Family dispute - 2 applications by the mother
Before : |
Elizabeth Daultrey, Registrar, Family Division |
Between |
E (the Mother) |
Applicant |
And |
F (the Father) |
Respondent |
Advocate C. G. Hillier for the Applicant.
Advocate M. R. Godden for the Respondent.
reasons
the registrar:
1. The court is asked to deal with 2 applications made by the applicant Mother ("Mother"), both of which relate to an Act of Court made by Registrar O'Sullivan herein on 8th day of March 2018. The first application dated 6th February 2019 requests that: -
"The housing fund identified by the Court in the Act of Court dated 8th March 2018 in the sum of £2,500,000 shall be increased due to lack of "non-qualified" properties available in Jersey at this time".
This was followed by an application within the proceedings dated 24th May 2019 requesting:-
"I seek the triggering of the higher level of maintenance as specified in the Act of Court dated 8th March 2018 at paragraph 5(ii) this as the purchase of the property has not taken place as anticipated following the hearing in March 2018".
2. The Act of Court dated 8th March, 2018 ( the "2018 order") was made pursuant to the powers of the court arising under Schedule 1 of the Children (Jersey) Law 2002, and provides, inter alia, the following:-
"1. the father will pay the mother a lump sum of £2,500,000 toward the purchase of a property for the children to be held in the sole name of the mother together with the cost on purchase to include stamp duty, the sum to be paid by close of business on the 14th June 2018. Such sum is to be held in escrow by the mother's lawyers until a property is to be purchased and the purchase price paid to the vendor. The lump sum of £2,500,000 will be secured by a judicial hypothec in favour of the father in accordance with Article 29(1)(d)(sic) of the Matrimonial Causes (Jersey) Law. The sum of £2,500,000 shall become payable to the father together with any increase in the value of the property subject to paragraph 2 below upon the first to occur of:-
(i) the youngest child reaching the age of 18 or completing full-time education to include tertiary education, whichever shall be the later, or
(ii) the mother selling the home;
2. upon the occurrence of a determining event, the property shall be sold for such price as may be agreed between the parties or in default of agreement, as determined by the Court, the mother having conduct of the sale. The proceeds shall be applies as follows:-
(i) in payment of the conveyancing costs and disbursements in connection with the sale;
(ii) in payments of estate agent charges;
(iii) in repayment of the £2,500,000 provided by the father, together with any increase in the value of property;"
And
"5. the father shall pay maintenance to mother for the benefit of the children
(i) from the 1st May, 2018 by way of standing order on the first day of each month to such bank account as may be nominated by the mother until such time as a property is purchased in the sum of £2,311 per month (£770.33 per child) and shall continue to pay the "rental" on Property 1;
(ii) on purchase of the property of a sum equating to the greater of 25% of his net monthly income or at the rate of £4,800 per month (£1,550 per child) for so long as each of the three children remain minors or are undertaking any full-time tertiary education;
(iii) equating to 20% of his net monthly income for so long as two of the children remain minors or are undertaking any full-time tertiary education; or
equating to 15% of his net monthly income for so long as one of the children remain a minor or undertakes any full-time tertiary education."
The 2018 order also made provision for payment by the respondent Father ("Father") of school fees and other expenses relating to the children's education and health as well as some smaller lump sums payable to applicant Mother.
3. The applicant Mother and respondent Father never married and have 3 children together, born between 2005 and 2012. The parents have a shared residence order dated 21st November 2017.
4. The applicant Mother came to Jersey in August 2012 and does not have housing qualifications, which is the crucial difficulty in this matter. She resides in an unqualified rental property known as Property 1, she was living at this property at the time of the hearing in March 2018, and the tenancy of this property is in Father's name. Father lives in Property 2. This is owned via his company, Company 1 Limited. Property 2 was his home at the time of the hearing in 2018, and the Registrar used this property as an appropriate comparable for the housing needs of the Mother and children.
5. Both parties have been represented throughout these proceedings by the advocates who represent them at this final hearing.
