Jersey Unreported Judgments

Family - application for orders for financial provision

[2022]JRC182

Royal Court

(Family)

1 September 2022

Before     :

Elizabeth Daultrey, Registrar, Family Division

 

Advocate H. J. Heath for the Applicant.

Advocate R. E. Colley for the Respondent.

REASONS

the REGISTRAR:

The court is asked to determine an application filed by the applicant mother on 22^nd November 2021, for orders for financial provision under Schedule 1 of the Children (Jersey) Law 2002.

Background

1.        The parties cohabited but did not marry, the child of their relationship, ("the Child") was born in 2017 now aged 4.  The parties separated in November 2020, the applicant relocating with the Child to Jersey where she remains living.  The respondent father lives in England.  An order was made by agreement between the parties that the Child live with the applicant in Jersey and will spend 5 weeks and 5 days with the respondent in England during school holiday periods, the arrangements for travel on these occasions is a shared responsibility and a shared cost between the parties.  The respondent also visits the Child in Jersey in between holiday periods, on approximately 4 occasions per year, he bears the cost of these visits.

2.        The parties jointly owned a home in England, this was sold following separation.  The proceeds of sale were distributed in accordance with a declaration of trust between the parties.  I have not seen any documentation regarding the amounts received by each party, the applicant recalls that she received circa £180,000, the respondent recalls that he received £690,000.  The respondent pays £500 per month in child periodical payments on a voluntary basis.

3.        The applicant is aged 49, the respondent is aged 61.

Issues and orders sought

4.        The parties agree that the respondent should make periodical payments to the applicant for the benefit of the Child, they do not agree the correct sum to be paid.  The respondent wishes to reduce his payments to £300 per month, the applicant wishes that they be increased to £850 per month.

5.        The applicant also seeks a lump sum payment of £20,869.48 calculated as follows:

(i)        £2,443.73 representing 50% of the costs of the Child's activities since the date of the application as follows:

(a)       Holiday clubs, total cost £2,722.20; 50% = £1,361.10;

(b)       Annual memberships, total cost £168.00; 50% = £ 84.00; and

(c)       Swim & Gym, total cost £1,877.25; 50 % = £ 938.63.

(ii)       £5,695.75 representing half the costs of the Child's nursery fees from the date of the application, the Autumn Term 2021 fee being £3,814.50;  Spring Term 2022 being £3,645.00; Summer Term 2022 being £3,932.00 (totalling £11,391.50);

(iii)      £2,800.00 being arrears of maintenance from the date of the application calculated on the basis of a backdated order in the sum of £850 per month, less £500 per month paid (£350 x 8);

(iv)      £10,000.00 lump sum for unspecified additional costs for the Child to be transferred to the Child at the age of 18 to the extent it has not already been spent.

6.        The Child will start school in September 2022, the applicant wishes him to attend private school and seeks an order that the respondent shall pay half of all fees and expenses associated with privately funded education, also childcare during school holidays as follows:

(i)        50% of holiday club costs to be agreed in advance, capped at £1,500 each school year, such consent not to be unreasonably withheld;

(ii)       50% of the Child's school fees to the end of secondary education to be paid to the school on demand on the basis that ideally the Child attend the school attached to the nursery he has attended since moving to Jersey, or that the Child will move schools to another private school where the fees may be a little less expensive.

7.        The primary issues between the parties are whether the parties should pay for private education, and whether capital resources should be used for this purpose.

The applicant's evidence

8.        The applicant filed a statement of means, her position is set out in a position statement and a skeleton argument filed by Advocate Heath on her behalf.  The applicant gave sworn evidence at the hearing.

9.        The applicant gave evidence as to her past work experience and qualifications.  Prior to the breakdown of the parties' relationship, the applicant had been out of work for a number of years. Since February 2022 she has been in employment, it is a job she enjoys, she remains on probation with this employment until September 2022 but is not aware of any reasons why this would not become a permanent post.  She works from 8:00am to 4:00pm each day 5 days per week, her net wage is presently £2,461 per month.

10.      The applicant and the Child live with the applicant's mother, she hopes this arrangement will be long term although she cannot guarantee that arrangements will not change in the future should her mother need to sell her property for any reason.  The applicant asserts that she pays her mother £1,200 per month but conceded during cross examination that she has not paid every month.  The maternal grandmother has provided the applicant with financial support to assist with the payment of school fees and legal fees, she also provides practical support assisting with childcare, for example she takes the Child to nursery in the morning.

