Family - application by the father to vary maintenance
Before : |
Samantha McFadzean, Registrar, Family Division |
Between |
E (the Father) |
Applicant |
And |
F (the Mother) |
Respondent |
Advocate G. D. Emmanuel for the Applicant.
Advocate A. L. Brown for the Respondent.
Reasons
the registrar:
1. I am asked to determine an application by E to vary the level of maintenance which he pays for the parties' child. I refer to the applicant, E as the Father in these reasons and to the respondent, F, as the Mother. No disrespect to them is intended by the adoption of this shorthand description of them.
2. An order, by consent, was made by a former Registrar of this court in June 2009, requiring the Father to pay to the Mother £550 per calendar month for the benefit of their child, until the child reached the age of 16 or finished full time secondary education, with a review as to the level of maintenance in the event that the child went on to tertiary education. The parties agreed that the payments would be increased annually (not, I note, varied) in accordance with any increase (only) in the Jersey Retail Prices Index ("RPI"). Furthermore, the agreed order set out the (otiose) provision that such maintenance would be subject to review in the event of a material change of the financial circumstances of either party or the child.
3. In addition the parents agreed that they would each be responsible for fifty percent of the child's school expenses, including uniform, activities and school trips.
4. Over the last ten years or so, the Father has consistently paid the agreed sum of £550 per calendar month for the child; he has not, however, made any payment to the Mother for the additional sums due and owing for the agreed uplift on the maintenance, calculated in accordance with the changes over the last nine years in Jersey RPI.
5. That unpaid increase was subject to proceedings commenced by the Mother in the Petty Debts Court in January 2019 in which she sought payment from the Father of the sum of £7,583.80. This summons was preceded by correspondence between the parties which has been shown to the court and was followed in relatively short order by this application to vary maintenance. Although this was not included in his Form C2, the Father applies through his Counsel for the removal from the agreement of the Jersey RPI uplift and a dismissal of the Mother's claim for unpaid arrears.
6. No claim is made by either party for any variation to, or shortfall arising in respect of, the parties' respective obligations to meet the child's school expenses, which have been met by the Father without demur and at a rate agreed by the parties to have been, on average, £25 p.c.m.
7. Sadly, despite ongoing proceedings to resolve the issue, and for reasons which are irrelevant to this judgment, the Father has not seen the child since January 2018. It to the Father's credit that he has continued to make the payments originally agreed and ordered, in spite of the difficulties he has faced in re-establishing the previously good relationship he had with his child.
8. The Father has run his own business in Jersey for some 25 years. He told the court that his income from this business has reduced and that his business liabilities have increased. He prays in aid the costs of looking after his foreign born wife whom, he tells the court, is financially dependent upon him. He does not make a proposal in his position statement, saying that he cannot afford to pay the 15% of his net income which is the percentage which has been conventionally adopted by the Royal Court (for maintenance for one child), based on the former Child Support Agency ready reckoner for the calculation of child maintenance. He claims that he is suffering from financial hardship and that he cannot afford maintenance at the level previously agreed. He does not, however, put forward an alternative figure.
9. The Mother tells the court that because the Father's actual current net income position is difficult to ascertain, payment should continue at the rate of the previously agreed £550 per calendar month but Counsel for the Mother said, in closing, that this figure should be increased, at the very least by the RPI increase on the original sum, so that the Father pays no less than £704.96. The Father has admitted to receiving cash in the business and using it for his personal benefit and also agrees that he has received cash by way of rent for the three parts of his home shared by licensees/tenants. In the absence of clear evidence as to the Father's financial position, the Mother, through her Counsel says that she can do no more than to ask the court to dismiss the application to vary and to proceed on the basis of the agreement reached ten years ago.
