected "carpel tunnel syndrome". He produced a letter from his doctor confirming the diagnosis of an emerging left inguinal hernia and various letters showing appointments at the Clinical Investigations Department. A letter from his doctor on 26th November, 2012, produced in the context of proceedings before the Registrar said that he was suffering substantial chronic and ongoing stress. The mother engaged security consultants to visit the garage on some four occasions from which it was clear that the father was working and he did not seek to deny that. We have proceeded on the basis that he is capable of working.
28. Apart from a pension with an equivalent transfer value of some £38,000 and subject to what we say below, the father's only other material capital asset is the property and the business that he runs from it. The father produced a short valuation by Red Properties dated 30th April, 2013, which advised that the house, garden and forecourt together, on the basis that there was no contamination, was valued at £520,000. If there was contamination, then the house and garden were valued at £420,000 and the forecourt and workshop at no value, because of the cost of decontamination. These valuations do seem surprising, bearing in mind that the father acquired the property in 2002 for £600,000 at a time when he says it was a wreck and on which he says he has invested substantial sums on its improvement since.
29. The mother had commissioned a detailed report from BNP Paribas Real Estate, which valued the residential element at £425,000 and the petrol station and associated workshop (with the benefit of the business run from it) at £695,000, a valuation which takes into account the potential contamination. That gives a total value of the property and business owned by the father of £1,120,000. We preferred the valuation of BNP Paribas Real Estate.
30. The father's partner runs her own health food business, which he informed us had never been very successful and he has helped her out from time to time with loans towards the purchase of stock. She is the secretary of the company, for which she receives no remuneration, but she helps out at the garage with paper work and collecting parts, etc. The company has provided her with a car, but she is not in a position to make any significant contribution towards the household expenditure, although she helps with the two children.
31. Even accepting our findings below and our serious reservations generally about the father's evidence, we think the underlying reality of the profits that he can derive in the future from what is, after all, a small business, is nowhere near the figures put forward by the mother. When ordering a party to make financial provision out of income, we have to be satisfied that it is truly available to that party and we conclude, having taken into account all the evidence and adopting a cautious approach, that the father can rely on profits, over and above his salary and expenses, of at least £20,000 per annum. That means that in all, we find that the father's annual income is at least £60,000 gross.
32. We now turn to the explanations given by the father as to how he says he has disposed of some of the substantial sums he drew from the company as listed at paragraph 20 above (apart from the money used in 2008 to repay his mortgage, the sums invested with his brokers and the sums spent on home improvements).
33. The father alleges that on 17th May, 2012, he met the mother at Belcroute Slipway, near Noirmont and handed over a bag of money containing £50,000 in cash. This he had withdrawn over a period of three months in tranches of around £2500 totalling £45,500. This was done, he says, because the mother was trying to receive rent rebate and other benefits which she would not have been entitled to if the Social Security Department found out that she had received £50,000. The balance of £4,500 came from monies he had withdrawn during the banking crisis when he lost faith in the safety of his money placed with the bank. He had withdrawn two sums of £10,000 in order to protect his position in this respect. He also alleges that the mother threatened him that if she did not receive the £50,000, he would not see the children again. He referred us to a number of text messages sent by the mother (out of context), which he said supported this assertion. He also says that around this time, he went to see Sinels, Advocates, with a view to drawing up an agreement in relation to the children and for the payment of a sum of money to the mother.
34. The mother categorically denied receiving this sum in the manner alleged or at all and there is no evidence of cash being credited to her bank account. We did not interpret the text messages as supporting the father's assertion and found it implausible that the father, a competent businessman, and who had consulted lawyers at that time, would pay over such a large amount of cash in such an unaccountable manner to someone with whom his relations were so acrimonious. This was alleged to have taken place three days before he filed with the Court the first of his many applications. We therefore preferred the evidence of the mother and conclude that this sum was not paid to her.
