Jersey Unreported Judgments

Family - appeal against a decision of the Registrar

[2020]JRC071A

Royal Court

(Family)

28 April 2020

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Olsen and Averty

 

Advocate H. B. Mistry for the Appellant.

Advocate A. E. Binnie for the Respondent.

extempore judgment

the deputy bailiff:

1.        This is an appeal against a decision made by the Registrar on the 20^th March of this year.  The parties to the proceedings are W, the Father, (as we will refer to him in the course of this judgment) and X, the Mother.  Together they had a child, who is just over one year old, who lives permanently with the Mother and currently has no contact, as the Court understands it, with the Father.  Today we have heard, this morning and afternoon, arguments and read evidence in relation to the matters that are before the Court. 

2.        There are five applications before the Court today:

(i)        An appeal against the decision of the Registrar on the 20^th March to continue to hear an application to vary an interim maintenance order that required the Father to make an additional payment of £1,560 per month to the Mother, making a total of £2,000. 

(ii)       An appeal against the decision of the Registrar to award costs against the Father of and incidental to the hearing. 

(iii)      An application by the Father for a stay pending appeal. 

(iv)      In the event that the appeal was unsuccessful, the Father has issued a Form C3 asking this Court to vary the interim maintenance as ordered by the Registrar, pursuant to the order dated the 20^th March 2020, to revert to the previous sum of £440 per month. 

(v)       Finally, the Mother has issued a Representation seeking enforcement of the interim maintenance payments ordered on the 20^th March as the Father has failed to pay the sums of £2,000 per month due under the order.

3.        The background to this case is an application made by the Mother to the Court for relief under Schedule 1 of the Children (Jersey) Law 2002 (the "Children Law").  It is that Schedule which provides the Court with a power to make financial awards to the benefit of a child where the parents are unmarried.  Pursuant to paragraph 1 of Schedule 1:

"(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",

4.        This was an application for periodical payments.  It has been described as "maintenance" but it is periodical payments pursuant to Schedule 1 to the Children Law with which the Court is concerned.

5.        Subparagraph 2 of paragraph 1 of Schedule 1 provides:

"(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."

6.        The matters to which the Court is to have regard in making orders for financial relief under Schedule 1 are set out in paragraph 4 of Schedule 1, and the circumstances include:

"(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."

So, it is clear that the property and other financial resources available to a paying party can be taken into account, not merely a party's earned income.

7.        In respect of interim orders, and this was an interim order for periodical payments pursuant to paragraph 8 of Schedule 1:

"Where an application is made under paragraph 1 or 2 the court may, at any time before it disposes of the application, make an interim order -

(a)       requiring either or both parents to make such periodical payments, at such times and for such term as the court thinks fit"

8.        In this case, before we come to the hearing on the 20^th March, it is helpful and appropriate to deal with the procedural history.  The judge who dealt with all applications prior to the hearing on the 20^th March was the Registrar.  She first became seized of the matter on the 20^th September 2019.  At that time the Court was principally concerned with paternity which at that point was not admitted by the Father, and she adjourned the matter on that occasion to a further hearing on the 24^th October 2019, for a hearing at 9:30am with a time estimate of fifteen minutes. 

9.        On that day it was noted by the Court that counsel for the Father assured the Court that the Father would offer financial support to the child forthwith, and the Court ordered that the question of financial support for the child be adjourned until 9:00am on the 19^th November 2019, with a time estimate of thirty minutes.  It was shortly before that day, on the 12th November 2019, that the Mother made her application under paragraph 4 of Schedule 1 of the Children Law for financial provision for her child.  The relief that was sought included a lump sum and periodical monthly payments of £657 going forward, it being made clear that those were interim amounts until the Father's financial disclosure had been received and that, on the Mother's case, was the application that was determined on an interim basis on the 20^th March of this year.

10.      When the case came back before the Registrar on the 19^th November 2019, she ordered: "on an interim basis, the respondent Father shall pay to the applicant Mother for the benefit of [the child], £440 per calendar month", that being the agreed sum at that time.  She also ordered that:

"2. by 4.00 p.m. on the 17th December, 2019, sworn affidavits of means and accompanying documentation shall be filed and exchanged by the parties;

3. written requests for such further information and documentation as is strictly necessary to assist the parties and the Court in resolving the dispute shall be filed and exchanged by 4pm on the 21 January 2020."

The application was listed for a case review hearing at 11.00 a.m. on the 22^nd January 2020 and by "the application" it is understood by the parties that the Registrar was referring to the Mother's application under Schedule 1.

