Family - appeal against a decision of the Family Division of the Petty Debts Court
Before : |
R. J. MacRae, Esq., Deputy Bailiff, and Jurats Ramsden and Ronge |
Between |
U |
Appellant |
And |
V |
Respondent |
The Appellant appeared in person.
Advocate C. G. Hillier for the Respondent.
judgment
the deputy bailiff:
1. This is an appeal against a decision of the Family Division of the Petty Debts Court. We gave our decision on Monday 20th April, 2020, and now give reasons for that decision. Pursuant to Rule 6 of the Petty Debts Court Rules 2018, the Family Division of the Petty Debts Court determines all cases involving proceedings under the Maintenance Orders (Facilities for Enforcement) (Jersey) Law 2000.
2. Appeals from the Petty Debts Court to the Royal Court are dealt with under Article 3 of the Petty Debts Court (Miscellaneous Provisions) (Jersey) Law 2000 ("the Petty Debts Law"). Article 3 provides:
"3. Appeal to the Royal Court
If any party to any proceedings in the Petty Debts Court is dissatisfied with the decision of the Judge, he or she may, with the leave of the Petty Debts Court or the Bailiff, appeal to the Royal Court in such manner and subject to such conditions as may be prescribed by Rules of Court.
On hearing an appeal, the Royal Court may draw any inference of fact and may -
(a) order a new hearing in the Petty Debts Court on such terms as it thinks just;
(b) order any judgment to be entered for any party; or
(c) make a final or other order on such terms as it thinks proper to ensure the determination on the merits of the real question in controversy between the parties.
The determination of an appeal by the Royal Court shall be final and conclusive, and shall not be subject to appeal to any other Court.
This Article is without prejudice to any right of appeal conferred by any other enactment or rule or law."
3. The Appellant appeals, with leave of the Royal Court, against the decision of the Petty Debts Court on 29th January, 2020.
4. The Petty Debts Court was considering a provisional order made by the Family Court at Stafford, England on 29th September, 2019, in relation to the six year old son of whom the Appellant is the father and the Respondent is the mother.
5. That provisional order required the father (the defendant in the English proceedings) to pay the mother £450 per month commencing 1st August, 2019, with arrears of £4,250 to be paid by 1st September 2019 in respect of their six year old son.
6. The provisional order was transmitted to the Jersey Court at the request of the mother. The note of the hearing before the Stafford Court read "Applicant present and Respondent absent." It gives short reasons for the order: "The father was originally paying £450 per month from January 2016. Res [the father] has twice unilaterally reduced with no supporting evidence. In total he should have paid at £450 per month for 43 months is £19,350. The total he has paid is £15,100. Justices direct lump sum to make up shortfall and order £450 per month thereafter. Home of the child in jeopardy if [father] fails to adequately support his child."
7. The father says he did not receive notice of the English proceedings and there is no evidence that he did. The provisional order made by the Stafford Court came before the judge of the Petty Debts Court on 29th January 2020, as indicated above. The mother was not represented, the father was represented by counsel. The judge of the Petty Debts Court ("the judge") heard no evidence but did receive submissions from counsel for the father.
8. The judge had before her an affidavit of means sworn by the father for the purpose of the hearing including all material relevant to his means up to the end of December 2019. Some or all of that material was not available to the Stafford Court. The hearing before the judge of the Petty Debts Court was a short one - the transcript runs to less than 12 pages. The judge then gave an ex tempore decision.
9. Although the specific provisions of the legislation were not referred to during the hearing, this was a confirmation in Jersey of a provisional order made in a Commonwealth country pursuant to Article 10 of the Maintenance Orders (Facilities for Enforcement) (Jersey) Law 2000 ("the 2000 Law").
10. The relevant provisions of Article 10 of the 2000 Law are as follows:
"(1) This Article applies to a provisional order made before or after the commencement of this Part against any person by a court in a Commonwealth country.
...
(4) Subject to the provisions of Article 18, proceedings for the confirmation of the order shall be conducted as if an application for a maintenance order against the payer had been made to the court.
(5) At the hearing it shall be open for the payer to raise any defence which the payer might have raised in the original proceedings had he or she been present, but no other defence, and the statement received from the court which made the order of the grounds on which the making of the order might have been opposed shall be conclusive evidence that the payer might have raised a defence on any of those grounds.
