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Cite as: [2003] ScotCS 306, 2004 SCLR 247

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Ahmed v. Ahmed [2003] ScotCS 306 (09 December 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Hamilton

Lord Macfadyen

Lord McCluskey

A1950/01

OPINION OF THE COURT

delivered by LORD McCLUSKEY

Reclaiming Motion

SAMRANA AHMED

Pursuer and Respondent

against

SYED MASOOR AHMED

Defender and Reclaimer

_______

Act: Scott; Balfour & Manson for Maxwell MacLaurin, Solicitors, Glasgow

Alt: Coutts; Brodies

9 December 2003

[1] The pursuer (the mother) and the defender (the father), also referred to as the reclaimer, were divorced in 1994. The Court of Session interlocutor pronouncing decree was dated 11 May 1994 and was extracted on 1 June 1994. By that interlocutor and decree, the mother was awarded custody of two of the children of the marriage, Syad Rezaah Ahmed (born in 1981) and Mahein Ahmed. Mahein was born on 15 December 1984, and was therefore 18 on 15 December 2002. The 1994 interlocutor also ordained payment by the defender to pay "to the Pursuer qua tutrix and administratrix of £50 per week as aliment for each of the said children for so long as they or either of them is in the care of the Pursuer and unable to earn a livelihood". (The reference to "tutrix" is an error, but no point has been taken in relation to it).

[2] By motion on 11 October 2000 the pursuer invited the Court to vary the award in Mahein's favour by increasing it. The motion was opposed; the Temporary Lord Ordinary allowed the pursuer to lodge a Minute to Vary and allowed the defender to lodge Answers. A Proof on the adjusted Minute and Answers was taken before Lord Clarke. By interlocutor dated 25 June 2002 he found the defender (the Respondent in the Minute and Answers) liable to pay aliment for Mahein in the sum of £220 per week from 11 October 2000, and varied the award of 11 May 1994 accordingly. It is against that interlocutor that this Reclaiming Motion is now taken.

[3] The Lord Ordinary held that it had been established that there was a sufficient change of circumstances since the 1994 interlocutor to justify variation of that award. There was no submission that he erred in this regard. Before the date of the Proof on the Minute and Answers, Syad Reezah Ahmed had entered the process to claim an alimentary payment from his father. By a Joint Minute to which authority was interponed on 10 May 2002 the father agreed to pay £150 per week as aliment for Syad Reezah Ahmed until he reached the age of 25.

[4] The challenges to the Lord Ordinary's conclusion are set forth in the Grounds of Appeal, to which reference may be made. In summary, what was submitted was that:-

(1) the award of increased aliment should not have been backdated to 11 October 2000;

(2) the new award was excessive because it required the father to pay a sum 'in excess of the whole current needs of the child' (Mahein), and to make provision twice for certain 'past needs';

(3) the result of the order was to require the father to meet the whole burden of support for the child; but, having regard to the law and the factual circumstances, the burden should have been apportioned between the parents;

(4) the Lord Ordinary erred in making on order for back-dating aliment 'by reference to current need'.

[5] Before the hearing of the Reclaiming Motion, counsel for both parties helpfully presented to the Court Notes of Argument summarising their intended submissions, and we need not narrate these in full in this Opinion. For the Reclaimer, Mrs Scott submitted that it was the duty of the Lord Ordinary to apply the law as contained in sections 5, 1(2), 2(4)(c), 3 and 4 of the Family Law (Scotland) Act 1985; and to do so in a way that made it clear that (a) he had taken into account all the relevant evidence (b) he had determined, upon the basis of that evidence, what the essential facts were, and (c) insofar as it was a matter of calculation - the necessary elements of his calculations were accurately based on his findings of fact. By proceeding in that way he should have made it possible for the parties, and the appeal court, to determine with reasonable certainty the basis upon which the amount of aliment was arrived at: Kirkpatrick v Kirkpatrick 1994 SCLR 569, Johnsen v Johnsen (1st Division, unreported, 27 January 1995) and Adamson v Adamson 1996 SLT 427. However, while the Lord Ordinary had correctly identified and referred to the governing statutory provisions, had made findings in fact, and had properly acknowledged that both parents had a responsibility to contribute financially to the upkeep of Mahein, he had not fully disclosed the results of his decisions and calculations as to the 'needs' of the child and had not made it possible for the reader of his Opinion to discover how, having regard to the relevant available resources of each parent, he had apportioned the alimentary responsibility between the parents. It was not difficult, on the basis of the evidence that the Lord Ordinary accepted, to make reasonably accurate assessments of both the 'needs' and the correct apportionment of responsibility; but, when that was done, it was impossible to reconcile the overall result with that at which the Lord Ordinary had arrived. That result, it was submitted, was wrong; but, at the very least, even if it was not clear from the Opinion exactly where the error lay, it was not possible to discover that the Lord Ordinary was right. It was not even possible to be sure that the Lord Ordinary had properly applied what he had correctly identified as the relevant law. Furthermore, there were good reasons, as set out in the note of argument for the reclaimer, for concluding that the Lord Ordinary had made errors both in estimating the capacity of each parent to pay and also in determining the 'needs' of the child (insofar as that determination depended on conclusions derived from the figures placed before the court by those acting for the mother at the Proof, principally in No. 38/1 of Process). He must also have double-counted certain items of expenditure incurred in, or in respect of, the period over which the true needs of the child fell to be ascertained. A close examination of the figures that the Lord Ordinary must have used to ascertain the needs of the child also pointed to errors in the back-dating of the award. It was, she submitted, impossible to discover the justification for back-dating the full amount of the weekly variation to 11 October 2000.

