Jersey Unreported Judgments

Family - child periodical payments

[2023]JRC211

Royal Court

(Family)

31 October 2023

REASONS

the REGISTRAR:

The court is asked to determine child periodical payments.  For the purpose of these reasons I call the Applicant mother "Mother" and the Respondent father "Father".

Background

1.        The parties were in a relationship which ended in June 2021.  The child of their relationship ("the Child") is now aged 3.  Since October 2022 the Child has lived with both parents under a shared residence arrangement whereby he spends 5 days per fortnight with Father and 9 days per fortnight with Mother.

2.        On 8^th November 2022 Mother applied for financial provision for the Child.  The parties attended  Family Foundation meetings in an attempt to reach agreement.  The parties were unable to reach agreement and in August 2023 Mother's application was referred back to the court for hearing.

3.        A dispute relating to liability for a joint loan between the parties was dealt with through mediation in the Petty Debts Court.  On 15^th December 2022 the parties reached agreement that Mother would owe Father the sum of £962 which was to be repaid through agreed retentions by Father of child periodical payments ("CPP") to Mother.

4.        In January 2023 Father lost his employment, he was subsequently successful in receiving compensation for unfair dismissal, however he then ceased paying CPP.  He restarted paying a reduced sum of maintenance in August 2023.

Mother's evidence and position

5.        Mother has filed a C4 statement of means and various documents and calculations regarding the history of maintenance payments and her financial needs.  Mother has a partner but lives alone with the Child and her child from a previous relationship.

6.        Mother is not presently in work.  Her income per calendar month comprises:

7.        In October 2023 her income support payment was higher, she says this is an overpayment but has not produced documentation to show the calculation.  Mother also receives child maintenance from Father for the Child in the sum of £71.50 per month.  I have not included this in the figures above as Father's position is that he cannot afford to continue payments and wishes to cease payments.

8.        Mother's evidence is that her monthly outgoings are £1,395.88 plus £473 expenses for both her children.  Father challenges her evidence regarding car repairs and servicing at £100 pm.  Mother accepts that her father pays these expenses and she is trying to pay him back.  Father challenges other expenditure such as clothes and shoes and haircuts.

9.        I accept Mother's stated expenses save that I do not include the payments she is making for legal fees, unless a costs order has been made each party must be responsible for their own costs and I do not take these into account in setting budgets for the purpose of determining child maintenance.  Mother's expenses are £1,793.88 per month but I note that she does not currently pay some of her car expenses but has family help to do so.

10.      Mother plans to return to work, she is looking for a role within school hours or would return to work in finance.  It is likely that her financial position will improve when she returns to work.  Any maintenance she receives from Father will affect her benefits and therefore exact future figures cannot be predicted.

11.      Mother seeks £200 per month to be backdated and offset against the petty debts assessment against her in favour of Father.  She also seeks an order that the parties share expenses for the Child.

Father's evidence and position

12.      Father agrees that at Petty Debts Court mediation on 15^th December 2022, he agreed that he would pay maintenance of £296 per month, half would be paid to Mother, and the other half would be retained by him in part payment of the debt owed to him by Mother of £962.  He paid the agreed sum in December 2022, but lost his job in January 2023 through no fault of his.  In January he paid a reduced sum part of which he offset against Mother's debt and paid her a balance of £122.  He then did not pay maintenance until August 2023 when he restarted payments of £71.50.  He says he cannot afford this payment and made it only due to encouragement from myself at the PDH in August 2023.

13.      Father says that he was out of work until he started his present job on 20^th July 2023.  Between January and July Father helped out in his father's business and received payments from his father, for a few months.

14.      Father presently earns £32,000 pa gross which equates to £2,240 net per month.  In the past 3 months he has undertaken overtime, he says because of staff sickness, but this is not guaranteed.

15.      Father lives with his fiancée and their 5 month old baby ("the Baby").  His fiancée is not currently working following maternity leave and therefore the family receive income support.  The payments have varied each month but are currently £808.81 per month giving him a current monthly income of £3,048.81.  Father says the assessment is not finalised and there is a high likelihood that these payments will change.  Father's fiancée plans to return to work next month and the couple will then need to fund nursery fees of £1,500 per month.  Income support payments may change.

16.      Father's outgoings are £3,320.87 per month.  These are challenged by Mother regarding his car loan which he says he committed to before he lost his job.  Father's outgoings schedule does not include many of the expenses listed by Mother, he does not list car running costs or any expenses for the Baby, he lists only £80 per month for the Child including £50 per month on food. At present there is a deficit in Father's family budget and this does not include realistic expenses for the Baby or the Child.  I do however disregard £500 per month spent on legal fees for the same reason I disregarded Mother's which results in net outgoings of £2,820.87 per month.

17.      On the face of it Father has a surplus of income over outgoings of just over £200 per month, if he does not pay maintenance for the Child he would have £300 per month net.  When Father's fiancée returns to work next month, he estimates her net income to be £2,000 per month, it remains to be seen whether they will remain eligible for benefits, without benefits their income will be £4,240.  Taken as a whole, the family expenses will be £4,364 taking into account nursery fees, the whole of the rent, fuel and food bill, but not including Father's debt for legal fees and not including maintenance for the Child.

