[2007]JRC028
royal court
(Samedi Division)
8th February 2007
Before : |
Sir Philip Bailhache, Esq., Bailiff, and Jurats Allo and Liddiard. |
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Between |
F |
Appellant |
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And |
M |
Respondent |
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The Appellant appeared in person.
Advocate M.E. Whittaker for the Respondent.
judgment
the bailiff:
Introduction
1. This is an appeal by F ("the father") against a decision of the Family Registrar of the 22nd August 2006 setting the maintenance to be paid by the father to M ("the mother") in respect of their son A, now aged seven, at £60 per week (and making other related orders).
2. The father represented himself, but we are satisfied that he did so competently and that we have been able to do justice to the parties notwithstanding the fact that the mother has been represented by experienced counsel.
3. It was agreed between the parties, rightly, that this court has a duty to examine the matter de novo, paying due regard nonetheless to the manner in which the Family Registrar exercised his discretion.
Background
4. The brief history of the matter is that the parties married on 13th December 1980 and their child was born on 13th August 1999. They separated shortly after, and a decree nisi of divorce was issued on 27th June 2001. Certain financial arrangements were agreed and made the subject of a consent order. So far as A is concerned, he lives with his mother, and the father has periodic contact with him. Maintenance in the sum of £85 per week was agreed in June 2001 and that was increased by reference to inflation year by year so that it amounted to £96.07 per week (or £416.32 per month) at the beginning of 2005.
5. In April 2002 the father suffered an injury whilst at work at H. M. Prison during a Control and Restraint training course. His heath deteriorated and he was placed on half pay in January 2005. He was granted a disability allowance which was renewed as Long-Term Incapacity Allowance ("LTIA") for twelve months in February 2006. In February 2005 the father unilaterally reduced the maintenance paid for A from £416.32 to £100 per month. That reduced amount has been paid with reasonable regularity from February 2005. In July 2005 the husband's salary from his employment at H. M. Prison was reduced to nil, but after an appeal to an administrative appeals review board he later received a lump-sum payment equivalent to half pay between July 2005 and March 2006. With effect from March 2006 he was retired on medical grounds and received a pension of £396.79 per week. His LTIA was £99.60 per week, and his weekly income therefore totalled £496.39.
6. In February 2005 a summons was issued by the husband seeking a reduction in the maintenance payable for A. By consent, an order was made by the Greffier Substitute on 26th May 2005 ratifying, as it were, the de facto arrangement whereby £100 per month was paid, pending a hearing of the summons. For various reasons the hearing was delayed and did not take place until 22nd August 2006. At that time the husband was, as we have stated above, ordered to pay maintenance at the rate of £60 per week (or £260 per month). There was no stay of the order pending appeal, but the husband thereafter paid maintenance at the rate of £187.90 per month. The Family Registrar also ordered the husband to pay £1000 towards the legal costs of the wife. In his Reasons, given on 6th September 2006, the Registrar stated, inter alia, -
"[The mother's] advocate, on behalf of her client would not accept less than £70 per week. She drew my attention to the time it has taken to bring the matter to Court, [the father's] lack of co-operation and his lack of disclosure. Indeed the most blatant example of this is the fact the only today is it revealed by his advocate that he received a lump sum in respect of half pay from July, 2005, by a Board of Administrative appeal sitting in October, 2005. This lack of co-operation was in breach of an undertaking given to the Court on 26th May, 2005. The breach was noted in the subsequent order made on 23rd September, 2005. In that order unless he complied with certain orders for disclosure, his application was to be struck out.
There are clearly gaps in the husband's disclosure which neither the [mother's] advocate nor I fully understand, notably the extent to which [the father's] partner contributes to his expenses and what happened to the surplus cash available to [the father] from the lump sum payment which formed part of his disability pension. In my opinion, it is not necessary to research these details further."
The Family Registrar then concluded that -
"In view of the delay caused by his lack of co-operation, I think it right that [the father] should contribute £1000 towards [the mother's] costs".
