Jersey Unreported Judgments

Matrimonial - 2 applications - financial provision and residence

[2020]JRC015

Royal Court

(Family)

27 January 2020

Before     :

Samantha Jayne McFadzean, Registrar, Family Division

 

Advocate A. E. Binnie for the Applicant.

Advocate E. L. Wakeling for the Respondent.

REASONS

the REGISTRAR:

1.        On 11^th April, 2019, the applicant, described hereinafter as the Mother, made two applications to the court in respect of the parties' child:-

(i)        to vary the financial provision payable to the Mother for the child by the respondent Father (the "Father") as recorded in an act of court of 20^th May, 2011, made following an agreement by the parties to the divorce; and

(ii)       for a residence order in her favour.

2.        As the determination of the appropriate financial provision payable, if any, arguably relies in part on any order the court may make in respect of the application for residence, I propose dealing, firstly, with issues relating to residence and, secondly, periodical payments to the Mother for the child's benefit.

Residence

3.        Following the breakdown of a short lived marriage, the parties divorced when the child was of preschool age. The consent order recorded that the child was to "continue to reside with the (Mother)" and that "the (Father) shall enjoy contact, including staying contact, in accordance with the needs and wishes of the child and as agreed by the parties".  No residence order was made by the court but I note that the act of court recorded the parties' agreement that the child was to live with his mother.

Mother's position

4.        The Mother told the court that the child who is now of secondary school age lives mainly with her.  She also explained that over the last four years a pattern of term time contact has been established:-

(i)        in week 1, the child spends Thursday until Saturday afternoon with his father;

(ii)       in week 2, the child spends Thursday night, Saturday and Sunday night with his father.

5.        The Mother opposes a shared residence order and indeed, at the outset of the hearing sought to withdraw her application for a residence order on the basis, her Counsel said, that what she had intended by making an application for residence was to establish a contact pattern for the Father.

6.        The Mother said in evidence that the child lived with her and enjoys contact with the Father, except during the holiday periods when he sometimes spends more time with the Father than at her home.  She acknowledged that the Father has stepped in when she had to attend corporate events, attend medical appointments off island and to cover school strikes/closures during the last year.

7.        She described the Father as unreliable because she considers that he does not reply to her messages, does not agree with her views and that, accordingly, she considers that the Father's behaviour is detrimental to the child's welfare.  She gave an example of the Father not attending parents' evenings at school.  The Mother also expressed concern about changes to arrangements; for example, the child, at times, asks his father if he can spend an extra overnight with him and the Mother objects to changes to the existing contact pattern/arrangements made. 

8.        At the same time as seeking to withdraw her application for residence, the Mother sought various orders from the court which are, effectively, ancillary to contact and seek to prescribe how the parents shall communicate with each other and parent the child.

9.        The Mother told the court that there was no need for a residence order because residence had never been an issue; it was the Father's adherence to the extant arrangements which was problematic.  She considered that a shared residence order would be detrimental to her and the child because the Father failed to back her up and is unreliable.

10.      The Mother accepts that the Father, whose work commitments are more flexible, spends a great deal of time looking after the child during the school holidays and that during these holiday periods, the time which the child spends with the Father exceeds the number of nights in pattern set out in paragraph 4 supra (i.e. 5 nights in every fortnight).  The Mother is seeking, inter alia, an order that the child should be encouraged to attend holiday clubs for two or three weeks over school holidays.  She says that this is necessary to ensure that the child's social skills develop and to encourage him away from his PlayStation which takes up a good deal of his spare time when he is not at school.  She contends that the child needs to focus on his schoolwork and that additional contact between the Father and the child after school interferes with this.  The child, she said, needs to develop a sense of responsibility to achieve his goals.

11.      In evidence, the Mother denied any need to for the child to have extra time with the Father; the child's wish to attend an activity club on a Tuesday, which the Father promotes, should not interfere with her contact time.  She told the court that the time the child spent with each of his parents is more or less equal but only because the Father does not want the child to spend time in holiday clubs over the summer which means that the child spends more time during those periods with his Father.  She told the court that she "had allowed it", which I took to mean that she had agreed to the Father having extra time with the child during the school holidays.

12.      When I asked about the child's wishes and feelings, she told me that she had discussed this application with him.  The child was happy to spend more time with his Father but she thought matters should continue as they are, to avoid more disruption.  She thinks that the child is cheeky and challenging; he struggles with discipline and respect but is also a very kind young man.

