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Cite as: [2012] EW Misc 4 (CC)

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CASE No NG06DO2172

IN THE LEICESTER COUNTY COURT

Date: 13 February 2012

Before His Honour Judge Clifford Bellamy

(Judgment handed down 13 February 2012)

X v Y [Maintenance arrears – cohabitation]

This judgment is being distributed on the strict understanding that in any report no person other than the advocates (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

The names of counsel are omitted in order to protect the identity of the parties.

JUDGMENT

1. X appeals against an order made by the Leicester Family Proceedings Court (‘the FPC’) on 3^rd October 2011 by which he was ordered to pay to his former wife, Y, arrears of periodical payments of £4,550 together with costs of £1,800 at the rate of £1,600 per month commencing on 20^th October 2011. Although they were divorced in 2007, it is convenient to refer to the parties as ‘the husband’ and ‘the wife’ respectively.

Background

2. The parties were married in July 1994. They separated in May 2006. They have two children, R aged 11 and T aged 9.

3. In 2006 the wife began divorce proceedings. Decree nisi was pronounced in October 2006 and was made absolute in June 2007.

4. Within those proceedings the wife applied for financial provision for herself and the children. On 27^th May 2007 an order was made by consent. That order contained a provision for spousal maintenance in these terms,

‘2. From the date of the completion of the sale of [the former matrimonial home] aforesaid [the husband] do pay or cause to be paid to [the wife] periodical payments at the rate of £1,000 per month payable monthly in advance during their joint lives until [the wife] shall remarry or cohabit with another for a continuous period of six months in a period of twelve months or until the 25^th May 2014, whichever is the earliest or further order whereupon [the wife]’s claims for periodical payments shall stand dismissed and [the wife] shall not be entitled to make any further application under the Matrimonial Causes Act 1973 Section 23(1)(a) or (b) in relation to the marriage.’

5. The order also provided for the husband to pay periodical payments of £500 per month for each child.

6. On 15^th October 2009, following a contested hearing, the order for periodical payments was varied by reducing the sums payable to £650 per month for the wife and £350 per month for each child.

7. By February 2011 the husband was convinced that the wife had been cohabiting for more than six months. On 18^th March he e-mailed the wife to tell her that as a result of her cohabitation he considered the order for periodical payments to be at an end and that he would not be making any more payments. In taking that approach the husband forced the wife to make a choice: either she could accept the position or she could take steps to enforce the arrears. She chose the latter course.

8. The wife took steps to register the order for periodical payments in the FPC. She then made a complaint in respect of the alleged arrears. The FPC issued a summons.

9. Although the FPC has the power to vary a registered order for periodical payments, both as to rate and manner of payment, the FPC does not have the power to discharge a registered order for periodical payments. In this case the husband sought neither variation nor discharge of the order. His case was that the wife had been cohabiting for more than six months, that the order for periodical payments for her had therefore come to an end and that the order was no longer enforceable.

The wife’s circumstances

10. Upon separation the wife and the children continued to live in the former matrimonial home. They remained living there until 2009 when the property was sold. By then the wife had formed a relationship with Mr A. In a written statement dated 18^th July 2011, prepared for the enforcement proceedings, the wife says,

‘6. In 2009 the former matrimonial home was sold. My share of the net proceeds of sale were not sufficient to enable me to purchase a property in my sole name without a mortgage and my income, as can be seen from the details set out below, was too low and of a kind which meant I had no mortgage capacity. I therefore rented a house, in my sole name. Our daughters (now aged 10 and 8) are at the Z school and I needed to remain in the area. The owners of the house were overseas and returned in summer 2010, necessitating a move…’

11. The wife disclosed monthly income of £1,791.92 all but £99.84 of which was made up of a range of different state benefits. The £99.84 is described as ‘Wages (now terminated)’. She disclosed outgoings of £1,972.14. Her outgoings exceeded her income She went on to say that she was

‘9. …only managing at present by using some savings and trying to avoid expenditure on clothes for myself and the children, entertainment and gifts. No one is assisting me in any way with any of this expenditure…’

12. The wife accepts that she has been in a relationship with Mr A since 2008. She denies that they cohabit or that she receives any financial support from him. She says that,

‘12. It may be alleged that Mr A pays my legal costs. He does not and has never contributed to any part of such costs as I have incurred. There are ongoing Children Act proceedings. For the last 18 months I have acted in person because I cannot afford representation and have only recently re-instructed my solicitors because the cessation of maintenance means I may now be financially eligible for Legal Aid. Both our daughters are being educated privately. X appears to be under the illusion that Mr A pays all or part of their school fees. He does not. Both are very clever and have been fortunate enough to be granted very substantial bursaries by the relevant school. I applied for the bursaries and had to produce all my financial details when I did so…

‘13. I want to be absolutely clear about my financial position. I ought to mention the fact that, as would be expected, from time to time I have received gifts from Mr A. At Christmas (as a present to me and the girls) he took us to Lanzarote for a week. For a birthday present in 2009 he gave me a subscription to The Times. Otherwise there is no intermingling of our financial affairs, he contributes nothing to my household expenses, he has his own home where he spends a significant amount of time. We do not cohabit and never have.’

1 New Street

13. In the context of the wife’s claim that she does not cohabit with or receive any financial support from Mr A, the acquisition and funding of her present home, 1 New Street, is an important issue. I referred earlier to the wife’s move into rented property. By the summer of 2010 it was necessary for her to move home again. She explains how her housing difficulties were resolved. She says,

‘6. …When I had rented the property there had been a good choice of rental properties in the general area but this was no longer true by the summer of 2010. In addition I could see the circumstances arising where the children and I could be forced to move every 12 months. By then I had been in a relationship with Mr A since autumn 2008. Between us we arrived at a solution which gave me some permanency and provided both of us with an investment. It should be noted that by this point my maintenance had been reduced and because of financial pressures during the marriage and separation my credit rating had been severely damaged. Mr A bought 1 New Street, in his sole name with the assistance of a mortgage, again in his sole name. The house cost £355,000 and Mr A borrowed £266,250 of that sum.