The Law
7. The duty of the court, as expressed by Article 25 of the Matrimonial Causes (Jersey) Law 1949 is -
"(1) ... to make such provision as appears just with respect to the maintenance of any children of the family in relation to the parties to the marriage ..."
"(2) ... to secure for the benefit of any children of the family such gross sum of money or annual sum of money as the court may deem reasonable".
The Submissions
8. Counsel for the mother did not contend that the figure at which the Family Registrar arrived should be increased, but she submitted that there was no justification for reducing further the amount of £260 per month which the father was ordered to pay. The father made a number of complaints about the ruling made by the Registrar which were set out in his grounds of appeal. It is unnecessary to specify each one. In essence he asserted that the order was unfair and did not take sufficient account of the disparity in earnings of the parties. We do not need to examine each of these grounds of appeal in detail because, at the end of his oral submissions, the father very properly accepted that he did have an obligation to maintain A at a reasonable level, and was willing to pay 50% of the costs of doing so. His real complaint was that he thought that he was being ordered to pay more than 50%. He was averse to subsidizing the mother. That is a perfectly understandable viewpoint, but it is necessary to examine the figures in order ascertain whether it is justifiable.
The finances
9. The mother is employed in a senior position in a financial institution and earns £55,000 per annum. She also received a bonus last year of £9,500. She owns her own house, valued at £350,000, upon which a loan of £180,000 is secured. She owes £15,000 to her parents but has cash savings of a little over £10,000.
10. The father owns a property jointly with his partner. His interest is worth about £150,000. He has cash assets of just under £3,500. His pension is £20,633 per annum and his LTIA is £5,349 per annum, making a total of £25,982. He has recently formed a company with a view to contracting out his services as a qualified electrician. His prospective earnings from that employment are unclear. He told the court however that during December 2006 he had gross earnings of approximately £1400. It seems possible that he could earn at least another £10,000 per annum from this source. Nonetheless it is clear that there is a considerable disparity between the earnings of the father and the mother.
11. Both parties relied upon the mother's Affidavit of Means of 2nd August 2006 to assess the costs of maintaining the child A. The mother estimated the monthly expenditure for child care, clothing/clothes, hobbies, pocket money, Christmas and birthday celebrations, toys/books, haircuts, doctor/dentist, entertainment and miscellaneous expenditure at £359. That total took no account however of food and household items, and holidays, nor indeed of the general expenses of keeping a roof over the child's head. If one allows one third of the estimated expenses for food and household items (£180) and one third of the expenses for holidays (£47), one arrives at a total of £586. Half of that figure is £293. Assuming those figures to be broadly correct, it follows that the order of the Family Registrar, which required the father to pay £260 towards the costs of maintaining A, implicitly required the mother to pay the balance of £326 (which is more than 50%), and of course to meet all the other expenses of keeping a roof over the child's head.
12. We have asked ourselves whether the father's income is such, having regard to his other commitments, that he can reasonably pay £260 per month. On 3rd January 2007 the father filed (although not on oath) an amendment to his Affidavit of Means of 2nd June 2006. That showed a weekly expenditure of £499.67, precisely matching his income from his pension and LTIA. It disclosed that the household expenses are shared equally with his partner. The maintenance for A is shown at £43.36 per week (i.e. £187.89 per month). We note that in the open letter from his legal adviser dated 17th August 2006 the father offered to pay maintenance of £47.61 per week (i.e. £206.31 per month) for A on the basis that the Child Support Agency guidelines in England suggest that an appropriate figure is 15% of net income after tax. However, nothing turns on this. The provision for income tax at £80 per week in the father's amended expenditure figures seems to us excessive. On the declared earnings of the father the tax payable cannot possibly amount to £4,160 per annum. Reducing the provision for tax to £3,000 releases a further £83.33 per month which, when added to the father's provision of £187.89, produces a total of £271.22, which exceeds the amount ordered by the Family Registrar.