35. Turning to the sum of £118,000 paid to his former Hungarian girlfriend C between 11th March, 2011, and 19th April, 2011, he explained that she had become his girlfriend some four or five years ago at the time when he was still in a relationship with the mother. She had had a serious epileptic seizure in early 2011 and had to return home to Hungary. He paid her these sums, he said, because they were thinking of buying a café or restaurant in Hungary. No particular business had apparently been identified and certainly there was no documentation provided by the father to support his evidence.
36. In or about the same time, the father stated that he paid £100,000 by two cheques of £85,000 and £15,000 each to Mr D, who he thought was a principal of G, and who was "maxed up" on his stock and at the limit of his overdraft of £150,000. This loan was apparently interest free and unsecured and there is no documentation to support it. It transpires that Mr D is an employee of G, the principal being Mr L. It seems implausible that an employee would personally borrow large sums to assist his employer's business.
37. The father then says that he read in the Jersey Evening Post that a restaurant business was in trouble and that Mr L was the person to contact if anyone was interested in the lease. He said he had always wanted to run a restaurant and therefore contacted Mr L with a view to acquiring the lease. He agreed to pay a non-refundable deposit of £210,000. This sum came from the monies he had transferred to his girlfriend C and to Mr D who in turn passed it on to Mr L. He says that unfortunately, due to the stress of the Court proceedings, which had taken much longer than he had expected, he felt that this was too large a project for him to take on himself and he therefore pulled out of the agreement in August 2011, losing the deposit of £210,000.
38. The father produced an affidavit from Mr L dated 22nd May, 2013, purporting to confirm these arrangements. He explained that the previous tenants had got into extreme financial difficulty trading from those premises and could not pay their rent. In May 2011 therefore he bought back the lease from them. Quoting from his affidavit:-
"6. [The father] paid me a deposit of £100,000 by way of two cheques, one for £85,000 on 21 March, 2011, and the second for £15,000 on 19 April, 2011. These monies were paid to my employee Mr D, which were originally paid to him by way of a loan from [the father].
7. [The father] then paid me the balance of the lease in the sum of £100,000 paid by C, his girlfriend at the time. [The father] took over the premises from 1st August, 2011, on a nine year lease at an annual rent of £40,000.
8. For reasons unclear to me, [the father] decided not to operate the restaurant and told me he was not going to pay any rent. [The father] acknowledged he would forfeit his deposit and ingoing monies he had paid to us.
9. As a result we have been unable to rent out the premises until now and a new lease to M is being drawn up for the new tenants to take over on 1st August, 2013.
10. I can confirm that [the father] no longer owns the lease of the property together with any of the fixtures and fittings.
11. I can confirm that I am not holding these funds, nor any other funds for the benefit of [the father]."
39. The Court had directed that notice should be given by 4th June, 2013, if either party required deponents of affidavits provided by the other party to be available for cross-examination. Mr English had not given notice to Miss Heath that he wished to cross-examine Mr L and he made the application to do so on the second day of the hearing. The Court ordered the Viscount to convene Mr L, but it transpired that he was out of the Island and would not be returning until after the case had finished. There was no application to adjourn the hearing for the purpose of his being cross-examined and we can say that no such application would have been granted in any event as it was, as we have said before, in the overriding interests of B and indeed of the family as a whole that this long delayed application be completed without further delay. The affidavit remained in evidence but it would be a matter for the Jurats as to what weight should be given to it, bearing in mind that it had not been tested.
40. Appended to Mr L's affidavit were two letters dated 1st August, 2011, on Mr L's letter head, the first appearing to be an invoice for the sale of the restaurant for the sale price of £210,000, signed in manuscript by Mr L "Received with thanks" and dated, we think, 2nd August, 2011. The second letter is in the same terms but has an added provision indicating the annual rent of £40,000 per annum with three year RPI rental increase and "Lease to be signed on receipt of non-returnable deposit and ingoing". That letter indicates that a deposit of £100,000 had been paid, leaving a balance due of £110,000. Again, it is signed by Mr L "Received with thanks" again we think dated 2nd August, 2011. Also appended to his affidavit is a nine year lease dated 1st August, 2011, signed by Mr L as an authorised signatory on behalf of N Limited, we presume the owner of the property, and the father. Both their signatures appear to be witnessed. There is no inventory attached to the lease.
