[2009]JRC080A
royal court
(Family Division)
27th April 2009
Before : |
V. J. Obbard, Registrar (sitting alone). |
Between |
N |
Petitioner |
And |
T |
Respondent |
IN THE MATTER OF REASSESSMENT OF CHILD MAINTENANCE AND SCHOOL FEES.
Advocate J. C. Gollop for the Petitioner.
Advocate R. E. Colley for the Respondent.
judgment
the REGISTRAR:
1. The parties in this case, to whom I shall refer as "the mother" and "the father" have not been married. They have a daughter J, who is now 10 years of age. She lives with the mother and the mother's new partner in a house owned by the new partner. Together, they have another daughter (J's half sister), C.
2. The father has now married and lives with his wife and their son (J's half brother) C J.
3. The following issues have arisen:-
(i) What child maintenance should the father pay to the mother for J?
(ii) Can the father can afford to contribute towards private school fees for J?
4. If the Court decides that it would be unfair to make him contribute, it is asked to deal with the issue of the secondary school which J should attend commencing with the new school year in September 2009.
5. The case was made by the father's advocate that neither party could afford private school fees. However, in his cross-examination of the mother, the advocate, somewhat perversely, questioned her about her true intentions to consider any other option, other a private school, for her child's education. He put it to her that the decision to send J to private school was a 'fait accompli", as far as she was concerned. In her answers to him, I indeed formed the impression that she would consider every possible way of maintaining her preference for private schooling for J.
6. So, I think this case is more to do with who will pay for the private education, rather than any principle as to whether the child should be privately educated or not.
7. This view is reinforced by the fact that there was no detailed argument, by either side, about which school would be most appropriate for J. The argument was about affordability. I was told by the father that he could not afford to make an adequate contribution, but by the mother that, in reality, he had sufficient funds if he chose to make them available.
8. The way I intend to approach this case is to decide what the maximum contribution of the father should be. Knowing this, the mother will be able to decide whether or not it is really feasible to continue to educate J privately. It is not for me to make the decision about which school. The father said in evidence that he went along with J being privately educated to start with, because it was cheaper than nursery fees by 50%. As I understand his position, he still has no objection, apart from the cost. The mother has already discussed the situation with her partner and there might even be the possibility of "downsizing" to a smaller house to enable them to pay school fees for J. My conclusion was that, somehow, she will find the money.
9. The situation here can be distinguished from the case of Re W (children) (education: choice of school) [2002] EWCA Civ 1411 in which Lady Justice Hale said:-
"Both parents have now to accept that their standard of living, circumstances, everything about their lives will have to be downsized. That includes the education of their children."
10. In case it may be thought that I have paid no attention to the wishes of J, I take note of paragraphs 1.22 and 1.23 of the welfare report written by David Castledine dated 6th March, 2009:-
"The matter of which school is a far greater problem, and it is clear that J until quite recently expected to go to B and the fact that her best friend is to go there is significant to her. This is a financial matter, but my concern would be, if there is not a high level of support for J, from her parents and school it could have a serious impact on her. The impact on any child moving from a small very supportive school to a large secondary school it itself quite traumatic, if you add to that the move from a single sex school to a mixed sex school the adjustment will be very significant for J as it would be for any child. The transfer to a secondary school is a significant and defining moment for most children educationally, and quite often socially.
J is I believe a resilient young girl, and she would make a good diplomat. She informed me that she is sure that she would make friends if she does go to Q. This was very much an adult opinion. My only other comment is that a decision needs to be made soon and a transition planned, and I am aware of the costs issues for both parents. J is also aware."
11. The father works for Jersey Post. A letter from his employers dated April 2009 helpfully sets out his earnings for the last 5 years. There are five columns setting out his basic pay, overtime, allowances, productivity bonus and, finally total earnings. Total earnings for 2008 were £46,697.90. The father explained that his overtime was unusually high for that year (£10,650). However, it is notable that there has been an intermittent annual increase in total wages every year from £30,054.01 in 2004 to £46,697.90 in 2008. By "intermittent" I mean that the amount of increase is not the same each year, but taken as a whole, the increase in gross annual pay between 2004 and 2008 has been about 55%. I am assuming that productivity bonus and overtime will be consistently available during 2009 and beyond.