13.      In addition, the Mother wants orders in relation to "special days" i.e. school holidays, Christmas, birthdays, bank holidays, illness, Mother's Day etc. and orders about who should hold the child's passport, return of school uniform, removal from the island on holidays, FaceTime during contact with the other parent, prioritising homework, referrals to MASH/the Minister for Children and Housing, and orders framing the parties' discussions with each other.

14.      I do not propose setting out each party's position in relation to each of these contested issues, as time prevented the court from hearing evidence about most areas of dispute but the thrust of the reasons will identify in broad terms the extent to which the court considers that these prescriptive orders sought are either necessary or helpful.  For the avoidance of doubt, my determinations, such as they are, in relation to each of the ancillary issues are included in the act of court.

15.      While the parents were able to agree how some of the Mother's concerns could be addressed, many matters were not agreed.  This fact reflects one fundamental issue upon which the parents did agree which was that their communication with each other has been poor and that this must improve for the child's sake.  The Father has looked into using Our Family Wizard, an internet based application intended to streamline communication and coordinate diaries.  The Mother did not consider using such a tool as necessary but told the court, through her Counsel, that she would use it if ordered to do so by the court.

The Father's position

16.      The Father did not issue an application for shared residence but invited the court to exercise its powers to make such an order in favour of both parents; it was said on his behalf that such an order would reflect the reality of the child's life shared, as it is, between his mother's home near town, close to his school and his father's home in the west of the island.  The Father would like the child to spend an additional night with him in the week; he suggested every Tuesday when the Mother often attends a sporting activity, returning to her home around 9pm, but he has no preference as to whether this additional weekday night is Tuesday or any alternative offered by the Mother: no such alternative has been offered.

17.      The Father described his close relationship with the child.  He accepted that getting the child to do his homework has been a problem at times but described the steps he has taken to ensure that this is now done i.e. checking the child's schoolbag rather than relying on the child's word.  The Father talked at some length about his engagement with the child, encouraging him to renew an interest in running and cycling, activities which they enjoy together and which the child also enjoys with his friends.  He also told the court that the child enjoys online gaming with friends on PlayStation; some of those friends come to stay with the child at the Father's home on occasion.

18.      The Father described the Mother as a good mum, if a little strict.  He said that he would like to resolve issues around communication but that the Mother's concern worked both ways; he told me that the Mother ignores his telephone calls, forcing him to contact the child to check on/make arrangements.  He told the court that he thought that a lot of work needed to be done by the parents to improve their communication.

19.      Under cross examination, the Father explained that the Mother had not always treated him as an equal parent.  He accepted that he was consulted at times and acknowledged that, occasionally, he made arrangements with the child before consulting the Mother.  He told the court that he knows that he should avoid doing so but only when such arrangements impinge on the Mother's time with the child.  He understands that he should try to avoid encouraging the child to change plans at the last minute but the child tells him that he feels restricted and, in effect, shackled by the Mother's insistence on strict adherence to a contact pattern.  He told the court that when the child is late home, the child worries about the Mother's reaction which the Father says that he is not there to witness; it seemed to the court that he felt a need to protect the child from any adverse consequences.

20.      When challenged about whether a change to the current arrangement for overnight contact as suggested by the Father would be detrimental to the child, the Father said that it might be but that the child is accustomed to change and he did not accept that it would necessarily be to the child's detriment to spend another night every week with him.  He did not accept that the change would be harmful or psychologically damaging.

The Law

21.      The principles to be applied by the court in determining an application under Article 10 of the Children (Jersey) Law 2002 (the "Law") are those set out under Article 2.  The court's primary and paramount consideration is that of the welfare of the child concerned.

22.      When the court is considering whether to make an Article 10 order it must have regard under Article 2(3) to:-

"a)      the ascertainable wishes and feelings of the child concerned (considered in the light of the child's age and understanding);

(b)       the child's physical, emotional and educational needs;

(c)       the likely effect on the child of any change in his or her circumstances;

(d)       the child's age, sex, background and any characteristics of the child which the court considers relevant;

(e)       any harm which the child has suffered or is at risk of suffering;

(f)        how capable each of the child's parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child's needs; and

(g)       the range of powers available to the court under this    Law in the proceedings in question".

23.      Furthermore, the court is required by Article 2(5) of the Law not to make any order/s unless it considers that doing so would be better for the child than making no order at all.

24.      The court may make an order under Article 10 :-

"(a)     on the application of any person who -

(i)         is entitled to apply for an Article 10 order with respect to the child, or

(ii)        has obtained the leave of the court to make the application; or

(b)       If it considers that the order should be made even though no such application has been made"

25.      Counsel for the Mother put the authorities of J v I (Family) [2013] JRC 157 and the recent decision of M v F (Family) [2019] JRC 174A before the court.

