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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Oakes v Johansson [2015] EWHC 2616 (Fam) (28 July 2015)
URL: http://www.bailii.org/ew/cases/EWHC/Fam/2015/2616.html
Cite as: [2015] EWHC 2616 (Fam)
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FAMILY DIVISION
B e f o r e :
(In Private)
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| MELANIE ANNE OAKES | Applicant | |
| - and - | ||
| KJELL G L JOHANSSON | Respondent |
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MR. M. HOSFORD-TANNER (instructed by North Star Law) appeared on behalf of the Respondent.
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Crown Copyright ©
- This is an application made by Kjell Johansson on 14th July 2015 whereby he seeks declaratory relief in relation to a final consent order made by Mr. Justice Coleridge on 26th February 2014 in proceedings under Schedule 1 of the Children Act 1989.
- The reason he seeks declaratory relief is that the respondent to his application, Melanie Anne Oakes (who was the applicant in the original Schedule 1 proceedings) has applied to the court in Mr. Johansson's home country of Sweden for enforcement of an earlier order made by Mr. Justice Holman on 23rd May 2013. She alleges in the Swedish court that there are arrears arising under that order of Mr. Justice Holman which are enforceable under the European Maintenance Regulation of 18th December 2008, Council Regulation (EC) No. 4/2009.
- It is Mr. Johansson's contention that there are no arrears arising under the order of Mr. Justice Holman because the final order of Mr. Justice Coleridge, whereby significant funds were placed in trust to provide for the child of the parties, Anton Johansson (who was born on 15th October 2005) superseded and overreached entirely the earlier interim order.
- That earlier interim order provided for maintenance in the sum of £3,750 per month for the child, and gave directions for a final hearing. The final hearing came before Mr. Justice Coleridge, as I have said, on 26th February 2014. At that final hearing the mother, Melanie Anne Oakes, was represented by leading and junior counsel. As this judgment may be read in Sweden I should explain that leading counsel are Queen's Counsel; they are appointed as one of Her Majesty's Counsel because they are learned in the law.
- The agreement that was reached was based on the positions that the parties had adopted prior to the final hearing. The mother's position, as drafted by her leading counsel, included a claim for the discharge of alleged arrears that arose under the earlier interim order. The agreement, which is elaborate, provided for an existing portfolio held by the parties jointly for the child, Anton, to be augmented significantly by further monies, and by the transfer into the trust of a property. In all, the trust fund would comprise just over £900,000.
- In addition, sums were to be payable by Mr. Johansson to meet debts and other immediate needs namely debts of the mother in relation to her costs; debts to the mother in respect of satisfaction of an earlier order made on 20th June 2011, which I do not need to dwell on; sums to meet the mother's outstanding debts; sums to enable the mother to purchase cars for herself during the child's minority; and a sum to provide a living allowance to the mother until the trust was established. In addition, funds were provided in order to meet the costs of establishing the trust.
- The order provided that the trustees would provide to the mother certain sums for the maintenance of the child during his primary and secondary education of £30,000 per annum. The order went on to provide:
- There is no suggestion that the father, Mr. Johansson, did not fully comply with his obligations in the recital to the order, and in such circumstances the proceedings were dismissed.
- It is true that the order does not on its face explicitly deal with the discharge of the earlier interim order, or deal with the question of any alleged arrears arising under it. However, the normal tenets of contractual interpretation, leave to me conclude without any doubt that it was the intention of the parties that the arrangements made in this final order would be in substitution for and supersession of the interim order, including any arrears that may have arisen under it. This simply cannot be gainsaid in circumstances where the question of arrears were raised by leading counsel on the mother's behalf. If it was intended that the arrears should remain outstanding then that would unquestionably have been reflected in the terminology of the order.
- I have no hesitation in concluding that the terms of the agreement reached between the parties was intended to encompass all arrears arising under the interim order. Further, it is futile for the mother to try and argue that the interim order continued in some shape or form after the date of the final order in circumstances where para.1 of the final order provided for the proceedings to be dismissed.
- It is a matter of considerable concern to me that the mother in making her initial application to the Swedish court should have referred only to the interim order but did not refer to the final order. I regard that application that she has made to the Swedish court as being abusive. She has not attended today, notwithstanding that the rules require her attendance to be here. I am told that she has a hospital appointment, although no medical evidence has been produced. Instead, her father and her sister have attended.
- I have allowed her sister to address me notwithstanding that her sister has no rights of audience, and in her capacity as a McKenzie friend she has no right to address the court, but I have extended an indulgence to her today. She says that they have only received documents late in the day and the mother would like, in those circumstances, an adjournment so that she can take legal advice. If I felt that her position had any merit at all I might consider granting an adjournment. But in circumstances where I am satisfied that her position in the Swedish court is meritless, and where her resistance to the application that has been made by Mr. Johansson is equally meritless, I decline an adjournment.
- In such circumstances, I grant the order that is sought, which is in the bundle at page A12.
MR. JUSTICE MOSTYN:
"Upon compliance by the respondent with his obligations set out in the recitals to the order concerning the payment of monies in relation to debts, and the establishment of the trust, that the application made by the mother would be dismissed."