England and Wales Family Court Decisions (other Judges)

IN THE CENTRAL FAMILY COURT

		First Avenue House 42-49 High Holborn, WC1
		2nd June 2015

DISTRICT JUDGE HESS:

1. I have before me an application by Mrs. Vivien Welch to vary a spousal periodical payments Order that I made in this court on 9^th September 2014. I made that Order after a four day trial and I delivered judgment on 9^th September and made the Order on the same day. The relevant Order for variation purposes was that I ordered that there should be spousal periodical payments for a period of six years at £1,000 per month.
2. I delivered a reasonably long judgment after that trial in which I noted, for example, that the wife was then 58 (she is now 59) and that the husband was then 65 (he is now 66 and past normal state retirement age in England). They had a relationship which, in my judgment, I assessed as having lasted approximately six years. I set out in that judgment in fairly full narrative form what had happened in those six years. I will not set it out again save to summarise that throughout that period Mrs Welch (or "the wife", as I shall call her) engaged in litigation as she had done prior to that, and that she engaged in that litigation largely at the expense of Mr. Welch (or "the husband", as I shall call him). The net result of that litigation was disastrous in that huge amounts of costs were incurred and the wife ended up very considerably indebted to her previous solicitors, Withers. At the end of the trial in September 2014 she owed them more than £400,000 plus interest, which is rising every day.
3. As a result of various findings that I made, including in relation to conduct, in which I made some very severe findings against the wife, I departed from equality in the way which is fully set out in that judgment. I noted in that judgment at para.58 this:

"It seems to me that the wife's allegations are unsubstantiated, unjustified and that she has pursued them just as she has before in a disproportionate, unreasonable and obsessive manner. The echoes of the judgments of Baron J ring around us (that was a reference to the fact that similar allegations had been put against Mrs. Welch's first husband and those have been dispatched by Baron J in previous proceedings)".