11.      On the 18^th December 2019 it was ordered that an application that the Father made for contact and parental responsibility should be consolidated with the Schedule 1 application and listed for a review hearing at 11:00am on the 22^nd January 2020.  On that date, the 22nd January 2020, it was noted that the Father had withdrawn his applications for contact, shared residence and parental responsibility.  It was also noted in the second recital to the Court's order that the respondent had failed to comply fully with the order for disclosure made on the 19^th November 2019.  That, of course, had required him to swear an affidavit of means on the 17^th December 2019, and in fact the affidavit of means was not sworn by the Father until much later on the 28^th February 2020.

12.      On the 22^nd January 2020, the Registrar gave the Father leave to withdraw his applications and ordered the Father to file his affidavit of means by the 19^th February 2020 together with, "for the avoidance of doubt", the Registrar said:

"2. ... 12 months' bank statements and credit card statements for each account in which he has an interest, and the last two years' business accounts for each of the businesses in which he has an interest."

She also ordered:

"3. Written requests for such further information and documentation as is strictly necessary to assist the parties and the Court in resolving the dispute shall be filed and exchanged by 4.00 p.m. on the 4th March, 2020."

13.      It was not possible for the Mother to do that until the 11^th March, 2020, because of the failure of the Father to comply with the 19^th February deadline.

14.      Finally, she ordered that:

"4. the application be listed for a Case Review Hearing at 2:30pm on the 20th  March, 2020, (time estimate: 1 hour) when the parties and their advocate or solicitor (if instructed) shall appear."

15.      It is what occurred at that hearing which has led to this appeal today.  The Father complains that he was in effect ambushed at that hearing by an application for interim periodical payments and a variation of the existing agreement which took him by surprise.  The Mother says that the Court was entitled to review the order made by consent in 2019 at any time and, owing to the Father's late and incomplete disclosure, this was the earliest opportunity that the Court had, and the Mother had to deal with this issue. 

16.      Certainly the correspondence we have seen from the day before the hearing indicates that it was only the day before the hearing that counsel for the Mother, at 2.17pm., indicated that the following day the current level of child maintenance needed to be reviewed.  At that time she said that, in accordance with her client's affidavit of means, the current monthly needs of her and the child were £1,796.  She made the point that her client was not eligible for income support until October 2020, owing to the fact that she has not been in the Island for long enough.  She went on to say that the Father's financial disclosure demonstrated that he can pay more than the current level of child maintenance.  Accordingly, the Mother was requesting an interim upward variation of periodical payments to meet her and the child's needs.

17.      Counsel for the Father was concerned about the lack of notice and indicated as such in his message to the advocate for the Mother.  When the advocate for the Mother wrote to the Registrar indicating that the matter was going to be dealt with, he wrote again to the Court on the 20^th March, the day of the hearing, and said that there was no summons before the Court to deal with the application and no evidence had been filed on the part of the Mother to support the same.  He also said that the lack of material before the Court meant that the Court would be unable to carry out the exercise that it would need to in order to deal with a variation of maintenance.  He said that, in short, if there was a determination against his client later the same day, then he had instructions to appeal. 

18.      As to the hearing that took place the same day, a number of points can be made in relation to it, as appear from the judgment of the Registrar.  It was only during the hearing that counsel for the Mother indicated what sum she was seeking by way of a varied interim maintenance figure, namely £2,250 per month.  Prior to that moment the Father's counsel had no idea what sum was going to be sought by way of interim maintenance, and we regard it as unsatisfactory for a party not to know prior to a hearing what additional sum by way of maintenance that they are to meet.  We also regard it as generally unsatisfactory, save in the most urgent cases, for there not to be sufficient time prior to a hearing for parties to understand and prepare for an application of this nature.  We would have expected, at least a few days before the hearing, a summons or similar to have been issued for an appeal for leave to abridge time for the hearing of the summons and the Court to have indicated that it was prepared to hear the application that was being made.

19.      In any event, as is clear from the judgment of the Registrar, she regarded the history of the matter in terms of the Father's disclosure as being unsatisfactory.  She said that the Father had not filed his bank statements or his credit card statements with the Court.  In fact, he had filed his bank statements to the Court, but they were heavily redacted, and those redactions had taken place without the Court's permission.  She also made the observation that the Father had not filed all business accounts with the Court in relation to the businesses in which he had an interest.  She described his failure to comply with disclosure orders as being "wholly unacceptable" and said that he must "bear the consequences" of that failure.  She criticised some of the claims in his affidavit of means in terms of his outgoings, namely, £20,000 a year for holidays and other sums which she particularised.  As we have said, she was concerned about redaction of bank statements without permission and she said that the threat to appeal was inappropriate, and that the Father's, in her words, "contumelious disregard of court orders" will sound in costs adverse to him.