41. Mr L says that the sum of £100,000 had originally been loaned to his employee Mr D (but apparently for the benefit of his own business G), but the two cheques he says he received bear the same date as the cheques that the father says he issued to Mr D, namely 21st March and 19th April, 2011. It would seem that nothing was actually paid to Mr D.
42. The mother says that this account is wholly implausible and we agree. The father is a mechanic by trade, working full-time in his garage business. He was an experienced businessman, having acquired the garage business in 2002 and operated it ever since, and it seems incredible that:-
(i) He should transfer to a girlfriend in Hungary (whose relationship with him had ended or was about to end) such a substantial sum for the acquisition of some unidentified foreign business.
(ii) He would loan to someone whose business was financially stretched another substantial sum apparently unsecured and interest free; someone who it transpires was a mere employee of that business. Even if Mr D did receive that sum, he appeared to be able to pay it over fairly promptly to the real principal behind the business Mr L for a quite different transaction.
(iii) He would pay a non-refundable deposit of £210,000 for a lease of a restaurant (for which there appears to be very little demand as the premises have since remained un-let for two years) to the same Mr L, a kind of business which he had never run in the past; he did not even sell food from his garage. He would appear to have taken no legal advice on the transaction of any kind and the lease contains no inventory of the fixtures and fittings. Indeed there is nothing on the face of the lease that goes anywhere near justifying a premium of this magnitude. Apart from the documents appended to Mr L's affidavit, the father produced no documents of his own in relation to this substantial investment. There appears to have been no inquiries made or checks carried out by him or on his behalf as to the landlord's title and the permissions that would be required to operate a restaurant business (with, we presume, a liquor licence).
(iv) We do not believe his explanation that he pulled out of this transaction through the stress of the Court proceedings, which had taken much longer than expected. This transaction and his withdrawal from it supposedly took place in August 2011, at which point the proceedings had only just begun. The mother's application for financial relief was not filed until 26th September, 2011; after he had apparently pulled out. The father's doctor had written about his stress but that was over a year later on the 26th November, 2012, when it could be said that the proceedings had taken a long time.
43. The Court appreciates that it has received an affidavit from Mr L (whom the father clearly knows as he is the principal of G whose cars he sells on his forecourt) apparently confirming this transaction and that he is not holding money for the father, but it was untested. The Court did hear the father's evidence tested under cross-examination and it simply did not believe what it was being told.
44. A further factor is relevant to note. The accounts show that at some point after April 2011, the company increased its issued shares to 300 and the accounts for the year ending April 2012 show the ultimate beneficial owners as being the father, his brother and his now former girlfriend, C. Each shareholder apparently holds 100 shares each, placing the father into a minority position. This, of course, is completely at odds with the statement in his affidavit "I am the sole owner and beneficiary of the business. This is how it has always been and how I plan it will always be." The father found this very difficult to explain. He appeared dismayed when this was pointed out to him in the accounts (which he had signed as the sole director), as if he had not been aware of it before, saying he needed to discuss it urgently with his accountant. When it was put to him that the issue of these shares could only have been done on his instructions, he said it had been done to help him out and not to dilute his interest in the face of the mother's application for financial assistance. He confirmed that they had not paid for their shares. He could not give us C's address in Hungary (even though she apparently owns a third of the company), although he said he could get there in a taxi.
45. He discussed the matter with his accountant overnight and indicated to us the next day that his brother would sign his shares back straight away. He described it as a family arrangement with his brother and C helping him out at a time of great stress and when he was under pressure, needing time out. Again we doubt "great stress" at this stage of the proceedings and do not accept that explanation.
46. It seems obvious to us that the issuing of these shares was undertaken as a defensive move against the potential claims of the mother. The timing is significant. They had separated in 2010, and relations were acrimonious. The father had been the first to issue proceedings in relation to the children on the 20th May, 2011, and the mother's application for financial provision had been issued on the 26th September, 2011. The new shares were issued during that financial year.