26.      In J v I at paragraph 21, Commissioner Clyde Smith cited the judgment of In the matter of C [2010] JRC 172.  In that judgment, Birt, Bailiff, (as he was then) said at para:-

"40...shared residence orders should be made in two categories of case (ignoring the third for the moment).  The first is where such an order reflects the practical realities of the children's lives; also referred to by some judges as the situation on the ground.  The importance of this requirement has been repeatedly stated, as is shown from the emphasised passages in the extracts cited earlier.  The requirement for shared residence to reflect the practical realities does not require there to be an equal division of time spent between the parents, but it requires the court to be able to answer Ward LJ's question in Re H in the second manner which he gives, namely 'oh we live with mummy for part of the time and with daddy for the other part of the time'. 

41.      ...

42.      The second ground upon which a shared residence order may be made is that referred to by Potter P, namely where it is psychologically beneficial to the parents in emphasising the equality of their position and responsibilities.  This second category has been subject to some criticism (e.g. Gilmore at p. 289) on the ground that, read literally, it suggests that a benefit to the parents alone would be a good reason to make a shared residence order.  Given that the child's welfare must always be the paramount consideration in such cases, we do not believe the President was intending to suggest this and we have no doubt that, although he did not spell it out specifically, the President was saying that there may be benefit to the child as a result of the benefit to the parents in emphasising the equality of their position and responsibilities".

27.      Advocate Binnie refers the court to paragraphs 55 and 57 of J v I in which the Commissioner  describes the Father's application for shared residence as being one about conferring status on him, a precursor to the child moving to live with him full time; the court refused the application on the basis that:-

"it would not be psychologically beneficial to the parents in emphasising the equality of their position and responsibilities for a shared residence order to be made".

28.      Advocate Binnie relies upon Registrar Daultrey's judgment in M v F, which also describes Birt, Bailiff's decision in In the matter of C as "the most significant authority"; on behalf of the Mother it is said that, pursuant to M v F, there is no need on the facts of this case to emphasize the equality of each of the parents' "positions and responsibilities".  I note that Registrar Daultrey in M v F explained that, based on In the matter of C, the facts called for such an emphasis to be made.

Discussion

29.      In closing, Advocate Binnie said that the practical reality is that the child lives with his Mother and has contact with his father.  A shared residence order would create more difficulties and give the Father an enhanced status to the psychological detriment of the Mother and the child.  She relied on the "no order" principle enshrined in Article 2(5) of the Law.

30.      Advocate Wakeling concluded by submitting to the court that if ever there was a case for shared residence, this case is it.

31.      I find that each of the child's parents are working to provide the best start to life that they can for him; unfortunately, they are not working together.  Differences in approach and opinion as to what may be in the child's best interest's lead inexorably to animosity and resentment, putting the child's emotional well-being at risk.

32.      No welfare issues were raised by either parent; for this reason, Jersey Family Court Advisory Service were not asked to intervene or advise the court in this matter.  I was not invited to see the child to ask him about his wishes and feelings but both parents agree that the child wanted to see more of his father.  The parents disagreed, however, as to whether this was in the child's interests.

33.      That each of the parents have a different view as to what may be in the child's best interests was clear; this was compounded by the parents' differing personalities.  The Mother seemed more keen on control and anxious to regulate the child's behaviour and his contact with the Father.  Sadly, it also seemed as though she wanted to regulate the Father to a degree; the court appreciates and accepts that, at least during the child's younger years, as a working single mother, she needed to be organised to manage a young child and her work and studies.

34.      It is not unusual for one parent to be more determined to enforce or impose discipline and, ideally, the Father should support the Mother in any reasonable and age appropriate efforts she makes to establish routine and consequences but given the parents' inability to communicate with each other in any meaningful way, it is inevitable that the parents will not be able to present the united front which would benefit the child.

35.      The Father seemed more relaxed and, as will be clear from what I write below about the application to vary maintenance, at times too easy going in respect of issues which need to be addressed and agreed e.g. to ensure that maintenance is paid on time.  There is no question of the Father not being able to care for the child and meet his emotional and physical needs as well as the Mother.  The court is satisfied that the parents are equally capable of meeting the child's needs in every sense.

36.      The parents' fundamentally different approaches to parenting may serve the child well in the long term; while consistency and firm boundaries are important, particularly to a young child, parents cannot be expected to behave identically or to have consistent or congruent approaches to parenting.  Provided both parents are nurturing and keen to promote the best interests of their child, neither parent can expect the other to conform to their ideal.  The difference in approach of each parent is neither unusual nor damaging to the child; it is the potential conflict which may cause harm.

