Jersey Unreported Judgments

Family - applications before the Court

[2021]JRC324

Royal Court

(Family)

13 December 2021

Before     :

Samantha McFadzean, Registrar, Family Division

 

Advocate C. G. Hillier for the Applicant.

The Respondent appeared on his own behalf.

REASONS

the REGISTRAR:

1.        The court has before it an application by X, "the Mother", for leave to remove the Child from the jurisdiction and return with her to the applicant's country of birth, Country A.  In addition, the Mother seeks an order from the court to vary the child periodical payments paid by the respondent father (the "Father") to her for the Child's benefit, on the basis, she says, that her cost-of-living expenses, incurred in caring for the Child, will increase slightly when she leaves Jersey and moves to Country A.

2.        A matter of a week or so before this matter was to be heard, the court received an application by the Father for parental responsibility for the Child, who at the time of the hearing was 2½ years old.  The Father represented himself but asked to be assisted by a McKenzie friend, who is a practising lawyer working from Country A and Jersey.  The court expressed some reservation about the independence of the McKenzie friend, as the lawyer in question is married to a witness who appeared in the original matter but, on balance, considered that her support was warranted in spite of the fact that her independence might be compromised.

3.        The question of the appropriate level of periodical payments has been the subject of previous two judgments of this court and two judgments of the Royal Court on appeal.  The court gratefully adopts the recital of the procedural history and factual matrix giving rise to this application as set out in those judgments not least of which because the court's decision in X v W (Family) [2020] JRC 269 has some unusual features and because this is the decision which the applicant mother  seeks to vary.

The Mother's case and evidence

Leave to remove The Child to Country A

4.        The Mother's application was issued on the 9^th July 2021, and was heard on 29^th November and 2^nd December 2021.  She told the court that she plans to leave Jersey imminently.  As for the proposed move, she told the court that she believed that she and the Child would enjoy a "safer, more supported and more resilient life in Country A".  She informed the court that she is planning on resuming her career as a primary school teacher in Country A and that she intends to move to City B where she lived for a while before her move to Jersey.  During the last 16 years or so, she has lived in Country A for various periods amounting to no more than 5 years over about three periods of varying lengths.  She has two years' teaching experience.

5.        As set out in the previous judgment, the Mother worked in the financial services industry in Jersey [in financial services] but did not feel that she could continue to undertake office-based work because of her back issues and dry eye syndrome which are exacerbated by working in an office/air-conditioned environment.

6.        She also considers that her proposed work as teacher will enable her to accommodate the Child's school timetable so that savings can be made over school holidays so that she is not required to find and fund wrap around care.  The Mother did not wish to consider living near her parents in the rural community where she grew up.  She told the court that her own father is ill with cancer and that she wants to live closer to her parents so that the Child can continue to develop a relationship with them.  She described her father as the "male figure" in the Child's life and stressed the importance of further developing the bond between the Child and her grandfather.  She told the court that as her parents live some 180 kilometres from City B, she will need a reliable car to travel to see them.  She did not express any interest in securing a job or living in or near, ... the town where she was educated, which is 17 kilometres from her parents' two-bedroom home.

7.        On an interim basis, and until she is able to find a job and a home, she told the court that she planned to find a short term let, and that her mother would come to City B to help care for the Child.

8.        The Mother told the court that she wants to live in City B as this is a major city and she has friends and a cousin living there.  The Child is very fond of her cousin's baby.  She explained that City B is a large metropolis, but she could not tell me how many square kilometres the city covers or give me an idea of the likely population.  She thought that she would need a car to drive the Child to nursery and herself to school, as it would be inconvenient to rely on public transport, be it tram or bus.  She accepted that there is a good public transport system.  She does not know where she will live but she would like to live in one of the areas of City B with which she is familiar, like [redacted].  She was most reluctant to consider other parts of City B, like [redacted] as proposed by the Father, which she said was rife with gun and knife crime.

9.        The Mother adduced very little evidence about the comparative merits of the proposed move for the Child but as the Father ultimately conceded that the Child could leave with her Mother, the absence of such evidence did not prove an issue.