‘7. The balance was made up by me investing the sum of £50,000 from what remained of my share of the proceeds of sale of the former matrimonial home and from Mr A’s own resources. We agreed I would take a formal tenancy of the house and I would then pay rent at a market rate to Mr A. We were obviously concerned as to what might happen if our relationship came to an end so everything was put on a proper legal footing…Whilst Mr A does stay overnight with me he has always had his own home where he lives and, other than gifts from him, this is the only occasion on which our financial arrangements have ever been connected in any way.’

14. The wife exhibits to her statement an Assured Shorthold Tenancy Agreement. This names Mr A as landlord and the wife as tenant. The agreement was signed on 2^nd July 2010. Also exhibited to this statement is a Declaration of Trust. This, too, is dated 2^nd July 2010. In this document Mr A is described as ‘the Legal Owner’ and the wife as ‘the Contributor’. This is a short, though in the context of this case important, document. It confirms the purchase price as £355,000. It confirms that the property was purchased with the assistance of a mortgage in the sum of £266,250.

15. The Deed goes on to acknowledge that,

‘(C) The purchase money for the Property was provided by the Legal Owner and the Contributor in the shares and proportions hereinafter mentioned and the Property was transferred to the Legal Owner who confirms that he holds the same as trustee for himself and the contributor’

16. The Deed of Trust then goes on to say,

‘NOW THIS DEED WITNESSES as follows:

1. The Legal Owner declares that he holds the Property and the net proceeds of sale (after deducting therefrom the costs of sale and the balance of any money due under the Mortgage) and the net rents and profits until sale UPON TRUST for the Legal Owner and the Contributor as tenants in common.

The net proceeds of sale shall then be paid in the following order:

(a) the Contributor will receive the sum of £50,000 representing her contribution towards the purchase price of the Property

(b) the Legal Owner will receive the sum of £38,750 representing his contribution towards the purchase price of the Property

(d) the remainder shall be divided equally between the Legal Owner and the Contributor.’

Mr A

17. In support of her position the wife also filed a written statement by Mr A, dated 18^th July 2011. In his statement Mr A says almost nothing about his personal circumstances. In particular, no information is given about the nature of his work, his income or his capital. The sole purpose of this statement is to support the wife’s assertion that he and she are not cohabiting and that she is not financially dependent upon him.

18. Mr A accepts that he has been in a relationship with the wife ‘since the autumn of 2008’. He says that he is not cohabiting with her, has never cohabited with her and has no intention of living with her in the future. He goes on to say that throughout their relationship they have maintained and lived in their own homes and will continue to do so.

19. As for the purchase of 1 New Street, Mr A supports the account given by the wife. Although he is the legal owner of this property he continues to live at another property which he purchased in his sole name in December 2009. He exhibits a number of utility bills to demonstrate his use of that property. He denies having provided any financial assistance to the wife save for his purchase of 1 New Street.

20. Mr A goes on to say that

‘5. It is true that Y and I remain in a relationship. I often spend evenings and sometimes the whole night at Y’s house but even then return to my own home in the morning before I go to work. If we are spending the night together I will return to my house after work before I go to Y’s house. I have a daughter with whom I have weekend contact and she always stays with me at my home and, other than holiday periods, I have spent some or all of each week sleeping at my home since moving there in January 2010.

‘6. Y is responsible for all utility and other payments in respect of 1 New Stree] and I do not contribute anything towards those bills. The only exception is the daily paper bill which I pay as a birthday present for Y from 2009. I might add that none of my clothes or other possessions are at Y’s house and none of hers are at mine.’

The husband

21. The husband is a barrister practising at the Criminal Bar. He filed a written statement in advance of the hearing in the FPC. He provides no information as to his financial position. The basis of his case before the Justices was not that he could not afford to pay or that the level of maintenance should be reduced. His position was, on the face of it, a very simple one. He submitted that the wife had cohabited with Mr A for more than six months in the last twelve months and that, in accordance with the consent order for financial provision, the order for periodical payments had now come to an end. There were no arrears to be enforced.

22. In support of his contention that the wife cohabits with Mr A, the husband gives details of the frequency of the occasions when he has found Mr A at the wife’s home when collecting and returning T for contact. He points to the arrangements for the purchase of 1 New Street. He expresses the belief that Mr A has contributed towards both the wife’s legal costs and to the children’s school fees. He refers to three family holidays that he believes Mr A has paid for in Portugal, Sicily and the Canaries. Whenever he attends events at the children’s school the wife and Mr A are there together.