11.      The applicant's outgoings are set out in her statement of means to be £3,777.50 per month.  This figure includes school fees at £850 per month and childcare of £492 per month.  In addition to the rent that she pays her mother, the applicant pays £240 per month storage costs.

12.      The applicant clarified her childcare costs in her oral evidence:

(i)        during school holidays when the Child is in her care, holiday clubs cost £290 a week.  Taking into account her own paid holidays and the time the Child spends with his father, the applicant estimates that she will need to pay childcare over the next academic year for five weeks during the holidays;

(ii)       during term time, the Child attends after school clubs four days a week, this costs £8 per session which equates to £280 per term;

(iii)      The total costs over a year would therefore be £2,290 comprising 3 x 280 and 5x 290.  This would average out at £190 per month.

13.      The applicant does not own property, she recalls she received a total payment upon sale of the jointly owned property of £180,000.  The applicant holds approximately £100,000 in a growth fund which derives from her share of the proceeds of sale of the family home.  At the time of the applicant's statement of means dated the 10^th February 2022, she also held approximately £34,000, as at the date of the hearing this has reduced to £12,600.  She says the balance has been spent upon school fees, childcare and other expenses for the Child over the past 5 months.

14.      Regarding private education, the applicant says that the respondent agreed to the Child attending private nursery, however she concedes that he has been clear that he did not wish to pay for private school education for the Child, she stated in evidence that there have been "no recent discussions about education".  The applicant would prefer the Child to attend the school run by the provider of his nursery education, School A.  She says that it would be good for the Child to have continuity not least because he has been adversely affected by the breakdown of his parent's relationship and the ongoing court proceedings, as a result of which he is under the care of CAHMS.  The applicant nevertheless agrees that there are other private school providers on Jersey suitable to meet the Child's needs, ideally however the Child would stay at School A until year 3.  The applicant was not clear regarding the future cost of school fees on an ongoing basis with School A or any other providers, she thinks but is not sure, that from September 2022 the fees for the reception year at School A would be £2,925 each term after the benefit of a 25% bursary has been taken into account.  She thought that the fees would increase in the following school year but could not provide any figures for future fees prior to year 7, nor could she confirm whether the bursary for the Child might be available in future years.

15.      The applicant accepted that there was a place available at a local state school for the Child from September 2022.  She has no objection to this school, save that she wishes there to be continuity of education.  In general terms, the applicant would prefer private education as she believes there is a greater ethos toward hard work, and she wants the best for the Child.

16.      Regarding the lump sum the applicant seeks in the sum of £10,000, she was unclear as to how this would be spent, she wishes to have this money as a cushion to pay for school trips, a computer for the Child or incidental expenses such as a new bed.

The respondent's evidence

17.      The respondent filed a statement of means and replied to a questionnaire served on behalf of the applicant.  A position statement and a skeleton argument prepared by his Advocate are filed on his behalf.  The respondent gave sworn evidence at the hearing.

18.      The respondent is a chartered surveyor, he has been in the same employment on a long term basis.  The respondent's evidence is that his basic salary is fixed at £75,000 per annum gross, which equates to £3,198 per month net, in addition he receives a performance related bonus paid on a quarterly basis.  This bonus is calculated simply as 25% of all fees he generates above £150,000 each year.  In the tax year ended April 2022 his gross income was £107,000, after tax and national insurance his net was approximately £60,000 including bonus payments.  The respondent provided evidence of his quarterly bonus payments since 2019, the average gross payment received by way of bonus in each year over the most recent three year period was £28,182.  Accordingly the respondents average gross remunerations have been approximately £103,000 per annum.  Based upon these figures, his average net monthly income in the future is likely to be less than £5,000 per month.  The respondent hopes to work until state retirement age of 67 but he is concerned that his capacity to generate fees and therefore any bonus may diminish over the years, for this reason also he is worried about being able to afford inflationary increases upon child periodical payments.

19.      The respondent has disclosed pension benefits to the value of £564,000, he says that he does not know what his financial position will be upon retirement, but he anticipates that his income will be significantly lower than at present.

20.      The respondent's outgoings as set out in his statement of means in February 2022 are £3,778 per month including periodical payments for the Child in the sum of £500 per month and £250 per month for the cost of travel to Jersey to see the Child.  The respondent was challenged by Advocate Heath regarding a monthly payment he makes to his adult children in the sum of £400.  The respondent's adult children are aged 24 and 26, they are both in employment and live independently with their respective partners.