18.      On the figures as set out in paragraph 17, the family would be in deficit without income support.  I note that the budget Father puts forward is very limited, he sets food costs at £330 per month for 2 adults and a baby and provides nothing for clothes, entertainments, Christmas/ birthdays/ holidays/ car repairs, the budget allows nothing for the Baby's expenses other than nursery fees.

The Law

19.      Mother's application is made pursuant to Schedule 1 of the Children (Jersey) Law 2002 ("the Law") paragraph 1(1).  I take into account those factors set out in paragraph 4(1) of the Law as follows:

"(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."

20.      The Family Division judgement E v F (Family) [2019] JRC 218 concludes that the starting point to determine child periodic payments should be the factors set out in paragraph 4(1) rather than any formula adopted from the Child Support Agency, and I add to that, the Child Maintenance Service.  Those formulae have their place as a cross check.

Analysis

21.      There is little if any slack in either party's budgets.  Mother is getting by with help from her family.  Father's income is higher but so too are his expenses.  His rent is £1,650 per month which is half his income, he says that his partner pays half the rent, but his partner presently has no income.  Father's budget does not include the Baby's expenses, and his stated outgoings are pared more finely than Mother's.  Father has a high car loan, but he needs a reliable car as does Mother, he entered into the car loan when he was earning more than at present.  Father earns overtime, but as this is a new job it is not necessarily a reliable indicator of what he will receive in future, moreover, he says that the overtime is for Saturday working on top of full time hours, he could reasonably chose not to work at a weekend bearing in mind that he has 2 children and a partner.

22.      Both parties' finances will change in the foreseeable future.  Mother will return to work, the Respondent's fiancée will return to work.  Both households are dependent upon welfare benefits which will change as their circumstances change.

23.      Liability to pay child maintenance does not link solely to the number of nights a child spends with the paying party.  In circumstances where a child spends 50% of their time with each parent, child maintenance payments may still be appropriate if the financially weaker party is struggling to meet the child's needs and the other party has surplus income.

24.      It is now established practice in the Jersey Family Court that CPP is not assessed by reference to a mathematical formula as it is in England and Wales but by reference to need and affordability.  In circumstances where the child has a home with both parties under a shared care arrangement and both parties are in receipt of income support, it is unlikely that payment of CPP will be appropriate, as both parties have been assessed by the state as unable to meet their living expenses without the assistance of means tested benefits.

25.      The Respondent's financial position has changed significantly since December 2022 when the parties agreed maintenance in the sum of £296 per month, Mother accepts that the appropriate payments should now be less.  As Mother remains the primary carer of the Child, Father has a liability to pay CPP, however, taking into account his present income and expenses and particularly that he is in receipt of income support, it is my determination that he cannot currently afford a substantive monthly payment and I therefore assess CPP at a nominal amount of £1 per month from his present income.

26.      I look to the calculations each party has put forward from the Child Maintenance Service calculator as a cross check.  Based upon Father's income from employment alone the appropriate figure would be £203.34 per month.  Based upon Father receiving income support, the appropriate figure would be nil.

27.      I fear that the parties may have to revisit the question of child maintenance when either or both are no longer dependant upon means tested benefits, on the information I have before me I cannot future proof this order.  I would urge the parties to engage in mediation or use the family Foundation Service to reach agreement.  I do however emphasize to the parties that the nominal maintenance order I make is directly related to both parties' lack of capital assets and their common dependence upon means tested benefits.  The number of nights a child spends with each parent beyond a broad shared care arrangement, should not in my view be a determining factor.

28.      I make an order that the parties share expenses for the Child as requested by Mother.  Father agrees that expenses should be shared, but I prefer Mother's wording as it is simpler.

29.      Mother seeks maintenance backdated to her application at a rate of £296 per month.  After losing his job Father helped in his father's business and received payments, I do not draw any distinction between the arrangement Father describes and undertaking casual remunerative employment.  Between March and July 2023, Father received cash payments into his bank account in the total sum of £6,910.  These were not regular payments, Father explains some as being the proceeds from selling belongings.  Whatever Father received for casual work, it does not appear to have been particularly substantial.  As he was not in regular or settled employment, I have insufficient evidence to justify a backdated maintenance assessment of £296 and it appears that Mother agrees that there were some periods during which Father had no work.  During the period in question Father's new baby was born; that he has new responsibilities does not diminish his existing responsibilities, but the fact remains that his expenses have increased.  I do not make an order for backdated maintenance.  

30.      Mother's application is for financial provision pursuant to Schedule 1 of the Law, therefore the court can consider capital payments where appropriate.  Father does not have any capital assets however he is owed money by Mother in the sum of £666, this being the balance of £962 after 2 instalments were paid by Mother by way of retained maintenance.  I award a lump sum to Mother in the sum of £666 on the basis that Father will satisfy this debt by offsetting the sum owed to him by Mother through the petty debts court.

Authorities

Children (Jersey) Law 2002. 

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