23. So convinced was he of the wife’s cohabitation that in February 2011 the husband instructed an enquiry agent to make observations upon her home. In his witness statement he says,

‘8. In February 2011 I commissioned enquiry agents to monitor Mr A’s movements. This they did by following the movements of his principle (sic) car... In the first period starting on the 8^th February 2011 they were able to inform me that his car was parked outside Y’s home on 5 of the 6 nights it was observed. The one week night he is typically not present is a Wednesday night, when as I understand it he sees his daughter for over night contact and stays at his home. In addition he has weekend contact fortnightly with his daughter and will usually spend those Saturday nights away from Y. On Saturday 12^th February 2001 (sic) Mr A’s car was monitored leaving 1 New Street and travelling to Z, where my eldest daughter will attend school in September 2011 before returning and parking outside the house that night. I myself saw Mr A dropping my daughters off at school on Monday 14^th February 2011 confirming he had stayed at 1 New Street the proceedings (sic) night. Lest it be said that this was an exceptional period the same agents monitored Mr A (sic) car again from the 26^th February. It was parked outside Y’s house for 5 of the 7 nights…’

24. At the time the enforcement proceedings were ongoing, Children Act proceedings were running in parallel. The children were parties to those proceedings and an officer of Cafcass had been allocated as guardian ad litem for them. In his written statement the husband states that,

‘4. …Since early 2010 I have spoken to a Guardian appointed by the Court in Children Act proceedings. She has told that lady that Mr A lives with her, her sister and her mother.’

Though that observation was contained within the husband’s witness statement, I am told that on advice from their clerk the Justices declined to receive a copy of the Guardian’s report confirming the husband’s evidence on this issue.

The hearing in the Family Proceedings Court

25. The enforcement proceedings were heard in the FPC on 27^th September 2011. The Justices heard evidence from the husband, the wife and from Mr A. There is no verbatim transcript of that evidence. I do, though, have a copy of the FPC Legal Adviser’s notes of evidence.

26. In her oral evidence the wife said that she had had to make an application for state benefits because without the periodical payments of £650 per month she was unable to meet her outgoings. She had already obtained full housing benefit in respect of the rent she pays for 1 New Street. She had produced the tenancy agreement to the housing benefit office. There is no evidence that the Declaration of Trust was also disclosed.

27. The wife confirmed that the children receive 85% bursaries in respect of their school fees. She also confirmed that Mr A makes no contribution towards her household bills, saying “I wish he would”. She confirmed that he had paid for three family holidays.

28. The wife insisted that she and Mr A do not cohabit. He is her boyfriend and she loves him very much. She confirmed that they are ‘co-dependent emotionally’. She accepted that he sometimes stays overnight at her home. As for the evidence from the tracking device fitted to Mr A’s car by the enquiry agent, the wife said that the evidence produced by the tracking device was incorrect.

29. Mr A confirmed his written evidence. He added some detail. He said, for example, that he is an electronics engineer. He said that he had purchased his own home without the need for a mortgage. He repeated that he and the wife do not live together and never have lived together. He does not pay or contribute towards her household bills. He has bills to pay in respect of his own home. He accepted that he had paid to take the wife and her children on holiday to Portugal, Sicily, Lanzarote and Cyprus. He confirmed that he is the owner of the car to which the enquiry agent had fitted a tracker device. Like the wife, he too challenged the accuracy of the tracker report.

The Justices’ findings and reasons

30. In the note of their reasons the Justices state that they found the wife to have been ‘open in her evidence’, Mr A to have been ‘a convincing and reliable witness’ and the husband to have been ‘truthful although his portrayal of what he saw and heard was used to bolster his own interpretation of events’.

31. The only evidence about which they made specific comment was the tracker evidence. They said that

‘Whilst the tracker device supported our conclusion that Mr. A regularly spends nights at 1 New Street, it also revealed some inconsistencies, and in the absence of any technical details, data or statements from those operating the device we would be reluctant to place too much reliance on the information allegedly supplied by it…’

32. The Justices made three key findings:

‘1. We find that the financial affairs of Y and Mr. A are quite separate. We believe that the arrangement over the purchase of 1 New Street was not a disguised form of joint purchase but a financial arrangement which could well have been undertaken between a tenant and a Housing Association. The £50,000 paid by Y was a relatively small figure in relation to the value of the property. The level of rent paid has been accepted by independent authorities as close to the market level.

Mr. A has made no financial contribution to household expenses, school fees or Y’s legal fees. He has paid in full for four holidays for himself, Y and her two daughters.

‘2. We find that Mr A regularly spends nights at 1 New Street.

‘3. We find that Mr. A maintains a separate home from Y. He has a house where he pays regular utilities bills and keeps his possessions. He takes his own daughter there on a regular basis and she does not spend time with Y’s two daughters. He did not spend Christmas with Y.’

33. At the hearing before the Justices the husband was unrepresented. The wife was represented by her solicitor. The Justices’ attention was drawn to two authorities, Kimber v Kimber [2000] 1 FLR 383 (‘Kimber’) and Grey v Grey [2010] 1 FLR 1764 (‘Grey’). The Justices refer to Kimber in their reasons. Indeed, it is clear that their reasons are structured around part of the judgment in Kimber:

‘We have considered the evidence as presented to us and our rulings on the facts in dispute in the light of the case of Kimber v Kimber (2001). This case states that it is “impossible to draw up an exhaustive list of criteria for determining the existence of cohabitation” but lists eight relevant factors.

a) The parties were living together in the same household. We do not believe that this applies in this case.

b) The living together involved a sharing of daily tasks and duties. We do not believe that this applies in this case, because they were not living together in the same household but operating two separate households and such duties as the school run for Y’s daughters were never undertaken by Mr. A except on rare occasions, for example when Y was ill.

c) There was stability and permanence in the relationship. We accept that this was the case.

d) The financial affairs of the couple were indicative of their relationship. We do not believe that this applies in this case for the reasons set out above.

e) Their sexual relationship was admitted and ongoing. We accept that this was the case.

f) There was a close bond between (Mr A.) and Y’s children. We do not believe that this applies in this case.

g) As regards the motives of the couple it was clear [in Kimber] that [the mother] had denied cohabitation and acted as she had so as to continue to enjoy the payment of maintenance from [the father]. We do not believe that this applies in this case. We believe the strong reaction shown by Y indicating her reluctance ever to live with someone again as she once had done with X was genuine.

h) There was sufficient evidence that cohabitation existed in the opinion of a reasonable person with normal perceptions. We do not believe that this applies in this case. We believe that a reasonable person would conclude that there was a sexual relationship between Y and Mr. A and that there was strong mutual emotional support, but not that there was cohabitation.