21.      The respondent says that he received "just shy of £700,000" from the sale of the parties' family home.  He utilized £556,000 of those monies to purchase a new property in Town A in the sum of £822,500, the balance was provided by mortgage.  He says this is a 3 bedroomed property, although concedes that it was described by the selling agents when he bought it as a five bedroomed property.  The property will need £60,000 spending upon renovation which he will raise, he says, by working hard in the coming years prior to retirement.  As to the balance of the monies he held following sale of the joint property he has £5,000 pounds remaining, having spent £20,000 on legal fees, and putting £80,000 into a pension fund.  The balance of approximately £30,000 has been spent.

22.      The respondent asserts that he would not have been able to buy a home in Town A for less than the money he has spent.  In response to questions put by Advocate Heath on behalf of the applicant, the respondent accepted that he considers that he has already conveyed a capital benefit to the Child because of the manner in which the proceeds of sale of the family home were divided which he felt to have been unfairly weighted in the applicant's favour.

23.      Regarding private education, the respondent agrees that in June 2021, he offered to pay child maintenance of £500 per month and 1/2 of nursery fees.  He further concedes that he agreed to the Child attending School A nursery although he had not been aware that they did not take nursery vouchers which he says effectively makes it the most expensive nursery in Jersey.  Since June 2021, his expenses to exercise contact have increased.  He draws a distinction between paying for nursery education and school education.

24.      The respondent accepts that his two adult children attended fee paying schools from secondary education onwards.  He explains that the decision was made because he and his wife at the time feared that their son would be bullied at state school, and at the time they had a joint income of £200,000 per annum so it was an affordable option.  He paid the fees for his son to attend school, and his wife and her parents paid the school fees for his daughter.  He says that he did not think that his daughter benefited from private education, and her experience has put him off.

25.      Regarding the Child's mental health, the respondent accepts that the Child has been referred to CAMHS, but as he has not been involved and does not know any details.  He says CAMHS have not discussed the Child's health with him. He has no concerns regarding the Child's mental health or his ability to thrive in state school.  In short, the respondent agreed to pay half of nursery fees but has no particular wish that the Child attend a fee paying school, he neither wishes the Child to attend private school nor can he afford to pay towards the fees.

The Law

26.      The parties were never married; accordingly the application is made pursuant to the Children (Jersey) Law 2002 Schedule 1 ("The Law") paragraph 1 provides as follows:

"(1)     On an application made by a parent or guardian of a child, or by any person in whose favour a residence order is in force with respect to the child, the court may at any time make an order requiring one or more of the following -

(a)     either or both parents of a child -

(i)      to make such periodical payments and for such term,

(ii)      to secure such periodical payments and for such term,

(iii)     to pay such lump sum, and

(iv)     to transfer such property to which the parent is or the parents are entitled, as may be specified in the order to the applicant for the benefit of the child or to the child personally;"

27.      Paragraph 4 of The Law sets out the matters to which the court is to have regard in making orders for financial relief:

"(1)     In deciding whether to exercise its powers under paragraph 1 or 2, and if so in what manner, the court shall have regard to all the circumstances including -

(a)     the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;

(b)     the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;

(c)     the financial needs of the child;

(d)     the income, earning capacity (if any), property and other financial resources of the child;

(e)     any physical or mental disability of the child; and

(f)      the manner in which the child was being, or was expected to be, educated or trained."

28.      Advocate Heath cites PG v TW (No 2) (Child: Financial Provision) [2012] as authority for the court to compare the parents housing circumstances and the reasonableness of the mother in that case seeking funding for a home independent of her family support.

29.      Advocate Heath also cites the case of A v B [2012] JRC 165A in which the Family Registrar endorsed various authorities of the courts of England and Wales, and Jersey.  In that case the Father had "ample resources", his company held cash reserves of £870,580 which did not appear to be earmarked for business development, or his housing or retirement.  The Mother was awarded a lump sum of £150,000 towards the partial discharge of her mortgage.