6. Both parties have filed narrative statements setting out any changes in their respective financial positions and providing updating financial disclosure since the hearing in March 2018. They have also filed statements setting out suitable properties available to the applicant to comply with paragraph 1 of the 2018 order, and, in the case of the applicant Mother, setting out all steps taken by her to secure suitable permanent housing since March 2018.
7. The Father has not to date complied with paragraph 1 of the 2018 order. This has not yet caused a problem as no suitable property has been identified by either party under the terms of the 2018 order.
8. In March 2018, Registrar O'Sullivan made a finding that Property 1 was not suitable accommodation for the Mother and children both by reason of the accommodation itself, and in terms of likelihood of eviction in the event that the Father, who holds the Licence agreement with the owner, were to die. At the present hearing, both parties were in clear agreement, that Property 1 is unsuitable accommodation for the children, and that the Mother and children need to move out as soon as practicable. The property suffers from damp, contains potentially unsafe glass doors/panelling. In any event Mother is presently under notice of eviction from the owner.
9. Mother gave evidence that she feels that Father is at her door all the time. She felt Father's behaviour toward her was controlling. Mother did not give any specifics of alleged inappropriate behaviour by Father, nor did she put forward independent evidence that she had been subjected to any harassment by Father, it was however clear that she is deeply unhappy living at Property 1. Father gave evidence that he was aware Property 1 needed urgent repairs, and as the tenant he had visited the property to try to assist arranging the repairs with the landlady and the Mother. Indeed there is a recording in an interim order dated 3rd July 2019 that:-
"The respondent Father will address with the landlord of Property 1 repair of damage caused to the property during the current tenancy, and any issues regarding termination of the tenancy, with a view to the applicant mother and the children being able to remain living in the property pending a suitable long term solution."
10. It was clear that Mother had found his intervention intrusive. Father gave evidence that he went into the property briefly with workmen and "dampbusters". He was aware of Mother's distress and said that he had now backed off.
11. Mother filed a statement dated 13th March 2019, in which she sets out her efforts to find accommodation since the 2018 order. She had only been able to locate 3 potentially suitable properties. The first was withdrawn from the market. The second turned out to be subject to housing control and therefore not available to Mother. A third was on the market for £2,750,000 and the price was then raised by a further £200,000. Mother has made extensive enquiries with multiple estate agents without success.
12. Evidence filed by Father would appear to agree that there has been and remains a lack of suitable non-qualified accommodation.
13. Both parties put forward options to meet the Children's urgent housing needs. I do not doubt that they both have the welfare and the needs of the children at heart, and it is unfortunate that they have not been able to reach agreement as to a practical way forward.
14. It is clear from the evidence of both parties that without Mother having housing qualifications, her options to rehouse the children are very limited, and each potential solution is problematic.
15. At the hearing in March 2018, the court had heard evidence from Mr Roger Trower, a director of Broadlands estate agency, called on behalf of Mother. It is recorded in the reasons given by Registrar O'Sullivan for the 2018 order ("the Reasons" E v F (Family) [2018] JRC 067A), that Mr Trower had given evidence that there were less than 40 registered (non-qualified) properties in Jersey, and, at that time, there were no registered family homes available to let in Jersey. The situation as at March 2018 was that:-
"If the Mother and Children are no longer able to stay in Property 1 then it would be very difficult to find another registered family home to rent, if they could find one at all. They may have to go to a lodging house or a self-catering holiday apartment."
In other words they could be homeless. Regarding registered properties for sale in early 2018, the Reasons record the evidence as follows:-
"Mr Trower stated that by contrast there are currently registered properties for sale. It would be very difficult to buy a 5 bedroomed property for as little as £1.5 million but 2 to 3 properties are available for £2.5 to £3.5 million and can attract a price of £4 million. The reason for the price is due to a premium associated with the registered status, but also because the majority of such properties have been renovated to a high standard. Broadlands has 3 registered properties on its books. The one marketed for £925,000 can be explained by damp ingress and the age of the building, so money needs to be spent on it after purchase, but there are 2 others, namely a 4 bedroom property at £3,500,000 and a 5 bedroomed property at £3,450,000".
