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Family - application to vary maintenance
Before : |
Samantha McFadzean, Registrar, Family Division |
Between |
N (the Father) |
Applicant |
And |
O (the Mother) |
Respondent |
Advocate C. R. G. Davies for the Applicant.
Advocate C. G. Hillier for the Respondent.
reasons
the registrar:
1. The court is concerned with an application by the applicant, whom I shall describe as the Father in this judgment, to vary an order for maintenance payable to the respondent, whom I shall call the Mother, on behalf of their child, (the "Child").
2. In August 2014, when the Child was very young, the Mother made an application to this court for maintenance under Schedule 1 of the Children (Jersey) Law 2002. The Father did not respond to the application by appearing at court, nor indeed by filing any papers and, accordingly in September 2014, Registrar Canavan made orders to the effect that the Father should file and serve his financial documentation (the Mother having filed her own with the application), and gave both parties time to identify any queries arising from that documentation in advance of a case review hearing. Orders were made for the act of court to be served on the Father at both his home and work addresses.
3. In October 2014, the court reconvened to consider the application but, once again, there was no appearance by the Father. At that hearing, the court was informed by those then acting for the Mother that the Father had been in contact with her, was aware of the proceedings but would only agree to pay maintenance when contact with the Child was operating to his satisfaction.
4. The court made an order listing the application for a final hearing, gave the Father a further opportunity to file his financial documentation and, on this occasion, ordered that the Viscount should serve the order upon the Father. On the face of the act of court, the court indicated that if the Father did not appear, "adverse inferences and presumptions may be made" and orders made in the Father's absence.
5. The court was subsequently informed that the parents had resolved matters between themselves. The application was discontinued, and the final hearing vacated only for, less than month later, the Mother to make a further application on the basis that while she and the Father had now reached an agreement for a weekly payment to her of £50, the Father did not make any such payments.
6. Once again, in January 2015, the court ordered the Father to file his financial information; the court, once again, ordered service of the act of court to be undertaken by the Viscount and warned on the face of that act of court that if the Father did not participate, adverse inferences might be made and orders made in his absence.
7. A few weeks after the order was served, the court received a draft consent order signed by the Mother and the Father which was approved by the court on 2nd February, 2015. The act of court provided that the Father would pay to the Mother £40 per week, adjusted annually in line with any increase in the Jersey Retail Prices' Index ("RPI") and that, furthermore, the Father would pay 50% of the reasonable child care costs incurred by the Mother on her return to work.
8. The Father applied to the court on 26th February, 2019, for a variation of the maintenance order, inviting the court to backdate any such variation and remit the arrears. In his application, he states that he was "unaware of the maintenance order" and that he was unable to pay maintenance due to health difficulties. Furthermore, he stated that the Mother had, on occasion, declined maintenance.
9. It is common ground that the Father has made little by way of contribution to the Child since that act of court. Between 2015 and April 2019, the Father paid £740 (during the period from February - October 2015), leaving a balance outstanding and due to the Mother of £8,649.97. For the period from April 2019 to the date of the hearing, the Father has paid £1,080, against accrued arrears of £1,265. Accordingly, the parties agreed that unless the court varies the level of maintenance or remits the arrears, £8,834.97 is payable in respect of unpaid maintenance.
10. In the period since the act of court of February 2015 and until April 2019, the Mother claims that she has incurred child care costs of £27,853.52, half of which is £13,926.76. The Father, in cross examination, accepted that these fees have been incurred but does not agree that he should make a contribution to them.
11. It is said on behalf of the Father, who did not seek legal representation at that time, that he should not be held to the terms of the act of court of February 2015 because the court undertook no analysis of the parties' respective financial positions.
12. The Father did not participate in the proceedings in 2014 and 2015; he said that he did not know that there were any ongoing proceedings and that he did not, or could not, recall receiving any court orders or other documentation. The Father explained that he does remember attending at Messrs Walkers, who then represented the Mother, to sign the paperwork which was subsequently lodged at court. He told the court that he did not, however, read the draft consent order, nothing was explained to him and that he did not know what he was signing. He said that he felt pressurised into signing the agreement. He could not say, under cross examination, whether what was set out in the act of court was an accurate reflection of what he had agreed with the Mother and told the court that if he had received the paperwork, he had not retained it. He did not accept or recall being served with any paperwork by the Viscount.