30.      The applicant in the present case has not provided any details of future housing aspirations or needs.  I have no details as to the costings of rent or purchase by the applicant of what is described by Advocate Heath of "an appropriately sized property".  I have no evidence as to the applicant's mortgage capacity.  The applicant's evidence is indicative that living with her mother was a long term choice, she did not suggest that the present arrangement does not meet her and the Child's needs adequately.  Even if the court were to find that the respondent has adequate resources to meet an order regarding the mother's housing, the court would be hard pressed to make provision for future housing in circumstances where there is no evidence setting out what she needs.  The applicant does not in any event specifically seek a lump sum for this purpose.

31.      There is little case law regarding payment of school fees, this may be because the approach the court should take is set out in paragraph 4(1)(f) of The Law.  The recent case of F-v-G [2021] JRC 105 does cover the question of financial provision for private education within the circumstances of that case.  As part of her judgement the Registrar concluded:

"as one of the circumstances of this case, HH's wellbeing requires that HH suffer as little disruption as possible to HH's education"

and

"The court reminds itself that a child should, wherever and whenever possible, be afforded a lifestyle and activities consistent or comparable with the opportunities offered/ life enjoyed before their parents' relationship broke down or, if applicable, the life enjoyed by parents or siblings following the parents' separation."

In that case the child concerned had been privately educated at the same school from reception year by agreement between the parents, she had now reached GCSE level  education.

32.      Advocate Colley argues that the Jersey Courts have moved away from their previous use of the CSA/CMS guidelines, she refers the Court to the case of W v X [2020] JRC 240 at paragraph 23 where Commissioner Clyde-Smith endorses the approach taken by the Family Registrar in the case of E v F [2019] JRC 218 as follows:

"In the court's view, before considering whether it might be appropriate to consider or, indeed, apply the CSA guidelines which are both 'mathematical and formulaic', but which neither extend to this jurisdiction nor are reflected in the Law, the court must consider Articles 4(1) and 6 of the Law i.e. the financial position, needs and obligations of each of the parents (or payers) and the child under Article 4(1) and, if applicable, the quantum of any order for child maintenance which it is being asked to vary and any change of circumstances which it should take into account under Article 6.

The required assessment is more nuanced than a simple percentage calculation.  I propose identifying the appropriate figure by applying the Law.  I take into account the contradiction between avoiding a 'mathematical and formulaic' approach but still adopting the CSA guidelines as a starting point.  I also recognise that, as Advocate Brown said in closing, a child is 'entitled to jam on his bread' but this must be, in the court's view, only where this can be reasonably afforded by his parents. Having arrived at what the court considers as a reasonable figure, I propose using the CSA guidelines as a cross check.  Where there is a significant disparity between those figures, in the court's view, and in the absence of other Jersey statutory guidance, I should make a bespoke assessment with regard principally to our Law - in line, in effect, with Mr Justice Charles' conclusion in FG v MBW."

33.      This correctly sets out the approach that the court should take in determining the level of child periodical payments.

Discussion

34.      Regarding school fees, the case of F v G does not create a precedent in favour of payment of school fees beyond its own facts.  The starting point upon consideration by the court of funding private education should be the requirement set out at paragraph 4(1)(f) of The Law, which requires that the Court have regard to "the manner in which the child was being, or was expected to be, educated or trained.". In the present case, the evidence does not indicate that there was an expectation between the parents that the Child would attend privately funded education.  The Child has attended privately funded nurseries, however, full time nursery education will nearly always be subject to fees unlike school age education where the parents have a choice between privately funded or state education.  I draw a distinction between agreement to fund nursery fees and funding school education between the ages of 4 and 18.

35.      The applicant concedes that she has no concerns about the place that could be offered to the Child at School B, which is wholly state funded, her primary concern she says, relates to continuity for the Child as she says the Child has mental health difficulties.  Paragraph 4(1)(e) of the Law requires that the Court have consideration to:

"any physical or mental disability of the child". 

I do not have any independent evidence before me regarding the Child's mental health.  The respondent accepts that the Child has been referred to CAMHS, but he has not been provided with detail regarding this referral.  The applicant says that CAMHS are involved because the Child has been adversely affected by the separation of the parents.  I do not doubt that this is the case, the separation and the aftermath appear to be acrimonious, the tension between the parents regarding the division of the proceeds of sale of the family home was palpable during the hearing.  However, this does not of itself indicate a need for private education, nor is there any evidence to suggest that attending School B rather than a private school would be in any way detrimental to the Child's mental health.  It is difficult to see how this conclusion could be drawn in any event when the Child has not yet started school.

