Jersey Unreported Judgments

Matrimonial - security for periodical payments.

[2014]JRC109

Royal Court

(Family)

13 May 2014

Advocate A. T. H. English for the Applicant.

The Respondent appeared on his own behalf.

Advocate C. G. Hillier as amicus curiae.

judgment

the commissioner:

1.        At paragraph 91 of the Court's judgment of 5^th August, 2013, (JRC 156) the Court said this:-

"Finally as a consequence of the father's conduct we are minded to secure the periodical payments against his property pursuant to Article 1(1)(a)(ii) of Schedule 1 but we did not raise this with counsel at the hearing and will therefore invite their submissions both on the principle and the amount and term when this judgment is handed down". 

2.        The parties filed their written submissions in August 2013 but for a variety of reasons including the Court itself vacating a date that had been fixed, oral submissions were not made until 10^th March, 2014, when the father represented himself, but the Court was assisted by Advocate Hiller as amicus curiae appointed pursuant to the Court's judgment of 23^rd January, 2014, (JRC 021). 

3.        This is to be read as an extension of the judgment of 5^th August, 2013, ("the Judgment") and we adopt the same definitions.  The parties had helpfully filed skeleton arguments and authorities. 

4.        Under Article 1(1)(a)(ii) of Schedule 1 of the Children (Jersey) Law 2002, the Court has power to secure periodical payments.  The general approach to applications under Schedule 1 was reviewed by the Court in paragraphs 55-63 of the Judgment.  It would seem that there are no specific guidelines on the principles to be applied on the issue of security; whether and how security should be ordered will be dependent on the facts of each case but subject always to the overriding aim of any order being fair, just and reasonable (see Re P (child: financial provision) [2003] 2 FLR 865 at page 877). 

5.        Self evidently, the Court must feel that the circumstances require the periodical payments to be secured.  In A v A (a minor: financial provision) [1994] 1 FLR 657 the father led a precarious life abroad and did not resist periodical payments ordered for his child at the rate of £20,000 per annum being secured over his London home (page 667).  In Griffiths v Griffiths [1984] Fam. 70 the Court had ordered the father, who had no means to meet a periodical payment order, to pay a lump sum to the mother for the benefit of his children and this out of the proceeds of the sale of their home (the only asset).  Watkins J at page 78 was concerned with the advisability of making lump sum payments to a mother who with the best of intentions might be tempted to use it for other purposes.  Such payments, he said, should be secured in some other way, if possible, but the amount of money involved in that case was too small to warrant it. 

6.        In Tavoulareas v Tavoulareas [1998] 2 FLR 418 the Court had ordered that the payment of periodical payments of £7,000 per annum by the father for the parties' child should be secured by a deposit of £10,000 payable to the mother.  The mother appealed against the quantum of the deposit in respect of which Thorpe LJ said this:-

"I will deal with the last complaint first because it seems to me to have absolutely no foundation.  It was manifestly for the judge to assess the quantum of the deposit.  He put the figure at £10,000 which had the practical safeguard of giving the wife a full 12 months in which to seek enforcement in the event of the flow of funds being interrupted.  It is essentially a matter for the trial judge to assess the quantum of any security.  A decision in this field reflects on the trustworthiness of a respondent, qua father, and if the deposit fund is set too high it might have an adverse effect on the relationship between the father and the child and on the commitment of the father to providing for the child in other than financial ways.  For my part, I see no attraction whatsoever in Miss Hughes's argument in that field, although in fairness to her it must be said that she did not press the point particularly hard."

7.        The mother submitted that following the findings of the Court in the Judgment, the father plainly cannot be trusted.  The periodical payments ordered by the Court for the benefit of B amount to £9,024 per annum.  Adding the other matters for which the father was to be responsible, namely B's reasonable educational costs and extra-curricular activities, the mother calculated that his annual obligations in respect of B came to some £18,190 per annum. 

8.        In his skeleton argument, Advocate English emphasised the precarious nature of the mother's employment and if it ceased whether she would be able to get another source of employment.  She therefore required security to ensure that she could continue to provide for the needs of B come what may.  In discussion, however, Advocate English accepted that it was only the periodical payments ordered by the Court in relation to B that could be secured and that such an order could not be used to secure the mother against the loss of her employment. 

9.        Arguing that in the event of default it could take the mother some 18 months to enforce the father's obligations, the mother sought security by way of a charge over his property in the sum of £30,000.  However, the mother acknowledged that a charge against his property would by itself be ineffectual to support the mother in the interim, as judging by the conduct of the father it would take too long to realise the funds from the property and she therefore asked instead for the sum of £30,000 to be placed in a bank account in her name to be held on trust for B and returned to the father on his discharging his obligations under the Judgment or further order of the Court.  She would only be able to access that account in the event of default and with prior written notice to the father. 

10.      The father fiercely resisted any charge over his property, pointing out that it constituted both his home and business.  It would only go, he said, to increase the animosity between the parties.  He pointed out that he had discharged all of his obligations under the Judgment, save for certain claims for educational costs and extra-curricular activities which he disputed. 

Decision

11.      What the Court was minded to consider in August last year was the possibility of securing the periodical payments over the father's property.  That was, as we said, in view of his conduct up to that time.  We are, however, mindful that the father has fully complied with the orders of the Court since the judgement was handed down although there are certain disputed claims for school uniforms and tuition fees.  On balance, and having had the benefit of the parties' submissions, we have decided against doing so.  Notwithstanding the father's prior conduct, he has owned his property since 2002 and it represents his livelihood.  It is an illiquid asset and we think it unlikely that he will seek to dissipate it in order to avoid these relatively modest payments for his own daughter.  He already has A living with him and indeed would like to have both living with him.  The property also represents his only means of living and we are cautious about encumbering what is a business asset.  

12.      A deposit would make greater sense, to give the mother time to seek enforcement in the event of the flow of funds being interrupted, but taking into account the dynamics between these particular parties, we feel it would only exacerbate what are already very strained relations. 

13.      We wish to make it clear, however, that if the father were to default in the payment of the periodical payments at any time in the future, then we would not hesitate to order security. 

Authorities

I-v-J (Family) [2013] JRC 156.

I-v-J (Family) [2014] JRC 021.

Children (Jersey) Law 2002.

Re P (child: financial provision) [2003] 2 FLR 865.

A v A (a minor: financial provision) [1994] 1 FLR 657.

Griffiths v Griffiths [1984] Fam. 70.

Tavoulareas v Tavoulareas [1998] 2 FLR 418.