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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Y v W (Matrimonial) [2024] JRC 028 (14 February 2024) URL: http://www.bailii.org/je/cases/UR/2024/2024_028.html Cite as: [2024] JRC 028, [2024] JRC 28 |
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Matrimonial - child maintenance.
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Before : |
Elizabeth Daultrey, Registrar, Family Division |
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Between |
Y (Mother) |
Petitioner |
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And |
W (Father) |
Respondent |
Advocate N. S. H. Benest for the Petitioner.
Advocate J Orchard for the Respondent .
reasons
the registrar:
The court is asked to determine an application made by the respondent to review child maintenance and a cross application made by the petitioner for interim maintenance and to deal with arrears of maintenance.
1. The parties were married and divorced, decree nisi was pronounced in April 2017 and made final in June 2018 after approval by the court of a consent order dealing with all financial matters between the parties was approved by the court on 19th June 2018 ("the consent order"). The consent order effects a financial clean break between the parties and makes orders for the financial provision of the children, ("VV") born in 2005 and ("UU") born in 2009. The part of the order regarding the children is as follows:
3. from the date of sale for the FMH, the respondent shall pay child maintenance to the petitioner at the rate of £2,200 pcm (based on 20% net income). Such payments to be made by standing order to the petitioner's nominated account on the last day of each calendar month. It is hereby further ordered that such payments shall be indexed linked annually on the anniversary of this Order according to any increase in the Jersey Retail Price Index (or such other 'cost of living' index as shall supersede it) in the preceding 12 months;
4. the child maintenance payments above shall continue until such time as [VV] attains the age of eighteen years or ceases full time secondary education, whichever is the later event, (subject to paragraph 6 below) at which point child maintenance in respect of [UU] shall reduce to a sum equivalent to 75% of the child maintenance paid immediately prior to the cessation of the liability due in respect of [VV]. Such revised child maintenance for [UU] shall continue to be index linked in accordance with the provisions of paragraph 3 above;
5. child maintenance payments in respect of [UU] shall continue until such time as she attains the age of eighteen years or ceases full time secondary education whichever is the later (subject to paragraph 6 below);
6. there shall be a general review of maintenance in respect of either child embarking on tertiary education; such a review to take place at least a month in advance of the commencement of tertiary education. In such an event the usual monthly maintenance payments in respect of that child shall continue until the child attends tertiary education whereupon the new arrangement shall replace it save in the event of a gap year or similar extended holiday, there is not presumption of the usual monthly maintenance continuing
7. the respondent shall be solely responsible for the payment of the children's school fees;
8. the petitioner shall be solely responsible for the payment of all the children's extra-curricular activities including any school trips;
9. in the event either child requires essential and significant medical and dental treatment (excluding routine appointments such as GP appointments, dental check-ups and hygienist appointments) not covered by private medical insurance, the parties shall be equally responsibility for the cost of such treatment, such treatment to be agreed by the parties in advance, save in the case of emergencies;
2. In addition to the provision set out in paragraph 1 above, the respondent undertook "that he shall retain in full force the BUPA private medical insurance currently in place for the benefit of the children".
3. At the time the order was made, the respondent was paying school fees for VV but not UU. There are several references to anticipation of private education for UU in court documents filed in 2017, namely the form 5 statement of arrangements for the children filed in support of the divorce and signed by both parties, also in the respondent's affidavit of means dated 2nd August 2017 he says that he hopes to put UU through private education, the petitioner's affidavit of means dated 4th August 2017 states that UU will in future attend ("School 1").
4. VV started at University in the UK in September 2023, prior to this the respondent continued to pay £2,200 pcm, no annual JRPI rises ever having been added. In September 2023 the respondent reduced the payment by 25% in accordance with paragraph 4 of the consent order, he has paid the petitioner £1,650 from September 2023 to date. The respondent pays UU's school fees in full and has retained the BUPA insurance in place for both children.