36.      I do not wholly accept the respondent's argument that he cannot afford 1/2 of school fees whilst he remains in employment.  He has made financial choices that are open to question.  I do not accept that he could not have rehoused himself mortgage free, the cost of his mortgage on a month by month basis is a lifestyle choice rather than a necessity.  The respondent clearly has a degree of confidence regarding his future earnings as he intends to discharge his mortgage and raise an additional sum of £60,000 to fund renovation of his property before retirement.

37.      Even if the Court were to find that the respondent should and could afford to contribute to the cost of private education whilst he is in employment, I question the affordability of school fees into the future.  The respondent will reach state retirement age five years into the Child's education when the Child will be 9.  Upon retirement, it is highly likely that the respondent's financial position will change significantly, resulting in the respondent no longer being able to afford to pay school fees from his income resources.

38.      The applicant argues that the respondent should use the equity in his home or draw capital from his pension to guarantee that school fees can be paid until the Child is 18.  It is certainly open to the Court to require payment of periodical payments from capital.  In the present case, the respondent's capital is tied up in his home, I question his choice to take out a significant mortgage when he has a child to support, I do not however question his need to rehouse himself.  I have no evidence that he could raise capital funds from his home upon retirement, to do so might prove neither practical nor affordable.  Upon retirement the respondent can draw a lump sum from his pension fund, it is not an unusually large pension fund and the respondent may require all of his pension to meet his needs in retirement, this is not an assessment that I can make at the present time on the evidence before me.  I must therefore conclude that it is possible if not probable that provision made now for private education, is not sustainable even until the Child reaches secondary school age.

39.      The applicant does not have a high wage, the evidence suggests that at the present time she is living beyond her means.  It appears that the applicant herself may struggle to afford to pay half of school fees on a long-term basis without assistance from third parties which cannot be mandated by this court.

40.      The applicant identifies continuity as important for the Child, and so it is for any child.  In my view it would be an error to start upon the path of private education in circumstances where a significant financial change is likely to occur in 5 years' time.

41.      The question as to whether a child is privately educated is wider than whether it is affordable.  Advocate Colley says in her skeleton argument, that attending a fee paying school is a privilege and not a right.  In the present case the Child has not yet started school.  The parents had not agreed that he would be privately educated.  These facts are of at least equal significance to the question of affordability.

42.      Regarding a lump sum payment, Advocate Heath in her skeleton argument asks that the court consider the appropriate level of financial provision in respect of capital, she seeks:

"capital - for the benefit of the Child, for the duration of the Child's dependency together with a determination as to the respective contributions by the Father to the Child's capital needs during this time, such consideration to include the nature of the accommodation for the Child with reference to the statutory provisions in schedule 1.  The lump sum to enable the mother to appropriately refurbish and equip the Child home"

43.      Advocate Heath is no more specific than this in terms of what she is asking the court to order beyond the applicant's open position as set out in paragraph 5 of these reasons, namely, to reimburse the applicant for expenses already incurred, also a lump sum of £10,000 for future unspecified miscellaneous expenses.  The applicant's position as to whether she seeks a lump sum to provide for school fees or child maintenance following the respondent's retirement is unclear.

44.      The respondent left the relationship with capital of £690,000.  From this he has rehoused himself and has put money into his pension which leaves only a modest balance.  It is reasonable that the respondent should use his funds to re house himself, and nearing retirement age, it is a reasonable use of capital to shore up his retirement funds.  It is a significant consideration that the respondent is approaching the age of 62, he is five years from state retirement age.  The respondent is not a wealthy individual and does not have large sums of spare available capital.

45.      The respondent offered to pay half of the Child's nursery fees but has not done so.  It is reasonable that he should reimburse the applicant for half of nursery fees paid in these circumstances.  It is also reasonable that the respondent should contribute toward the cost of childcare.  I am unclear as to how the sums claimed by the applicant are calculated, in the future she anticipates the cost of childcare will be on average £190 per month.

46.      I award the applicant a lump sum to cover half of nursery fees as claimed and a further sum of £1,000 regarding childcare costs incurred since the application was made, making a total lump sum of £6,695.75 to be paid by 31^st October 2022.  I do not award any additional sums toward unspecified future expenses.