13. The matter can be looked at in another way with a very similar result. The open letter to which we have referred offered 15% of the father's net weekly income after tax, but discounted (again apparently in accordance with CSA guidelines) the disability allowance or LTIA. We can see no justification in this jurisdiction for discounting disability allowances which are compensatory payments to make allowance for an inability to work and to earn an income. If one takes the weekly gross income in the father's latest figures of £499.67 per week (£2,165.17 per month) and deducts the full 20% for tax, i.e. £99.93 per week (£433.03 per month) the resulting net figure is £399.74 (£1732.14 per month). 15% of £1732.14 per month is £259.82, which is within a whisker of the figure at which the Family Registrar arrived.
14. Viewing the matter in the round, we reach the conclusion that the proper and reasonable amount of maintenance to be paid by the father for A is £260 per month (or £60 per week) and that he can afford to pay it.
15. We turn to the order that the father should pay £1000 towards the legal costs of the mother. We have quoted above the passage from the Family Registrar's Reasons. The Registrar appears to have relied upon two related factors, namely the father's alleged lack of co-operation and his failure to disclose full details of his financial affairs, which had together led to a prolongation of the proceedings and increased costs for the mother. The proceedings were indeed long-drawn out; the summons seeking a reduction in maintenance was filed in February 2005 and the determination was not made until August 2006.
16. We are satisfied from a reading of all the papers that the Family Registrar was justified in reaching the conclusion that the father had been uncooperative and had failed to disclose relevant information at the proper time. We do not necessarily attribute any malice to the father in this respect. We think that he feels aggrieved, rightly or wrongly, at the collapse of his marriage and that he has allowed these feelings of grievance to affect his approach to these proceedings. It is the case that many of his answers to the questionnaire and to correspondence were evasive or unhelpful. The Registrar remarked in the passage from his Reasons quoted above that important information about the payment of arrears of salary was withheld until the last moment.
17. Unfortunately the Family Registrar chose an incorrect instance to exemplify the failures to disclose information. The Registrar stated, as noted above, that -
"Indeed the most blatant example of this is the fact the only today is it revealed by his advocate that he received a lump sum in respect of half pay from July, 2005 ..."
In fact, as the father pointed out in his submissions, the mother's legal advisers were notified of this back payment at some time in May 2006. The mother's legal advisers wrote on 17th May 2006 to the father's then legal advisers stating -
"I ... note that your client has received half pay for the duration of the appeal back-dated to the 6th July 2005 and that [the father] is now in receipt of his pension".
What the mother's legal advisers did lack, (and it was more material) was information about the father's decision to commute 25% of his pension entitlement to a lump sum payment. The request for "full details" contained in the same letter of 17th May 2006 does not appear to have been answered until shortly before the father gave evidence before the Family Registrar on 22nd August 2006. His Affidavit of Means of 2nd June 2006 contained no reference to this lump sum payment. The bundle which was before the Family Registrar did contain a copy of a letter dated 17th July 2006 from the administrator of the Public Employees Contributory Retirement Scheme which gave the amount of £92,850. That figure had however been paid on or about the father's date of retirement on 3rd March 2006, but not disclosed at that time.
18. The Bailiff's order of 7th December 2006 required the father to file -
"an affidavit setting out any change of financial position and disclose all applications or offers of employment since the Affidavit of Means filed in September 2006 by the close of business on 4th January 2007".
The father did file a statement of "alterations to financial details on Affidavit of Means", but did not include any particulars of the income earned in December 2006 from his new enterprise, nor disclose his aspirations for the future in that respect. Some information (set out in paragraph 10 above) was eventually elicited by the Court but, like the Family Registrar, we are not confident that we have necessarily obtained the full picture.
19. Counsel for the mother drew our attention to a passage from a recent judgment of the Court in Manley v Bell [2006] JRC 195 where the court was critical of the husband for being highly selective in the information which he provided to the wife's legal advisers. As the court stated in P-S v C [2006] JRC 139A, -
"The duty to disclose all material facts in ancillary relief proceedings is a high one".
We think that the father's attitude in this case did contribute to the prolongation of the proceedings before the Family Registrar and that the order to contribute £1,000 towards the costs of the mother was reasonable and justified.
20. The appeal is accordingly dismissed.
Authorities
Matrimonial Causes (Jersey) Law 1949.
Manley v Bell [2006] JRC 195.