47. We have regard to the summary of the principles to be applied in cases of non-disclosure in the judgment of Mostyn J in NG-v-SG (Appeal - Non-Disclosure) [2011] EWHC 3270 (Fam) at paragraph 16:-
48. Applying these principles, there is direct evidence that the father had received the £20,000 in cash he withdrew from the bank for which he has not accounted, the £45,500 he withdrew from the bank and which he says he gave to the mother in cash in a bag (with a further £4500 making £50,000), the £118,000 he says he paid to his girlfriend C and the £100,000 apparently paid to Mr D; a total of £283,500. We just do not accept the father's explanation as to what he did with these funds. The only inference we can draw from this is that these funds have been hidden and are still available to him.
49. In summary, in terms of material assets, the father has the property and garage business, which he owns mortgage free and which are worth £1,120,000, a pension with a transfer value of some £38,000 and cash of at least £283,500 available to him; making a total in terms of his assets of at least £1,441,500. His income derived from the garage business is at least £60,000 per annum.
50. In order for the mother to provide a life style for B which bears some relation to what she perceives to be that of the father, the mother sought the following:-
(i) Maintenance, pursuant to the CSA guidelines £1300 per month or £15600 per annum until the later of B's 18th birthday or her ceasing her tertiary education, to be increased annually by the Jersey RPI from the date of the Court's judgment. On looking at the CSA guidelines we note that this takes no account of the fact that A lives with the father; the actual maximum is £1105 per month or £13,260 per annum.
(ii) Arrears of maintenance for B in the sum of £32,550 from the date of separation.
(iii) Additional expenditure for B of £1,000 per month or £12,000 per annum until the later of her 18th birthday or her ceasing her tertiary education, to be increased annually by the Jersey RPI from the date of the Court's judgment. The additional expenditure was to cover such things as extra tuition of £220 per month, school uniforms/trips/books/other extra-curricular activities and a holiday fund for B in the sum of £300 per month). The total periodical payment sought by the mother for B is therefore £2300 per month or £27,600 per annum.
(iv) That the father pay the private school fees for B to attend P or for any other school which the Court believes she would benefit from attending at the end of her primary education, together with her university fees (including reasonable billed extras), accommodation and travel costs of her tertiary education.
(v) That the father pay the mother a lump sum of £350,000 towards the purchase by her of a three-bedroom property with a garden, estimated at some £450,000, with the balance being borrowed by the mother. The lump sum would be secured by a judicial hypothec in favour of the father on the basis that the lump sum would be returned to him at the end of the specified term with interest at the standard prevailing bank rate of 2% per annum (non-compounded). The term will be the end of the later of when B reaches 18 or ceases her tertiary education. In addition, the father would pay the costs of purchase and a further lump sum of £10,000 for the cost of new furniture for the new property.
(vi) The father will pay £15,000 for the cost of a new car for the mother, to safely and economically transport B (and A).
(vii) That the father shall pay the mother's legal costs defending what she described as his various vexatious and traumatic residence applications for A, shared residence and increased contact applications for B and for the present financial application, which she said had been frustrated at every turn by the father by fair means and foul.
(viii) That the father shall keep in place for the period of B's maintenance a policy of insurance to cover her private health costs and a capital sum to cover his future maintenance obligations in the event of his death.
(ix) The father shall meet the costs associated with any counselling and/or professional therapy, B is assessed as needing.
51. The father's position was that maintenance should continue at the rate of £250 per month until such time as B is 16 years or ceases full-time secondary education, whichever is the later of those dates, subject to review on entering higher or tertiary education, or until further order of the Court, such maintenance to be increased annually on 1st January by mutual agreement in writing or in accordance with the increase in the Jersey Retail Price Index.
52. In addition, the father proposes to pay half the reasonable school expenses up to a maximum of £750 per year in relation to B and up to half the reasonable costs of such activities as B may undertake up to a maximum of £750 per annum.
53. He proposed that B's maintenance should be reviewed in the event of material changes of circumstances of either party and that they should share equally all and any tax allowances available in relation to her. In the event that the father did not need to utilise the allowances in whole or in part, then such allowances or balances remaining would accrue to the mother.