47.      Both parties have argued that the other has been living beyond their means.  The applicant's expenditure of capital between the date her statement of means was filed, and the date of this hearing is not fully explained by reference to school fees and childcare.  The respondent has spent £30,000 over the last 12 months which has not been fully accounted for, spent during which time during which he has had an income of approximately £5000 per month net, of which 10% has been paid in child maintenance.  Nevertheless, that capital is no longer available and it is in any event not clear that the applicant has a specific need for a capital lump sum of £10,000.

48.      Regarding ongoing periodical payments, Advocate Colley on behalf of the respondent argues that only 50 % of his bonuses should be taken into account in calculating his future income, this was the method used by the respondent's mortgage provider in considering affordability. This calculation would give him an estimated future gross annual income of £89,091.  On this basis, Advocate Colley calculates that in England he would be assessed as having a maintenance liability of £767 per month.  Advocate Colley argues that the Court should make allowance against this figure for the respondent's travel costs for contact and his payments towards his 2 adult children.  Advocate Heath wishes the court to take into account the respondent's bonus payments in full.

49.      Taking the outgoings figures from the applicant's statement of means, the deficit between the applicant's income and her needs is £1,377.50 per month.  The applicant's sworn evidence would indicate that she has over estimated childcare costs.  If school fees are not taken into account and an adjustment made for childcare costs, she is still left with a deficit.  The respondent challenges whether the applicant will actually pay £1,200 per month to her mother.  In my view it would be unfair to assess the applicant's needs without taking into account any housing costs, as she may choose to live independently from her mother in the future and she should be entitled to do so.  The true cost of rented 2 bed properties in Jersey is likely to be at least the sum she pays to her mother together with her storage costs.  Her figures for food clothing and entertainments are modest, she has no figure allowed for the cost of holidays, nor the cost of her share of travel expenses to facilitate contact.  The Child is entitled to a standard of living beyond the most basic budget if his parents can afford to provide for that.

50.      The respondent pays £400 each month for the benefit of his adult children who are each in full-time professional employment and cohabit with their partners.  I do not accept this payment as being a reasonable draw upon his income that should take precedence over the Child's needs.

51.      The respondent asks that the court offset his travel costs against maintenance he will pay.  The cost of holiday contact is shared equally between the parties and is therefore a neutral figure between the parties as regards needs and capacity to pay maintenance, if the cost of travel to the respondent is deducted from his payments, a corresponding figure must be added to the applicant's needs.  The respondent does have additional costs when he travels to Jersey for weekend contact to see the Child, I am not satisfied however that such trips cannot be undertaken for less than £800 on each occasion, the respondent has not provided adequate evidence to support this figure.  I do accept however that the respondent will have additional costs to provide for his accommodation when he travels to Jersey for contact, entertainment and food may be more expensive than if the Child was staying with him at his home.

52.      The respondent says that his net income without bonus is £3,198 per month.  In the last tax year his average net income was £5,000 per month.  The respondent states his outgoings to be £3,778 per month, but this includes £1450 for rent which the respondent no longer pays.  I do not have a clear figure for his current mortgage repayments.  In his replies to the applicant's questions he refers to his bank statements.  I remain unclear as to what he pays, but I note that he regards the applicant's housing costs at £1,200 per month for herself and the Child as high.  The respondent in any event finds £400 each month to pay to his adult financially independent children in addition to £500 per month for the Child.  I conclude that an increase above the sum of £500 per month is affordable to the respondent.

53.      The respondent shall pay child periodical payments in the sum of £650 per month to include all expenses for the Child including childcare and holiday clubs.  I have ordered a global figure as I am not satisfied that these parents can work together without conflict to arrange and agree additional expenses.  Payments shall commence from the beginning of July 2022.  Such payments shall be subject to annual increases applied in accordance with the Jersey Retail Prices Index.  Costs will increase for the applicant and it would be unfair to expect her to bear the sole burden of inflationary increases in the costs of caring for the Child.  It is open to either party to apply for a review as to the level of periodical payments in the event of a material change in circumstances. this does not need to be provided for in the order.

54.      The UK CSA/ CMS calculations are to be used as a cross check only.  Advocate Colley calculates that taking half of the respondent's bonus payments into account, the respondent would be required to pay £767 per month under the UK system.  The clearest evidence the court has as to the respondent's net income is his P60 for the last tax year which shows he received in the region of £60,000 which equates to £5,000 per month, 15% of this would be £750 per month.  The Court has ordered the respondent to pay £100 or £117 per month below these figures.  This is fair as the respondent does have to pay for hotel accommodation when he travels to Jersey to exercise weekend contact which will happen approximately 4 to 5 times per year, the reduction also reflects that part of the respondent's income derives from bonus and is therefore not guaranteed.  I do not backdate the increase prior to the beginning of July as reimbursement to the applicant is provided for in the lump sum payment.