Having found that only two of the eight factors listed in Kimber v Kimber were present in this case, we conclude that there was no cohabitation and accordingly make the ruling in favour of Y.’

The approach of the appeal court

34. The approach of the appeal court is set out in rule 30.12 Family Procedure Rules 2010. So far as is material, this provides that,

(1) Every appeal will be limited to a review of the decision of the lower court unless –

(a) an enactment or practice direction makes different provision for a particular category of appeal; or

(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing…

(3) The appeal court will allow an appeal where the decision of the lower court was –

(a) wrong; or

(b) unjust because of a procedural or other irregularity in the proceedings in the lower court.

(4) The appeal court may draw any inference of fact which it considers justified on the evidence.

The admission of further evidence

35. At the beginning of this hearing a preliminary point was taken in respect of the admission of further evidence.

36. I noted earlier that in his written statement the father had referred to a conversation between T and her guardian ad litem in the Children Act Proceedings. Appended to the guardian’s report is a document completed by T in which she answers the question ‘where I live and who lives with me’. In addition to pets, in her own handwriting I lists those who live with her as ‘Mum, R, Mr A’. At the hearing in the FPC the husband sought to put that document in evidence. The wife objected. There is no reference to this anywhere in either the FPC’s notes of evidence or in the Justices’ reasons. It appears that the Justices refused to admit that document. It is not clear why.

37. As I noted earlier, these enforcement proceedings have been running alongside ongoing Children Act proceedings relating to the issue of contact. Those proceedings were concluded at a hearing before Mrs Justice Eleanor King in November 2011. Mr A was a witness in those proceedings as well as in the enforcement proceedings. His evidence is set out in a witness statement dated 10^th October 2011, just two weeks after the FPC had concluded the enforcement proceedings. The husband sought permission to rely on that statement by way of additional evidence in this appeal. The wife objected.

38. So far as concerns this additional evidence, I allowed both of the father’s applications. I said that I would set out my reasons for those decisions within this written judgment.

39. The starting point for considering the application for the admission of further evidence is FPR rule 30.12 which provides that

(2) Unless it orders otherwise, the appeal court will not receive –

(a) oral evidence; or

(b) evidence which was not before the lower court.

40. Counsel the wife did not seek to persuade me that as a matter either of law or procedure the evidence of T’s disclosure to her guardian was not admissible in evidence at the hearing of this appeal. Rather, she sought to persuade me that in the exercise of my discretion I should not admit that evidence. Three reasons were advanced in support of that submission. Firstly, counsel made the point that the guardian’s report is dated April 2010, almost eighteen months prior to the hearing in the FPC. Secondly, she said that the document had been taken out of context. Thirdly, she made the point that in an ABE police interview in 2009 (the purpose of which is of no relevance to this appeal) T made no reference to Mr A living as part of her household. Although there is no transcript of that interview and the DVD has now been mislaid by the police, there is some evidence in a social work record of what T said in that interview.

41. Although, for some unknown reason, the Justices decided not to admit the document appended to the guardian’s report the reality is that that evidence was already before them in that it had been referred to explicitly in the husband’s written statement. Notwithstanding the fact that the document was some eighteen months old it was written by a child who was old enough to understand what was being required of her in being asked to state ‘where I live and who lives with me’ (T was aged 7½ at the time) and is plainly relevant to the very issue the Justices were being called upon to determine. Determining the question of cohabitation requires the court to assemble as many pieces of the evidential jigsaw as possible in order to see whether a clear picture emerges. This evidence is part of the jigsaw. In my judgment the Justices were wrong to exclude it.

42. I agreed with counsel for the wife that having allowed the husband to rely on T’s statement to the guardian it was appropriate that I should also admit the social work record of the ABE interview. That interview was undertaken some months before T completed the document appended to the guardian’s report. The social work record begins,

‘During the video interview that was undertaken on 23/09/09, T talked about her family composition. She said she liked her sister R and mum’s boyfriend Mr A who visits sometimes…’

43. FPR Rule 30.12(2) applies to evidence that was not in existence at the time of the order appealed against as well as to evidence that was. The question of whether to admit new evidence, evidence which did not exist at the time of the original hearing, is a matter for the court’s discretion. In my judgment, in exercising that discretion four factors need to be taken into consideration. Firstly, is the new evidence relevant to the issues which fell to be determined by the lower court? Secondly, does the evidence appear to be reliable and cogent? Thirdly, is it proportionate to admit that evidence? Fourthly, if each of those three questions is answered in the affirmative, would it be unjust to the appellant to exclude that evidence?

44. The evidence concerned is a written statement made by Mr A. The very first paragraph of this statement states,

‘I have known Y since August 2008. We subsequently formed a relationship and since then I have spent a considerable amount of time with Y and R and T.’

The statement goes on to chart Mr A’s observation of T’s reaction to contact, both before and after contact had taken place, his involvement in the contact arrangements and his dealings with the children’s Head Teacher. I am in no doubt that this evidence is relevant.

45. The evidence is written by the very person whom the Justices had found to be ‘a convincing and reliable witness’. As required by the rules, the witness statement contains a statement of truth. I am satisfied that the evidence appears to be reliable and cogent.