(6) If the payer establishes any such defence as the payer might have raised in the original proceedings, the court shall refuse to confirm the order, and the Greffier shall send the certified copy of the order and the documents which accompanied it to the Lieutenant-Governor for return to the responsible authority in the Commonwealth country.
(7) In any other case, the court shall confirm the order either without alteration or with such alteration as it thinks reasonable.
(8) For the purposes of this Article, the court by which the order is to be confirmed shall be, if the court in which the order was made was a court of unlimited jurisdiction, the Royal Court, and if the court was a court of limited jurisdiction, the Petty Debts Court."
11. Accordingly, it appears that the Petty Debts Court has a wide discretion in relation to these proceedings seeking the confirmation of the provisional order made by the Stafford Court. It was open to the father to raise matters that he might have raised in the original proceedings and the Petty Debts Court had the power to refuse to confirm the order or indeed to "confirm the order either without alternation or with such alternation as it thinks reasonable".
12. Furthermore, so far as is relevant, under Article 12(2) the Court, when it has confirmed an order under Article 10(7) has the power, on an application made by the payer or the payee, to vary or revoke the order as if the Court had made the order and had had jurisdiction to make it. When considering revocation of an order under Article 12(6) in circumstances where either one or both of the parents are not residing in Jersey, the Court shall "apply the law of the Commonwealth country in which the order was made." There is no guidance in relation to applications under Article 10 as to whether the Jersey court should apply English or Jersey law in relation to an application when considering exercise of its discretion.
13. In respect of appeals Article 16(3) provides:
"Where in pursuance of any provision of this Part, a court in Jersey confirms or refuses to confirm a provisional order made by a court in a Commonwealth country (including a provisional order varying or revoking a maintenance order), the payer or payee under the order shall have the like right of appeal (if any) from the confirmation of, or refusal to confirm, the provisional order as he or she would have if that order were not a provisional order and the court which confirmed or refused to confirm it had made or, as the case may be, refused to make it."
14. Accordingly, it appears that the general right of appeal under Article 3 of the Petty Debts Court Law is available to a father or mother in these circumstances.
15. As indicated, the judge did not hear any evidence but did receive submissions from the advocate for the father. Submissions were made about the difficult domestic history between mother and father, and the Court was informed that the father was not given notice of the proceedings under the Maintenance Orders (Reciprocal Enforcement) Act 1972. The first the father knew of these English proceedings was when he received a letter from the Petty Debts Court dated 12th November, 2019. The advocate for the father explained that the father had been paying voluntary maintenance (not under a court order) of £400 per month which he had reduced to £200 per month at the beginning of 2019 because of the burden of legal costs incurred as consequence of court applications, principally in relation to contact with his son, and flights from Jersey to see his son in England which became necessary when the mother left Jersey, without his agreement, with their son in summer 2016.
16. A few questions were asked of the advocate for the father in relation to the father's expenditure. The father's advocate did not address the Petty Debts Court as to precisely what sum by way of child maintenance the father regarded as affordable and indicated the father did not object to paying maintenance, but the level at which it had been set presented him with difficulties.
17. In her judgment, the judge accepted that there was no evidence to support the mother's contention that there was an agreement that the father pay £450 per month maintenance but there was agreement to pay £400 which should not have been reduced unilaterally. Accordingly, the judge ordered arrears to be paid from January 2019 to January 2020 at £200 per month giving a total of £2,600. The judge said "to unilaterally halve the amount of money which is available for him, in my view, is not reasonable." That is an observation with which this Court concurs.
18. The judge applied 15% to the father's gross income, namely his salary less tax and social security giving £2,932 per month, yielding a figure of £439 per month. She said that the father was going to have to make economies in relation to his expenditure on food (£300 per month) and other matters. She said "I don't want to stop you going to see your child" but nonetheless the economies would need to be made. The order that was made was that the father pay the mother £450 a month until the child reaches the age of 17 or completes tertiary education, whichever is the later, the payments to be increased on the anniversary of the first payment each year in accordance with UK RPI.