4. As a result of that I made an Order in capital terms that the husband should make available £250,000 for a property of the wife's choice which she could occupy during her lifetime, but in doing that she should move out of the home which she had occupied for a long time, Inglenook, 22 Roseacre Gardens in Guildford in Surrey. I made an Order for the sale of that property with the husband to receive 99% of the sale proceeds.
5. The Order was appealed and the matter went before Roberts J in a series of hearings (initially directions hearings) at the end of 2014. Ultimately there were two written judgments by Roberts J on 16^th and 23^rd February 2015 in which she declined to give permission for the appeal.
6. There was an issue, which presented itself before me on 20^th March 2015, as to whether or not she had dismissed both the appeal and also a setting aside application. In my Order of 20^th March 2015, which I shall come back to in a different context in a moment, I requested Roberts J to clarify whether she had dealt with the appeal and the setting aside application or just the appeal. She responded by making an Order on 1^st April 2015 absent of any attendance by the parties, and in that Order she clarified (at least that is the way I read it) that she had dealt with both the appeal and the setting aside application. Thus, it seemed to me that what was before me today was simply an application for a variation of the spousal periodical payments Order.
7. On 20^th May 2015, as a result of reading the President's decision in the case of CS v ACS [2015] EWHC 1005, Roberts J via her clerk went out of her way to draw attention to that case to the wife. She sent an email to her drawing her attention to certain features of that judgment. It is correct that the authority is of interest to lawyers in this area for what it said about the provision of consent Orders in practice direction 30, but I do not think that arises in this case because there have certainly been no consent Orders in this case. It does not seem to me that this case changed the law in relation to the ability of a dissatisfied litigant who suggests that there has been material non-disclosure to make an application to the first instance judge. It is then a matter of case management as to whether that is dealt with by the first instance judge or whether it is dealt with at the appellate level.
8. Subsequent to that the wife has issued (insofar as there was not one already) another setting aside application. She has asked me to look at that today. It seems to me, in view of what happened in February 2015, as a matter of case management (whether or not I would have the power to deal with it) the setting aside application should be dealt with by Roberts J. It is a matter for her as to what she does with it.
9. I am told Roberts J is already dealing with a Civil Restraint Order application on 2^nd July 2015, and it seems to me that she can conveniently deal with a setting aside application. It may be, and this is a matter for her, that there might be grounds for that to be struck out. If not, it could be dealt with by her if she takes the view that there is no new material over and above that which she saw and reviewed comprehensively and clearly in her two judgments in February 2015. I am going to put that matter back before Roberts J for her to decide how she wishes to deal with it.
10. What is left for me to deal with (subject to two additional matters which I shall come to in a moment) is a variation application under s.31 of the Matrimonial Causes Act 1973. I have to make this general comment that I think the wife has found it difficult to focus her mind on the difference between a variation application and a setting aside application or of an appeal. Most of the questioning in the course of the time that she cross-examined the husband has really been targeted towards her sincere desire to appeal my earlier judgment, the appeal from which has already been turned down by Roberts J.
11. How should I deal with the application to vary the maintenance Order under s.31 of the Matrimonial Causes Act? In dealing with that I have three bundles, two produced by the wife's side and one produced by the wife herself. Those bundles do contain all of the pertinent material, all of the Orders and judgments that I have mentioned, the transcript of my judgment in September 2014, the material that was before Roberts J when she made her decision in February 2015, and also two statements which I permitted by my case management Order on 20^th March 2015.
12. I digress to say that on 20^th March 2015 I had a case management hearing and my decision that the appropriate way forward in the circumstances of this case were that Forms E should not be filed but that the wife should file and serve a statement limited to 100 pages by 24^th April 2015, the husband should respond by a statement of similar length by 8^th May 2015 and that no further evidence should be filed without additional permission of the court.
13. On 20^th March 2015 Mr. Tod invited me to restrict the cross-examination of the wife (initially he did not think there should be any) to one hour. I did not agree with him and I allowed three hours' worth of cross-examination which the wife has used every minute of today.
14. The wife did not file a statement by 24^th April 2015, she chose (as is her right) to appeal my case management Order and that appeal came before Moor J on 13^th May 2015 and he refused permission to appeal. He reinforced the structure of what I had suggested but allowed late production of the statements. The wife did produce a statement ultimately on 20^th May 2015 in compliance with Moor J's Order and the husband has been able to respond by a statement of 27^th May 2015. Albeit those statements have been late they have been now made available to me and I have been able to give consideration to them in this hearing.
15. There was another hearing on 15^th April 2015 but I will come back to that in due course in a different context.
16. Mrs. Welch produced another bundle disregarding my direction that nothing else should be filed, but Mr. Tod very fairly said that if she wished to produce something then she could. She produced another 110 pages which is the third bundle which is before me today.
17. Today I heard submissions from both sides and I have heard evidence largely from the husband. I have read the wife's statement of 20^th May, I have heard her cross-examine the husband for three hours, and I have heard Mr. Tod cross-examine the wife for a much shorter period.
18. Having set that background I remind myself of the law. Section 31 of the Matrimonial Causes Act 1973 states that:

"Where the court has made an Order to which the section applies, then… the court shall have power to vary or discharge the Order… [A maintenance Order or spousal periodical Order is an Order which the court can vary but under s.31]."

19. Section 31(7) says:

"In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family [there are not any relevant minor children in this circumstance]…, and the circumstances of the case shall include any change in any of the matters to which the court was required to have regard when making the order to which the application relates."

20. The matters which the court were to have regard were what are colloquially known as the s.25 factors which are well known: Income; earning capacity; property and resources; needs; obligations; responsibilities; standard of living; age of the parties; duration of the marriage; physical or mental disability; contributions; conduct and pensions being the relevant factors summarily expressed.
21. There is a feature of this case that is also relevant to this deliberation and that is the way in which I structured the Order. I set out towards the very end of my judgment this:

"As far as maintenance is concerned the figure that I have reached is £1,000 per month for a period of six years. As far as the maintenance Order is concerned, for reasons I have already given [the wife's substantial indebtedness in particular to Withers], were it not for the wife's circumstances I would be minded to capitalise that sum, but for reasons I have given this is not helpful to her and not something that I should do. I am cognisant of the fact there is a risk that if I make an Order in the form of a periodical payments Order there is a danger of a variation application. I want to express the view that because of the way in which this Order has been made, and because of what lies behind that, I am expressing the view that it would be very unlikely that the court would consider favourably a variation application by either party. I think I have to recognise that legally speaking I cannot stop such an application being made but I can make the Order non-extendable and I do that."