46. Although it was not until she arrived at court that counsel for the wife became aware of the husband’s wish to rely on that statement at the hearing of this appeal, the contents of the statement itself did not take her by surprise since she had represented the wife in the Children Act proceedings including at the final hearing before Mrs Justice Eleanor King. Admitting this evidence did not give rise to the risk of an adjournment either to enable the wife to obtain evidence in rebuttal (for she could not have rebutted at this hearing evidence which she had been happy to rely upon in a different context) or to enable her to consider and give instructions upon this new material. I am satisfied that it was proportionate to admit this evidence.

47. The final issue is that of fairness. Counsel for the wife submitted that before the court could admit this evidence it must first be satisfied that there would be a serious injustice if the evidence was not admitted. In this context there is no real difference between ‘serious injustice’ and ‘unfairness’. The fact of the matter is, as I shall demonstrate in a moment, that the statement Mr A made in the Children Act proceedings gives a more detailed insight into the nature and extent of his relationship with the wife and her children than appears from the statement relied upon at the hearing before the Justices. I am in no doubt that fairness requires that the statement be admitted in evidence at this hearing.

Mr A’s Children Act statement

48. I have already noted that in the very first paragraph of his statement Mr A acknowledges that since August 2008 he has spent ‘a considerable amount of time with Y and R and T’.

49. In 2008 and 2009 T spent alternate Saturday nights with her father. Mr A says,

‘4. …I saw that T was always reluctant to leave Y and R. Y would spend considerable time and effort each weekend, which I witnessed, both encouraging and reassuring T that, she would find the contact visits enjoyable…Evenings at Y’s house before the contact visits were characterised by T shouting in her sleep and having nightmares. She appeared to sleep more easily on other nights. Upon return from parental contact she would be uncharacteristically quiet and subdued.’

50. Mr A goes on to say that by the end of 2008 Y had become very concerned by X’s behaviour at handover. He says that

‘5. She therefore asked if I would take T out of the house on future occasions to her father and I did this for about the first seven months of 2009…’

51. In 2009 Mr A noted that R and T became concerned at the prospect of meeting their father at school. Mr A took the initiative in trying to resolve that difficulty. He says that

‘6. …I became so worried about R that, with Y’s knowledge, on 9^th March 2009 I visited the school to speak to the headmaster in the hope I could facilitate an agreement between Y and X’

He exhibits to his statement a number of e-mails, some between himself and the Head Teacher, some between himself and X. The e-mails were written during the period March to May 2009. They demonstrate that Mr A was seeking to play a pivotal role in trying to resolve contact difficulties. For example, in an e-mail dated 10^th March 2009 the Head Teacher said,

‘…We will all continue to work with the parents and you to support R and T during their studies... Thank you for your very helpful e-mails…’

52. Mr A goes on to say that,

‘8. By summer 2009 T was regularly refusing to leave the house for contact. When I asked her why she told me she did not want to see her father’

53. In the remaining paragraphs of his statement Mr A goes on to chart the ongoing problems with contact up to December 2010 and his involvement in trying to resolve them. In May 2010 T’s contact was reduced to alternate Sundays. Mr A says that,

‘12. T told me she thought that even this was too long. She was withdrawn and unhappy in advance of contact and began to display unusual characteristics demonstrated by a marked reluctance to eat, trips to the toilet every few minutes when out in public and regularly upset stomach. These symptoms became more noticeable as contact weekends approached and worsened during summer of 2010 to become continual. By the autumn I could see that she was obviously and unhealthily thin and had become increasingly nervous. She continued to have frequent bouts of crying, nightmares and would shout in her sleep during the nights before contact was due to take place.’

54. Mr A ends his statement by saying,

‘16. I am unaware of T having any contact with X after December 2010. I can say that during 2011 she has become a noticeably happier child. She no longer displays her marked reluctance to eat and no longer visits the toilet every few minutes when leaving the house or out in public.’

Cohabitation - the law

55. The Justices were referred, appropriately, to the case of Kimber. In that case the judge was faced with exactly the same problem that the Justices were faced with. An order for periodical payments in favour of a wife had been expressed to continue ‘until her remarriage or until she cohabits with another person for more than 3 months whichever is the earlier…’ The husband contended that the wife was cohabiting. The wife denied this. Having set out his findings on the facts the judge moved on to consider the law. He began by saying that (p.388),

‘It is necessary to make some attempt to define ‘cohabitation’ in the context of the facts as I have determined them to be. It is both foolish and impossible to offer any definition that will cover all circumstances. In Mummery v Mummery [1942] P 107, a case on desertion, at 109 and 110, Lord Merriman doubted that it were possible to “give a completely exhaustive definition of cohabitation”. How much more true is that today when the modern complexities of inter-personal relationships are so diverse.’

56. The Judge reviewed the relevant case law. He then made the point that (p.391)

‘It is foolhardy to attempt to reduce to a judicial soundbite a comprehensive list of criteria and the authorities are replete with warnings of the dangers of doing so. But through what I hope has been a careful reading of the cases, whilst it is impossible to provide a checklist or set of tests, factors or criteria to cover every scenario, it is possible to draw some factors together. Such factors cannot be complete nor comprehensive but should be sufficient to cover the facts of the case that I am called upon to decide.’

He then went on to set out the eight factors to which the Justices referred in their reasons.