12. The question arises how should I treat the bonus payments and overtime? Should they be included in any reference to the CSA tables for guidance (At a Glance Tables 2008 - 2009 published by the Family Law Bar Association p. 9)?
13. I think the answer must be that they should be included if they form part of the person's regular pay. In this case, clearly they do. The recent history of the father's pay demonstrates that he receives and can count on at least some overtime and some bonus payment. Over the last few years, there has been a regular increase in both.
14. If a person, like a car salesman, is paid mostly by commission, then an average of his commission over a suitable period should be taken into consideration as forming part of his income. On the other hand if a bonus or commission is, for example, payable on an occasional basis only, possibly as a reward for special service, or an employee has been told that he will not receive a bonus in future, special considerations may have to apply, and the court will have to decide whether or not a bonus should form part of 'regular earnings' and if it should be taken into account, either in total or in part, in calculating maintenance.
15. If one takes the father's total gross wages for 2008, and then tax, social security and pension contributions, are deducted, this is the calculation:-
Total gross wages £46,697.90
Less Tax £4,202.73
Social Security £2,801.82
Pension £1,678.41
Total £38,014.94
An annual net wage of £38,014.94, plus annual disability payments totalling £2,484.00, make a net total income of £40,498.94 or £778.00 per week. According to the CSA tables, a wage earner of £778 per week with one other child living with him should pay child maintenance for his non-resident child at the rate of about £100 per week or £433 per month.
16. There is another way of checking the father's income because I have been handed his wage slips for the last 6 months. If I take the total figure and double it this is the result:-
6 month's total gross wages:- £29,499.82 x 2 = £58,999.64
This calculation is more speculative than the one in the previous paragraph and I do not wish to calculate maintenance payments by using a comparison of gross wages for 2008 with a speculative gross total for 2009. However I think it does demonstrate that the husband will, potentially, have a higher income in 2009, certainly not less.
17. At the moment, the father pays by standing order the sum of £475 per month, of which £140 is acknowledged to be paid in respect of school fees.
18. Looking at the father's budget, there are indeed items which could be trimmed, for example the amounts paid for pets and their upkeep. On the other hand, he does pay a mortgage in the sum of £1,725.88 per month and would like to spend money on the house repairs, which is not presently within his reach.
19. In the case of S-v-G [2003] JRC 091A, referred to by Advocate Colley for the mother, I treated school fees separately from child maintenance. I said this:-
"Whatever the result of the maintenance argument, it seems to me that school fees and possible extra expenses associated with schooling, e.g. school trips and activities should be considered separately if the need should arise."
20. However, I believe this case should be categorised differently, because, if I were to insist that this father should pay a full half contribution to school fees on top of his maintenance, it would not only be unfair, but it might result in him experiencing real financial difficulty so that his second family could suffer. He has a medium sized income only.
21. The situation here is comparable to that in W-v-O [2004] JRC 218A, when I said:-
"The new rate of maintenance must be further reduced, to take into account the fact that the father has now responsibilities in respect of his second family. Rather than to embark on the speculative comparison attempted by the Court in Rabet -v- Vautier (2nd February 1994) (Jersey Unreported 1994/17) in order to arrive at a new figure, I propose to use the CSA tables which were not available to the Court at that time."
22. On the other hand, private schooling for J was considered by him to the extent that he filled out appropriate forms, even if he paid no deposit or application fee. It is reasonable that he should contribute something to the fees, even if the mother will have to make up the difference.
23. So I propose to cap the fees at £300 per term, which works out at £75 per month annually, so that at present, the father will pay maintenance of £433 per month plus £75, making a total of £508 per month. The contribution should be subject to cost of living increases (like child maintenance) and need not be geared to any real increase in school fees. This is a little more than at present, but I think that he can afford a contribution of this size. If J does not go to a private school after all, the £75 will not have to be paid. A contribution to uniforms, extra curricula activities and school trips is reasonable, given that the same would be expected of a father of a child at any States school.
Authorities
Re W (children) (education: choice of school) [2002] EWCA Civ 1411.