[6] In response, Ms Coutts submitted that the Lord Ordinary had clearly understood, specifically referred to and applied the relevant statutory provisions. He had carefully discussed and considered all the evidence relevant to the ascertaining of needs and resources. He had recognised that each parent had to contribute financially to the upkeep of the child and had ascertained both the needs of the child and the resources of the parties. It was wrong to look for spurious arithmetical calculations of needs or resources: McGeogh v McGeogh 1998 FamLR 130, particularly when it was clear that the actual expenditure on Mahein during the period for which figures were available had been constrained by the fact that during that period the mother had comparatively little to spend on her daughter. The correct approach was to consider the needs of the child on the basis that her standard of living should have been related to the resources of both parents, not on the basis only of what the comparatively poorer mother could actually afford to expend. The Lord Ordinary had recognised this in his Opinion, paragraph [11]. Furthermore, a broad approach to the ascertainment of the appropriate amount of aliment was indicated by the father's lack of candour in disclosing and vouching his resources; indeed the defender's failure to tell the court the truth about his capacity to pay went back to the time of the divorce itself. The Lord Ordinary had concluded properly that the father was "not entitled to take any benefit from his own clear deliberate failure to provide full and adequate vouching of" [his resources and earning capacity]. The submissions now made to this court by Mrs Scott as to the way in which the needs and resources fell to be ascertained did not reflect the submissions made to the Lord Ordinary, as Mrs Scott had acknowledged in making her submissions in support of the Reclaiming Motion. Mrs Scott had not appeared for the defender at the Proof; and most of the detailed criticisms now advance in support of the Grounds of Appeal had never been placed before the Lord Ordinary by counsel who then represented the defender; see paragraph [10] of the Opinion. That paragraph also made it clear that the criticisms that had been advanced to the Lord Ordinary had been dealt with. He was not to be faulted for not taking a course that the defender did not, at the Proof, invite him to take: Cunniff v Cunniff 1999 SLT 992. It was too late to advance at the appeal particular criticisms that had not been advanced at the Proof, as it was too late to assess them properly. The new criticisms, that the Lord Ordinary had engaged in double counting or made other small errors of calculation, were additionally misconceived, given that the approach that the Lord Ordinary properly took was the broad approach referred to. Such considerations pointed to the correctness of the Lord Ordinary's approach, which was to consider all the relevant matters that parties had placed in issue both in the evidence and the submissions, and to exercise his discretion in arriving at what he described as "a somewhat broad view of matters in this case". The decision to backdate to the date when the original motion for variation was made was entirely justified. The defender had never revealed his financial circumstances frankly. He should have done so in October 2000; indeed it might have been possible to avoid the substantial proof that became necessary because of the intransigence of the father and his lack of frankness.

[7] There may be some substance in the view that the Lord Ordinary has not clearly shown in his Opinion the precise basis of the award that he has made, and we shall consider that submission. However, we are clear that he correctly identified the relevant law and carefully assessed the evidence. We are also clearly of the view that we have been given no good reason to interfere with any decision that the Lord Ordinary has expressly made on any matters of primary fact or inference. We agree with Ms Coutts that the Lord Ordinary was entitled to exercise his discretion in the light of the whole circumstances and to take "a somewhat broad view" when the evidence was not absolutely clear cut. On the general matter of backdating, we have no hesitation in agreeing with his view that the varied award should be backdated to 11 October 2000. If the defender had been frank about his income and financial circumstances at that stage in the proceedings an appropriate variation would have been made at about that time and delay avoided. Furthermore the award made in 1994, which remained unaltered as at 11 October 2000, was based upon a falsely low figure for the defender's income in 1994; it was clearly the defender who was responsible for that state of affairs.