10. The application to vary child maintenance is made under article 1 of Schedule 1 of the Children (Jersey) Law 2002 (the "Law"), which requires me to consider whether I should make an order (or this case, vary the extant order) so as to require either or both of the child's parents to make periodical payments for his benefit. In considering this application, I am bound to have regard, under article 4(1) of the Law, to all of the circumstances of the case, those of the child and of those individuals referred to in article 4(4) (who are in this case, the child's parents), including:-
"(a) the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;
(b) the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;
(c) the financial needs of the child;
(d) the income, earning capacity (if any), property and other financial resources of the child;
(e) any physical or mental disability of the child; and
(f) the manner in which the child was being, or was expected to be, educated or trained."
11. Under article 6, the Law informs the assessment as follows:-
"(1) In exercising its powers under paragraph 1 or 2 to vary or discharge an order for the making or securing of periodical payments the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order.
(2) The power of the court under paragraph 1 or 2 to vary an order for the making or securing of periodical payments shall include power to suspend any provision of the order temporarily and to revive any provision so suspended.
(3) Where on an application under paragraph 1 or 2 for the variation or discharge of an order for the making or securing of periodical payments the court varies the payments required to be made under that order, the court may provide that the payments as so varied shall be made from such date as the court may specify, not being earlier than the date of the making of the application" (Emphasis added)
12. In U v V (Family) [2018] JRC 160, Commissioner Clyde-Smith reminded the parties that:
"In an application for a variation of maintenance, the Court does not approach the issue de novo. The starting point must be the agreement reached between the parties on 10th March 2015, and made into the Consent Order, so that the Court's role is to determine what variation, if any, would be fair and reasonable, taking into account the change in circumstances since then (see Q v R [2018] JRC 041 at paragraphs 38 and 29, and L v D and R [2004] JLR 334 at paragraphs 15-17".
13. The court goes on to enumerate (at paragraph 24 of its judgment), the principles set out by the English courts in Re P (Child Financial Provision) [2003] 2 FLR 865 which have been adopted by the Royal Court and upon which the court relied in U v V. Commissioner Clyde Smith asserts that although the Royal Court has used the English and Welsh 2000 Child Support Agency ("CSA") guidelines as a "starting point", in E v F (Family) [2014] JRC 184 (citing Mr Justice Charles' decision in FG v MBW (Financial Remedy for Child) [2011] Fam Law 1334), the Registrar reminded herself that "the court should not adopt a mathematical or formulaic approach but should have regard to all the relevant circumstances".
14. In simple terms, the mischief of the CSA guidelines (whose calculations have for some time informed Jersey practice) was intended to remove from the English and Welsh courts the statutory power or obligation to determine child maintenance (in the case where the payer was earning less than £2,000 per week net and was within the jurisdiction of the court), no doubt so as to limit argument and expedite payment for the benefit of the children concerned, but also (in principle) to facilitate enforcement by the CSA whose remit it was to secure payment on behalf of parents with whom a child resided. The decision in FG v MBW was a "top-up" case where the payer had income which did not fall within the parameters to which the CSA guidelines were intended to apply and, accordingly, the court had jurisdiction to consider the appropriate level of maintenance payable under Schedule 1 of the Children Act 1989.
15. The problem with adopting the CSA guidelines as a starting point is that they sit at odds with the matters to which the court must have regard under articles 4(1) and 6 of our Law. Were the court to limit its analysis to the payer's net income, it could entirely disregard the financial position of the resident parent, which would be neither fair nor appropriate and might result in the court disregarding other resources available to either parent, for example, trust or dividend income or income accruing from time to time on capital. Slavish adherence to those same guidelines might also result in, for example, a wealthy resident parent seeking financial support for a child from a parent who was less able to make a contribution to that child's needs.
16. In the court's view, before considering whether it might be appropriate to consider or, indeed, apply the CSA guidelines which are both "mathematical and formulaic", but which neither extend to this jurisdiction nor are reflected in the Law, the court must consider Articles 4(1) and 6 of the Law i.e. the financial position, needs and obligations of each of the parents (or payers) and the child under article 4(1) and, if applicable, the quantum of any order for child maintenance which it is being asked to vary and any change of circumstances which it should take into account under article 6.