10.      The Father, sadly, has no relationship with the Child.

The Mother's application to vary periodical payments

11.      As indicated in paragraph 3 above, to understand fully the facts which give rise to this application, regard must be had to the published reasons.  In essence, on the Mother's previous application on behalf of the Child, the court was left in the invidious position of asking the Father to use his borrowing capacity to fund the Child, then about eighteen months old, to meet her and her mother's basic needs.  The Mother had no qualifications for Jersey housing and had not been in Jersey long enough to claim income support.  It would be many more years before she would be able to access the Housing Gateway.  She was living with the Child in a studio flat and the court found that the Child should be accommodated in a two-bedroom flat so that as she grew, both her and her Mother had some private space.

12.      The Mother had been working before the Child was born [in financial services], earning £32,000 per annum but was hoping to find work as a teacher in Jersey which she thought would secure an income of £36,000 per annum.  The Mother told the court that she had had a difficult year dealing with the dispute about the Child's paternity and that she did not feel up to working.  She wanted to stay at home with the Child until she started school.  The Mother also accepted that she might return home to Country A in due course and told the court that the cost of living in City B, while not as expensive as Jersey, was still considerable.  The court accepted that as the Child was very young, the Mother could take twelve months to find remunerated employment and the court put in place orders which were intended to encourage and support the Mother to return to work.

13.      Less than a year later, the Mother made the application now before the court.  As set out above, the Mother is planning to find a job on her return to Country A but on the basis that the Father increases the financial support offered to the Child.

14.      The Mother put her and the Child's future needs in City B, adopting an exchange rate of [redacted] to a pound sterling as follows:

Rent (2-bedroom flat)	900
Food	560
Electricity	40
Gas/Oil/Coal	8
Telephone including broadband	27
Insurance for motor vehicle	44
Clothing and shoes (self)	125
Household maintenance	40
Holidays	70
Birthday parties	130
Medical and dental appointments	200
Miscellaneous	125
Nursery costs	460
School and out of school activities	200
Babysitter	60
Clothing, shoes, nappies, toys	70
TOTAL	3,059

15.      The Mother says that she expects to be able to earn between £500 to £600 per month from anticipated work as a primary school teacher and that she will receive approximately £100 per month child benefit from the state for the Child, leaving her to find about £2,400 per month to live in City B.

16.      She told the court that by making economies she has managed to save about £6,000 or £7,000 from monies paid to her by the Father over the course of the last 15 months or so.  She says that she will need this money to register the order of this court with the Country A authorities.

Lump sum payment sought

17.      In addition, the Mother seeks from the Father a contribution by way of lump sum of £600 towards the cost of a christening party for the Child and £17,550 to purchase a motor vehicle, a car seat for the Child's use and to cover the costs of motor vehicle insurance for one year.  She told the court that she needed a car to transport the Child to and from nursery, and to see her parents. She did not accept that she could rely on the trains, buses and trams in City B .

Parental responsibility

18.      The Mother told the court that the Child's last contact with her Father had been in November 2019.  Other than for a chance encounter in the street, she has had no contact with him, she has not sought to facilitate contact and has received no requests from him for contact to take place.  She did not understand why the Father had made the application for parental responsibility.  The Father has not sent any Christmas or birthday cards or presents for the Child.  When the Father told the court that these were all being kept for the Child by her paternal grandmother, the Mother said that she would be happy to receive the gifts for the Child.

19.      She considers that the application for parental responsibility is a thinly disguised attempt by the Father to seek to exercise control over her; she considers that if the Father has parental responsibility, this will make her life in Country A more difficult as he will have to be consulted by her before she makes any decisions in relation to the Child's schooling, medical, dental or travel needs.

The Father's case and evidence

Parental responsibility

20.      The Father seeks an order from the court for parental responsibility for the Child.  The Royal Court set out in the judgment on appeal (W v X [2020] JRC 071A) the steps taken by the Father to have contact with the Child.  He abandoned his application to pursue parental responsibility and contact in early 2020 because of his previous experience in the family courts and in particular, because of what he described as the unpleasant accusations levelled at him.  Leave was given to withdraw his applications.

21.      He told the court in evidence that he accepted, albeit reluctantly, that the Child should be able to go to Country A with her Mother but that he would like to have some protection as he feels that he has been punished by the Child's mother and he fears that without parental responsibility he will have no say in important decisions which could be made in relation to the Child's life.  He gave an example of what could happen if, for example, the Mother was to meet an untimely death.  Would there be any consultation with him about where the Child would live if this happened while she was still a minor?  He accepted that an absence of PR does not stop him being the Child's parent.