5. The respondent applies for variation of child periodical payments provided for in the 2018 order ("the consent order") which was made by consent ancillary to the parties' divorce. The power of the court to vary the order arises under article 33 of the Matrimonial Causes (Jersey) Law 1949 ("MCJL"). Article 33 (2) states:
6. On behalf of the Petitioner, I am referred to the case of U v V [2018] JRC160 at paragraph 23 Commissioner Clyde-Smith said:
7. I follow A v B [2020] JRC 015 in which Registrar McFadzean determined an application for variation of child maintenance provision arising under MCJL "as though it is an application under Schedule 1 of the Children (Jersey) Law 2002". At paragraph 83 she said:
8. Accordingly, the criteria I apply to this decision are as set out in Article 4(1) as follows:
9. I am referred to the Jersey case of E v F (Family) 30-Oct-2019 as authority for taking affordability rather than a mathematical CSA formula as the correct starting point in assessing child maintenance, and also for the way in which maintenance arrears were dealt with. In that case, the paying parent was, as in the present case, in arrears by reference only to his failure to pay successive JRPI increases over a number of years. At paragraph 55 registrar McFadzean says:
10. Advocate Orchard refers to Section 32 of the Matrimonial Causes Act 1973 of England & Wales whereby leave of the court is required to enforce arrears "if those arrears became due more than twelve months before proceedings to enforce the payment of them are begun". Advocate Orchard acknowledges that this provision is not adopted into Jersey law or practice but raises the point to suggest unfairness if historic JRPI increases accrue unclaimed over a period of years only then to be claimed subsequently in a lump sum.
11. I summarise the principles I follow in determining this application:
· The starting point upon an application to vary child maintenance is consideration of the original order, and for the court to consider changes in circumstances of either party;
· Notwithstanding the starting point, the court's first consideration should be to the interests and welfare of the child or children;
· In analysis of the merits of a case arising under MCJL, the court should consider the factors set out at Article 4(1) of the Children (Jersey) Law 2002;
· The mathematical formula for calculating child maintenance under the now defunct CSA or the present Child Maintenance Service ("CMS") is of relevance as a cross check.
12. Following U v V and as specifically required by Article 33(2) of the MCJL, the court must consider changes that have occurred in both parties' financial positions.
13. The parties exchanged sworn affidavits of means in August 2017. At that time the respondent declared that he ran or had an interest in 3 businesses, from which he derived a gross annual income of £196,997. The respondent's future outgoings after sale of the matrimonial home were estimated to be £11,223, including generous expenses for the children and school fees for both, but not including a specific payment of child maintenance. In June 2018 in the statement of information filed at court with the consent order, the respondent's net monthly income is £10,000, his capital is £558,000 of which over £277,000 relates to his share of the matrimonial home.
14. In August 2017 the petitioner had no income other than support from the respondent, she estimated her future monthly outgoings to be £6,695, this included school fees of £931 pcm. In June 2018 the petitioner was working receiving a net income of £1,266 pcm and had capital assets of £236,860 which was almost entirely her 1/2 share of the matrimonial home minus debt.
15. In 2018 the petitioner lived alone with the children, the respondent was living with a new partner.
16. The respondent is 49 years old. His evidence is that he suffered an injury which as affected his ability to continue to work as he has done in the past, he provides evidence that he has suffered injury however there is no medical evidence to suggest that his ability to work is restricted, indeed in his oral evidence he expressed a clear and enthusiastic appetite for building new business opportunities enabling him to return to his previous income levels within a year. The respondent says he suffers ADHD which affects his mental capacity to work, no evidence in support has been filed.
17. The respondent's primary income has come from ("Company A") which he sold in August 2023 for the sum of £465,000, this to be paid in 3 equal annual payments of £155,000, the first was paid in August/ September 2023 and he will receive the same payments in August 2024 and August 2025. The respondent also received the sum of approximately £41,000 in October 2023 from the company bank account from which he paid a tax bill of £29,000. The respondent says that since the sale, he has received no income. He says that he sold his company for a number of reasons, namely: burnout caused by business pressures; his injuries; the business starting to fail financially.
18. The respondent says that it would be unfair for him to have to draw on the sale proceeds of his business to continue to pay the same level of school fees and child maintenance. He seeks a year's respite to give him time to focus on his health and develop new income streams.