16. Mr Trower was called on behalf of the Father in the present proceedings to give evidence. He outlined the properties on Jersey currently available to purchase as follows:
(i) Property A, asking price £3,600,000.
(ii) Property B, asking price £3,450,000;
(iii) Property C, asking price £3,750,000.
(iv) Property D, asking price £4,350,000.
(v) Property E, this had a sale agreed at £750,000 to £800,000.
(vi) Property F, asking price £2,850,000. The property would be sold now with completion to take place November/ December 2020 at the latest;
(vii) Property G. This is a development of properties which falls outside housing control. The properties are usually snapped up quickly when they come on to the market. He was only aware of Apartment 9 being presently on the market.
17. Mr Trower confirmed that the market to purchase registered properties had become more limited since March 2018. By way of contrast, he confirmed that when Mother achieves housing qualifications, she would be able to purchase property comparable to the Father's home Property 2 for £1.25- £1.35 million at today's prices.
18. Regarding registered properties available to rent, Mr Trower was asked about Property X which is presently on the market to rent at £2,540 per month. He confirmed that it was a "nice house" and "much more suitable for a family".
19. Neither party suggested any other available properties currently available to buy. Mr Trower advised that very few registered properties come on the market. Following the hearing, the court received an email from the legal representatives of Father to confirm that number 15 G remains on the market with an asking price of £950,000, this is a ground floor 3 bedroomed apartment.
20. Advocate Hillier on behalf of the Mother filed a skeleton argument on 18th October 2019 which put forward Mother's position with regard to accommodation to be as follows:
"1. The mother, aware of the impact of her "unentitled" housing status has resolved to secure a permanent home for her and the children with the following proposal:-
a. To utilise part of the housing fund now, to secure a G apartment (which is outside the provisions of the housing law regime) and
b. When the mother secures her housing qualifications to utilise the proceeds of sale from the G apartment and the balance of the housing fund to secure a final resolution of the housing needs of her and the children;"
The skeleton goes on to say:-
"The mother seeks an order confirming that she may utilise the housing funds in two tranches".
21. Before Mother gave evidence, Advocate Hillier confirmed that Mother no longer put forward G as her preferred option. She still put forward G as a second best option, but her preferred option was to purchase Property B. Mother gave evidence that she had been to see Property B and that it was "perfect" for her and the children's needs and described it as an "ideal property". She returned in her evidence to G saying "it would be an option if not the bigger house".
22. Mother responded to Father's proposals for accommodation of her and the children as follows:-
(i) The rental property in St Ouens. Mother said that she had not seen this property as she had learnt about it for the first time at the hearing;
(ii) The rental property Property X. Mother had no objection to Property X as such but said she preferred to buy rather than rent, explaining that she would not be subject to harassment if she bought. She expressed that she felt vulnerable to controlling behaviour if she was in rental accommodation because "when a house is bought, F won't come every day";.
(iii) Property F. Mother had not visited this property but thought that it would be "fine" if she could move in immediately.
23. Regarding child maintenance, Mother's position as set out in the skeleton argument filed on her behalf is simply that the level of maintenance set out in paragraph 5(ii) of the 2018 order should be triggered immediately notwithstanding that no property had yet been purchased. This would mean that she would receive the greater of 25% of Father's net monthly income or £4,800. On the figures put forward by Father, which Mother did not challenge, 25% of his net income would equate to £5,608.78 per month. Mother also sought backdating of the higher level of maintenance to June 2018 and that arrears be paid to her.
24. Mother gave evidence at the hearing that presently, Father pays the rent on Property 1 and pays her £2,311 per month in accordance with paragraph of 5(i) of the 2018 order. She states that she cannot manage on £2,311. She is at or close to overdraft each month, and she has been unable to take the children on holiday away from Jersey for 7 years. She would like to take the children to visit her family in Country A and/or Country B.