22.      He accepts that he has not made any approaches to the Mother since the withdrawal of his previous application and that the only time he has seen the Child over the course of the last year or two was when he saw them in town.  He says that he fears having any relationship with the Mother because of the allegations that she has made against him.  He told the court that he is a good father to his older child, and would like to have a relationship with the Child.

23.      He referred the court to the JFCAS report that had been prepared in the earlier proceedings and accepted that JFCAS needed to make proper inquiries about the Mother's allegations but that these had not been pursued or resolved because he had withdrawn his application.  He told the court that he would like to be able to keep track of the Child's education and be updated as to how she is, her health and her emotional well-being and for this reason he seeks an order for parental responsibility.

Application to vary periodical Payments

24.      The Father does not accept the Mother's claim that she needs an upward variation in periodical payments for the Child to enable her to live in City B.  He says that the cost of living in Country A is significantly cheaper than in Jersey.  Having visited Country A only once, he accepts that he needs to rely on publicly available information about the comparative costs of life in City B and he has put before the court a number of documents obtained from comparator websites, including Numbeo and Mercer.  The latter places City B in a list of worldwide cities according to cost of living.  Advocate Hillier challenged him about relying on this evidence as it does not identify in quantifiable terms by how much less City B costs than, say, London, Paris, Prague, Birmingham or Limassol.

25.      The Father was challenged about the detail of cost-of-living comparison between St Helier and City B from Numbeo which he adduced in evidence which compares, for example, the cost of groceries, a meal out, transportation, utilities and childcare and the like.  This summarises the difference in living costs by suggesting that groceries are more than 50% lower in City B than in St Helier and that rental costs are more than 50% lower in City B than in St Helier.  Under cross examination, he did not accept that the Mother needed to spend as much as she suggested on food and utilities and he said that he thought that the Mother could make economies by living outside the more desirable areas of City B.  His evidence was that the locations selected by the Mother were the equivalent of Kensington, Mayfair and Knightsbridge.

26.      Accordingly, the Father suggested that accommodation need not cost as much as the Mother claims.  He put in the bundle rental marketing details for two apartments in City B which the Mother dismissed on the basis that they were in an area which she considered to be unsafe for her and the Child.  The Father's evidence was that this area was safe and popular.

27.      The Father also expressed some surprise that the Mother would choose a teaching role at a lesser salary then she might be able to earn if she worked in financial services.  The evidence he put forward was that the Mother could earn between £1,400 and £3,800 per month if she returns to [financial services].  His view was that it would be in the Child's best interests for her Mother to maximise her earnings.  The Mother accepted that she had also worked in financial services in City B at Citibank.  She said that she might consider a financial services role if she could work from home.

The Father's current financial circumstances

28.      The Father continues to run a property development company and told the court that the company had recently sold the last of a residential development which had been for sale at the time of the previous application.  He showed the court the completion statement following the sale of the final property in that development.  Although it sold for more than it was expected to achieve when proceedings were last afoot, because of additional financing which had been sought to keep the business afloat, the gross profit from the sale of the last property at nearly £3 million was less than £50,000.

29.      He told the court that because of the difficulties with his business, he had moved out of his previous rented accommodation which he had shared with his older child in September 2021 and is now living with his Mother.  The older child has been taken out of private education and now attends a State school as he could no longer afford to pay her school fees.  He told the court that two further developments mentioned during the previous proceedings have been stymied by planning and financing issues, increasing costs for the business.  He owes his previous advocate significant sums (in excess of £100,000) for unpaid legal fees.

30.      The Father gave evidence about the continuing strains on his business which led to him, he says, significantly reducing his income over the course of the last year.  Going through his bank statements in some detail, the court was able to identify payments to him from his business amounting to £118,521 between 15^th January 2021 and 18^th August 2021.  The Father told the court that he had increased his income between April and August in 2021 so that he could reach a financial arrangement with his previous advocate and save enough from this income to pay him a lump sum.  He told the court that he was advised to pay back some of that income by advisers to avoid any risk of being criticised for preferring creditors when the business was running on tight margins and possibly, he said, at a loss.  The court notes that he repaid £30,000 to his business in August 2021.  The debts to his former legal representative remain outstanding.  The Father also accepted that he did not appear to have discharged any meaningful portion of his credit card debt since the matter was last before the court.

31.      The Father was challenged about his outgoings as his bank statements show daily expenditure in restaurants across the island.  The Father told the court that he spends about £50 per day eating out and rarely cooks at home.