37.      The Mother is critical of the Father, describing him repeatedly, as "unreliable"; she referred to delays in making payment on time of the previously agreed level of child maintenance and failure to increase payments in line with the RPI.  She also complained that the Father failed to "back her up".

38.      I was not satisfied from her evidence that the criticisms levelled at the Father were entirely warranted; indeed, while the Mother was understandably anxious to ensure that the child focussed on his schoolwork, her disregard for the fluidity which the child appeared to welcome seemed to the court to focus, at least in part, on her own needs rather than those of the child.  For example, she welcomed changes to the overnight staying pattern when she had commitments, or when she was unable to take time off because of work to cover the child's 14 weeks of school holiday, but considered that time with his Father should not interfere with her time with the child.  She described her reason for not wanting shared residence as an "issue of adherence" but at the same time, obviously benefitted from the Father's self-employment which enabled him to meet the child's needs and, moreover, the Mother's occasional commitments, more flexibly.  In short, the Mother cannot enjoy flexibility only when it suits her.

39.      The Father accepted that he needed to work at improving communication with the Mother; the Mother did not accept that she was at fault. While the Father accepted that he had on one occasion needed to change contact arrangements he denied that he had ever let the child down; for example, he explained that while he did not attend the school parents' evenings at the same time as the Mother, he organised his own separate meetings with the teachers to discuss the child's progress. That the Mother was unaware of this fact underlines the poor communication between the two parents.

40.      I found the Father's evidence to be more rounded and fairly balanced.  He spoke candidly about his own faults, gave credit to the Mother where he thought it was due and told the court in warm terms about how he wanted the child's life to be more relaxed, so that as he grew more responsible, the child could feel less fettered and enabled to make his own choices.  While the Father's wishes for the child reflect to an extent his own personality, I consider that the child will benefit from the support of both parents as he navigates his teenage years and this will require a combination of routine/discipline and freedom/choice.

41.      The fact that I accepted the Father's evidence does not lead me inexorably to the conclusion that a shared residence order should be made; at a prior hearing, I had asked the parties to prepare a schedule of days which the child had spent with each of them over the course of the last year or so.  It was apparent from that schedule that the child spends at least 45% of his time at the Father's home, the remainder at that of the Mother.  I accept that over the last year at least, the child has spent a greater proportion of school holidays with the Father, and slightly less during term time (between three and four nights per week).

42.      The Mother's case that her intention in issuing an application for a residence order was to determine contact seems perverse.  On any analysis, the "situation on the ground" is that the child resides with each of his parents.  A shared residence order will reflect the reality of the child's life and is the appropriate order to make and meets the child's needs and wishes as I understand them to be.

43.      I took into account what the Mother claimed would be the adverse psychological effect of a shared residence order but do not consider that the Mother's case in this respect was convincing.  The Mother's language was redolent of a sense of entitlement and permissiveness i.e. she talked about "allowing" the child to spend "extra" time with the Father.  This did her no credit.  The evidence is that the child wants to spend more time with his Father and the court is satisfied that his interests are served by so doing.

44.      Moreover, on the facts as presented to me, the parents' inability to work together makes a shared residence order more compelling.  I repeat what was written in M v F by Registrar Daultrey citing A v A [2004] 1FLR:-

"Because the parents were incapable of working in harmony a court order which reflected both the reality of the children's lives and the fact that the parents were equal in the eyes of the law and had equal duties and responsibilities towards their children was needed. Additionally, there was a risk that a sole residence order could be misinterpreted as enabling control by one parent when what the family needed was co-operation as recognised by a shared residence order".

29.      These words are entirely relevant to the present case.  Harmony cannot be achieved by marginalising one parent, harmony is achieved through co-operation.  These parents need to find their way back to a good working relationship. "

45.      Accordingly, I make a shared residence order in favour of the parents; the child will spend seven out of fourteen nights with each parent.  If the parents do not or cannot agree how the child's time with each of them is spent, the child will reside for full alternating weeks with each of his Father and Mother.  I am not satisfied that it is helpful for the child to move between his parents' homes as regularly as he does during the school week; such movement is bound to be more unsettling for the child and increases the risk of forgotten or misplaced belongings which was one of the Mother's complaints.