25. Mother was cross examined regarding items of expenditure and cash withdrawals over the past year. Mother struggled to provide an explanation for some of the transactions shown in her bank statements e.g. cash withdrawals in February 2019 in the total sum of £1,460. However I found many of the questions asked of Mother to be unnecessary and intrusive. Father is not seeking to reduce the level of child maintenance and Mother is not seeking an increase upon the sums assessed by the Registrar in 2018. I did not find it helpful for Mother to be asked to account for even modest items of expenditure.
26. Father's position was set out at length in the skeleton argument filed on his behalf, and supported by his sworn evidence at the hearing.
27. Regarding accommodation, Father accepts that the present order has not and may not meet the accommodation needs of his children.
28. Father puts forward 2 possible solutions. His preferred option would be that Mother rents Property X until she obtains her housing qualifications, which is likely to be within 3 years. He agrees that the tenancy could be in Mother's name to give her security and privacy. He could pay a lump sum of £91,440 into an escrow account to provide rent at £2,540 per month over 3 years although would prefer not to tie up a lump sum in this way. Once Mother achieved housing qualifications, he would provide a lump sum of £1,000,000 for her to buy a suitable property. He offered no explanation as to why he thought £1 million would be an appropriate budget. He gave evidence that he estimated that in order to buy a qualified property the equivalent of his own home would cost £1,500,000 but did not explain how Mother could buy a comparable property with a greatly reduced budget.
29. Father's alternative plan would be to increase the current budget of £2,500,000 to enable Mother to purchase Property F at the asking price of £2,850,000, with a view to her and the children moving into the property as soon as possible which would be no later than November/ December 2020.
30. Regarding Mother's proposals, Father was concerned that 9 G was not suitable for the children. They would not have a garden nor space to study. Father had produced the children's school reports to show how well they were doing at school and was concerned that their education should not suffer because of their accommodation. Regarding Mother's desire to purchase Property B, Father had viewed the property and felt that there was a "serious amount of refurbishment to do", describing the property as "mutton dressed as lamb". He was also concerned that it was overpriced and that he would never get his money back on it.
31. Regarding child maintenance, Father pointed out that he would have to sell part of his property portfolio to finance any purchase and that this would have the effect of reducing his income. He did have a proposal set out in his skeleton argument:
"Subject to the condition in the paragraphs below, the Father will however agree to increase the maintenance that he is currently paying. Based on the Father's net income as set out above, 25% of £269,221.24 is £5,608.78 per month. The Father is still however paying the rent at Property 1 and therefore, in line with the provision in the Court Order of 8 March 2018, this needs to be deducted which produces a figure of £3,119 pm (£5,608 pm minus the rent of £2,489 pm). This is £808 pm (or £9,696 pa) more than the Father is currently paying."
32. In other words, he would be willing to immediately increase maintenance to the greater of 25% of his net income or £4,800 less any ongoing rent payment. The condition referred to is that Mother pay back to him a lump sum of £33,364 to cover a portion of the cost of repairs to Property 1 for damage he says that she has caused. The total cost to repair this alleged damage' he claims, is £88,970. After a reduction for fair wear and tear, he would wish Mother to repay half of the balance. Such lump sum to be paid in monthly instalments of £800 over 42 months.
33. I find this to be an extraordinary proposal. The damage alleged by Father was evidenced only by a quote from Ormer Construction for extensive renovation and refurbishment of Property 1, which made no reference to damage. Father has not made an application that Mother pay him a lump sum nor an application to reduce maintenance.
34. Father's position changed in evidence. He changed his estimate of a fair figure to repair the alleged damage to Property 1 beyond wear and tear and the landlord's responsibilities to £28,000, less than ½ of the figure he originally put forward. Of this he would ask for half from Mother, namely the sum of £14,000. The dramatic change in the figures added to my impression that this was a poorly thought out and most peculiar proposal, which did no justice to a father who has always prided himself on providing financially for his children.