32.      The court noted significant payments from the Father's personal bank account to his older teenage child.  For example, in July 2021, payments were made to her, described as pocket money, of £910.  In addition, the Father pays £60 every week to the older child's mother which were described on his bank statements as "fuel" costs.  The Father told the court that he has always made this payment to her to assist with the older child's living costs particularly as the older child is no longer living with him.

33.      He told the court that all entries on his bank statements described as "get cash" were cash withdrawals for the older child's mother.  He accepted that as the older child's mother does not work, she is unlikely to spend £60 per week on fuel, so, for example, the £300 paid to her in July 2021 was for a different purpose.  He described the £1,210 payment in July as exceptional but the court notes that his bank statements suggest that similar debits for pocket money for the older child, cash withdrawals and fuel costs of £1,190 also went to pay either the older child or her mother in September 2021.  The court asked the Father whether it had been wise to make cash payments at this level to his older daughter in cash given the imminent proceedings; in response, he said that the older child had been doing a lot for him recently.

34.      The Father proposed that the court reduce the periodical payments ordered to be paid by him to the Mother to £1,000 per month given the evidence he had adduced of the significant reduction in the Mother's costs of living in Country A, the options available to the Mother to undertake better paid work and the fact that the viability of his business remains perilous.

The law

The law on applications for a variation of an order or agreement made under Schedule 1

35.      Our current law and the considerations which the court takes into account on determining an application for child periodical payments under Schedule 1 of the Children (Jersey) Law 2002 (the "Law") are set out in the court's judgment of 10^th August 2020 and in the Royal Court's judgments on appeal in this case in W v X (Family) [2020] JRC 071A and W v X (Family) [2020] JRC 240, which the court gratefully adopts.

36.      In E v F (Family) [2019] JRC 218, an application to vary maintenance, the court explained that in addition to the consideration of all the circumstances of the case which the court is required to consider under article 4(1) of Schedule 1 of the Law, in exercising its power to review maintenance under article 6, the court "shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order".

37.       In the same judgment, the court cites Commissioner Clyde-Smith in U v V (Family) [2018] JRC 160 in which the court held that "in an application for a variation of maintenance, the court does not approach the issue de novo".  The starting point of any determination is the agreement or previous order made for child periodical payments, now the subject of an application for variation, but this is, of course, subject to the statutory requirement to take into account any change in any of the matters which the court took into account when making the original order.

38.      In addition, I remind myself that a mathematical or formulaic approach may not serve the child's welfare and that, under article 2 of the Law, the welfare of the child shall be the court's paramount consideration.  On an application for periodical payments under Schedule 1, consideration of the child's welfare necessarily imports a review of the child's material needs (i.e. the child's financial needs, considered holistically, to include his or her education and health and any considerations as to how his or her wellbeing may be adversely affected by an order under Schedule 1).

The law on parental responsibility

39.      The principal authority relied upon in this jurisdiction in relation to the grant of parental responsibility is LS v NS [2007] JRC 103A in which the court referred to what has become known as the "three-strand test".  In considering an application for parental responsibility under article 5 of the Law, the court considers:-

(i)        the degree of commitment which a father has shown his child;

(ii)       the degree of attachment which exists between the father and the child;

(iii)      the father's reasons for applying for an order.

40.      These factors are necessarily a starting point and are not exhaustive and in line with the excerpt from L v S, the court considers that an order for parental responsibility will usually be granted unless clearly contrary to a child's welfare.

41.      As the Father accepted in evidence that he was not opposing the Mother's application for leave to remove, the court will not rehearse the law or the authorities relating to this part of the application.

Discussion

42.      The decision reached by the court in July 2020 was made against the specific circumstances in which the Mother then found herself.  The court accepted at that time that the Father's income and the demands on his income could ill support the Mother's claim that he should meet the entirety of the costs of housing and caring for the Child and accepted that he might have to continue to live off credit cards, as the court found that he usually did, to meet his overheads and obligations to his children.  His financial circumstances were opaque because he ran his own business and the best that the court could do was to estimate how much he could contribute from resources, rather than income, to assist the Child.

43.       The court found that because of the Child's age, the fragile state of the Mother's emotional health, the absence of any benefits which could assist with housing or income support and the acrimonious and combative nature of the litigation, that the Mother should have a period of 12 months' grace before undertaking employment which would enable her to work to meet her own living costs.  The court recognised that "the Mother should, ideally, be able to stay at home with the Child, but... for many new mothers, going out to work is not a choice, but a financial imperative".