19. The father set out his complaints in a letter to the Royal Court dated 4th February, 2020. The principal points that he made can be distilled as follows:
(i) The maintenance ordered was too high. He had spoken to the child support agency (now the Child Maintenance Service) in the United Kingdom before reducing his maintenance in January 2019 and was told that it would be calculated by taking into account his gross income minus pension contributions and how many nights per year he had his son. This came out at £360 per month and they indicated that he would also obtain relief in respect of his travel costs. He explained that he had to pay £300 a month on flights to see his son every fortnight and if he was a UK resident then he would obtain relief on the expenses and, he believed that, claiming 50% of the travel costs was not unreasonable. He had also spoken to the Child Maintenance Service (which he described as the Child Support Agency "CSA"), and, based on his current salary, they advised him that he would pay £380 a month maintenance, without any travel cost relief. He said "I simply cannot afford to pay £450 a month that the Magistrate has ordered and the Magistrate should have taken into account my travel and other expenses when she considered matters. The Magistrate said I could make savings on food, how can I make savings on £300 per month food?"
(ii) He also complained about the terms of the order. The judge ordered that payments continue until his son reaches 17 or finishes tertiary education. The provisional Stafford order made no reference to payments continuing to that stage, simply referring to them ceasing at the age of 17. The UK order also made no reference to maintenance being increased annually in line with UK RPI (the retail prices index).
(iii) He said that most of his debts had arisen because of difficulties he had experienced with the mother in securing her compliance with contact orders. He had spent £30,000 on legal fees over the past three years and owed his parents £17,000 needed to buy-out the mother's interest in the (property in which he still lives in Jersey) after their relationship had broken down.
(iv) He also pointed to discrepancies in the mother's financial information, including transfers to and from her mother and transfers in and out of another account which he said had not been disclosed.
20. The terms of Article 3 of the Petty Debts Court Law are set out above. The nature of an appeal to a superior court will depend at least in part on the terms of the statute providing for the right of appeal. The case law in relation to appeals from the Magistrate Court to the Royal Court in criminal cases arise from Article 17 and Article 20 of the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949 which are in different terms and accordingly the relevant case law (e.g. Graham -v- AG [2003] (1) JLR 91) is of little assistance to us. The test on appeal in most family cases by way of appeal from the Registrar to the Royal Court pursuant to Article 3 of the Matrimonial Causes (Jersey) Law 1949 is a useful starting point, although the words of the statute are in different terms. In Downes -v- Marshall [2010] JLR 265 Bailhache, Commissioner expressed the approach in this way at paragraph 12:
"What then should be the test on appeal to this court? We wish to underline the fact that we confine ourselves to appeals from the Family Registrar and his deputy pursuant to art. 3 of the Matrimonial Causes (Jersey) Law 1949 where evidence has been heard before them and a discretion has been exercised. We are not concerned with appeals from the Master of the Royal Court (notwithstanding that they are all Greffier Substitutes), where different considerations may apply. An appeal from the Family Registrar should only be allowed if there has been a procedural irregularity or if, in exercising his discretion, he has taken into account irrelevant matters, or ignored relevant matters, or otherwise arrived at a conclusion which the court believes to be wrong. This test is not precisely the test applied on appeal from this court to the Court of Appeal. It reserves a wider discretion for this court to intervene, but it places nonetheless greater weight on the Registrar's exercise of discretion. This test will, we think, establish the right balance. Sufficient weight is to be attributed to the Registrar's findings of fact and exercise of discretion to discourage litigants from seeking a fresh bite at the cherry. On the other hand, this court will have the power to intervene if it thinks that the Registrar has gone wrong to the extent that intervention is required in the interests of justice and fairness."
21. We were not provided with any authority indicating that the Court has previously considered what the test ought to be on appeal from the Petty Debts Court. We note that the Royal Court may "draw any inference of fact" and may "make a final order or other order on such terms as it thinks proper to ensure that determination on the merits of the real question in controversy between the parties".
22. The fact that the Royal Court is empowered to make a determination "on the merits" would appear to indicate that an appeal of this nature is not merely a review or that the Royal Court can only interfere if there has been a procedural irregularity or the judge in the court below has reached an unreasonable conclusion. Accordingly we will for the purpose of this appeal adopt the approach laid down in Downes -v- Marshall.
23. In this case only the mother was represented before the English court, only the father was represented before the Petty Debts Court but, for the first time, both parties were present before us on appeal - the father in person and the mother through Jersey counsel. Further, the father gave evidence before us. No other court heard evidence on oath.