35. At the hearing in March 2018, Father stated his net income to be £174,962 for 2017, and he estimated his net income in 2018 would rise to £222,890. In the present proceedings, Father states his net income for 2018 to have been £269,221. The increase is unsurprising as Father gave evidence at the hearing in March 2018 that he anticipated that his income would "increase dramatically".
36. At the hearing in March 2018, Father produced evidence that his assets totalled at least £12,603,140 as at July 2017. This included liquid assets namely monies in the bank accounts to support his investment portfolio of £1,994,820. Father had not provided the court with an update as to his financial position before the hearing in March 2018. He gave evidence at the present hearing that between July 2017 and March 2018 he had in fact used the majority of his cash reserves to purchase 3 further properties bringing his total portfolio to 32 properties. At my request, following the hearing, Father produced a full set of his bank statements from May 2017 to June 2019 to show when the additional properties had been purchased and the effect of the purchases upon his liquid funds. I am satisfied that he did not deliberately mislead the court in 2018.
37. His overall capital position has not diminished but potentially lacks liquidity. He assured the court that he could raise a mortgage against his properties of up to £2,000,000. Otherwise he would not be in a position to comply with the requirement set out at paragraph 1 of the 2018 order that he pay £2,500,000 into an escrow account held by Mother's lawyers, without selling approximately 5 properties. Father estimated that it may take 3 months to sell properties, the reality is that it could take longer.
38. Father gave evidence that his current property portfolio of 32 properties is worth £12,160,000, based on each property having an average value of £380,000. In addition he holds cash assets of £750,000 and Property 2 which is valued at £1,500,000, making total capital assets of £14,410,000. It would therefore appear that his capital assets as well as his income have increased.
39. The starting point is Schedule 1 of the Children (Jersey) Law 2002 (the "2002 Law"), the relevant parts of paragraph 1 are as follows:-
"1 Orders for financial relief against parents
(1) On an application made by a parent or guardian of a child, or by any person in whose favour a residence order is in force with respect to the child, the court may at any time make an order requiring one or more of the following -
(a) either or both parents of a child -
(i) to make such periodical payments and for such term,
(ii) to secure such periodical payments and for such term,
(iii) to pay such lump sum, and
(iv) to transfer such property to which the parent is or the parents are entitled,
as may be specified in the order to the applicant for the benefit of the child or to the child personally; and
(b) a settlement to be made for the benefit of the child and to the satisfaction of the court of property to which either parent is entitled and which is specified in the order.
(2) An order under sub-paragraph (1)(a)(i) or (ii) may be varied or discharged by a subsequent order made on the application of any person by or to whom payments were required to be made under the previous order.
(3) Where the court makes an order under this paragraph -
(a) it may at any time make a further such order under sub-paragraph (1)(a)(i), (ii) or (iii) with respect to the child concerned if he or she has not reached full age"
40. There is a clear distinction between the court's powers regarding periodical payments and lump sum orders. The court can make a further order for periodical payments and can also vary or discharge a previous order. The court has power only to make a further lump sum order but has no power to vary or discharge a previous order.
41. Advocate Godden on behalf of Father argues that the court can make a further order "to clarify an existing order". He asks that I interpret paragraph 1 of the 2018 order by reference to the comments made by Registrar O'Sullivan in her reasons at paragraph 78 where she says:
"I am awarding the Mother the sum of up to £2,500,000 together with the cost of purchase which includes the stamp duty of £97,000 to purchase a 5 bedroomed property in her name which would be comparable to Property 2 until the Children are all 18 and have completed any tertiary education".
42. The words "up to" are absent from the order itself, however Advocate Godden invites me to interpret the 2018 order such that £2.5 million is a maximum rather than a specified sum. It would follow that, if an appropriate property as described by the Registrar can be purchased for less than £2.5 million, as would potentially be the case when Mother attains housing qualifications, then the full sum of £2.5 million is not required. Advocate Godden invites me to make a further lump sum order that Mother rent until she attains housing qualifications and then she receive a lesser sum than £2.5 million to buy a suitable property.