44.      The reality of life for most new parents in Jersey (other than those who are very fortunate because of significant resources available to them or those who support them) necessitates a return to the workplace after maternity leave.  The Mother had given up her job towards the end of maternity leave and while it remains the case that, in an ideal world, children could be cared for at home by their parents (if they choose to do so) during their infancy, financial constraints mean that a return to the workplace is usually necessary.

45.      The court order made was intended to encourage such a return to work; both parents share financial responsibility for their children.  Because of the comparatively high cost of child care in Jersey, such a return would not necessarily result in a reduction of the financial support payable by the Father because the costs of nursery care in Jersey are comparatively high.  Accordingly, I ordered the Father to pay £1,750 per month before the Child starts school plus an additional £250 per month towards the cost of childcare should the Mother return to work before the date when the Child starts school.

The cost of living in Country A  

46.      The court considers that an application for child periodical payments should start and finish with the child's needs.  Establishing a clear picture of the cost of living in Country A or the Mother's income opportunities or expectations from her evidence was a challenge.  Because the factual matrix giving rise to the previous order will change so significantly, i.e. the Mother will now work, and moreover, live in a different country with a different cost of living, I do not consider that, on the facts of this case, I can treat the previous order as a starting point.  The court felt compelled to make a relatively high order for financial support on the last occasion because of limited options available to this single mother without recourse to state support.  With the move back to her home country, and her return to work, the quantum of the claim on behalf of the Child necessarily changes.

47.      The Mother now chooses to return to her home country where, she said, that she will have a support network of close friends and family.  I take that into account when reaching my determination.  She has options available to her, both in respect of where she will live and work, and while her choice of job and workplace may be predicated in part on health needs, I do not find that these needs are so significant that I can disregard other more lucrative work opportunities available to her. These choices are hers to make but when a party is looking for financial help to facilitate a lifestyle choice, and one which seeks to place an additional financial burden on a child's other parent and, in particular, to live in a relatively expensive city compared to her hometown, I have to weigh up the fairness to the Father of an increased financial burden on him, against the benefit to the Child. In this case, I have heard little evidence that the Mother's choice of city makes a material difference to the Child.  Arguably, her needs would be better served by living in the country, close to her grandparents.

48.      The starting point is to consider the quality of the evidence before me as to the costs of living in Country A.

49.       A good deal of the documentation put before the court by the Mother was not in English, no independent or reliable translations were provided; the court found it difficult to make any reliable findings from screenshots or downloads from the internet of the costs of, for example, tickets to the zoo, broadband bills, television licence costs, electricity bills and the like.  This documentation exhibited to the Mother's affidavit did not refer back to any explanatory narrative in her affidavit, nor was it properly or adequately translated.  This made the written evidence much less compelling.  The Mother provided copies of documents purporting to be shopping receipts from unknown persons whose circumstances might bear no resemblance to her own.  The court accepts that the cost of providing independent translation might be prohibitive but a properly put together affidavit, focussing on comparative benefits and specific costs, cross referring by page number to clearly identified documentation would have assisted.  This is particularly so in a dispute in which the other party acts in person.

50.       The court found the evidence put before it by both parties in respect of accommodation costs more reliable as the estate agents' marketing particulars of properties for rent were in English.  However, there was an absence of clear evidence about the location of the rental properties and no evidence was adduced which demonstrated the school or area where the Mother was hoping to work, or where the Child would be likely to attend nursery, which would have better enabled me to identify the likely area where the Child would live and the costs associated with living there.

51.      It is incumbent on an applicant for leave to remove, particularly one which is accompanied by an application to vary periodical payments, coupled with a claim for a lump sum, to succinctly state their case, supported by clear evidence.  How can I, for example, determine whether a motor vehicle will be required to transport the Child from, for example, her home to nursery when I hear no evidence as to where either location will be.  In a case where a paying parent patently has capital reserves with which to make such a vehicle or home available, this may less of an issue for the court but I remind myself that no evidence was put before me by the Mother of any capital available to the Father to fund a lump sum.

52.      The Mother criticised the Father for relying on publicly available information on the internet to enable him to identify the comparative costs of living in City B.  She told the court that the Father should not rely, for example, on websites such as Mercer or Numbeo to support his view as to the comparatively lower cost of living in City B, because she had found adverse commentary on the Internet by unknown individuals who complained about the reliability of the information contained within these websites.  The Father pointed out that the Government of Jersey relies on Numbeo on its own website and he urged the court to accept that it could be considered as reliable.  It was ironic that the Mother chose to adopt information on the Internet to support her criticism of the quality of the information found by the Father on the Internet.