22. My thinking at the time was that if I made a capital Order then that might be swiftly swallowed up in some enforcement proceedings by Withers against the wife. It was largely for her benefit that I did not deal with the matter that way. This has left open the lacuna in my Order which the wife has exploited by making this application. It is therefore perhaps with some regret that I note the way that I went forward last September. Not only did I include that sentiment in my judgment but I also included on the face of the Order at para.2 this expression:

"(a) That whilst it is not possible to debar a party from making an application under s.31 of the Matrimonial Causes Act 1973 to vary a spousal periodical payments Order, the circumstances of the making of this Order are such that a court would be very unlikely to consider favourably a variation application by either party."

23. Those sentiments were clear and obvious (I hope) on the face of the Order although it has not, as it happens, had the desired effect.
24. In making that analysis I had, as has been noted by the wife and others today, made an assessment of what the parties' positions were as at September 2014. I remind myself what I said about the husband at para.63:

"He told me that he felt at the age of 65 with health not as good as it might be, and he is not suggesting he is completely now unable to work but, he has problems with his heart and problems with his knee and it is an impediment to his work which, in any event, he is aged 65 so already at state pension age in the UK. He says:

'I have been trying to get work. I have been unsuccessful and I am fearing I am at the end of my career. It may be that I will get something, and I am hoping that I will get something which will keep me going in Singapore at least until next year, but I have not had any luck in that in the last year. I think my age is against me. I think the most likely eventuality is that I shall return to the UK in spring or summer of 2015 and retire at that stage.'

Broadly speaking I accept that self-assessment. He may get something. I am not finding that for definite he will never work again. It does not seem to me that he is likely to get anything very substantial or very long-lasting and he is very much towards the end of his working life."

25. That was my assessment of the husband's position. My assessment of the wife's position at para.66 was:

"The wife does not work at the moment and has not really done so since 2007, partly because she has been really a professional litigant in all of that time through all of this litigation culminating in this litigation. She did work before that. It is not entirely clear what she earned but she worked in the security surveillance and intelligence industry in some capacity, as I have already said. I do not think I have been given figures as to what she earned.

She has her own health problems. She had breast cancer 20 years or so ago. It is never possible to say that has gone away forever but it appears it has gone away for the time being, hopefully forever. She has some nervous problems but I think that is probably related to this litigation as much as anything else. I do not accept there is any health grounds which prevents her from working at the moment. She is resourceful and intelligent and might have been rather better if she had put some of her energies into pursuing some work rather than pursuing litigation, but there we are.

Even at the age of 58 it seems to me that it should be possible for her to find some work. I remind myself that the husband at age 58 was just about to embark on a whole new career in Singapore, and there is no reason that I can see why she should not get some work. I accept it is going to be a limited amount and for a limited number of years but I see no reason why she should not earn at least £10,000, or £15,000 perhaps, for the remainder of her working life until her state age probably."