54. Finally, the father's position was that there should be no lump sum payments.
55. Article 15 of the Children Law provides that the Court may make orders for financial relief with respect to any child in accordance with Schedule 1.
56. Article1 of Schedule 1 is in the following terms:-
57. Article 4 sets out the matters to which court is to have regard in making orders for financial relief:-
58. There have been two reported decisions of the Registrar in relation to financial provision under Schedule 1, C-v-L [2009] JLR N 41 and A-v-B [2012] JRC 165A. In both cases, the Registrar made reference to English law and the considerations applicable under the equivalent provisions of the Children's Act 1989 as summarised by Bodey J in Re P (Child: Financial Provision) [2003] 2 FLR 865 at page 877:-
59. Re P was a big money case, in respect of which Bodey J added three further considerations:-
60. Thorpe LJ in Re P disagreed with the approach of Ward J in A-v-A (A Minor)(Financial Provision) [1994] 1 FLR 657, where he restricted the mother's allowance to less than what the father would have to pay if he employed staff ".... to allow more would be - or would be seen to be - paying maintenance to the former mistress who has no claim in her own right to be maintained". Quoting from paragraph 43 of the judgment of Thorpe LJ:-
61. As David Burles, Barrister, in his article entitled Children Act Schedule 1 claims: latest cases" published in Family Law Week said:-
"The mood, in keeping with the decision in Re P and the clear prevailing trend, is to meet genuine needs in a generous way wherever possible."
62. We accept the general proposition made by Miss Heath that as any lump sum is to be paid to the mother "for the benefit of the child", the purpose of the payment must be made clear by the Court but in quantifying the amount of any lump sum, the Court is entitled to take a broad-brush approach, and is not required to carry out a detailed accountancy exercise. However some form of overall analysis is always required to demonstrate, in broad terms, how the figure has been reached (see DE-v-AB (Financial Provision for Child) [2011] EWHC 3792 (Fam) at paragraph 40). In making a lump sum order for the benefit of the child, the Court must be satisfied, as Harper DJ said in N-v-D [2008] 1 FLR 1629 at paragraph 36, that the father is able to pay that amount.
63. As Thorpe LJ made clear in Re P at paragraph 52, the father is entitled to proof that the whole sum has been spent on the designated purpose and none has gone into the mother's pocket. However, that was a big money case and as Mumby J held in Re N (Payments for Benefit of Child) [2009] EWHC 11 (Fam) at paragraph 33, accounting is only appropriate where the lump sum is substantial (in that case £20,000).
64. The mother complains that since the parties' separation, the father has abused his superior financial position by giving both B and A holidays abroad, iPhones, iPads, parties, flat screen televisions, regular enjoyable activities such as horse-riding and jet-skiing and cash for shopping; and this in order to alienate the mother, who, on her low earnings and the modest level of maintenance paid for B is unable to compete. Indeed, she has to work overtime in order to help provide for B, which means that B often has to come to work with her. He has succeeded in alienating A, says the mother, and she fears that without adequate financial provision which (as per Re P) bears some sort of relationship with the father's current resources and standard of living he will succeed in alienating B. B, she said, should not have to choose between the parents for financial reasons.
65. Whilst the mother may have exaggerated the extent of the father's resources, we think there is truth in what she asserts. This is supported by the findings of the Court in the father's recent application for a shared residence order in respect of B, which he openly saw as a stepping-stone to B coming to live with him when she moves to secondary school next year.
66. The Court in that case heard evidence from Dr Briggs, the adult psychologist, of the father's need to be in control and the mother's tendency to withdraw into herself and become anxious and of a low mood. The Court in that case commented upon what it described as the father's desire and open campaign to have B live with him fuelling the mother's insecurity. In our view, the use of his superior financial resources is part of that campaign.
67. Two matters are relevant to note here which came to light in the course of the hearing. In cross examination the mother was criticised for failing to respond to a phone call from A, made at the father's request, after her first days evidence in which she had been visibly distressed. She explained that she did not return the call because she did not want A to hear her in a state of distress; what concerned her at the question however was that by this request the father was clearly involving A in the proceedings. The father later told us that he asked A to make this call because he was concerned for the mother. We doubt that explanation.