46.      I consider that the parents should agree arrangements for each of the child's school holiday periods as soon as possible; I consider it unnecessary and unhelpful to prescribe holiday club attendance.  When the child is spending a week in the care of one parent and that parent needs the child to attend holiday club, it should be that parent's responsibility to organise the club and pay for it.  The burden should fall equally on the shoulders of each parent but if the Father is happy to share more of the burden because his more flexible lifestyle affords him the opportunity to do so, there should be no compulsion on the Father to require the child to attend holiday club; in any event, within the next year or two, it will be increasingly difficult to find on island holiday care and exponentially unnecessary.

47.      If either parent is in a position to take the child off island for a holiday of more than one week during the school holiday period/s, as it is likely to be in the child's best interests to enjoy any such travel, I expect the parents to seek to agree an alternative pattern of contact for the child's benefit during the school holidays.  The court does not expect the child to be taken out of school unless there is a family emergency or another exceptional reason to do so.  I see no reason why orders should be made to control who holds the child's passport; both parents are long settled in Jersey and there is no evidence of any risk of flight.

48.      I consider that the parents are capable of agreeing where and with whom the child spends "special" days, like Christmas, birthdays and Mothers' and Fathers' days and I do not make orders in this respect but it seems to me that these days should be shared or enjoyed by each parent on alternating years as appropriate.  However, I do not consider that all of the additional prescriptive orders sought by the Mother should be required.  It is self-evident that the child's parents should try to agree any substantive issues between them, but as the child gets older, one might naturally expect him to be consulted before plans are made which affect how and where he spends his time.  He will, in no time at all, vote with his feet.

49.      Because the parents agree that their failure to communicate is damaging, I order the parties to use Our Family Wizard to communicate plans and timetables with each other - as they cannot deal with each other in a civil and respectful manner I expect each party to contact the other through this medium only - save in respect of an emergency.  Opportunities for acrimonious exchanges must be limited.

Arrears and variation of maintenance and contributions to expenses for the child

50.      The Mother seeks an upward (the Father a downward) variation of periodical payments for the benefit of the child.

51.      The original order required the Father to pay to the Mother £216.66 p.c.m., and provided for an increase in line with Jersey RPI.  In addition, the original act of court of 20^th May 2011, provided that each of the child's parents would pay 50% of the cost of the child's childcare/afterschool/holiday care and school trips and 50% of the child's medical, dental and school uniform needs.

52.      The Father is self-employed and relies entirely on commission to meet his outgoings.  His income is sporadic in nature and he accepts that payments of maintenance have sometimes been late.  He gave reasons why this is the case. He also accepts that he has not always paid the RPI increase in the whole sum due.

Arrears

53.      The Mother took action against the Father in the Petty Debts Court ("PDC") several times for unpaid and outstanding maintenance and contribution to the agreed costs for the child.  Arrears were agreed at mediation in the PDC and paid to 31^st August, 2018 and, in addition, the Father paid a contribution to the Mother's legal costs and this was recorded in an order by the PDC filed on 13^th November, 2018.  By February 2019, the Mother had issued another summons for unpaid maintenance and half of the costs of a school bag.

54.      The Mother claims that arrears of maintenance are outstanding in the sum of £3,047.47, calculated on 12.5% of the Father's average net income over 2018/2019, plus RPI on the enhanced basic rate plus the sum of £119 for half of unpaid additional expenses for the child.

55.      At a preliminary hearing, I asked the parties to agree a schedule of those payments due and outstanding.  In respect of 2017, 2018 and 2019, the Father's schedule showed that the Father had in fact, overpaid maintenance, although he accepts that some individual payments were paid at a slightly lower rate than he should have paid and payments were sometimes paid late because he paid at the time when he received commission.  The Mother did not challenge that assertion.

56.      The Father accepted that he might owe £119 for one half of the unpaid expenses but does not agree that further arrears have accrued.

57.       The Father's position is unsurprising as the premise of the Mother's claim is that the Father owes her arrears because he should have been paying her at a higher rate than he actually did based on his net income at any particular time.  She told the court that she could not apply for these arrears to be paid at any earlier time because she did not know the extent of the Father's earnings.

58.      The act of court of May 2011 does not provide for any increase in maintenance based on increased salary, only an RPI increase.

Variation of maintenance

Mother's income and outgoings

59.      The Mother's net earned income is £28,500.  She explained to the court that her ITIS rate has been reassessed and just increased from 4% to 13%.  She could not explain why this was the case.  Her net monthly income will reduce from £2,475 p.c.m. to £2,117.50.  The Mother is studying for a professional qualification but does not expect her income to increase when she has gained these qualifications.