17. The required assessment is more nuanced than a simple percentage calculation: I propose identifying the appropriate figure by applying the Law. I take into account the contradiction between avoiding a "mathematical and formulaic" approach but still adopting the CSA guidelines as a starting point. I also recognise that, as Advocate Brown said in closing, a child is "entitled to jam on his bread" but this must be, in the court's view, only where this can be reasonably afforded by his parents. Having arrived at what the court considers as a reasonable figure, I propose using the CSA guidelines as a cross check. Where there is a significant disparity between those figures, in the court's view, and in the absence of other Jersey statutory guidance, I should make a bespoke assessment with regard principally to our Law - in line, in effect with Mr Justice Charles' conclusion in FG v MBW.
18. I recognise that this means that those representing parents will find it more difficult to give clear advice as to the level of maintenance likely to be ordered by the court but provided that, where possible, the child's reasonable needs are met and the maintenance can be afforded without causing real hardship, the parties should still be able to reach a compromise. I am not convinced, however, that strictly following the CSA formulaic approach, designed for a different jurisdiction, with a different cost of living, is properly meeting the needs of the Jersey children with whose interests I am concerned.
19. In his statement of means, the Father suggests that his income comprises:-
Lodgers' income: £1,300.00
Driving income: £387.50[i]
Drawings from business: £1,541.66
Total £3,229.16
As became clear from the Father's evidence, his income is not so simply stated. His oral evidence was that he earned £1,473 per month from the lodgers' income. Under cross examination, he accepted that he could earn more from the three unqualified units of varying sizes which he rents out in his home; the Mother adduced evidence from Indigo Estates that the Father could expect to earn £2,650 from this source. The Father accepts that he could increase his income but points out that the lodgers are known to him and that he is comfortable with them in his home.
20. The Father admitted that he had not historically declared his rental income and that he had taken it in cash. He told the court that he did not want to command more rent from the letting units. Because payments are made in cash, it was difficult for the Father to identify where all the payments appeared on his bank statements, although he told the court that he gives his wife about £400 per month from this by way of housekeeping. He tends to bank around £900 per month.
21. The Father's wife works part time as a waitress in a local hotel. She was born abroad and qualified as an accountant in her country of origin. The Father told the court that he was attempting to verify whether she could take up similar highly skilled and professional work in Jersey. I note that they have been married for four years.
22. His business affairs are far from straightforward. He is the sole shareholder of a limited company. At the time of the original agreement in 2009, he told the court that the company rented two business premises. He now rents only one. His business accounts show the following:-
2016 2017 2018
Takings 251,779 211,854 249,274
Purchases 180,108 187,098 157,370
[ii]Wages 23,844 22,081 20,583
Gross profit 71,671 24,756 71,321
Net profit 15,995 (34,643) 4,246
It is clear from a cursory glance at the accounts that the business had a poor year in 2017, but that the business had recovered by 2018. His administrative expenses were broadly similar in each of the three years for which accounts were placed before me. During these three years, his drawings continued to be £18,500, which explains the figure ascribed to his monthly income of £1,541.66.
23. What is less clear is why his drawings reduced from £420 per week to £370 per week in the latter part of 2018 as demonstrated by the entries on his bank statements, while the figure for his drawings in his business accounts remained the same as it had in previous years. He could also not explain why the figure for retained stock had remained exactly the same in his accounts for the past three years. In each of the financial years for which accounts were produced, the business has benefitted from retained profits.
24. He was unable to explain why the accounts for the financial year ending 2017 showed him receiving a dividend of £8,440. He thought that this might be a mistake. The Father could not explain why the rental income which he told the court that he receives from renting out part of his business premises, only appears in the accounts for 2016 when he is receiving £1,200 per calendar month from the flat at the top of the business premises and £450 per calendar month from a different source. As for the third business which also rents part of this premises, he explained that, through compassion, he had waived their rent of £80 per week when their child had become very ill. He now receives £50 per week from this third business. He denied that this cash went into his pocket but could not explain where this income was shown in the accounts over 2017 and 2018. When challenged about why these sources of income for the business were not properly recorded in the business accounts, he told the court that he had experienced previous issues with his accountants and would have to raise this with them. He told the court that he had not previously noticed these mistakes but he also told the court that did not think that the accounts were inaccurate.