53.      Given the paucity of independent evidence put before the court by the Mother and the comparatively clear independent evidence produced by the Father from online resources, save in respect of housing, the court preferred the Father's evidence as to the costs of living in City B.

54.      The court accepts that in a two-bedroom flat in City B is likely to cost at least £700 per month. The Child's home needs to be well heated and lit and I have no doubt, in spite of his criticism of the figures for food put forward by the Mother that the Father would want the Child to be properly fed.  I accept that while the costs of groceries and utilities in Country A are likely to be less than in Jersey (in accordance with the evidence from Numbeo), I find that the Mother's claims in this regard are far from extravagant, particularly given the Father's own spending on feeding himself.  I find that she will find spend £500 per month on groceries for herself and the Child.

55.      I found the Mother's evidence in relation to the claim of £200 per month for the Child's medical appointments to be unwarranted.  On the Mother's case, the Child has suffered repeated respiratory viral infections but there was little evidence before the court which can sustain an ongoing claim for financial support at this level.  As to the claims for £330 per month for the Child's entertainment and attendance at parties, these figures seem inflated for a child who is 2½.  I heard evidence to the effect that the Mother takes the Child out somewhere every day currently but the court anticipates that the Mother will be working full-time and certainly when the Child starts school, it is unlikely that they will be paying daily visits to zoos and the theatre.  I put the costs of entertaining the Child in Country A at £100 per month and allow £30 per month for attendance at parties.  I accept that these figures may increase when The Child reaches secondary school.

56.      I accept Mother's claim for full time nursery costs of £460 per month, and the costs of an occasional babysitter when the Mother may be unable to care for her although I would hope that her close friends and family may be able to help as her return to City B is predicated on their presence there.  As to the costs of clothing, shoes and toys at £70 per month, this figure may be an underestimate.  I allow £60 per month for the costs of Christmas and birthday presents for the Child although I accept that this figure may increase with the Child's age.

57.      In total, I assess that the Child's needs including nursery costs, before taking into account a notional share of the costs of housing, food and utilities is £900 per month.  When the Child starts school, I expect that the removal of nursery costs may be accounted for by a concomitant increase in her clothing, eating and entertainment generally as she gets older.

58.      Taking into account the totality of the evidence before the court, I do not accept the Mother's claim that the cost of living in City B will be higher than that in Jersey.  Her evidence on the last occasion was that the cost of living was less in City B and this is supported by the general information provided by the Father about relative costs of living.

59.      I accepted the Mother's evidence on the last occasion when she was before the court that she needed two-bedroom accommodation and awarded periodical payments to her payable by the Father to enable such accommodation to be acquired.  The Mother has not sought employment and has remained in a studio flat and while she claims that this is because she could not find appropriate accommodation, I note that she has been able to save from the maintenance paid by the Father and the income support received from the state.  She told the court that she has managed to save by continuing to live frugally but I question how fair this is to the Child or the Father. 

60.       The court cannot and should not disregard the needs of the child.  However, the schedule placed before this court goes further than identifying the Child's needs: they include the financial needs of the Mother.

61.      I do not accept that the cost of, for example, the Mother's telephone, her clothing and shoes, car insurance or pension contributions are figures that should form part of a claim under Schedule 1.  These costs must be her own; there is no claim in this matter for a carer's allowance.  The Mother is proposing to work and can legitimately be expected to meet her own living costs: claims under Schedule 1 in a conventional case should not import any claim in the nature of spousal maintenance as this is not a responsibility contemplated or accepted by the Father, or anticipated or imposed by the Law.  I accept that the expenses which the Mother might have to meet for her own needs can be considered by the court when assessing her disposable income available to meet the needs of the child.

62.      Like the Father, I question why the Mother would choose to undertake a job, which is on her case, poorly remunerated.  The Mother was unable to provide evidence or assist the court as to the level of her income when she last lived in City B or indeed provide details of the rent she then paid.

63.      The key issue for the court is to identify the likely costs of the Child's housing and day to day care, as it was on the last occasion. This priority has not changed but the location of housing and a comparatively lower cost of living in City B (as found by this court) satisfy me that the global costs of living in Country A for the Child will not exceed £2,200 per month to include the costs of housing the Child and her Mother, feeding the Child, keeping her warm, safe, clothed, fed and in nursery while the Mother works.