60.      The Mother lives in rented accommodation.  She put her outgoings at £3,374.20 per month.  Cross examination revealed that these expenses included hire purchase costs and loan repayments of some £652 per month (in part to repay a loan for diamond jewellery purchased for herself).  In addition, her schedule included provision of £300 for holidays and £150 per month for clothes for herself and £100 per month for savings for the child and legal fees.  This shortfall of some £1,200 cannot justifiably be expected to be met by child periodical payments.

The child's needs

61.       In addition, the Mother estimated in her schedule of outgoings that her outgoings for the child, to include school activities, clothing, shoes, school bus and recreational activities cost £130 per month.

62.      I asked the Mother to outline in detail the child's out of pocket expenses (i.e. not including the expenses to house and feed him).  When pressed, she explained that on an annual basis, these are as follows:-

"Trainers                      £160

School shoes               £180

Uniform                       £200

Mufti                            £800 - £1200

Iphone                         £132

Activities week             £500

School bus                  £120

School activities           £240

 

Total:                          £2,732"

63.      The Mother did not particularise medical or dental expenses for the child and I am unaware of any health needs which might suggest that these would be out of the ordinary but she did tell the court that she has recently taken out a policy to recoup some of dental costs for her and the child.

What the Mother seeks

64.      The Mother asks the court not only to order the Father to pay her £327.68 child maintenance index linked to the increase in the Jersey RPI but also to require of the Father disclosure of his annual income net of tax and social security so as to ensure that the payment made by the Father does not fall below 12.5% of the Father's net income.

65.      In addition, the Mother seeks from the Father payment of half of the following expenses:-

(i)        school uniform;

(ii)       school equipment;

(iii)      all of the child's footwear;

(iv)      school trips and activities;

(v)       dental, medical and optical costs;

(vi)      holiday clubs and extra-curricular activities;

(vii)     mobile phone bill;

(viii)    bus card.

Father's income and outgoings

66.      The Father's income is, as mentioned above, commission based.   In 2019, he earned £43,919.37 gross which was significantly better than previous years but after ITIS payments made on account of previous years and social security payments, in 2019, his net income was £36,879.31 giving him a median net monthly income for 2019 of £3,073.27.  He has an outstanding tax liability of £12,843.84 to meet and no obvious means to pay it save from his earned income.

67.      The Father is also in rented accommodation and puts his outgoings at £2,786.93 plus expenses for the child. His rental payment is limited by the work that he does maintaining the whole of the property in which his flat is based.  He does not accept as claimed by the Mother that he can move to a smaller property as the quantum of his rent at any other property would increase from the current figure of less than £1,000 p.c.m. which is, in effect, subsidised by the maintenance work he does to the building.

68.      In addition to the expenses for himself, the Father's sworn financial statement sets out outgoings of £705 p.c.m. to the child, including the monies paid to the Mother currently at a rate of £255 p.c.m.  The Father accepted that some of these figures in his schedule (e.g. £200 per month for the child's holidays) were wrong.  He was challenged on behalf of the Mother about whether he had a two or three bedroom flat on the basis that the Mother said that she thought that he could downsize.

69.      I asked the Father to review the figures provided by the Mother for the child's expenses; he thought that the Mother's figures for casual clothing/mufti were inflated; he spends no more than £450 per annum on clothes when he goes shopping with the child in the UK when they visit the child's half-sisters.  He thought that the child's trainers might cost as much as £220 per annum.  In addition, he pays £7 per month for the child's online gaming and £3 per day for school lunches.

70.      The Father said that he uses the dining room at the flat to provide a room where his daughters can sleep when they visit from the UK.

The law

71.      Advocate Wakeling referred the court to the interpretation of the Law on variation of child maintenance under Schedule 1 in E v F (Family) [2019] JRC 218.  Although the difference was not brought to my attention by either Counsel, this is not an application under Schedule 1 of the Law, but an application in respect of a periodical payment order for a child made under Article 25 of the Matrimonial Causes (Jersey) Law 1949 ("MCJL"), which the court retains an unfettered power to vary under Article 33 of the MCJL.

72.      Article 25 of MCJL reads:

"In any proceedings for divorce or nullity of marriage or judicial separation, the court may from time to time, either before or after the final decree, make such provision as appears just with respect to the maintenance of any children of the family in relation to the parties to the marriage which is the subject of the proceedings".

73.      Article 33 of MCJL provides that:-

" (1)    The court may from time to time discharge or vary any order made under Article 25......or suspend any of the provisions thereof temporarily or revive the operation of any of the provisions so suspended.[69]

(2)       In exercising the powers conferred by this Article, the court shall have regard to all the circumstances of the case, including any increase or decrease in the means of either of the parties to the marriage."