19. The respondent has a number of other business interests and prospective new businesses, these include:
· ("Company B"). The respondent wishes to develop business opportunities in this area, he already owns a significant bike collection, a van and cameras. The respondent says this is not yet launched but the respondent's evidence would suggest that business appears to be at least ready to start trading;
· (Company C"). In his affidavit of means in August 2023 the respondent says "I have started on the construction of my own [product]" saying that he had purchased the plant required. This would be a joint venture with the shell supplier.
· ("Company D"). The respondent says this is a construction company which has not traded since May 2020. There are a number of payments during 2023 into the respondent's current account from this company most recently at the end of October 2023. The respondent says that this is simply him emptying the bank account, he has not supplied accounts for the company nor a full set of bank statements.
20. The respondent says that he needs the capital from the sale of Company A to support himself and to invest in his new business ventures. The respondent also plans to buy a share of a friend's property in Country 1 in the sum of £284,000, he says that he has not as yet put money into the property but describes it as his own home and includes in his list of future income needs £300 per month for half the running costs. He says that he wishes to buy the property so he can live in a property he owns and has something to leave to the children.
21. The respondent says that his income needs are £8,366 per month. This figure includes the running costs of his rented property in Jersey and the property in Country 1 including routine travel to and from Country 1. He also includes £1,000 per month motorbike servicing and tyres which he accepts are a business expense. He includes £800 per month contribution to savings which he concedes that the court can disregard. If the court disregards the respondent's savings figure and business expenses, his outgoings are approximately £6,500 per month not including school fees and child periodical payments. The respondent spent far in excess of these sums over the past few months, he spent £20,983 in October 2023; £17,619 in November 2023 and £12,819 in December 2023 over and above his tax bill of £29,000. The respondent explained this level of expenditure saying that he is travelling and entertaining a lot in the development of his business plans. As part of his expenditure the respondent has made a number of payments direct to VV in the total sum of £2,300 over a 4 month period September to December 2023.
22. The respondent asks that the court reduce his maintenance for UU to £800 per month and that he pays half only of her school fees. He wishes to continue to pay VV direct and agrees the petitioner's figures for VV with the exception of car insurance. Regarding the BUPA contract, this was paid through Company A and the contract ends in January 2024, he says that the children have never used this and asks to be released from his undertaking to continue the payments.
23. Regarding the arrears, the respondent says that after the divorce he did not check the order again as he wanted to forget about the trauma of the divorce. He says he was therefore not aware of the JRPI increases. He says that the petitioner did not mention the increases until 2022 during a meeting regarding VV. The respondent says that at this meeting it was his understanding that the petitioner agreed to waive the JRPI increases in recognition that he was now paying double school fees which he says he had not anticipated as he thought UU would attend a state school. In cross examination, the respondent conceded that the petitioner would probably recall the discussion differently and that the petitioner had not given a reason why she didn't pursue JRPI increases, he said that it was an agreement between them because "I wasn't paying and she wasn't asking". The respondent points to evidence that the petitioner was swift in raising other financial matters and increases in school fees therefore there had to be a reason why she never asked for JRPI increases.
24. The respondent asks that the court take into account payments he has made for the benefit of the children over and above maintenance, these payments include contributing 1/3 to VV's first car and purchasing ski equipment for them.
25. The petitioner's financial position is straightforward. She works full time, her net monthly salary is £2,818, she also has a NED which she anticipates will pay her approximately £2,000 per annum. The petitioner lives with her partner and they share their income resources, the majority of their monthly outgoings are shared. In evidence the petitioner confirmed that her bill for oil has decreased by £100 per month and that her water bill at £130 per month is high, I have reduced the petitioner's shared household expenses by £150 per month to reflect these concessions, the resulting total for household running expenses is £5,307.23 per month of which the petitioner pays half in the sum of £2,653.61. The petitioner separately lists entertainment and holidays at £1,185 per month, it was not entirely clear if these are shared expenses between the petitioner and her partner nor to what extent they apply to the children. In addition, the petitioner has personal expenses of £160 per month; VV's car insurance at £116 per month; expenses for VV at £320 per month; other expenses for the children at £175 per month. The petitioner notes that she has included only £10 per month for clothes and shoes for UU but that the true figure is higher.