57. In the second case referred to before the Justices, the case of Grey, the Court of Appeal was considering the issue of cohabitation in an entirely different context. That case was an appeal against an order for financial provision in divorce proceedings. Cohabitation was relevant in determining both the entitlement to and amount of spousal maintenance that should be paid. Wall LJ (as he then was) said that,

‘[51] In my judgment, the law has not changed from that which it was when I commenced practice in 1969. Post–separation cohabitation with a third party is a relevant factor for the court to take into account when considering the level of maintenance pending suit and/or periodical payments which the cohabiting spouse or former spouse should receive from his or her spouse or former spouse. In some cases, the fact of cohabitation will weigh heavily in the scales: in others, it will not. As Thorpe LJ rightly states in para [28] of his judgment, the real question for the court is usually not what the third party is contributing but – as here – what ought he to be contributing.’

58. In the case before me I am not concerned with entitlement to or amount of spousal maintenance. At the time of the original order for ancillary relief, made by consent, the parties themselves determined that the wife was entitled to periodical payments and agreed the amount. They also determined, prospectively, what should happen in the event that the wife were to cohabit. They agreed that periodical payments should continue

‘during their joint lives until the Applicant shall remarry or cohabit with another for a continuous period of six months in a period of twelve months or until the 25^th May 2014, whichever is the earliest or further order whereupon the Applicant’s claims for periodical shall stand dismissed and the Applicant shall not be entitled to make any further application under the Matrimonial Causes Act 1973 Section 23(1)(a) or (b) in relation to the marriage.’

The Justices had but one decision to make: by February 2011 had the wife and Mr A cohabited for a continuous period of six months in a period of twelve months? In the financial order of 17^th May 2007 the parties had already agreed that if the answer to that question was ‘yes’ then the order for spousal maintenance had come to an end and could not be revived.

59. Although in Grey the Court of Appeal allowed an appeal against the decision of the first instance judge, Singer J, they did not criticise his observations on the decision of HHJ Tyrer in Kimber. Thorpe LJ notes the comments by Singer J that,

‘71. …They may or may not cohabit – an unsatisfactory word and concept, in my long-held view, vague as to quality and duration and not a reliably valid indicator of anything long-term. The helpful decision of HHJ Tyrer in Kimber v Kimber [2000] 1 FLR 383 contains a useful checklist of potentially relevant considerations, but there can be no cut-and-dried test: in a number of situations reliance on the opinion of more than one “reasonable person(s) with normal perceptions” could lead to different conclusions.’

The reference to “reasonable person(s) with normal perceptions’ is a reference to the eighth factor in the list of factors indicative of cohabitation identified in Kimber.

The Justices’ powers

60. At the hearing of this appeal the husband has been criticised for the way he responded to his conviction that the wife was cohabiting. It is said on behalf of the wife that the proper course would have been for him to have applied to the County Court for a declaration that the event triggering termination of the periodical payments order – cohabitation for more than six months – had occurred and that the order had therefore come to an end. The route he chose was more simple and potentially lest expensive. He decided to stop paying and to put the wife on notice of the reason why he had stopped paying. He was throwing down the gauntlet, challenging the wife to take steps to enforce the order if she did not accept that she was cohabiting. She rose to the challenge. She registered the order in the FPC and began enforcement proceedings.

61. The wife’s right to apply to the County Court for the order for periodical payments to be registered in the FPC arises under s.2 Maintenance Orders Act 1958. Once registered, the Justices’ powers are limited to the enforcement of arrears (s.3) and variation of the registered order (s.4). The Justices’ power to vary a registered order is limited to varying the rate and manner of payment. The Justices do not have the power to discharge the order.

62. If either party applies to the FPC to vary the payments due under the registered order the Justices have the power to remit that application to the original court. Section 4(4) provides that

‘If it appears to the court to which an application is made by virtue of subsection (2) of this section for the variation of a rate of payments specified by a registered order that it is for any reason appropriate to remit the application to the original court, the first-mentioned court shall so remit the application, and the original court shall thereupon deal with the application as if the order were not registered.’

63. The same does not appear to be the case with respect to an application to enforce arrears accrued under a registered order. There is no equivalent to s.4(4) in section 3. That s.3 is intended to provide exclusivity for the FPC’s powers to enforce such arrears is underlined by s.3(4) which provides that,

‘Except as provided by this section, no proceedings shall be taken for or with respect to the enforcement of a registered order.’

64. In a case such as this, in which there are issues to be determined that do not normally fall for determination in the FPC, such as the legal position concerning the ownership of property, the lack of a power to remit is unfortunate.

65. So far as concerns the Justices’ power to vary an order registered in the FPC, in Goodall (formerly Jolly) v Jolly [1984] FPR 143 Wood J said,

‘I would encourage clerks to justices to give their benches the opportunity of …remitting cases where, clearly, discovery and the powers available to a registrar in a county court or a high court are more applicable to the variation. Where the figures are simple and it is simply a question of looking at the wages and, broadly, dealing with smaller sums of money, it may be convenient for the justices to deal with it themselves, but where discovery, in particular, is relevant and important – as I believe it is – I would urge them, as a matter of practice, to consider carefully whether the proper course in so many of these cases is not to remit the application to the original court.’

Although the Justices’ case management powers now include the power to order disclosure of documents (rule 4.1(3)(b) FPR 2010) the underlying concerns which prompted those observations remain relevant. They would be equally apposite in the context of enforcement proceedings were it possible to remit to the original court an application to enforce arrears accrued under a registered order. But it is not possible. There is no power to remit such an application.

66. Not only do the Justices have no power to remit such an application, they also have no power, of their own motion, to cancel the registration of the order. Once registered in the FPC the registration of the order may only be cancelled by notice given by the person who registered the order (s.5(1)) or by the original court when it varies or discharges the order (s.5(2)). The Justices have no power to cancel the registration of an order of their own volition.