Costs

55.      The applicant seeks an order that the respondent pay her costs; Advocate Heath on behalf of the applicant says in her skeleton argument:

"In respect of this application, it is submitted the Mother's legal costs have been incurred as a result of the Father's failure to negotiate or make any reasonable offers and in particular his insistence on a review (and in reality further proceedings) concerning child maintenance when he elects to retire."

56.      The respondent does not seek costs against the applicant dependent upon the outcome of these proceedings but seeks a wasted costs order as to the respondent's costs of and incidental to an interim hearing on 20^th April 2022 on the basis that the applicant's litigation conduct resulted in a material increase in the respondent's costs.  Advocate Colley says in her skeleton argument:

"The Act of Court dated 20^th April 2022 confirms that the costs of that hearing were to be held over to be dealt with as part of the final hearing.  The Court will be aware of the significant delays which have been caused by M in this case. These were explained at the Case Review Hearing in April, however, in summary they included:

a.        Questionnaires were due to be filed by 22 February 2022 in accordance with paragraph 2 of the Act of Court dated 15 December 2021 (this Act of Court was agreed by consent). M did not file her questionnaire until 8 April 2022.

b.        M failed to comply with direction 4 of the Act of Court dated 15 December 2021, not filing her position statement until 19th April (the day before the hearing) as opposed to 29th March 2022.

c.        M's position statement did not comply with PD FD21/02 as it was not "limited to a recital of the orders sought by that party from the court when disposing of the matter on an interim or final basis and should not contain any narrative background, comment or reasons for seeking any such orders"

d.        M did not upload the Caselines bundle 7 days prior to the CRH, nor did she provide a draft bundle index for F's comments 21 days prior to the CRH in breach of direction 6 the Act of Court dated 15^th December 2021.

57.      Regarding costs, Advocate Colley refers the court to case of C v D [2018] JCA 020 where the Court of Appeal sets out guidelines for the Court to consider in considering making costs orders in children cases.  The Court has a wide discretion based upon the particular facts of each case.

58.      The applicant seeks costs on the basis that the respondent has failed to negotiate and that he seeks a review of maintenance upon retirement.  The Court has ordered the respondent to pay more than he offered but less than was sought by the applicant.  The applicant is unsuccessful in her claim for maintenance to include half of school fees.  I do not follow the argument made on behalf of the applicant that costs should be awarded because the respondent has sought a review upon retirement, the respondent does not need such an order as the court has power to vary an order at any time by virtue of paragraph 1 (2) of schedule 1 of the law.

59.      I do not make an order for costs in the applicant's favour.

60.      The respondent seeks costs based upon the applicant's litigation conduct relating specifically relating to the Case Review Hearing on 20^th April 2022, the Court held over the costs of that hearing to be considered today.  Advocate Colley has filed a schedule of time spent by herself and her colleagues which she argues was wasted, this comprises 5 hours of work between 8^th March and 20^th April 2022, at a total cost of £1,724.

61.      The hearing on 20^th April 2022 was not adjourned, the court was able to give directions for an FDR and for final hearing.  The parties agreed initial directions and attended Court on only one occasion, on 20^th April 2022, prior to this final hearing.  It cannot therefore be said that the hearing itself was wasted and I do not allow any costs relating directly to the hearing itself.  The respondent however also seeks to recover the additional costs of preparation and management of the case occasioned by late filing and a position statement filed which was not practice direction compliant.

62.      I do not accept that all of the time set out on the time schedule filed as part of the respondent's skeleton related solely to delays on the part of the applicant, however it is accepted that additional unnecessary work would be necessitated by the failure of one party to comply with case management directions and requirements.  I allow costs as to 18 minutes of Advocate Colley's time; 42 minutes of Ms Cohen's time and 48 minutes of Ms Channing's time making a total of £533 wasted costs to be paid by 31^st October 2022

Authorities

Children (Jersey) Law 2002. 

PG v TW (No 2) (Child: Financial Provision) [2012]. 

A v B [2012] JRC 165A. 

F-v-G [2021] JRC 105. 

W v X [2020] JRC 240. 

E v F [2019] JRC 218. 

C v D [2018] JCA 020.