43. I cannot agree with Advocate Godden. The order he seeks on behalf of Father would have the effect of materially varying the original order which is not within the courts powers set out at paragraph 1(3)(a) of the 2002 Law. In any event, I am not satisfied that clarification of the paragraph 1 of the 2018 order is required. The wording is:
"1. the father will pay the mother a lump sum of £2,500,000 toward the purchase of a property for the children to be held in the sole name of the mother together with the cost on purchase to include stamp duty, the sum to be paid by close of business on the 14th June 2018. Such sum is to be held in escrow by the mother's lawyers until a property is to be purchased and the purchase price paid to the vendor. The lump sum of £2,500,000 will be secured by a judicial hypothec in favour of the father in accordance with Article 29(1)(d)(sic) of the Matrimonial Causes (Jersey) Law. The sum of £2,500,000 shall become payable to the father together with any increase in the value of the property subject to paragraph 2 below.... "
44. Not only is the wording clear as to the amount of the lump sum payable, the specific sum is repeated twice in the order, £2,500,000 is to be secured against Mother's home in favour of Father and £2,500,000 is repayable to Father. Moreover, the Registrar was clear in her reasons that Mother should be able to buy a property as soon as possible in order to give her security. Father's proposal would vary this freedom of choice the Registrar wished Mother to have.
45. Advocate Hillier on behalf of Mother argues that a further lump sum order can be made to provide that the original lump sum can be paid in 2 tranches. Paragraph 5(2) of the 2002 Law states:
"(2) The power of the court under paragraph 1 -
(a) to vary or discharge an order for the making or securing of periodical payments by a parent shall include power to make an order under that provision for the payment of a lump sum by that parent; and
(b) for the payment of a lump sum may provide for the payment of that sum by instalments".
Accordingly, the 2002 Law anticipates that a lump sum can be provided in more than one payment. The further order sought by Mother to pay the lump sum in 2 portions would not, in my view, have the effect of materially varying the original order as it does not reduce the housing fund available to Mother, nor limit her access to it. The original order includes provision that:
"there be liberty to apply as to the timing and implementation of this order"
The Registrar in her reasons at paragraph 78 invites an application as to the timing and implementation of the order. This is in my view a reflection of the difficulties which the Registrar anticipated that Mother may face.
46. Both advocates agree, and paragraph 1 (3)(a) of the 2002 Law is clear, that a further lump sum order can be made on top of the original sum to effectively increase the overall capital fund. Father's position is that any such further lump sum need be for no more than to allow Mother to purchase Property F, namely £350,000. Mother's position is that she requires a further lump sum sufficient to enable her to purchase Property B, which would require a further sum of £950,000.
47. I am rightly referred to those factors, set out at paragraph 4 of Schedule 1 of the 2002 Law which I must take into account together with all the circumstances of the case. The children need a secure home with Mother. Neither the children nor Mother have any financial resources of their own from which to provide for their needs, and therefore those needs must be provided by the Father within his capacity to do so.
48. Father has a net annual income of £269,221 which is an increase from his income at the time of the hearing in 2018. This income derives solely from the receipts from his property portfolio. If he sells properties, his income may reduce. Mother does not seek an increase in maintenance as such, but rather the triggering of a higher sum by reference to a percentage of Father's net income. This is not a change from the 2018 order. Father does not seek a decrease in maintenance.
49. Registrar O'Sullivan took into account the effect upon Father's income when she made the order requiring him to provide a housing fund of £2,500,000 from his capital assets, and set the level for child maintenance accordingly. Based upon the evidence provided by Father, his capital has increased in value from £12,600,000 in July 2017 to £14,400,000 at the time of the present hearing. I therefore find that Father has the resources available to provide a further lump sum as needed to provide for the children's accommodation, and also to pay child maintenance as previously ordered either at £4,800 per month or 25% of his net income whichever is the higher.