68. Furthermore within the bundles filed with the Court was an email dated 6th June, 2013, from the Court Welfare officer appointed to advise the Court in relation to the father's application for a shared residence order addressed to Mr English and Miss Heath in the following terms:-
"This morning I had messages on my voicemail from both parents requesting contact from me. I've just had time to call them back now. [The mother] informed me that B has told her [the father] said that he would see her this weekend and next Wednesday but that after that he did not know if he would be seeing her again, depending upon the outcome of the Court. B was understandably very upset and tearful. [The mother] asked me to contact [the father] to ask him not to talk to B in this manner. I agreed to do so as I was calling him anyway. I also advised her where she could get support for B i.e. school/Children's Service/CAMHS. She will contact them for support.
[The father] wanted to speak to me about some recordings he has which he felt would help me understand the situation better. I informed him I would take advice about whether I could listen to them and that whilst I was happy to do so if allowed he needed to be aware that I neither could or would do anything with the information. I asked him repeatedly not to discuss the situation with B or tell her that he would not see her again. He stated he was not certain he could do that."
69. The father admitted to talking to B about the proceedings. She had told him, he said, that no one was listening to her. He denied saying he did not know if he would see her again, depending on the outcome of the Court proceedings, although he did say to her that they could make him homeless. We do not accept his denial.
70. Very regrettably it is evident to us that the father has involved B (as well as A) in these proceedings in a manner calculated to alienate the mother. He has done this against the advice of the Court Welfare Officer and of the Court; on the 15th January, 2013, at the first directions hearing after the matter had been transferred up to the Royal Court, the Commissioner, noting the concern of the Court Welfare Officer over the damage being done to these children by these proceedings, stated that he presumed neither parent would discuss the applications with the children in any way whatsoever. More importantly the father's conduct in this respect constitutes a serious breach of his duties and responsibilities to his own child.
71. The mother's insecurity is further fuelled by the very real possibility of the death of the lady she cares for, who is 97, and of the possibility of her partner returning to live in the United Kingdom. A lump sum payment of £350,000 would, she said, provide her and B with financial security.
72. It will come as a disappointment to the mother that this Court, having found that the father has failed to disclose substantial assets that are still available to him, does not think it right to order the payment of a lump sum of £350,000 to enable the mother to acquire a house. It is true that the father's property and business is worth £1.12M but it is illiquid and combines both a home for him and A and his business, from which he derives his income. There can be no question, in our view, of the Court making an order that would place the continued ownership of that property and the conduct of that business in jeopardy, such as for example requiring him to borrow funds on the strength of its security. Even taking into account the cash of at least £283,500 we have found the father has available to him, a lump sum of £350,000 would more than exhaust his liquid resources and leave him indebted with no or little capital to invest in his garage business; in particular to deal with the leak from one of the fuel tanks.
73. In A-v-B, the father, who had a modest standard of living, had cash in his bank accounts of over £135,000 and cash in his company of £870,000, sums in respect of which there was no call. The Registrar held that a lump sum payment of £150,000 to be used towards reducing the mortgage on the mother's house, was therefore proportionate. In our view, having regard to the father's available liquid assets, a lump sum of £350,000 would simply be disproportionate; despite the father's conduct, it would not be fair, just or reasonable, taking into account all the circumstances. There are additional reasons:-
(i) Whilst we deprecate the father's campaign to get B to live with him, it is possible that she will elect to do so (as did her sister) in only a year's time. Substantial costs (stamp duty and legal fees) would have been incurred in purchasing a house, only for it to be sold (with further attendant costs) in short order, in order to repay the father. Lump sum payments for the purchase of accommodation are more suitable where that accommodation is going to be required for a lengthy period of time, i.e. for younger children (in A-v-B, the younger of the two children concerned was six) where it is settled that the mother will be the primary carer for the children's minority.
(ii) The mother would have to borrow about £100,000 herself to purchase an appropriate property. She said that somewhat to her surprise, she had found that such finance was available, but was unable when asked at the hearing to produce any documentary evidence to support its availability or indicate its cost; we were informed that an offer would be made when a lump sum had been ordered in her favour. Taking on such a liability on her earnings would do little, we feel, to increase her financial security.