13. The Father accepted that he wanted to make payments towards the Child's upkeep if he could afford them and also said that he wanted to pay something towards childcare but he could not say what the terms, impact or effect of what he had purportedly signed were. The Father accepted in cross examination that he knew that he had reached an agreement with the Mother.
14. However, the Father also said, firstly, that he had gleaned the impression that he would not see the Child unless he signed the agreement and secondly, that he did not know he would be held responsible for the payments due under the act of court until he did a credit check in October 2018. He told the court that it was not until the Viscount explained the position to him in October 2018, after sight of the credit check, that he found out that the maintenance owed to the Mother for the Child continued to accrue - he told the court that he thought that the obligation came to an end when he did not or could not pay.
15. Advocate Davies explained to the court that the Father had been unwell and vulnerable at the time that the act of court was made. The Father told the court that he had a severe alcohol problem and that he was drinking heavily on a daily basis. Evidence was put before the court that the Father was admitted to Silkworth in 2017. Although the letter from the Father's GP states that the father undertook a 12 week programme, the Father told the court that he needed only 6 weeks to recover.
16. The court heard from the Father about the manner in which his alcohol misuse adversely affected his life; he had hit "rock bottom" in 2016, left his rented property and moved overseas, lived for a short period off the proceeds of sale of the contents of his home and then returned to Jersey, staying on friends' sofas and floors. He told the court that he was now sober, but when cross examined about various entries in his bank statements showing repeated debits for purchases in public houses as recently as two months ago, he explained that he had cut back, had no plans to drink and that he had to take one day at a time as a recovering alcoholic.
17. Counsel for the Father pressed the court to remit the arrears of maintenance and the contribution to the costs of childcare on the basis that:-
(i) there had been no judicial scrutiny of the foundation for the agreement reached and that, accordingly, the Father should not held to the agreement which gave rise to the act of court;
(ii) in any event, the Father could not afford the maintenance or child care contribution that he had been ordered to pay and moreover, he should not be held to it because he has no memory of the proceedings;
(iii) the court should consider whether a contribution to the child care costs was properly payable by the Father when the Mother had received a contribution to those costs from income support, albeit one that was difficult to quantify;
(iv) the maintenance payable going forward should be payable at a rate of £45 per week but on the basis that arrears were remitted. Advocate Davies told the court that it would be unfair for the Father to be burdened with debt for years to come because of unpaid maintenance and that any payments ordered to be paid by the Father to the Mother would not necessarily benefit the Child as the Mother's income support would be reduced accordingly.
18. No authorities were put in the bundle placed before me to assist me to determine this application. Advocate Davies for the Father relied on the provisions of the Children (Jersey) Law 2002 (the "Law") and in particular the provisions of Article 1, 4, 6 and 9 of Schedule 1.
19. As the court explained in E v F (Family) [2019] JRC 218,
"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".
20. Moreover, when considering an application under Article 6 of the Law to vary an existing order for maintenance, instead of looking at the matter de novo, the court adopts as a starting point the agreement reached by the parties as recorded in the act of court of February 2015 (U v V (Family) [2018] JRC 160. Advocate Davies sought to distinguish that authority on the basis that on the facts of this case, the court was not undertaking a review de novo because no judicial eye had been turned on the parties' respective financial positions and the other circumstances of the case, including the Father's ill health. She questioned whether the court should, in fact, ratify an agreement when it did not have financial disclosure from the Father.
21. It was said on behalf of the Father that the court should therefore approach the application as though no act of court had been made, by treating the previous order as though it had been a maintenance agreement, which the court has power to alter under Article 9 of the Law:
"if it is satisfied that -
(a) by reason of a change in the circumstances in the light of which any financial arrangements contained in the agreement were made (including a change foreseen by the parties when making the arrangement), the agreement should be altered so as to make different financial arrangements; or
(b) the agreement does not contain proper financial arrangements with respect to the child,
by order make such alterations in the agreement by varying or revoking any financial arrangements contained in it as may appear to it to be just having regard to all the circumstances.
(3) Where a maintenance agreement is altered by an order under this paragraph it shall have effect thereafter as if the alteration had been made by agreement between the parties and for cause."
22. For the sake of completeness, for the purposes of Article 9, ""maintenance agreement" means any financial arrangements made in writing between the parents of a child with respect to a child of theirs, whether before or after the commencement of this paragraph".