[8] We have, however, reached the view that it is necessary to consider the true basis upon which the new figure for aliment fell to be determined by the Lord Ordinary. While we do not consider that that figure had to be accurately calculated down to the last few pounds, we accept that it would have been appropriate for the Lord Ordinary to make absolutely clear how he arrived at the final amount of varied aliment, £220. He could have done that by disclosing the actual calculations that he made, about means, resources and apportionment; because those calculations must yield figures on the basis of which he had ultimately to exercise his discretion and broad judgment. He could then have made clear how, starting with those figures, he allowed for the imponderables and arrived at the final sum. The absence of precise demonstration of the build up of the award of £220 was sought to be highlighted by the figures that Mrs Scott was able to put before us, being figures that essentially depended upon the evidence, including documentary evidence, of the pursuer and her witnesses. It will be observed that the Lord Ordinary stated, in paragraph [23], that he was having regard to "the needs of his [the defender's] daughter, Mahein, as evidenced by the expenditure vouched and spoken to by the pursuer, taken together with the whole circumstances of this case". Although we recognise that the Lord Ordinary was not obliged to award the precise sum that arithmetical calculations might yield, we acknowledge that it is not spelt out how the Lord Ordinary arrived at the figure of £220 per week, using the results of the calculations that he required to make on the basis of that expenditure. Taking the figures of actual expenditure (mostly from 38/1 of Process) supplemented by the Pursuer's evidence and making obvious minor adjustments to reflect the non-recurring character of some of the items, such as the capital cost of certain medical treatment that Mahein had, Mrs Scott submitted that it was difficult to arrive at a calculated figure for needs that was significantly higher than about £150 per week for the period after Mahein's 17^th birthday; on the same basis a lesser sum was appropriate for the period before her 17^th birthday. On the matter of the appropriate contribution by both parents, she submitted that, taking the figures for the income and resources of the parties even on the most favourable basis for the mother, there should have been an apportionment of contribution between the parties of not less than 17% from the mother and not more than 83% from the father. There were also, it was submitted, good reasons for an apportionment of 80%, or less, to the father and 20%, or more, to the mother. If the father was to have the responsibility for meeting 83% of the payment due in respect of the calculated needs, one would assess his contribution to be 83% of £150, namely about £125. The figure arrived at by the Lord Ordinary, £220, it was submitted, was so much higher that that that it was essential to explain how the increased figure was arrived at. The Court must be left in doubt as to whether or not the Lord Ordinary in fact put into his determination of the figure for varied aliment the element of some financial contribution by the mother, as he recognised he should have done. Nor had the Lord Ordinary explained how he apportioned the household expenses, set out in 38/1 of process, when calculating how much of that expenditure related to Mahein's needs, given the circumstance that there were three people in the house, Mahein, her mother and, from time to time, Rezah. In the result, it was submitted, the final figure of £220 was unexplained and unjustified.

[9] The importance of a comprehensible exposition of the essentials of the computation of the amount of a weekly alimentary award is clear. Litigants in a case of this character are entitled to know from the Court's Opinion, delivered after a full Proof, the basis upon which their rights and obligations have been assessed; that is particularly important in a case of this kind in which case the parties were at odds on almost every point. Each party has a right of appeal; and the merits of those rights cannot be properly judged if the basis of the award is left in real doubt. Furthermore, in this case, as in many such cases, the Court may be called upon in the future to revisit the matter of support payments in the light of any change of circumstances; and it would then be essential to know the whole relevant circumstances in which the earlier award was made. This consideration is clearly a live one in this case, which is only one of many between the pursuer and defender arising out of their marriage and the divorce proceedings. In any event, it is not unknown for a Court to make some mistake of fact or calculation; a full disclosure of the details of the award enables any such error to be recognised and remedied, for example by giving effect to a joint motion and correcting the interlocutor under Rule of Court 4.16 (7).

[10] If the lack of clarity is fatal, then what is required, as the Lord President observed in his Opinion in Johnsen v Johnsen, supra, at p. 4, is "a fresh examination of all the circumstances of the case...". The reclaimer did not ask us to attempt to remake the Lord Ordinary's judgments on matters of credibility or to alter his findings on any of the basic facts. Nor were we invited to eschew altogether a broad approach, such as that which the Lord Ordinary found it appropriate to take. What we were invited to do was to attempt to make the calculations that his findings of fact made possible and thus to arrive at a figure that the whole evidence, as assessed by the Lord Ordinary in the light of the submissions made to him, warranted; and then, by comparing that result with that reached by the Lord Ordinary to conclude that he had erred. We have been persuaded that we should take advantage of the analysis by Mrs Scott of the needs document (38/1 of process) and its contents in the light also of Ms Coutts' submissions on the methods and results of that analysis. That appears to us to be the proper course for us to take in the circumstances of this case before we decide if the Lord Ordinary has fallen into error in his assessment of the amount of varied aliment to such an extent that we would be entitled and obliged to interfere. However, in doing so, we must have particular regard to the submissions made to the Lord Ordinary. This Court should be slow to entertain and act upon a critique of the evidence that was not submitted to the Lord Ordinary.