20.      She said that:

"Under Schedule 1 of the law, the Court must take into account the matters set out under Article 4 of Schedule 1 but I am able only to take into account the Father's financial resources, income, earning capacity and property to a very limited degree because of his failure to comply with disclosure orders.  He may indeed have given more disclosure to the Mother.  He has not given it to this Court, and this Court under the Children Rules is required under the overriding objective to do all that it can to assist the parties in resolving matters, taking into account proportionality at the earliest opportunity.  I am prevented from doing so by this contumelious failure to comply with Court orders." 

21.      In fact, counsel for the Father rightly says that the affidavit of the 28th February 2020 that the Father swore was copied to the Court.  The Court did have that material, but otherwise the point made by the Registrar was well made - the Father had failed to give adequate disclosure.  Indeed, that has rather been borne out by what has occurred since because disclosure is still incomplete today in this case.

22.      Just before the hearing that took place before the Registrar, the applicant sought, by a request for further information dated the 11^th March 2020, further material from the Father.  He responded to that request the day before the hearing, on the 19^th March 2020.  That the request was inadequate is borne out by the Mother's schedule of deficiencies dated the 10^th April 2020, which is due to be replied to by the 7^th May 2020 and obviously is not before the Court yet. 

23.      Counsel for the Mother took us through the matters set out in the schedule of deficiencies dated the 10^th April and referred to a number of matters of concern.  She referred to the failure on the part of the Father even now to produce credit card statements.  This is all the more significant in circumstances where, on the Father's own evidence, he spends over £30,000 a year on his credit card.  She referred to a failure to set out details of all bank accounts, including a Euro account and another numbered account.  She referred to a failure to evidence a number of loans to which the Father claims that he has made, or is to receive payments under.  It became clear during the course of the hearing that those documents remain outstanding.  She also referred to various documentation in relation to the Father's employer, a company in which he holds shares, which have still yet to be disclosed.  Various questions were asked in the schedule in relation to the Father's total income, which again it is said have yet to be dealt with adequately. 

24.      The failure to make proper disclosure prior to the hearing before the Registrar was demonstrated by the Father himself in the affidavit that he swore for today for the purposes of this appeal.  The Father swore an affidavit last week, which we examined in the course of this hearing.  All the material contained in that affidavit should have been disclosed to the Registrar and it was not.  That includes, for the first time, unredacted copies of the bank statements, more detail in relation to his payments and income, and a letter from Advocate Marcus Stone explaining the way in which he benefits from the company at which he works.

25.      In particular, we were shown a schedule of income and expenses which demonstrates that, for the 14-month period expiring February 2020, the Father had spent over £31,000 on credit cards and also particularised various loans that he had previously made to third parties in respect of which he was receiving repayment.  The Father's basic salary, including repayment of a loan, comes to £6,000 net per month but last year he received loan repayments exceeding £70,000.  Much of the latter was not disclosed in his affidavit of means.  The full picture was certainly not before the Family Registrar, which goes to bear out her concerns that there had not been full disclosure.

26.      We now turn to the relief that is sought today, as summarised at the beginning of this judgment.  Firstly, an appeal against the decision of the Registrar.  The reason that counsel for the Father frames the appeal as "an appeal against the decision of the Registrar to continue to hear an application to vary the order for interim periodical payments", is that there is a difficulty in appealing the order made by the Registrar itself.  That arises by virtue of the terms of Article 68 of the Children Law.  Article 68(1) provides:

"(1) Subject to any express provisions to the contrary made by or under this Law, an appeal shall lie -

(a) where the Judicial Greffier is exercising the functions of the court in accordance with Rules of Court, to the court; and

(b) in any other case, to the Court of Appeal,

against the making or refusal to make any order under this Law other than in relation to an interim order for periodical payments under Schedule 1." [emphasis added]

27.      Accordingly, there is a statutory prohibition on appeals to this Court in relation to interim orders for periodical payments under Schedule 1.  The Court has examined the reports that accompanied the legislation when it was placed before the States Assembly, but there is no indication as to why there was a 'carve-out' in relation to appeals against this sort of order.  There is a corresponding provision, or at least there was a corresponding provision in the Children Act 1989 when it was passed, and for a number of years thereafter until it was amended.  The Court can only presume that the reason for the absence of a right of appeal in relation to these sorts of payments is that they are only interim payments.  Indeed, in this case the interim payment will only last a maximum of five months as the final hearing in relation to the Mother's Schedule 1 application is to take place in October of this year.

28.      In any event, the Court finds that it is unable to entertain an appeal against the order made by the Registrar in this case, and by dressing up the appeal as an appeal against the decision by the Registrar to hear this application, comes to much the same thing.  As counsel for the Mother pointed out, the Registrar is entitled to hear this sort of application at any time and there was an undetermined application before the Court.  As we have said, it would have been better had counsel for the Father have been given more notice, and the Mother's application had been supported by sworn evidence but, nonetheless, we do not think that we are permitted to interfere with the decision of the Registrar by way of an appeal owing to the wording of the statute.