25. The Father admitted that he might not always have paid tax on his income but he said that he had changed his ways in this regard.
26. As far as the tangible assets on his accounts were concerned, he was unable to explain of what the £48,000 fixtures and fittings comprised, nor how or when he had benefitted from the shareholder's unsecured loan of £71,719 which has been showing as outstanding in the three years of accounts which the court has seen.
27. The Father puts his monthly personal expenditure at £4,352.92 in his Form C4; he accepted in evidence that those expenses had reduced to £4,212.92 but he was taken under cross examination through his bank statements and challenged about where the various claimed expenses were shown and how they were met. Clearly, expenses at this level cannot be met from an income of circa £2,800 per calendar month. The Father was unable to identify which personal expenses were met direct by the business; he told the court that he simply hands the papers to his accountant who prepares his accounts.
28. When he was taken through the accounts in cross examination, he accepted that a number of his personal expenses were met directly by the business, including his telephone bills. He also claimed that a large proportion of the credit cards bills which are in his name are properly incurred business expenses, including, for example, purchases from Amazon (for example, till rolls) and water rates' bills, plane tickets and other travel costs, including petrol. I also note that he has been buying Bitcoin regularly; he told the court that this was for the purpose of buying medicine from India. I also note that his wife has family in Country A and that he has also transferred hundreds of pounds to her family, he says on her behalf, because she does not understand the local (i.e. Jersey) banking system. I have no reason to doubt the Father's evidence as he was not challenged about this. I do not accept, however, that the purchase of Bitcoin, for example, is a cost which the business should properly bear.
29. While I accept that the Father does properly incur some of his significant credit card costs on behalf of the business (for example, an element of his travel costs when on business trips is a properly chargeable expense) I find that some of this travel is for his personal convenience, e.g. his trip to Country A with his wife in February/March 2019. However for the purpose of these proceedings, the issue is not whether these are properly incurred business expenses but whether all the living expenses which the Father claims in Form C4 as deductible from his net income stand to be so deducted because they are, in fact, met by the business.
30. I have concluded that a significant proportion of the Father's expenditure is likely met by his business either directly and visibly through the bank accounts by paying the credit card bills (which run into thousands of pounds per month) or by the retention by the Father of cash received by him either from cash purchases or rental income. The Father told the court repeatedly that he did not understand the accounts, that he could not explain the entries and that it all down to his accountant but I do not accept that a man who has run a local business for this length of time does not understand his business well enough to explain his financial affairs to the court. I find that it is not unusual for an individual in the Father's position to put personal expenses through the business although one might expect him to have a better grasp on the value to him of these benefits for the purpose of such an application.
31. Doing the best that I can to assess which expenses are met by the business (by considering not only the Father's bank statements but also the credit card bills), I find that the evidence suggests that the Father's parish rates, telephone bills, travel costs, clothing costs, vehicle costs, water rates and heating oil bills are put through his business, reducing his actual monthly outgoings met from his income from £4,352.92 to £2,917.17[iii].
32. I share the Mother's difficulty in identifying an accurate figure for either the Father's income or his expenditure because he and his business are enmeshed. While I do not find this surprising for a man whose personal and business interests are so closely aligned, I do not consider the Father's presentation of his case as credible; he repeatedly denied any meaningful knowledge of his business and personal income (after twenty five years in the business) and cannot ascribe expenses to either himself or his business, claiming that his accountant is either the person with the knowledge to explain or where there appears to be a discrepancy, the person responsible for omissions and errors. Should this matter?
33. The difficulty for the court is that separating the Father from his business renders any close analysis of his actual income and expenditure well-nigh impossible. As with any case in which a party's presentation is confused or lacking adequate disclosure, the court can only guess the actual position. The court is hampered in making any comparison by the absence of accounts from the period when the original consent order was agreed. The Father claims that he was earning significantly more at that time but there is no contemporaneous evidence put before me to support that assertion. His Counsel put to the Father that he might have been earning as much as £60,000 gross at that time, the Father thought that it was not quite that much.