24. The father made extensive submission over the video link during a hearing which ultimately lasted in excess of two hours. He indicated that he was concerned about his current employment as, although he was still being paid at the rate he was when he was represented in the court below, his employer had said that his workload would be reviewed at the end of this month and at that stage he might suffer a reduction in salary. We said that we could only proceed on the footing of his income as it was at the date of the hearing.
25. The father said he paid £400 per month from 2016 to January 2019 by way of a voluntary agreement with the mother. He gave evidence about his contact with his son and with the child support agency summarised above.
26. He gave us certain background evidence (ultimately we invited him to take the oath so that we were able to record that we received evidence on oath from him). He spoke about the difficulties he had in seeing his son. When he was due to see his son in early March, he travelled to England, arrived at the mother's parents' house for contact only to be told that his son was too tired to see him. As soon as the current public health difficulties had become wide-spread, the mother had declared that herself and the son were in self-isolation (on 18th March 2020) which prevented the son from having access to his father, save for by telephone and video calls. He had been permitted to see his son for two hours on the weekend just before the hearing and he speculated that that may only have been because of the court date. He is temporarily living with his parents in England as it would be impossible for him to see his son if he was still in Jersey owing to current flight restrictions.
27. He had incurred substantial legal costs, including some that were not taken into account before the court below, namely £2,500 with Le Gallais & Luce, which he needed to repay alongside the £24,000 he owed his parents (£17,000 buying the mother out of the house they had shared in Jersey, £10,000 loan to clear a debt to UK lawyers less £3,000 paid to date) together with £9,000 in legal fees owed to Viberts.
28. He said were it not for the costs he had incurred trying to see his son, he would be able to afford higher maintenance payments. Although we did not hear from the mother, that was not challenged on her behalf and accordingly we accept that evidence.
29. He went through his expenses in terms of clothing for his son, food; and other items and we found his figures to be reasonable. He does not have a car which keeps his overheads down. His mortgage payments are just over £1,000 per month.
30. He was concerned about the cost of going to visit his son once he returned to Jersey and flights resumed. The airline Flybe had collapsed and that the his way he had travelled to see his son prior to the current public health crisis. He did not know how much flights to Birmingham, Manchester and Liverpool, if they were available at all, would cost in the future and expected them to be more expensive. He reasonably (in our view) estimated the costs of return flights and train fare to his parents' house to be in the region of £400 per month when the current public health crisis eases.
31. His salary net of tax and national insurance is £2,932 per month. If his pension is taken into account it falls to £2,732 but we agreed with the judge that this sum needs to be added back in for the purpose of assessing what he can afford.
32. The matters that he set out in his grounds for appeal were still of concern to him. Further there were additional court proceedings involving the mother which he needed to attend in England, probably in June 2020. In view of his lack of means he was having to represent himself in court proceedings and as far as the Court was concerned, we believe that he acquitted himself well. The mother is able to obtain representation through legal aid.
33. He thought that the sum that he could reasonably afford was £300 per month by way of maintenance. He was keen to support his son but this was the best he felt he could do.
34. The mother's advocate said that the appeal was resisted, that everything relevant was taken into account by the lower court and this Court should not interfere with the lower court's exercise of its discretion. It was accepted that there had been no submissions heard by the judge in relation to expanding the ambit of the English provision order to include tertiary education, nor had that been applied for by the mother.
35. As to the suggestion that there was a "missing" account for the mother, that was simply an account that was connected to the account she had disclosed which had once contained a sum which represented the mother's capital buy-out of the shared house in Jersey. That account was now empty. As to the £650 per month rent that the mother paid to house herself and the son, £450 was paid by the relevant UK benefits department direct with the balance paid for by the mother. The maternal grandmother helped out on an ad-hoc basis.
36. The provisional order that the Court was considering under the 2000 Law required maintenance to be paid to the mother for the benefit of the child until the child attained the age of 17. There was no application by the mother to expand the order to the ending of tertiary education. This matter was not raised by the judge in the course of argument. It is a significant matter to order and, whether or not such an order may be appropriate in due course, it should not have been ordered without the father being able to make submissions. As a general principle, significant extensions to an order such as this, which might result in additional burdens to one party, should not be ordered without the opportunity for parties to make submissions.
37. Although the father complains about the decision of the judge to order that the maintenance payments are subject to an annual increase in accordance with UK RPI we reject that criticism, as we regard that as a common sense addition to the English provisional order and a provision which, regardless of any submissions which might have been made by the parties, is a sensible order that ought to be made.