29.      The second matter before us is the question of costs.  The Registrar ordered the Father to bear the costs of the application before her on the indemnity basis.  We regard that order as part and parcel of the order that the Registrar made under Schedule 1 and, accordingly, we do not think that it is appropriate for us to interfere with it.

30.      Thirdly, the application for a stay pending appeal is plainly unnecessary and, in any event, one that we could not grant.

31.      Fourthly, as to the application by the Father to this Court to vary the interim maintenance order made by the Registrar, we do have power to determine such an application.  It is plain from the terms of Schedule 1 that this Court, as well as the Registrar, has power to deal with such an application to vary or indeed discharge an order.  However, we have decided not to accept that invitation.  This is for two reasons:

(i)        The Registrar is seized of this matter and has had conduct of it since the autumn of last year. 

(ii)       Financial disclosure is not complete, and it will be in the course of the next few weeks. 

32.      We have borne in mind the suggestion on the part of counsel for the Father that the Registrar was biased against him.  He accepted in the course of argument that it was not his strongest point and he referred to the case of Crociani v Crociani and Ors [2019] JRC 028A, where Commissioner Clyde-Smith dealt with an application that he should recuse himself from presiding over certain proceedings.  He referred to the test for recusal at paragraph 12 of his judgment, referring to:

"...the case of Syvret v Attorney General [2011] JCA 130, where Jones J A observed:-

'9.       ....It is whether a fair minded observer, informed of all the relevant facts and circumstances, would conclude that there was a real possibility that the judge was biased.  (See In re Esteem Settlement [2001] JLR 169, per Vaughan JA, paragraph 212, as endorsed by the Court of Appeal at paragraph 6 of its judgment in Baglin v Attorney-General [2005] JLR 180, and at paragraph 12 of the judgment of Montgomery JA in Syvret v Attorney General [2009] JLR 330).  The test is an objective one.'"

33.      We have had regard to the decision of the Registrar and we can understand her frustration in respect of the Father's failure to make disclosure, but we cannot detect from what she said evidence of bias when considered objectively.  We can say that initially, when we heard submissions from the Father, we did take the view that the sum ordered by way of maintenance against the Father was too high.  We took that initial view on the footing that the Court may have had no option but to proceed on the basis that his net income, including repayment of loans, was no more than £72,000 a year.  Furthermore, he supports a child by an earlier relationship and pays her private school fees.  Thirdly, he has debts. 

34.      Further, when we considered the award against him as against what has been described as "the helpful yardstick of maintenance for a first child not exceeding approximately 15% of net income", which was the test applied by the old Child Support Agency (now replaced by the Child Maintenance Service which adopts a different approach by reference to a different formula), we considered that the sum ordered against the Father in this case was excessive as against that yardstick of 15% which on the figures would yield a payment of slightly less than £1,000 per month for the benefit of the child.  However, it became clear as the day progressed that the financial position in relation to the Father was not as clear as we initially thought.  This is an order which is designed to benefit the child.  We have considered with care the needs of the Mother and the other financial resources available to her, which are extremely limited.  As an interim measure, and certainly in the circumstances of this case, we do not regard it as appropriate for us to interfere with the order made at this stage and the matter should be considered by the Registrar if there is to be a variation of the order she made on the 20^th March.

35.      Finally, and fifthly, the Mother has applied for an order seeking enforcement of the interim maintenance payments made on the 20^th March 2020.  We should say at the outset that it is proper and appropriate for the Father to pay the sum that has been ordered against him until that order is varied.  Court orders are to be complied with. 

36.      In relation to the procedure for enforcement, our attention was drawn to the Maintenance Orders (Enforcement) (Jersey) Law 1999, which makes it clear that an application for enforcement of a maintenance order, pursuant to Article 2(3) of the Law:

"shall be supported by an affidavit setting out the terms of the maintenance order and the circumstances of the alleged failure of the payer to comply."

37.      The provision is mandatory.  It was suggested to us in the course of submission that we could overlook the requirement and make an order nonetheless.  We do not feel inclined to do so and we do not think that a casual approach to the statutory requirements is appropriate in this case any more than it was appropriate to adopt a casual approach to the proper procedure which was adopted before the Registrar in the hearing below. 

38.      Accordingly, we make no orders in relation to the applications before us.

Authorities

Children (Jersey) Law 2002. 

Crociani v Crociani and Ors [2019] JRC 028A. 

Maintenance Orders (Enforcement) (Jersey) Law 1999. 

E v F (Family) [2019] JRC 218.