26. Advocate Orchard on behalf of the respondent challenged the petitioner's outgoings and suggested that she and her partner can manage on less. I found the petitioner's expenses to be reasonable, although the figure for entertainments and holidays is high, in any event the petitioner usually pays these expenses from capital. I find the petitioner's and the children's monthly needs to be £3,424.61 aside from holidays and entertainments and noting that UU's expenses may be higher than those set out in the petitioner's expenses schedule.
27. The petitioner has capital assets in the sum of £272,300, the income from her investments is retained into the capital rather than drawn separately, but she does draw down on her capital to pay for holidays.
28. The petitioner denies that there has ever been an agreement with the respondent not to apply JRPI increases to the child maintenance payments. She had said in her written evidence that she was frightened to raise financial issues with the respondent. In her oral evidence, the petitioner confirmed that in the past she had been frightened by the respondent but was not anymore, and that the primary reason she didn't raise the increases was that, like the respondent she had forgotten about them. More recently she has become aware of the arrears through discussions with her partner, colleagues and advocate. The petitioner points out that it is not her responsibility for ask for something that the court has ordered, however she concedes that she raised the increases for the first time in 2022 and that, she may have said to the respondent that she acknowledged in the context of that discussion that he was paying double school fees.
29. The petitioner acknowledges that the respondent has sent money direct to VV but feels it would be better if the money was paid to her so that she can help VV manage his finances and ensure that double payments are not being made to VV as at present.
30. The petitioner concedes that the respondent has spent additional monies for the benefit of the children but would prefer that the respondent communicate with her so that she can provide extras, she doesn't agree that such expenses should be offset against child periodical payments.
31. The petitioner wishes the respondent to pay child periodical payments for UU in accordance with the consent order including JRPI increases in the sum of £2112.52 per month; that he pay £380.46 for VV, preferably to be paid to her rather than direct to VV; school fees for UU; arrears she calculates in the sum of £14,194.93 which arise mostly from the missed JRPI increases but also include the reduction in payments from September 2023.
32. The starting point is that, pursuant to the consent order, child periodical payments are £2112.52 per month in addition to a new arrangement for VV. The first question is, what changes have taken place since the consent order was made and do such changes justify a variation of the consent order?
33. I accept that the respondent has sold Company A which was previously his main source of income. I do not accept that this sale was in any way forced upon him by hard economic or health related circumstances, if this had been the case, the respondent could readily have provided supporting evidence which he has not. Moreover, as the petitioner points out, it is improbable that the respondent would have been able to sell an ailing business for £465,000.
34. A notable difficulty in this matter is that I do not have a clear picture of the respondent's finances. He says that he has no income and needs all of his capital to set up new business ventures and needs a year to make them fully profitable. The respondent says he needs to meet his expenses and those of the children from capital. His personal expenses are £6,500 per month in addition to which he has been paying expenses for the children in the sum of approximately £3,000 per month including school fees, maintenance and payments direct to VV. Over the latter 3 months of 2023, the respondent spent over £50,000 on the children and on his own personal expenses, not including payment of his tax bill. This is unusual expenditure by someone who has no income and wishes to conserve his capital. The respondent did not satisfactorily explain why his spending was so high. Taken as a whole, his evidence is more indicative of a man with a clear strategy for his financial future than of one who cannot afford payments.
35. The respondent has derived some revenue from Company D over 2023, whether this has been drawing residual capital or trading is not verified by documentary evidence. He was enthusiastic about his new business ventures, which appear at the very least to be equipped and primed to start trading. In these circumstances I cannot accept that the respondent needs a 12 month respite from his full financial obligations to UU.
36. The petitioner's circumstances have changed. At the time the consent order was made, her earnings were low and she was entirely dependent upon maintenance to meet the children's needs. The petitioner now cohabits with her partner and is working full time, her income has more than doubled and her housing costs are shared. If the petitioner receives maintenance for UU in the sum of £2112 per month, her total income would be £4,930 per month net plus her NED income. Her needs are £3,424.61 per month, not including holidays and entertainments, less whatever sum the respondent contributes to or for VV. The petitioner is clearly therefore no longer in the same financially vulnerable position she was in 2018.