50. Father's lawyers refer me to the Jersey case of E v F (Family) [2013] JRC 185A also to the principles set out by the Court of Appeal in the case of Re P (Child:Financial provision) [2003] 2 FLR 865, also to the English authority of JVC (Child:Financial Provision) [1999] 1 FLR. The importance of the principles set out in these cases from the Father's perspective seems to be that the court must take into account the children's welfare. The welfare of the children is not the court's paramount consideration but must be considered as a very relevant consideration as part and parcel of all the circumstances of the case to be considered. Father is naturally concerned that his children should live in a suitable property. However, it is not Father's choice to make where Mother will live with the children that must be her choice alone. What is important is that there are sufficient funds and as many options as possible available for Mother to make sensible choices.
51. Father in his evidence expressed a wish to avoid having to sell property to raise capital to purchase accommodation for his children. In his statement dated 16th May 2019 he states that he could raise a mortgage of up to £2,000,000 to avoid "selling the family silver". He put this forward as a reason to limit the capital funds available to Mother.
52. In the decision of E v F the court was clear that the priority is to provide for the dependent child's needs now rather than to preserve capital for the longer term, and therefore I cannot give weight to Father's wish not to sell any of his properties:
"In this present case the father has 3 properties, one of which is his home. Advocate Heath submitted that the father's properties are his business and he needs the properties to meet his day to day living expenses even though he is making a loss on D (which she later conceded was not the case) and to build up a nest egg for financial security. However the court's concern is not as to whether he builds up a nest egg and an inheritance for A for the future (even were house prices to rise) but the welfare of A is a relevant consideration, and there is a need is to provide A with a reasonable home and adequate maintenance now."
53. The court's priority must be to provide for the housing and maintenance of the children, however, the home purchased will revert to the Father in due course, and therefore it is not in my view entirely inappropriate that the Father approach this exercise as an investment as well as a home. In the English decision of P (a child)(financial provision) [2003] All ER (D) 312 the Court of Appeal said the following:
"Since the Respondent would be entitled to the reversion, which in certain circumstances might fall in before the child's majority, the respondent had to have some right to veto an unsuitable investment".
54. On Jersey, the lack of stock of registered property by necessity must limit the luxury of choice, however where there are different options available, it is my view that the worst investment should not be the first choice.
55. Mother seeks in effect a further lump sum of £1,000,000 to buy Property B. The difficulty with this option is that inevitably Father would have to sell properties to raise sufficient capital. This would take time. The property would need a survey, and Father may be proved right, that the property is not suitable without significant work being carried out. I cannot set a budget for the purchase of Property B without this information. The time scales are not predictable nor is there any certainty that putting an extra £1,000,000 into the housing fund would secure this property swiftly, or indeed at all for the children. Father will not recover all his money, which is ultimately the children's inheritance. I would not consider locking Father into funding such a purchase unless there was a great deal more certainty regarding this property or it was the only possible option for rehousing. I must also take into consideration that whilst investigations and enquiries are undertaken, and whilst funds are raised, Mother and the children will remain in Property 1 or potentially become homeless.
56. Father wishes the Mother to buy Property F. We do have the expert evidence of Mr Trowler that this is a good property for all concerned. It is described as a good family home and also a good long term investment. Father is willing to offer additional funds to secure this property. The downside is that the property will not be vacant for up to a year, however, knowing that this timescale exists would enable mother to make plans. She could move into alternative rented accommodation for 12 months, knowing that her long term home was secured. We know that there are 2 such rental properties available. I cannot accept that Mother is more vulnerable in rented rather than purchased accommodation. Any tenancy could be in her name if she wished, and if she does not want Father coming to her door, there are ways that she can achieve this. She does not need to reject every option Father suggests simply because he has made it. Whatever his intentions may or may not be, Mother can achieve security if she wishes it. I anticipate that moving out of Property 1 as soon as possible is her key to putting some distance between herself and Father.