(iii) The mother does have an adequate home for herself and B, the cost of which she shares with her partner.
74. Turning to the periodical payments, we have considered the mother's budget and the father's criticisms of the same but think it right to approach those needs in a generous way, applying a broad-brush approach. At paragraph 49 of Thorpe LJ's judgment in Re P, he said this:-
75. We are informed by both counsel that in cases before the Registrar reference is routinely made to the CSA guidelines, the benefit being to bring an element of consistency to the calculation of periodical payments. We were also informed that in Jersey no account is taken of the time a child may have with the paying parent by way of contact. These guidelines were compiled in 2000, but as a party's earning increases, so will the commensurate level of maintenance payable under those guidelines. Thus, to some extent the effect of inflation is taken into account.
76. We have started with a figure of £50,000, being the approximate annual income of the father net of tax, which equates to £961.53 per week. Applying the CSA guidelines to that figure indicates a figure of £128 per week or £554.66 per month. We will round that figure up to £560 per month (over twice that which is currently paid).
77. It is appropriate, following Re P to take into account the mother's needs as a carer. At the moment, she works overtime, often requiring B to accompany her. Her income derived from overtime is £300 per month. We have taken half of that sum, namely £150, which we will add by way of carer's allowance to the periodical payment of £560 per month, increasing it to £710 per month and this so that she can reduce her overtime when B is with her.
78. In terms of the mother's car, we were not persuaded that a new car was required and thought it wise, in the light of the strained relations between the parties, not to involve the father in either the replacement of the car or its maintenance. However, an allowance should be made for the cost to the mother of running a car to the extent that that benefits B. Working from our own experience, we considered that with insurance, servicing and petrol, a car will cost approximately £2,000 a year to run and we assessed a quarter of that sum as being applicable to the benefit of B, namely £500 per annum or £41.67 per month. We will round that up to £42 per month, increasing the periodical payment to £752 per month or £9024 per annum to be increased annually from the date of the Court's judgement in accordance with the increase in the Jersey RPI.
79. In addition to the periodical payments, the father will be responsible for all reasonable educational costs in respect of B and the cost of extra-curricular activities.
80. We accept the mother's claim for a one off lump sum payment for a holiday or holidays for B, which we will set in the sum of £5,000. The mother must accompany B and therefore that sum can be used to meet the cost of her doing so. This sum is not substantial enough to warrant directing the mother to account to the father for the use of that sum for that purpose.
81. The mother sought an order that the periodical payments commence on the date of the parties' separation, and continue until B is 18 or completes her tertiary education. The father resisted any backdating of the order, and submitted that it should continue until B was 16 or completed her secondary education. Article 3 of Schedule 1 is in the following terms:-
82. As a consequence of our findings, it follows that the father has been paying too little by way of periodical payments for the benefit of B and we cannot see why he should benefit from the delay in this matter being determined, particularly when that delay has been caused, at least in part, by his failure to make proper disclosure. Furthermore, the delay has worked to his advantage in another way, in that if the mother's application had been heard timeously, any order would have been based on the earlier and stronger financial performance of the company and would certainly have resulted in a larger award than that which we have given, when taking into account the later deterioration in the financial performance of the company.
83. The Court has no power under Schedule 1 to backdate the periodical payments to the date of separation, but it is empowered to order that it may begin with the date of the making of the mother's application, namely 26th September, 2011, and that is the order we make save in respect of the carer's allowance. The father will be credited with the periodical payments he has made to the mother in the interim.
84. As to the duration of the order, having regard to the provisions of Article 3(1)(a) and (b), we think it right, in the circumstances of this case, for the order to extend to B's 18th birthday, but with reference to Article 3(2)(a) and (b), it is too early to say whether she will be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation when she gets to her 18th birthday and we are not aware of any special circumstances which would justify the making of an order today that extends beyond her 18th birthday. The matter can be reviewed nearer the time, but at this stage, we are going to order that the periodical payments will continue until B's 18th birthday.