34. The Father tells the court that business is so bad that he is planning on shutting his business which he has run for twenty five years by Christmas this year. I find it difficult to accept that, in the alleged premises, he would continue to incur business costs unnecessarily, without a reasonable prospect of recovering profits. He tells the court that, if he gives up his business, which he claims has no value, he is planning on undertaking "the knowledge" so that he can work as a taxi driver on the island. That may be so, but I can only determine the application on those figures which I currently have before me. Neither party's Counsel addressed in closing how I should treat the possibility that his business income will cease at Christmas and this possibility was not prayed in aid by the Father's advocate when asking me to consider his client's application to vary. And so I must base such conclusion as I can safely draw on the current business and rental income.
35. I find it difficult to arrive at an entirely reliable figure for the Father's income; the presentation of his case is confused and the Father's defensiveness when asked to drill down into his business affairs led me to question the accuracy of the information placed before me. Moreover, the absence of any comparative accountancy evidence from 2009, renders the application to vary difficult to determine; I cannot say, for sure, whether the Father is earning, for example, less than one half of what he was previously earning because that information was not put before me. While he told the court that he did not believe that he was earning as much as £60,000 per annum at the time when the original order was made, he could not say what exactly he was earning. I note that in his email to the Mother, in February 2019, he claims that he now has an income of between £38,000 and £40,000 per annum although this is at odds with the business accounts and the presentation of his case to the court as set out in his Form C4.
36. That said, what I can deduce from the Father's case is that his financial affairs are not altogether rosy. He is servicing a comparatively high level of debt (in part incurred on behalf of the business) between his credit cards and his personal loan and I remind myself that he told the court that he expects to have to close that business at Christmas. I accept that his sort of business has, in general terms, suffered a decline since the advent of internet selling and suspect that the Father now makes as much from the rental income from his business and premises and his home as he does from the business itself.
37. It was asserted on behalf of the Mother in closing that I should treat the Father as earning much more than the limited sum to which he deposes, based on her assessment of the Father's various sources of annual income, as follows:-
Business income: £22,840
Lodgers' income: £17,680
Expenses paid by company: £6,500
Business rental units: £22,760
Total £69,780
Further, the Mother claims that the Father could maximise this income by charging double the rent which he does on the lodgers who share his home.
38. While I have explained above how the Father's presentation gives me considerable cause for concern and poses more questions than it does provide answers, I do not consider that I can safely ascribe to him an income of this level. Doing the best that I can, given the inherent uncertainties of his evidence, I find that he has a rental income from his home of £17,680. It may be that he could earn more but I cannot assume that he will (or should) request more to directly benefit his child, any more than I can expect the Mother to work more hours to better support the child, were I to find that such additional support were necessary.
39. I find that he declared rental income to the Comptroller, at least in 2017, but I have seen no evidence that he has made such a declaration for 2018. I do not know whether the income so declared was from the business or his home but I assume the latter.
40. I find that his income from the business is £22,840 and while I note that the Mother submits that I add to this income a figure for the expenses that the business meets on his behalf, I consider that I can more reliably (as I have in paragraph 31 above), credit the sums so paid against the Father's outgoings. To add this to his income, when the figures are so unclear might result in unfairly inflating the sums he has available to meet not only his expenses, but the costs of looking after the child.
41. I cannot safely determine on the evidence presented to me whether the income from the rental of the business premises is "pocketed" by him as alleged by the Mother although I do not doubt the Mother's assertion that payments are often made to her or the child in cash. I am satisfied that he has the benefit of the rental income from his home.
42. In total I therefore find that the Father's income is £40,160 per annum. I do not know at what rate income tax is currently charged on the Father's income, but as a figure for tax has already been taken into account in the Father's outgoings as set out in his Form C4, I can safely use the gross figure. I am therefore satisfied that the Father's income exceeds his outgoings by at least £5,000 per annum.
43. So what should he pay? Before determining what he should or can pay, I need to consider what the child's needs are and how much of a contribution the Mother can be expected to make to meet those needs from the resources available to her.