74.      It is trite law that the court applies the criteria set out under section 25(2) of the Matrimonial Causes Act 1973, absent similar guidance under MCJL (Howarth v McBride [1984] J.J.1).

75.      There is only limited authority on the considerations taken into account by the English and Welsh courts when determining appropriate periodical payments for children (because of the interplay between the English and Welsh Child Support/Maintenance legislation and the restrictions thereby placed on the courts there who are, in most cases, prevented from adjudicating upon child support) and the variation of any such orders, save in limited circumstances, because power to make such determination falls to the statutory body set up to make these adjudications.

76.      It is, however, clear from the face of the English and Welsh statute that under s.25(1), first consideration is given to the child's welfare.

77.      I note that the MCJL does not invite the court to give "first consideration" to the welfare of children of the family in the same way as s.25(1) of the Matrimonial Causes Act 1973.

78.      In the circumstances, what approach should the court take to the determination of the appropriate level of periodical payments for children, given the lacuna in MCJL?

79.      I remind myself that in E v F, the court said:

"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.""

80.      The court went on to explain, (in this case by reference to the Children (Jersey) Law 2002) its concern about blithely adopting the CSA guidelines/ percentages, the mischief of which 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....

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"

81.      I have set out the differing bases on which the court determines applications under the MCJL and Children (Jersey) Law 2002 because:-

(i)        this possible issue was not brought to my attention; and

(ii)       I am unaware of any local authority which addresses the discrepancy.

82.      I have therefore not heard argument from Counsel about the matters to which I should apply my mind when determining the application so, without seeking to prejudice any argument which might be heard in a future matter, I have concluded that:-

(i)        because the MCJL does not contain the equivalent of s.25(1) inviting the court to treat the welfare of the child as the first consideration; and

(ii)       because s.25 criteria invite the court to consider the needs of the family as a whole while in this case, the court is concerned with the needs of the child,

I will determine this variation application as though it is as an application under Schedule 1 of the Children (Jersey) Law 2002.

83.      It seems to me that the first consideration should be to the interests and welfare of the child and that any analysis of other matters enumerated in s.25 have no bearing on this case , save as they are mirrored in Article 4(1) of the Children (Jersey) Law 2002.

84.      It might be thought that by mentioning this discrepancy, the court is raising a distinction without a difference but insofar as the court's powers are fettered under Article 6 of the Children (Jersey) Law 2002 on an application to vary child maintenance to restrict any variation to the date of the application, no such restriction applies under Article 33 of the Law.

85.      I remind myself that the application of a formulaic or mathematical approach to child maintenance must be a cross check applied, if at all, after consideration of the matters set out under Article 4(1).

Discussion

86.      The court does not therefore accept that there is any cogent reason in law or in contract to accede to:-

(i)        the Mother's  application for  12.5% of the Father's net income;

(ii)       the Mother's case in respect of arrears being predicated on the Father's level of net income at all material times over the course of the last year or two, when the act of court of May 2011 made no provision for maintenance to be varied in accordance with any movement in his net income.

87.      In both respects, the court finds that the Mother's case, as pleaded, is untenable.

88.      Any consideration of an application for variation takes into account the parties' financial positions, the needs and obligations of each of the parents (or payers) and the child and any change in circumstances - whether of the parties or the child.  The primary focus must be on how any such change in circumstances affects the child, if at all.  The adoption of a particular percentage of net income (and in this case an apparently arbitrary percentage) does not necessarily do justice to a child or, indeed, his parents for the reasons set out in E v F.

89.      There has been a significant change in circumstances in this case since the order was first made in May 2011 inasmuch as the Father now shares the cost of the care of the child in every sense.  The Mother prays in aid the Father's improved financial position but whereas in 2011, the young child had only contact with the Father, he now resides with both of his parents, and as a result of what I have determined supra, he spends as many nights with his Father as with his Mother.  The Father is therefore obliged to meet the child's needs directly as the Mother is.

90.      In the circumstances, should any maintenance be payable at all by one parent to the other?

91.      Neither parent is a high earner.  Both parents work and have similar essential and unavoidable outgoings; both parents house the child comfortably.  Both parents are able to meet their basic needs from their outgoings, albeit that the Father has, based on his net income in 2019, a small surplus.