How should the costs of the Child's housing and care be met?

64.      I understand that the Mother has firm views about where she wishes to live but if she chooses to return to teaching instead of working in financial services, her more limited income may mean that she is unable to live in the areas of City B where she would prefer to live.  The Father is under no obligation to make a contribution to the Mother's own costs of living particularly as I have previously found that she is capable of earning more than she says that she will earn in Country A from the job that she is prepared to undertake.

65.      Any attempt by the court to deduct from the living costs identified in paragraph 63 above a figure identifiable as the Mother's own costs of housing might result in the Child being inadequately housed but I remind myself that the Mother was reluctant to consider working and living close to her parents, notwithstanding the importance that she placed on the Child spending more time, particularly with her own father.

66.      Clear evidence of, for example, an advertisement for a job as a primary school teacher might have produced more reliable evidence of the likely salary which she could earn.  £500 per month seems an extraordinarily low figure for a professional role when set against the Mother's projected housing costs.  While the cost of rental in major European cities (and, indeed in Jersey) bears no relation to achievable salaries, particularly for those working in the public sector, the court acknowledges that the Mother, like many professionals working as, say, teachers, nurses, firemen or police officers, may not ultimately be able to afford to live in the location of her choice.  The court finds that Country A is more likely to be able to offer alternative cheaper but still adequate housing options than Jersey.

67.      The Father's financial position remains far from straightforward.  I said in the previous judgment that I anticipated that the Father could manage the level of maintenance ordered without causing a significant impact to his lifestyle and the evidence that has been put before me during this hearing suggests that this expectation was correct.  He has, once again, claimed that he cannot afford what he currently pays for the Child and the tenor of his evidence suggested that he was frustrated by the level of maintenance he had been ordered to pay for his youngest child.  The fact that the Mother has been able to save part of the periodical payments he has made over the past year suggests that she can/will make economies at cost to him.  Nonetheless, the court finds that he pays between £1,100 to £1,200 per month for the benefit of his older child in Jersey.

68.      I take into account the fact that the Father has paid himself significant sums over the past year, albeit that some of the money has been paid back to the company he owns.  I also take into account his lifestyle, as apparent from his bank statements and the fact that he has yet to discharge the debt to his previous advocates.  Whether this is through choice or because of absence of ready resources is obscured by his failure to use the money he drew down for the purpose for which he said that he took this salary.

69.      I was troubled by the Father's apparent lack of clarity about his income tax position.  I shared with him my concern about the apparently unanswerable conundrum of why a party coming to court pleading an impoverished position should not be in full possession of facts supporting his financial position and this concern was not alleviated by the ready dispersal, apparently to the older child and her mother, of resources which he said were scant.

70.      Looking at the totality of the evidence and with the Child's projected needs and her welfare as my primary considerations, I order that from 1^st April 2022, the periodical payments payable by the Father will reduce to £1,200 per month.  The date of the reduction in periodical payments will provide the Mother with over three months to find a job and a home.  I find that the Mother can live more cheaply in Country A, but that if she chooses to live in City B away from her parents, and in an expensive area, she will need to bear the brunt of the additional inherent cost.  I also take into account her choice as to career but find that this choice should not have adverse financial consequences for the Father.

Capital claims

71.      I did not understand the requirement to which the Mother deposed to meet costs of registering a mirror order in Country A given that any enforcement proceedings arising from unpaid periodical payments would be heard in Jersey.  In any event, based on the court's experience of such orders, I do not anticipate that such costs would exceed £200.  The Mother can meet this cost from the monies which she has set aside.

72.      I acknowledge that the Child's welfare would be best served by her Mother having the use of a motor vehicle whether she chooses to live inside or on the outskirts of City B.  There is little evidence that the Father is able to make a capital contribution in the sum claimed by the Mother.  She has retained £7,000 capital from periodical payments made to date.  This sum will need, in part, to be used for removal costs but as the Mother has been living in a furnished studio, and is currently in hotel accommodation, these will be very limited.  I anticipate that she will be able to keep a good part of the capital to meet her need for a motor vehicle.  I order the Father to make a £5,000 lump sum by way of contribution towards the costs of a motor vehicle.  While I heard no compelling evidence as to affordability, I noted that the Father was able to draw down an increased salary when he wanted to use it for his legal fees and I consider that he should be able to find capital to make this payment to the Mother by no later than 28^th February 2022, strictly on the understanding that the Mother and the Child have, by then, relocated to Country A.  The Father has, in the past, been able to borrow from his own mother and his overheads have now reduced as he is no longer paying rent for his home.  I am satisfied that he can find the money to make this lump sum payment as he anticipated being able to do for his lawyer's outstanding fees.