44. The Mother is self-employed and in her Form C4, deposes to earnings of £1,520.26 per month. She works from home and does other freelance work. In total she works between 12 and 14 hours per week. She told the court that she had considered other training to enhance her income, although she accepted that she is earning more now for fewer hours than she was earning at the time of the original application. She was cross examined about her ability to work more hours and explained that she suffers from a bad back and hip, preventing her from doing more hours. She accepts that she could work in an office as she did previously if she wanted to enhance her income, particularly as the child is now at secondary school.
45. With her current maintenance from the Father, her total income is £2,070.26 p.c.m. The Mother was somewhat reticent to tell the court what her husband earns, firstly saying that she did not know and, when pressed by me, telling the court that he earns between £45,000 and £50,000 per annum. While her husband's income is not directly relevant to the level of maintenance to be paid by the Father, it is relevant to how well the Mother can manage her own and the child's needs.
46. She pays only £500 towards the joint outgoings of the home when she can afford it, the balance of her income being used to pay for food for the household from Monday to Friday (the husband meets the costs of the weekend groceries) and her personal needs. As a family, she admits that they have been able to enjoy at least four holidays overseas in the last twenty months or so, with another planned later this year for her husband's birthday. Her only significant liability is that of outstanding borrowing for the legal fees she incurred dealing with the contact and residence applications in respect of the child.
47. In her Form C4, the Mother put the child's needs at £232.48 p.c.m. In evidence, she accepted that her claim for costs for him was, to a small degree inflated, because she was only responsible for half of the child's school uniform and equipment costs and one half of his activities. She also admitted that she had, wrongly, included costs of pocket money at £40 p.c.m., when it should have been £10 per week. Not including food, housing or utilities, expenses attributable to the child which are met by the mother alone come to about £160 p.c.m.; the Father pays half of his bus card and school lunch expenses which are, in total, an additional £122 p.c.m. over 8 months of the year, meaning that the basic costs to the Mother of maintaining the child come to about £200 p.c.m.
48. The Mother told the court that, with her husband's assistance in meeting the largest part of their household outgoings, she was able to meet her own needs and those of the child from the income she earned but that she had understood that she could expect the Father to pay 15% of his net income for the child, regardless of affordability.
49. It was said on the Mother's behalf that the Father's contribution should not be limited to the actual costs of looking after the child and that it was rather an unattractive proposition to analyse the income and contribution of the resident parent. That is not, however, what the Law requires. I accept that the child should always, where possible, benefit from the respective financial positions of each of his parents and that any simple analysis of the actual expenses of a child and no more, will likely result in unfairness to the resident parent, who not only cares for, but also houses, the child.
50. This is another reason why, in cases where the parents share the care of the child to a greater or lesser degree, the conventional adoption of a percentage figure of income does not reliably result in a fair outcome.
51. I remind myself that this is an application to vary the figure of £550 p.c.m. agreed in June 2009 plus the agreed Jersey RPI uplift and that pursuant to U v V, the starting point of any assessment should be that figure, taking into account all the circumstances of the case and any change in those circumstances. The percentage change in the RPI over that ten year period is 28.8%, revaluing the sum now payable under that agreement to £708.45.
52. I have taken into account all the circumstances of the case including:-
(i) The child's financial needs now and going forward; and
(ii) Each of the respective parent's incomes such as I have been able to assess them (including, for the avoidance of doubt, rental income), earning capacities, property and other resources and their financial needs and obligations.
53. After consideration of all of the circumstances as I have found them to be, while I do not find that it is either appropriate or fair on either party or, indeed, the child to calculate his needs by adopting any mathematical formula, or to impose any limitation on those needs, any payment ordered must be referable to affordability. I need to consider what the Father can afford to pay. Although there is an absence of clear evidence about how the Father's financial circumstances have changed since 2009 I note that he has, until recently, done extra evening work as a driver delivering takeaway food which leads me to believe that he is genuinely in need of additional resources. I also note that he no longer has two business premises and that he seems to be doing better from his rental income than from the business.