26. I then dealt with needs and I suggested that a fair figure for housing was £250,000 which is still available, although so far as I can see the wife has not made any efforts to find such a property.
27. In terms of income I commented that it would be reasonable to say that the parties' basic needs like those of anybody else could be met with something like £2,000 per month after housing costs. Some people live on less than that but that seems to me to represent a reasonable set of basic needs. Although both parties have lived much better than that in recent years, for many years before that I do not think anyone could say that that would not meet their basic needs.
28. This is not a case where I was attempting to share income or award a percentage of the likely income. It seemed to me that the wife had a basic need of £2,000, some of which could be met by her own ability to earn and some of which should be met for a period of time by the husband, hence the Order that I made which was appealed but unsuccessfully. That was the situation then.
29. Subsequent to that judgment in September 2014 the situation is as follows. I have read the wife's statement of 20^th May and I have heard her talking about this today. It is perfectly plain that she has not seen it in any way as her role to obtain remunerative employment. She has continued with her litigation mind-set and the potential victim of that litigation mind-set is the husband.
30. It seemed to me that the findings that I made about the way in which she has pursued litigation in September 2014 have, if anything, become worse. She is every bit and possibly more vengeful, obsessive, irrational and unjustified now than she was then. I have heard alarming tales today of numerous investigations of various business leads that the husband has had. I am not surprised frankly that he was very distressed to hear, sometimes for the first time in the witness box, as to what she has been up to via her various agents under various names, but TM Eye seems to be the people who are doing most things for her which she describes as "intel".
31. I was even more alarmed to hear her plans in relation to private criminal prosecutions of the husband in both Singapore and England for fraud, perjury and various other things. This was apparently the case notwithstanding that my judgment absolves him of such matters – it does not absolve her. Roberts J's judgment also absolves him of such things.
32. Both myself and Roberts J have been extremely critical of the way that the wife has behaved. I was alarmed to hear her say just a few minutes ago, "The best bits of this litigation are yet to come". What on earth does she mean? I have dealt with her application. Her appeal has been dismissed. What on earth is she doing pursuing a private criminal prosecution against the husband? She is apparently employing a number of barristers and private detectives.
33. It seems to me that she is more vengeful than ever, blind to the real world, blind to the situation she has found herself in, blind to the warnings that I gave her on 20^th March 2015 and to the cost consequences of pursuing all of these matters. She rolls on. She has already told me that whatever I decide today she is going to be appealing my decision so I will not be surprised to see that this is the case. This is really no way to behave and I feel extremely sorry for the husband as he is the victim of this. Maybe if he is successful in obtaining a Civil Restraint Order that will bring him some peace, I do not know, that is a matter for Roberts J further down the line.
34. I must focus on the factors under s.31 of the Matrimonial Causes Act, and I must focus on the attack that the wife has made. Her statement does not contain a single word about her attempts to get work. It is quite clear that she has not made any. She has told me that she has been "on the sick" as she put it since a day or two after the 2014 hearing. I have not seen the medical evidence which says that, I have seen some medical evidence from her purporting to justify non-attendance at particular court hearings but it seems to me a fact that she has spent almost every working day since September 2014 pursuing this litigation. I repeat the point that I made in September that it would be far better if she put her energies into actually obtaining good ruminative employment than persecuting her former husband.
35. What do I make of his evidence? I have read carefully his witness statement of 27^th May 2015 in which he sets out that he has been able to obtain some work since September 2014. He has given a fairly detailed account of what that is. His conclusion at para.8 of his statement says that since 9^th September he has made net about £47,000 in English money but he has had to live in Singapore which is an expensive place so it has not been a profitable experience for him.
36. The wife has spent three hours attacking that. She has gone back in time to try to justify what was at the heart of this case, whether or not he was telling the truth in that statement. I have to say I have listened to her carefully for three hours. I hope that she will accept that I have listened to what she has said, and I hope she will accept that I have given her full rein in three hours when some judges would have given her much less rein. In that time I have to say that she has, to my mind, made no in-road at all into undermining the credibility of the statement of 27^th May 2015.
37. It is true that perhaps the high point of her case today is that the husband indicated that he did not think that he had made a tax return for the year 2014. It was later established that he had and he was able to produce, if not the complete document, at least enough of it to satisfy me that what he said in the statement of 27^th May 2015 was broadly accurate. I do not accept the very vituperous and vitriolic attack on him that the wife has waged throughout the course of today. I do accept the veracity of that statement.
38. It would be fair to say that those figures are marginally more positive than the assessment that I made on the basis of the evidence in September 2014, but only marginally so. It seems to me that in broad terms he is still very much in the same situation now but a year older. He is 66, past state pension age, he was doing his best to find something and he did find something (which he thought that he might) albeit for a fairly short time and not anywhere near as remunerative as he has had in the past but he still managing to find something. I say well done to him for that. It seems to me that that is a perfectly sensible and praiseworthy thing for him to do.
39. He did not say to me in September 2014 that he would never earn another penny again. He gave an assessment which I then regarded as accurate, and nothing that I have heard and read today causes me to reach any different conclusion.
40. It seems to me therefore that, particularly in the context of the way that I had put a caveat on any further variation applications, I should reach the conclusion which I do. There are no circumstances now looking at all of the s.25 circumstances and the changes since September 2014 (which is not a very long time ago) which could justify my varying the Order.
41. I remind myself that what the wife seeks (and this is consistent with her unrealistic approach to this litigation) is an increase of maintenance from £1,000 per month to £8,000 per month, or at least that which is commensurate with what she believes he is earning (her present view of his earnings is that £8,000 per month is the right figure). It seems to me that this is a completely unrealistic suggestion. It seems to me that I should therefore dismiss the application for a variation and I so do.