73.      The Mother seeks a contribution of £600 from the Father for a celebration for the Child's christening.  While this is not a cost which can be strictly construed as a need for the Child, it seems a reasonable request, not least because the Child deserves a celebration to introduce her fully to her Mother's family when she returns to live in her Mother's home country.  The Father should make a further contribution to the Mother of £600 by no later than 28^th February 2022.  I note that the Mother has agreed to invite the Father to the celebration arranged and I expect her to give him adequate notice so that he can make arrangements to attend, should he choose to do so.

Parental responsibility

74.      Is the Child's welfare served by this court making an order for parental responsibility?  The court considers that such an order would usually be made unless clearly contrary to a child's welfare.

75.      The Mother told the court that the Father's application for parental responsibility is an attempt to exercise control over her.  I have seen no evidence that this is the case.  The Father appears to have made no effort whatsoever to engage with the Child or her Mother and this undermines the Mother's contention as to his reason for now seeking an order for parental responsibility.

76.      The Father told the court that he wanted to have parental responsibility to enable him to be consulted should anything untoward happen to the Mother.  He describes himself as a good Father to his older child, and I have no reason to doubt that this is correct.  Sadly, and in spite the evidence he gave the court that he wanted to have a relationship with the Child and that he would like his older child to have a relationship with his younger child, there is no evidence of any attempt by him to re-establish a relationship since his application for contact was withdrawn in January 2020.

77.      I accept that the Father is embittered by the allegations made by the Mother in the previous proceedings.  While I am not in a position to make any findings about those allegations, it seems to me that the Father prefers to close the door on his relationship with the Child rather than be subjected to further enquiry or investigation.

78.      The Mother criticises the Father for his wholesale failure to offer any emotional or practical support to her: the Father says that he has been met with attacks on his character by the Mother and that after previous litigation, referred to in previous judgments of this court, he does not have the stomach for the fight.  For the Child, this is a tragedy.

79.      While the Mother accepts that the Father has, since the court made orders in relation to financial support for the Child, paid the sums ordered without default, the Mother criticises the Father for not doing more.  The allegation about his failure to do more financially is unwarranted.  The monies paid by him have met the lion's share of the Mother's and the Child's outgoings for the past year.  The Father's failure has been his absence from the Child's life, rendering any attachment between Father and child impossible.  Aside from the Mother's hostility to the Father, nothing has prevented him from playing a part in the Child's life other than his apparent need to protect himself, with little thought for the impact on the Child of growing up without a loving Father in her life.

80.      The court expressed the view at the conclusion of the last proceedings that no financial support, as important as that may be, can compensate the Child for the absence of the Father from her life but the Father has made no attempt to open a door to enable future contact to take place.

81.      In the premises, it is difficult to see how the Child's welfare would be served by the court making an order for parental responsibility.  The application is accordingly, and with regret, dismissed. Once again, this case has unusual features and it should be understood that the court's refusal to make an order for parental responsibility is based on the exceptional facts of this case: had the Father made any sustained effort to develop a relationship with his daughter, and pursued contact, parental responsibility would likely have been granted.

82.      Notwithstanding the absence of any attachment or evidence of any commitment towards the Child, other than financial and as ordered by the court, the Mother has offered to provide updates to the Father.  As indicated during the hearing, the court will order the Mother to send the Father an up-to-date photograph/electronic image of the Child every two months and provide him with details of her progress, education, interests and to advise him should any medical issues arise. She has offered an undertaking to do so.  If this serves no other purpose, the court hopes that it may open a line of communication between the parents, however tenuous,  which, one day, may enable the Child to get to know her father.

Authorities

X v W (Family) [2020] JRC 269. 

W v X (Family) [2020] JRC 071A. 

Children (Jersey) Law 2002. 

W v X (Family) [2020] JRC 240. 

E v F (Family) [2019] JRC 218. 

U v V (Family) [2018] JRC 160. 

LS v NS [2007] JRC 103A.