67. The Justices were seised of an application to enforce arrears. They had no power to remit to the County Court. They had no power to cancel the registration of the order. They had no choice but to hear the application. They were not being called upon to discharge the order. They were being called upon to make a finding of fact, a finding which would determine whether the order had or had not expired. I am satisfied that they had the power to determine that issue.

Discussion

68. It is clear from the terms of his judgment in Kimber that HHJ Tyrer was not seeking to draw up an exhaustive list of criteria for determining the existence of cohabitation. Although the Justices noted that to be the case their reasons give the impression that they did take that list to be an exhaustive list in the circumstances of this case. They appear to have used the list of factors identified by Judge Tyrer as if it were a checklist, stating in their final paragraph that ‘Having found that only two of the eight factors listed in Kimber v Kimber were present in this case we conclude that there was no cohabitation…’ In my judgment, that was the wrong approach.

69. Even if, in the circumstances of this case, it was appropriate for the Justices to take that approach, I am satisfied that their analysis is flawed. It is clear that the section of their judgment headed ‘Reasons’ is informed by their findings of fact. Although they found that Mr A ‘made no financial contribution to household expenses, school fees or Y’s legal fees’ and note that he ‘has paid in full for four holidays for himself, Y and her two daughters’, it is clear that their primary finding – ‘that the financial affairs of Y and Mr A are quite separate’ – is heavily influenced by their conclusions with respect to the purchase of 1 New Street.

70. As the Justices implicitly acknowledged, consideration of the circumstances surrounding the acquisition of 1 New Street was an important issue in the context of determining the extent of Mr A’s financial support for the wife. They concluded that ‘the arrangement over the purchase was not a disguised form of joint purchase but a financial arrangement which could well have been undertaken between a tenant and a Housing Association’. In my judgment, that was not a helpful analogy in the circumstances of this case. The purchase of this property was, in reality, a very significant financial contribution by Mr A to the financial support of the wife and her children.

71. The Justices went on to say that ‘The £50,000 paid by Y was a relatively small figure in relation to the value of the property’. The purchase price was £355,000. £266,250 was borrowed by way of mortgage. £88,750 was paid in cash. Of that sum, the wife contributed 56%, £50,000, almost the entirety of her savings. Seen in context, it is difficult to understand either the Justices’ conclusion that her contribution was ‘a relatively small figure’ or the relevance of that observation to their finding ‘That the financial affairs of Y and Mr. A are quite separate’.

72. On this issue the Justices went on finally to make the point that ‘The level of rent paid has been accepted by independent authorities as close to the market level’. The only evidence in support of this was that on the basis of the Assured Shorthold Tenancy Agreement between the wife and Mr A, the housing benefit office had accepted that the wife was paying rent of £533,14 per month and, apparently by inference drawn by the Justices (for there was no documentary evidence on the point), had accepted the level of rent to be reasonable.

73. One of the problems in this case is the lack of documentary evidence. The wife has not produced her application for housing benefit. It is unclear whether her application for housing benefit was supported not only by production of a copy of the Tenancy Agreement but also by production of a copy of the Deed of Trust. It is unclear what she said about the existence and nature of her relationship with Mr A. It is unclear how the ‘rent’ of £533.14 per month was calculated. It is unclear what proportion the rent bears to the mortgage repayments on 1 New Street. Furthermore, the mortgage application form has not been produced. It is not known, therefore, what information Mr A gave to the lender concerning his relationship with the wife, the fact that the property was being acquired as a home for the wife and her children, and the fact that, as he and she say, it was not intended that he would live with her there.

74. Even without the assistance that that additional evidence may have provided, on the basis of the evidence before them I have come to the conclusion that the Justices were wrong to conclude that ‘the financial affairs of Y and Mr. A are quite separate’. Although they were entitled to find that Mr A does not contribute to the payment of utilities and other household expenses and that he continues to maintain a separate home, in the circumstances of this case that does not justify a finding that their financial affairs ‘are quite separate’. The most important need which this wife has is for a roof over the heads of herself and her children. Not only has she made a joint and equal cash contribution to the purchase of 1 New Street, and notwithstanding the fact that she pays ‘rent’, she is wholly dependent upon Mr A to meet the mortgage repayments as and when they fall due in default of which the lender would be likely to issue possession proceedings That is a very significant financial contribution made by Mr A, a contribution that needs to be viewed in the light of his long-term sexual relationship with the wife and the considerable amount of time that he spends living with her.

75. I am satisfied that the Justices’ interpretation of the background relating to the house purchase is flawed.

76. Not only do I have the evidence that was before the Justices I also now have the benefit of the additional evidence I have admitted at this hearing. In October 2009, it appears that in her ABE interview T described Mr A as someone ‘who visits sometimes’. By early 2010, in her discussions with the guardian, she referred to Mr A as someone ‘who lives with me’. That could reflect a change in the domestic arrangements over that short period. It could represent a difference perspective taken by T. It is clearly evidence that should be treated with care given T’s age. I also now have the benefit of the statement Mr A prepared for the Children Act proceedings. I have referred to several passages from that statement. The Justices found that Mr A ‘regularly spends nights at 1 New Street’. They did not attempt to quantify it. Mr A’s Children Act statement states in terms that he has ‘spent a considerable amount of time with Y and R and T’.

Conclusions

77. As Singer J said in Grey, ‘in a number of situations reliance on the opinion of more than one “reasonable person(s) with normal perceptions” could lead to different conclusions’. As an appellate judge it is not open to me to substitute my own conclusion for that arrived at by the Justices simply because, on the facts, I may have come to a different conclusion. I must be satisfied that the Justices decision is wrong. That is an altogether different and stricter test.