38. We now turn to the question of maintenance. The parties are unmarried and accordingly if this was an application for financial provision for a child made in domestic proceedings the matters to which the Court is to have regard are set out in paragraph 4 of Schedule 1 to the Children (Jersey) Law 2002. We had regard to these factors when considering the exercise of our discretion. We note from the mother's financial statement filed in support of her application to the English court that she assessed her income at £1,324 per month including the £200 maintenance received from the father, and her expenses as £1,452 suggesting a deficit of approximately £130 per month. Those represent the mother's needs including the child's needs. The benefits which she received included £277 per month in child benefit and £80 per month in child tax credit. The mother also says she has a loan to her family to repay in the sum of £1,367.
39. On her asserted needs, the mother requires an additional payment of £330 per month from the father. Further it is reasonable for her to expect a contribution towards the loans that she needs to repay.
40. As to the father, although his net pay is £2,732 including pension, when pension is excluded the sum is £2,932. We agree with the view of the CSA (although their opinion is not binding upon us) that it is quite proper to take into account the costs that the father incurs in going to see his son. We allow those costs in full and accordingly his net income is in the sum of approximately £2,500 per month.
41. The 15% yardstick is a non-statutory measure and is only a rule of thumb and only applicable to the first child. The CSA guidelines were not designed with children in Jersey in mind (of course in this case we are dealing with a child living in England).
42. Under the CSA regime statutory child maintenance when payable (various families fell outside the scheme) required the non-resident parent to pay 15% of their net income for one child, 20% for two children and 25% for three or more. Those figures could be reduced by other factors, for example, if the non-resident parent had other children in their current family.
43. From 2013 all applications for child maintenance which were formerly made by the CSA are now made through the Child Maintenance Service using a new statutory scheme. A paying parent with a gross weekly income of between £200 and £3,000 (the scheme has no application to paying parents with a gross weekly income of more than £3,000) will pay 12% of the first £800 of gross weekly income and thereafter 9% of the balance of gross weekly income (not exceeding £3,000) in relation to one child; 16% and thereafter 12% of the balance of gross weekly income (not exceeding £3,000) in relation to two children and 19% and thereafter 15% of the balance of gross weekly income (not exceeding £3,000) of their gross weekly income in respect of three or more children. These percentages can be reduced by reference to shared care arrangement in relation to such children or by reference to child maintenance paid for other children from other relationships that the paying party may have. We do not know whether the payments made under the new scheme are more or less generous to recipient parents than those paid under the CSA.
44. In any event, applying 15% to £2,500 yields a monthly figure of £375 per month. We note a recent decision of the Family Division Registrar reported as E -v- F (Family) [2019] JRC 218 when the Registrar used the 15% CSA rate as a "cross check", but did not regard it as binding on her in that case, another matter involving a father of modest means. The key issue must be the needs of the child. We agree with the approach taken by the Registrar in that case.
45. Standing back and looking at the mother's needs and the father's salary less his reasonable expenses, in the view of the Court the appropriate sum for the father to be required to pay to the mother for the benefit of their son is £375 per month.
46. We re-calculated the arrears from January 2019 onwards at this rate less the £100 a month he is currently paying towards those arrears and ordered him to pay £1,775 by way of arrears, at £100 per month at the same time as he pays the child maintenance. Accordingly he must pay £475 per month until the arrears are cleared and £375 subsequently. Those payments are to be made on 1st day of each month and will increase with UK RPI from 1st January every year, commencing 2021.
47. We hope that the mother, on receipt of this judgment, will realise that it is important for both mother and father to work together for the benefit of the child and to ensure that there are no further disputes in relation to maintenance as such disputes will simply reduce the funds available to the father to support his son.
Authorities
Petty Debts Court Rules 2018.
Maintenance Orders (Facilities for Enforcement) (Jersey) Law 2000.
Petty Debts Court (Miscellaneous Provisions) (Jersey) Law 2000.
Maintenance Orders (Reciprocal Enforcement) Act 1972.
Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949.
Graham -v- AG [2003] (1) JLR 91.
Matrimonial Causes (Jersey) Law 1949.
Downes -v- Marshall [2010] JLR 265.
Children (Jersey) Law 2002.