23. Advocate Davies urged me to review the entire substratum of the act of court by considering in effect, de novo, whether the original agreement was fair and to disregard the well-known principle of Jersey contract law that "la convention fait la loi des partis" on the basis that the original agreement was unworkable, although she stopped short of submitting that the Father lacked the necessary volonté or capacity which might otherwise on the usual commercial contractual principles have undermined the validity of the contract. Advocate Davies also questioned whether family arrangements represent an exception to the maxim.
24. The crux of her argument goes not to the authority of the court to vary the level of maintenance payable for the Child, a power which is clearly set out in the Law, but rather more, the possibility that the court is not restricted by the limitation imposed by Article 6(3) of Schedule 1 of the Law which provides that any payments varied "shall be made from such date as the court may specify, not being earlier than the date of the making of the application". No such restriction applies to any alteration made under Article 9.
25. The Father has other children, including the Child. The youngest, who very young, lives with him and his fiancée in a house owned by her. The eldest child lives with her mother. The Father told the court that he pays £40 per week towards the maintenance of the oldest child but that she spends at least three nights per week with him. He sees the Child with whom I am concerned sporadically but says that he could assist with childcare for the ten days' paid holiday which he enjoys each year from his employment.
26. The Father's earnings vary. He was taken to a schedule of what purported to be his income, produced by social security. Counsel for the Father relied on the figures set out in that document in an attempt to satisfy the court that the Father's earnings could not support maintenance at the level he had previously agreed. It was, however, tolerably clear that the figures set out in that document purporting to represent the Father's income since 2001 could not be relied upon; there was no income whatsoever shown for 2019 and the Father accepted that he had earned a good deal more by way of annual income in 2018 than the £4,126 shown on that form.
27. I asked the Father whether the annual gross earnings which were shown in the schedule were set out for the purposes only of determining what social security payment he should make and whether the earnings shown were, as I suspect, only those earnings shown above the threshold at which social security payments are payable (currently, as I understand it, £940 per calendar month). He could not say. Furthermore, the Father accepted the Mother's evidence that he did occasionally do what was described as "private work" i.e. work which might not attract income tax or social security unless declared by him to the authorities and which, accordingly, would not show in the schedule produced.
28. I cannot therefore rely on the figures set out in that document as evidence of the Father's income at the time of the agreement or at any subsequent time; there was no reliable evidence before me as to the level of the Father's income at the time of the Child's birth though it does appear that he was earning an income and he accepts that he was working until the short lived move overseas in 2016. I address to what extent the missing evidence is of import in the discussion below.
29. The Father is currently working full time and occasionally benefits from overtime although he told the court that he doubts that he will be able to do much overtime going forward. His net basic income is in the region of £480 per week but he often earns some £200 more than that figure per week when he is doing overtime.
30. His schedule of expenses show that his outgoings are equivalent to his income. He is fortunate inasmuch as his partner asks him to make contributions to the household outgoings which vary according to how well he can afford these expenses. He has historic judgments against him for, for example, unpaid rent, unpaid parish rates and unpaid nursery fees for his older child but with the exception of the unpaid rent, these debts have all been discharged. It is of note that the bank statements put before the court are all in credit and show a good deal of what might be described as discretionary spending e.g. money spent on eating out, pubs.
31. It is of note that the Father has also borrowed money to buy his fiancée an engagement ring and is able to spend sums which are comparatively large in the light of his stated income on, for example, entries to competitive racing. He told the court that his love of sport was of great assistance in his recovery from alcoholism: I do not doubt his evidence in that respect but any substantial discretionary spending must come second to meeting one's obligation to maintain one's children, particularly when over the past year, he has continued to spend regularly on alcohol, which is at odds with his claim to be sober.
32. The Mother works in financial services and earns about £2,700 net per calendar month. She currently receives about £125 per week contribution from income support. This figure was previously higher when the Father was not paying any maintenance. She lives alone and her basic outgoings for herself and the Child come to about £2,900 plus credit card and store card repayments of about £300 - £600 per calendar month. The loan repayments which are included in the figure for basic outgoings relate to the cost of purchase of a car and tuition/examination fees for accountancy studies. The Mother expects her salary to increase when she attains professional qualifications as she expects to do imminently.
33. The Mother was criticised by the Father's Counsel for overspending, suggesting that the Mother would be better off had she not accrued such a high level of debt (currently about £15,000) on credit cards; the Mother explained that she is intending to consolidate her debt, so that she pays some £500 towards her debt repayment rather than the £241 loan repayment and up to £600 per month credit card repayment. It is unarguable that the Mother would be better off had her credit card spending been reduced or eliminated but it is also more likely than not that the Mother's ability to meet her outgoings would have improved had she been able to rely on the Father to make contributions to the costs of the Child's care. Before the Child started full time education, the Mother was obliged to incur these costs to enable her to attend full time work.