92.      While the Mother's stated outgoings exceed her income by a margin of about £1000, those outgoings e.g. provision for holidays, savings for the child, clothes for herself, legal fees (in total £550) and her discretionary monthly outgoings on hire purchase repayments on non-essential items (at least £426) cannot be said to be outgoings which the court should necessarily take into account because to do so, would effectively require the Father to support the Mother financially when their respective claims against the other have been dismissed.

93.      Insofar as the Mother's stated outgoings directly benefit the child because they are expenses for essentials (e.g. rent, food, electricity/heating, water and parish rates, telephone, medical, optical and dental care and car expenses), the Mother can meet these essentials from her own income although I accept that she is not in a position to meet any unexpected additional or emergency costs.  In the premises, if the Father had a significantly greater income, the court would have been minded to order the Father to assist by retaining an order for maintenance to ensure that a cushion is provided for the child's benefit.

94.      I note that the Father's income is commission based and uncertain.  Fortunately, the Mother is in more conventional employment and in receipt of a steady income.

95.      My first concern is meeting the child's needs and as I have written in paragraph 91 supra, both parents can house themselves and the child.  However, the Father is in a better position than the Mother to meet those unavoidable out of pocket expenses which must be disbursed to enable the child to be shod, in proper uniform, and clothed and to enable him to enjoy the activities and entertainment enjoyed by most young people.  The payment/ repayment of these expenses and maintenance has, in large part, been a source of acrimony and continued litigation leading to the current impasse in which the parents avoid all communication with each other.

96.      I asked the parties whether they would consider each paying into a joint account a fixed sum each month to cover these expenses; the Father was content to do so and, in fact, offered to take sole responsibility to pay the costs of the child's uniform and shoes.

97.      The Mother was not prepared to consider this because she said that the Father was not reliable and that she would have to take action to enforce such payments; although I have found that the Father paid maintenance late (as and when he was paid commission), the pattern of payment, certainly over the last few years, as was evident from the schedules produced, did not support the Mother's claim that he was not to be relied upon to meet the child's needs.  Although the Father paid to the Mother more than was due and the court gives him credit for that, the Father must recognise that disregard for the Mother by failing to organise his finances and pay on time has led to part of the resentment.  This potential flashpoint must be extinguished.

98.      These parents cannot be trusted to put the child's needs before their feelings about each other; this dispute should have been capable of resolution through discussion and funds have been unnecessarily expended on this litigation.  To avoid further dispute, I order that the Father will, going forward, be responsible for acquiring and meeting the entire costs of the child's uniform, and footwear.  He will meet the entire cost of the child's school activities, school trips, school bus fares and spending on school lunches.  The Father will also meet the child's everyday medical and optical expenses.  I estimate based on the figures both parents provided that this will cost him about £300 p.c.m. on an annualised basis.

99.      As the Mother has taken out dental insurance, she will meet the child's dental costs.

100.   The Mother and Father can, in addition, buy such casual clothes for the child as they see fit, but without demanding contribution from the other parent.  Each parent can provide the child with such pocket money as they consider age appropriate and meet such of his occasional expenses as they wish while he is residing with them e.g. cost of swimming, cinema, gaming etc.

101.   In the event that a substantial exceptional and/or unexpected expense (i.e. over £500) arises for the child not already envisaged by the parties or brought to the attention of the court, responsibility for the payment will need to be agreed by the parties and in default of agreement, referred in the first instance to mediation and thereafter to the court.  The Father is currently in a slightly better position to meet such an expense.

102.   If either parent wishes the child to attend a holiday club during the child's time with them, that parent will meet the entire cost.

103.   The requirement for one parent to pay child maintenance to the other will cease forthwith from the date of the order; it is no longer justified on the basis of the facts of this case particularly as payment or non-payment has been the source of such friction.  There will be no backdating of the order to the date of the application.  The Father will pay forthwith to the Mother the sum of £119 in respect of agreed contribution for the child's outgoings and the Father will pay the unpaid balance of the cost of the child's school trip for this year.

104.   This somewhat unconventional order is made because payment of maintenance for the child has been used as a weapon and furthered the animosity between the parties to the child's detriment; this must stop.  The Father is better able to meet the child's out of pocket needs but the court considers that each parent will be contributing to the child's long term welfare by providing him with a warm and loving home.

Authorities

Children (Jersey) Law 2002. 

J v I (Family) [2013] JRC 157. 

M v F (Family) [2019] JRC 174A. 

In the matter of C [2010] JRC 172. 

A v A [2004] 1FLR. 

E v F (Family) [2019] JRC 218. 

Matrimonial Causes (Jersey) Law 1949. 

Matrimonial Causes Act 1973

Howarth v McBride [1984] J.J.1.