78. In this case I am satisfied that the Justices’ decision is wrong. It is wrong because they appear to have analysed the facts rigidly on the basis of the eight factors set out by Judge Tyrer in Kimber. More importantly, the decision is wrong because their analysis of the circumstances surrounding the purchase of 1 New Street, and in particular their conclusion that it was not ‘a disguised form of joint purchase’, is not consistent with the evidence and fundamentally flawed. I shall allow this appeal and set aside the order made by the Justices.

79. The effect of that order is to leave open the question of whether the order for periodical payments is still extant and the arrears enforceable (as the wife claims) or whether the order for periodical payments has come to an end in which case there are no arrears (as the husband claims). How should that issue now be resolved?

80. FPR rule 30.11 provides that

(1) In relation to an appeal the appeal court has all the powers of the lower court.

(2) The appeal court has power to –

(a) affirm, set aside or vary any order or judgment made or given by the lower court;

(b) refer any application or issue for determination by the lower court;

(d) make orders for the payment of interest;

(e) make a costs order.

81. I have already considered the FPC’s powers with respect to registered orders. It seems to me that in essence two choices are now open to me. Either I can determine the enforcement proceedings myself or I can remit the application to the FPC either for determination by the same Bench or for a new hearing before a different Bench (FPR rule 30.11(2)(b) and (c)). I cannot direct that the enforcement proceedings should be remitted to the County Court for determination.

82. It is only appropriate for me to determine the enforcement proceedings myself if I am satisfied that I can do so fairly on the basis of the evidence already available. In making that point I remind myself that earlier in this judgment I identified further evidence which may have been of assistance to the Justices. Having identified that evidential gap the question of whether the evidence currently before the court is sufficient for me fairly to determine the enforcement proceedings becomes an important question.

83. I have come to the conclusion that the available evidence is sufficient to enable me to determine this application fairly. In particular, by a combination of the findings made by the Justices, the additional evidence I have admitted during the course of this appeal and the inferences I am entitled to draw from all of that evidence (see FPR rule 30.12(4)) I am satisfied:

i that the purchase of 1 New Street was a joint purchase;

ii that the wife and Mr A are entitled to the beneficial interest in the property in equal shares;

iii that whilst the description of the wife as a ‘tenant’ may have favourable consequences so far as concerns housing benefit it does not reflect the wife’s true status as someone entitled to a beneficial interest in the property;

iv that in taking on sole responsibility for a mortgage of £266,250 Mr A has assumed a significant responsibility for the provision of housing for the wife and her children;

v that without Mr A’s financial commitment to continue paying the mortgage instalments as and when they fall due, the wife would be unable to afford to live in this property;

vi that although, as the Justices found, Mr A has made no financial contribution to household expenses, school fees or the wife’s legal fees he has, as the Justices also found, paid in full for four holidays for himself, the wife and her children;

vii that, as the Justices found, Mr A regularly spends nights at 1 New Street. Although the Justices made no finding as to the amount of time Mr A spends at 1 New Street his written statement in the Children Act proceedings states in terms that he has ‘spent a considerable amount of time with Y and R and T’’;

viii that, as the Justices found, the sexual relationship between the wife and Mr A is admitted and ongoing and, as the Justices also found, their relationship is stable and permanent;

ix that although, as the Justices found, Mr A maintains a separate house in respect of which he continues to pay utilities, where he keeps his possessions and where he has regular contact with his daughter, that does not necessarily determine the question of whether he and the wife are cohabiting (or ‘living together in the same household’ as it is sometimes expressed);

x that in early 2010 T’s perception was that Mr A lived with her;

xi that with the wife’s consent Mr A has played a full and active role in the care of R and T including assuming responsibility for discussing their circumstances with the head teacher of their school, such discussions having been both by face to face meetings and by e-mail, and for several months taking on the responsibility for overseeing handover arrangements when the father was having direct contact with T.

84. Although I have regard to the eight factors referred to in Kimber, they were never intended as an exhaustive list. As Wall LJ said in Grey, in determining whether parties are cohabiting ‘each case remains fact specific’. As Singer J said in that same case, the opinion of reasonable people with normal perceptions could lead to different conclusions on the same facts. There is no exhaustive definition of ‘cohabitation’. The judicial task is to stand back, to look at the totality of the evidence and to come to a common sense decision. In Kimber, Judge Tyrer made the point that the modern complexities of inter-personal relationships are so diverse that it is not possible to give a completely exhaustive definition of cohabitation. That remains a pertinent observation on the many and varied forms of family life in modern society

85. In the final analysis, making a finding that cohabitation is taking place is a matter of impression based on an assessment of all of the available evidence. In the circumstances of this case I am in no doubt that by February 2011 at the very latest the wife and Mr A were cohabiting and that they had been cohabiting for more than six months within the previous twelve months. It is common ground that until the husband stopped paying in February 2011 there were no arrears of maintenance. In light of my finding it is clear that the order for periodical payments for the wife has come to an end. The enforcement proceedings should be dismissed.

Postscript

86. As Thorpe LJ observed in Grey, ‘[28] …There is in these cases an obvious motive to avoid any pooling of income to meet expenditure’. In this case there is the possibility of the double motive of not wanting to lose the benefit of spousal maintenance until the order expires by effluxion of time in May 2014 and also, by describing the wife’s occupation of 1 New Street as a ‘tenancy’, of obtaining Housing benefit – in this case full Housing benefit – to enable the wife to pay the ‘rent’. As there is no evidence that the housing benefit office was shown the Deed of Trust, that is an issue that causes me some concern. I shall direct that the wife’s solicitor shall forthwith make copies of this judgment and the Deed of Trust available to the senior officer in charge of the housing benefit office at the relevant council and confirm both to the court and to the husband that this has been done.