34. So far as I am in a position to quantify the costs which the Mother incurs for the Child, who is of primary school age, these are extracurricular activities of £45 per month, clothing costs of £145 per month including the cost of replacement school uniform and other clothing required for the Child's extra-curricular activities together with pre and after school and holiday club care of £373 per month. These figures do not, of course, include the cost of housing and feeding the Child, taking her on holiday, nor any spending, for example, on birthday parties and presents. I am satisfied that this figure will only increase until the reduction in the costs of childcare likely to be enjoyed when she is settled in secondary school are replaced by the additional financial requirements of the average teenager.
35. It is unarguable that the Father should make a contribution to the verifiable costs incurred by the Mother in caring for the Child, which are at least £563 per month and likely to be, in fact, significantly more. There was no evidence put before the court that the onus of this cost is met by the Father having overnights with the Child on a regular basis which might, otherwise, alleviate the burden borne almost exclusively by the Mother.
36. It is said on behalf of the Father that he has a finite amount of money, responsibilities for his other children and that it would be unfair for him to bear the burden of a significant debt for a period which is likely to extend beyond the Child's youth.
37. On the balance of probabilities, the court finds that the Father was well aware of the court proceedings in 2014 and 2015. He was given several opportunities to file contemporaneous financial information and was, indeed, ordered to do so. Had he done so, the court would have had a full picture of his circumstances and accordingly the court now disregards the absence of any clear evidence as to his financial position at the time of the agreement. He was also ordered to attend court and failed to do so, with no excuse. He cannot now rely on his contumelious failure to abide by historic court orders to benefit from avoiding the consequences of his actions. It would have taken very little input from the father, at that time, to have attracted the sympathy of the court given what he says now about the state of his health. I accept that alcoholism is an illness and one with which the Father continues to struggle but I am satisfied that, as I was told by the Mother, the Father was well aware of the proceedings and the agreement reached by the parties.
38. The Father ignored the court orders but the Mother's evidence was that he told her he did not want to go to court and that to avoid doing so, he made an offer first of £50 per week, then reduced to £40 per week. He signed the draft consent order and I do not accept that he did not know the effect of that agreement.
39. I do not accept what the Father wrote on his application form, namely that he was unaware of the maintenance order. Furthermore, I doubt the Father's evidence to the effect that he only found about the accrued unpaid maintenance when he obtained a credit check, particularly as that credit check makes no mention of the maintenance order in the Mother's favour. That he was aware of his obligation is clear from the schedule of the payments which the Father did make to the Mother in the months following the act of court.
40. I take into consideration what Advocate Davies has said about the absence of court scrutiny of the terms of the agreement reached by the parties. The court orders and (normally) receives documentation from both parties setting out their respective financial positions once an application under Schedule 1 of the Law is made which enables the court to scrutinise the appropriateness of any agreement reached. The court had evidence about the Mother's financial circumstances and also the needs of the Child and was prevented from considering those of the Father but only because he failed to comply with court orders. He should not be allowed to benefit from that failure now; the agreement reached was approved by the court and once so approved, changed in quality from an arrangement capable of alteration under Article 9 of the Law to an order always variable in accordance with the Law but subject to the restrictions on variation imposed by Article 6(3).
41. In his defence, the Father suggested that the Mother had waived her entitlement under the court order by turning down maintenance on at least one occasion. He suggested that she said this because he had begun another relationship; the Mother told the court that she had told the Father in 2017 that he could "stuff (his) money" by text when he told her that he would not pay for the Child unless he could see her on his own terms. I accept the Mother's evidence in this respect and regardless of what was said, or why it was said, this comment does not constitute a variation of the agreement nor, moreover, of the court order.
42. I found the Father's recollection of events unreliable. He relied on his heavy drinking to excuse his failure to attend court, file evidence, and pay maintenance, and but was surprisingly sure about other matters which took place at around the same time, such as not receiving court orders served by the Viscount, and the circumstances in which he signed the draft consent order. I heard scant evidence about the alleged pressure brought to bear upon the Father which might have undermined the agreement but what I did hear led me to the conclusion that the Father was simply keen to be rid of the proceedings. I note that no evidence was sought from or adduced by Messrs Walkers which might have assisted me to reach a determination about the circumstances in which the agreement was signed.