85. We are not prepared to accede to any of the other financial claims of the mother and we are satisfied that the father can meet the cost of the financial provision we have decided to order in her favour for the benefit of B.
86. We can understand the mother feeling that the accommodation provided by her for B is insecure in that her contribution to the rental is dependent upon her employment, which could end at any time, and upon her partner remaining living with her. We have considered whether we should order a further lump sum by way of security to cover the rent whilst the mother finds alternative employment or finds alternative accommodation should such eventualities arise, even though no such lump sum was sought by the mother. We have decided that this would not be reasonable for the following reasons:-
(i) We think that if the lady whom the mother cares for dies, the mother will be able to find other work. She is clearly a very competent and good carer.
(ii) She told us that she had a good stable relationship with her partner and notwithstanding what we had been told of his intentions we felt it was a matter of pure speculation whether he might leave her.
(iii) These eventualities would be best dealt with by a review of the periodical payments undertaken at the relevant time when the actual circumstances will be known.
87. We will deal with costs separately. The mother is on Legal Aid and her costs at the Legal Aid rate (for this and all the other applications) amount to some £140,000. If costs are awarded in her favour, then some 25% would be added to that figure. That figure includes a disbursement of £17,115 for the forensic accountant, who we are told has written off a substantial part of his time. The father has incurred legal fees for this and the application for a shared residence order at Miss Heath's ordinary charge-out rate of some £96,000 inclusive of disbursements.
88. A concern for the Court is to ensure that the lump sum, periodical payments and arrears are not taken as a contribution to the mother's legal costs under the terms of the Legal Aid Scheme. In Re N Mumby J held that the mother was liable to account to the father for the balance of any money not used for the purpose stipulated in respect of a substantial lump sum, applying Barclays Bank Limited-v-Quistclose Investments Limited [1970] AC 567, and this on the basis that money directed to be applied for a specified purpose is, to the extent that it is not so applied, held upon trust for the payor. Although the matter was not the subject of argument before us, we would be inclined to agree that this principle applies to lump sum payments made under Schedule 1 to a mother for the benefit of the child. In our view the lump sum we have ordered is not substantial enough to warrant directing the mother to account but that may not prevent the principle of a Quistclose trust applying.
89. It seems arguable that a Quistclose trust could also apply to periodical payments and arrears as much as it applies to a lump sum payment in that they are made for a purpose, namely for the benefit of B. A trust ordinarily brings with it a duty to account but as Million DJ said in Re C (Financial Provision) [2007] 2 FLR 13 at paragraph 84 in the context of accounting for periodical payments:-
We agree that it would counterproductive in this case for the mother to be directed to account to the father for her expenditure of the periodical payments and arrears.
90. The issue does not arise if we can have confirmation from Mr English that none of these sums will be taken as a contribution to his firm's fees before this judgement is handed down; in the absence of such confirmation we will wish to address ways in which we can ensure that these funds are used for their intended purpose.
91. Finally as a consequence of the father's conduct we are minded to secure the periodical payments against his property pursuant to Article 1(1)(a)(ii) of Schedule 1 but we did not raise this with counsel at the hearing and will therefore invite their submissions both on the principle and the amount and term when this judgement is handed down.
92. In summary:-
(i) The father will make periodical payments to the mother for the benefit of B in the sum of £752 per month, commencing in the sum of £602 per month (i.e. less the carer's allowance) on 26th September, 2011, with the full amount of £752 per month commencing with the date of the Court's order and ending on her 18th birthday, to be increased annually from the date of the Court's judgement in accordance with the increase in the Jersey RPI. The arrears will be paid within 28 days of the date of the Court's order. In addition, the father will be responsible for the payment of all of B's reasonable educational costs and extra-curricular activities.
(ii) The father will pay to the mother a lump sum of £5,000 within 28 days of the date of the Court's order to pay for a holiday or holidays for B, accompanied by the mother. The mother will not be directed to account to the father for the use of that sum.
(iii) The Court will be addressed on the issue of security when this judgement is handed down.
(iv) Costs will be left over.