57. I have already discounted the possibility of changing the original order so that Mother is obliged to rent until she achieves her housing qualifications and then buys from a reduced capital fund. I have discounted this, not least because it is outside of my powers under the 2002 Law. However, in order to give Mother as many options as possible in a difficult situation, I am attracted to the idea of a fund being made available to mother to pay rent, potentially for 3 years. She may achieve her housing qualifications within 3 years. Mother has said that she wishes to buy sooner rather than later, but from her evidence this may be based upon a desire to distance herself from Father and also the fact that, at present, she is effectively paying the rent upon Property 1 from the children's maintenance. If she had a lump sum set aside in an escrow account to draw upon to pay rent for 3 years as well as receiving maintenance at the higher level, she may choose to wait until she has more options open to her. She may find this a more attractive option if it is one that she chooses for herself rather than a situation where she may perceive that renting is forced upon her. I shall give her the facility to rent for up to 3 years if she chooses, and I would urge her to consider this as a realistic option that could avoid the uncertainty and difficulty of her present position.
58. Property G. I am now told that there are 2 properties available to buy in this development. The advantage for Mother of purchasing one of these properties is that the purchase could go through swiftly. Father has already made an offer upon apartment 9, his offer was accepted and he has sufficient liquid assets available to complete the purchase. No 15 is a little more expensive, however the balance could be readily made up by father raising a mortgage against his properties. If Mother wished, when she secures her housing qualifications she would have sufficient monies left from her housing fund to buy a 5 bedroomed property and Property G would revert to Father. The downside of this option is that Mother and the children will be restricted to live in a 3 bedroomed property for possibly up to 3 years which is not ideal. This is however her choice, and I shall provide that she can take her lump sum in 2 instalments so that she can make this choice if she wishes.
59. First and foremost, Father must now comply with paragraph 1 of the 2018 order. He must pay £1,000,000 into an escrow account held by Mother's lawyers by 31st December 2019. The balance of £1,500,000 must be paid into the escrow account no later than 28th February 2020. Father cannot complain at this, he has continued to receive the receipts from these monies for over a year and a half longer that was originally ordered.
60. I also order Father to pay a further lump sum into an escrow account held by Mother's lawyers in the sum of £100,000, to be paid by 31st December 2019. This money can only be drawn upon by Mother to pay rent at a maximum of £4,000 per month or by Father to pay rent upon Property 1 until Mother and the children vacate that property. Any monies remaining unused in this account shall revert to Father upon the first to happen of the following events:
(i) Mother attains her housing qualifications;
(ii) Mother purchases a property;
(iii) Mother permanently relocates away from Jersey or dies;
(iv) 31st December, 2022.
61. I order Father to pay to Mother a further lump sum of up to £500,000 to be used by Mother toward the purchase of a property for the children. Such sum to be paid by Father upon Mother giving 56 days' notice to Father. Mother can access up to the full amount of this further lump sum, in addition to and on the same terms as the existing fund provided for in paragraph 1 of the 2018 order, only in the event that she purchases a registered property before she attains her housing qualifications.
62. I order that Mother can access the original fund of £2,500,000 in 2 instalments. In the event that she purchases any property and then subsequently vacates or sells that property in order to purchase a second property using the balance of the fund, the entire value of the first property shall become payable to Father in accordance with the judicial hypothec secured in his favour.
63. All terms set out in paragraph 1 and 2 of the 2018 order remain in place and attach to the original and further lump sum set out in paragraph 61 above.
64. Father shall continue to pay maintenance to mother for the benefit of the children in accordance with paragraph 5(i) of the 2018 order until 1st January 2020, and thereafter, Father shall pay maintenance to mother for the benefit of the children in accordance with paragraph 5(ii) of the 2018 order. The remaining subsections of paragraph 5 shall apply.
Authorities
Children (Jersey) Law 2002.
E v F (Family) [2018] JRC 067A.
E v F (Family) [2013] JRC 185A.
Re P (Child:Financial provision) [2003] 2 FLR 865.
JVC (Child:Financial Provision) [1999] 1 FLR
P (a child)(financial provision) [2003] All ER (D) 312