43. Furthermore, the Father's oral evidence about his current financial circumstances was unsatisfactory. He explained, first, that he had completed his Form C4 alone and then said that he had been assisted by his partner. I accept, however, that his income may be limited when no overtime work is available but consider that he is currently in a position to make a contribution to the costs of maintaining and caring for his Child. I note that he claims that he will be responsible for half of his youngest child's nursery fees from 2020 so find it surprising that he has never paid anything towards the care costs of the Child who is the subject of this application.
44. I find (and indeed, the Father accepted) that he can pay more than the £45 per week offered to the Mother, which is only a matter of pence different from the figure that I have found that he originally agreed to pay. I disregard the Father's stated obligation to repay his fiancée the monies which he has borrowed from her, which I treat as a soft loan but I accept that he has an obligation to the older child at a rate of £40 per week, noting that she spends approximately three nights per week with him.
45. Doing the best that I can to extrapolate a clear picture of the Father's ability to pay towards the maintenance and care of the Child I order that, going forward and from the date of the application, the Father should pay to the Mother £75 per week to include his contribution towards child care costs. I entirely disregard what was said by Advocate Davies about the lack of benefit to the Child because the Mother's income support will decrease pound for pound in line with increased maintenance. As a matter of policy, this court encourages parents to take responsibility for their children when they are able to do so, rather than leaving the burden of their maintenance and care with the taxpayer.
46. I have weighed up the relative financial positions of the parents; the Mother is to be commended for working full time to support the Child, even if this means that childcare costs are significant and the Father can legitimately be expected to assist in meeting the cost of child care, breakfast, after school and holiday clubs. Were it not for the other demands on the Father's limited income, I should have ordered him to meet half of this cost. I do not consider that this is affordable for him. I consider that there is every reason to retain the annual RPI increase in line with the original agreement.
47. The arrears of maintenance are running at an agreed figure of £8,834.97. The Father cannot rely on his failure to participate in the previous proceedings to excuse himself from the payments which he should have made over the past four years. That the arrears are at this level is of his own making. He could and should have been making meaningful contributions over the last four years; despite what was what submitted on behalf of the Father, an agreement having been reached and an order made, the application is not about what is fair for the parents - I have regard to Article 4(1) and consider that in all the circumstances of this case, it is rather more about what the Child needs. This court's decision leaves the largest part of the burden of meeting those needs with the Mother.
48. As for the Father's failure to make a contribution towards the childcare costs, I note that he prays in aid the fact that the Mother has received income support towards those same costs. I do not doubt that this is the case but that sum was received because income support assessed her income as being inadequate to meet her and the Child's outgoings, no doubt, in part because the Father failed to play his part by assisting with nursery and similar costs.
49. The Mother accepts that some of these costs have been met direct by income support but no one was able to identify what figure was so paid. In any event, the payment made by income support now goes directly towards rent rather than child care so the part payment by benefits of the child care costs does not detract from the principle that the Father should, means allowing, have made and continued to make a contribution and on the facts of this case, I have found that he agreed to do so. The sum outstanding, calculated to April 2019 is £13,926.76.
50. The Father's application was made on 26th February 2019. Since February 2019, the Father has paid £1,080. I have varied the requirement for the Father to meet childcare costs going forward and ordered him to pay a global sum of £75 per week to take effect from 26th February, 2019, which has the following effect:-
Maintenance due until 26 February 2019 @ £40 pw plus annual increase in RPI[i] £9,024
ADD
Maintenance due 26 February 2019 to date: £75 x 39 weeks £2,925
LESS
Maintenance paid to date: £ 1,820
Arrears of maintenance £10,129
Child care costs 2016 - April 2019: £ 27,853
LESS
Child care costs February - April 2019[ii] £1,450
£26,403 /2
Arrears of childcare contributions £13,201.50
51. In total, the arrears now payable by the Father amount to £23,330.50.
52. I accept that the Father cannot quickly or easily find the monies to meet these arrears but do not accept because of the restrictions imposed on me by Article 6(4) of the Law that I can remit them as has been submitted by Advocate Davies.
53. I repeat what the court said in E v F. The quantum of arrears now payable are of the Father's own making; he has simply failed to pay his share of the costs of bringing up and looking after the Child. Had the Father made a timely application to the court to vary the act of court of February 2015, he might have avoided the legal costs he has paid, and a good part of the burden of the debt which he now has to meet.
Authorities
Children (Jersey) Law 2002.