54. I do not therefore consider that the Father can any longer afford to pay maintenance in the previously agreed sum of £550 p.c.m., let alone at the increased rate taking into account the accrued RPI enhancement. I find that the appropriate level of maintenance to be paid by the Father to the Mother for the benefit of the child going forward, and as from the date of his application, is £425 per calendar month. By way of cross check, I note that the previously adopted CSA rate of 15% would result in a slightly higher figure of £500 p.c.m. on my analysis of the Father's income. My finding at a slightly lower level, takes into account what I consider to be the Father's limited disposable income, the extant uncertainty as to his business prospects and the fact that he continues to pay additional sums over the agreed maintenance by way of contribution to the child's expenses e.g. uniform, lunches and bus fares. My assessment also takes into account the fact that the Mother is comfortably able to meet the child's needs.
55. However, the Father's application to vary the level of maintenance payable was not made until 4th January, 2019 and I am not prepared to remit any arrears properly payable before that date; an agreement was reached by the parties, approved by the court and I have regard to the fact that la convention fait la loi des partis. That principle of Jersey contract law does not preclude the court interfering with the level of maintenance ordered in accordance with the discretion provided to the court by the Law, but until an alternative agreement is reached between the parties, taking account of changed circumstances, or an order is made by the court, the agreed sum remains due and payable. The Mother's advocate told the court that the arrears were £9,738.12. The Father did not seek to dissuade me otherwise and I therefore order that this sum is paid by the Father to the Mother. As the Father's finances clearly preclude him paying this as a lump sum, subject to what I say in paragraph 56 below, I order that the arrears are repaid at a rate of £200 p.c.m..
56. The Mother must give credit to the Father for the additional £125 p.c.m. which she has been paid since January 2019, which reduces the arrears payable by the Father by £1,250 (assuming that he has already made a payment for October 2019). Going forward and until the arrears are discharged, the Father will pay £625 p.c.m. and once the arrears are discharged, £425 p.c.m until the child finishes full time education or reaches the age of 17, whichever is the later. If the child goes on to tertiary education, there will be a review of maintenance generally.
57. Having, no doubt, expended legal fees on this litigation, I consider it appropriate that the child's maintenance should remain subject to variation on an annual basis from the date of this order in line with Jersey RPI but that such a variation should be in accordance with any increase or decrease in the RPI. While such an order cannot provide for any change in the parties' actual financial positions as this review has done, to do otherwise would be to invite an annual review of maintenance with all of the implicit costs. I hope that if there is a significant change in the financial position of either party, they will adopt a pragmatic approach and try to resolve issues between themselves - there has been more than enough litigation surrounding the child.
58. As both parties agreed that they should share the costs of the child's school/activity expenses as they have done to date, I expect the parties to continue to comply with the extant order in this respect.
59. The court expects parties who have agreed or been ordered to pay maintenance, and any RPI variation thereto, to make the payments promptly or if such payments can no longer be afforded, to try to resolve matters by negotiation or mediation. If this proves unsuccessful, a prompt application for a variation should be made to the court; by waiting for such a long period, the Father has unnecessarily burdened himself with a debt to discharge which he might have otherwise avoided or, at least, reduced.
Authorities
Children (Jersey) Law 2002.
U v V (Family) [2018] JRC 160.
Re P (Child Financial Provision) [2003] 2 FLR 865.
E v F (Family) [2014] JRC 184.
FG v MBW (Financial Remedy for Child) [2011] Fam Law 1334.
Children Act 1989
[i] This was a part time evening job to supplement income by working as a delivery driver for a takeaway food business. He gave this work up in July 2019
[ii] The Father told the court that he usually took the money for his part time staff wages from the till in cash.
[iii] For the purposes of this analysis, I discount the claimed expense for legal fees of £300 p.c.m., which debt should be capable of being discharged in short order but allow the expense claimed of £387.50 to [x] about which the Father was not challenged. Obviously, I also disregard the outgoings in respect of maintenance for the purposes of this calculation.