37. The parties are largely in agreement regarding VV, the only difference in their figures being insurance upon VV's car. The respondent objects to this being included as VV doesn't have the car with him during university term time, and the petitioner uses it periodically. The petitioner seeks £380.46 per month, the respondent offers £356.87. Both figures are less than the sum the respondent has been paying to direct to VV since September 2023. I order that, whilst VV is in tertiary education to the end of first degree level, the respondent shall pay one half of VV's accommodation fees or rent as they fall due, this can be paid to VV, to the petitioner or direct to the university/ landlord, but the payments must be made within 7 days of notification to the respondent of the amounts due, such notification can come from VV or the petitioner. These fees will vary and shall be paid in such sum as is needed from time to time. In addition, the respondent shall pay VV the sum of £250 per month for 12 months of each year to cover his maintenance, travel and miscellaneous costs. This shall continue whilst he remains in tertiary education. VV is approaching 19 years of age and should be able to manage his finances and keep both of his parents informed as to his accommodation expenses.
38. Regarding UU, as the respondent's finances are unclear, I look at UU's needs. A child's needs include direct expenses such as clothes and activities, but also include a proportion of their parents' housing and living costs as well as holidays. The petitioner's household and personal living expenses are in the sum of £2,813.61 per month, additional specified expenses solely for UU are £75 per month very sparsely calculated. If the respondent pays over £2,000 per month he is paying the majority of all the petitioner's expenses. The petitioner can now afford to share UU's expenses, I therefore reduce maintenance for UU to £ 1,400 per month.
39. The sums payable for UU and VV shall be subject to annual JRPI increases, the respondent as the paying party needs to take responsibility for making the increase.
40. I do not specifically take into account items purchased by the respondent for the children as it is not sufficiently clear that they relieved a direct financial burden from the petitioner.
41. Regarding school fees, this is a long term commitment that the respondent made in 2018, and absent clear evidence that he cannot afford to pay, and/or clear evidence that the petitioner can comfortably afford to share this expense, it would in my view be unfair to vary this requirement under the consent order. The respondent shall therefore continue to pay all of UU's school fees in accordance with the consent order.
42. Regarding BUPA cover, this has never been used for the children, I release the respondent from his obligation to retain this cover and order that the parties shall share equally any medical, dental or optician costs that arise for either child whilst they remain in education.
43. Advocate Orchard argues that it would be a valid use of the court's powers under Article 33 of MCJL to backdate a maintenance adjustment to, in effect, remit arrears. The respondent says that there was a tacit "agreement" between himself and the petitioner that because he was paying double school fees, JRPI increases were waived. The respondent's evidence for this is that the petitioner said something of this kind to him at a meeting in 2022 and she did not ask for the increases until this hearing. The petitioner says that there was no agreement and that it is not her responsibility to chase what has been ordered.
44. I do not accept that the petitioner did not chase the JRPI increases because she was nervous or afraid of the respondent, there were many occasions when she was proactive in raising financial issues, indeed it was an approach by her to discuss arrangements for VV that resulted in the parties' meeting in 2022, but that is not to say it falls solely to her to chase payments. In my view it is the responsibility of both parties to ensure maintenance is properly paid.
45. The evidence of both parties is that they forgot about the JRPI increases, and they accept that the other simply forgot. That they forgot does not however change the order nor mean that the increases were not applicable, and I do not backdate any adjustment simply because the parties were unaware of the terms of the order.
46. In the circumstances of this case, having reduced the respondent's maintenance obligation primarily because of changes in the petitioner's finances, it seems to me to be unfair to oblige the respondent to pay a lump sum of arrears which arose after the petitioner's circumstances changed. I therefore order that from the start of 2023, maintenance reduced to the sum of £2,200 per month, and from September 2023 to December 2023 to £1,650 per month, these being the sums paid by the respondent during those periods. Using the figures set out by the petitioner in her position statement, although the figure for the total appears to be incorrect, arrears remain of £6,660.20 which must be paid by the respondent within 1 month of this order of this order being distributed to the parties.