[11] We turn to the assessment of Mahein's needs during the relevant period, namely from 11 October 2000 until 15 December 2002. The Lord Ordinary, as we noted earlier, founded upon "the expenditure vouched and spoken to by the pursuer": paragraph [9] of the Opinion. The basic document is No. 38/1 of Process. Mrs Scott analysed the items set forth in that document, as explained in evidence, and demonstrated that certain items were payments that were not properly related to the needs of Mahein. The details of this analysis are summarised in Mrs Scott's Note of Argument, paragraph 4.4, which reads:

"Items 1 and 2 of 38/1 relate solely to Rezah and are excluded.

Items 12, 13, 19 and 25(i) relate solely to Mahein. In 13 £50 is allowed for school trips on basis of 41B-C [of the transcript of evidence].

Items 3 - 8, 14 - 18, 20, 21, 23, 24 and 26 - 27 are household expenses in respect of which 40% is attributed to Mahein (40% to respondent and 20% to Rezah who is there half the time (see 34E-F) or at least 22 weeks (Opinion [9]).

Items 9 - 11, 25(ii), GMC subscriptions and legal expenses in USA are unrelated to Mahein.

Item 22 was time limited and can be dealt with in back-dating (Mahein took her test in April 2002: see 26D).

The Mortgage element at item 28 can be divided into four elements:

(i) The original mortgage included as a household expense (see above).

(ii) The respondent had raised a loan to cover the cost of certain treatment for Mahein (see 47E). The treatment cost £9,500. If backdating covers the cost, then the debt can be repaid (see below).

(iii) Legal expenses (84C - 85C):

In respect of this action the reclaimer should not have to pay expenses by way of aliment for Mahein (as matters currently stand he is at risk of paying three times, once by way of an award, once to pay instalments on the loan, and again in back-dating - see below).

For the action of reduction, with the result that whatever the outcome the reclaimer may be paying expenses via aliment for Mahein. The reduction is not related to Mahein.

In the United States in respect of trying to enforce the capital sum currently the subject of the reduction action (ie unrelated to Mahein (see 33C - D), and in any event a matter for the relevant court).

A sum "held in reserve" for expenses, ie the respondent has a sum deposited, but the reclaimer is paying the cost of borrowing.

(iv) Credit card debts (unspecified amount) but can be repaid if appropriate by backdating.

The needs are given monthly, but then require to be expressed weekly. Standard child benefit for one child (including lone parent supplement) is debited".
[12] Not all the criticisms that the Note of Argument advances were put before the Lord Ordinary. He tells us in paragraph [10] that "...only one item of expenditure as set out by the pursuer was seriously challenged by counsel for the defender in cross-examination and in her closing submissions". However, we have come to be of the view that the Note contains a fair attempt to distinguish between those items of expenditure that properly reflect payments incurred to meet the needs of Mahein and other items of expenditure that was not, or not wholly, incurred for the benefit of Mahein. We consider it unnecessary to expand in any great detail upon the arguments advanced in relation to each item, as they are clear enough from the wording of the Note quoted above.

[13] In our view, it is quite appropriate to make a broad apportionment of the shared items on the 40/40/20 basis which the Note applies to items 3 - 8, 14-18, 20,21, 23, 24, 26, 27 and 28 (at £367.25 per month). We accept that Mrs Scott's assessment is well-founded in respect of Items 1,2, 11, and 25(ii), the GMC subscription and legal expenses in the USA. However, Items 9 and 10 (life and health insurance) are not necessarily to be regarded as expenditure solely made in the interests of the mother; the other children of the household might have a legitimate interest in such expenditure: so, in the absence of any invitation to the Lord Ordinary to ignore these items, we see no justification for omitting them at this stage. Item 22 (driving lessons) is a very minor matter apparently now put in issue for the first time, and we see no need to follow the proposals suggested in the Note. We agree, for the reasons advanced in the Note, that the driving lessons and the cost of medical treatment could be treated separately from the regularly recurring items; but that does not mean that they fall to be left out of the reckoning of the weekly aliment. Child Benefit falls to be taken into account, although the amount suggested in the Note may be slightly high (£17.55, instead of £16.20). In the result, therefore, applying Mrs Scott's analysis, subject to the alterations noted, the actual expenditure on Mahein's share of the recurring needs over the relevant period is close to £160 per week. The non-recurring items related to Mahein's needs are separately dealt with.

[14] The apportionment of responsibility between the mother and the father for meeting those needs lies between the 17%/83% apportionment suggested by Ms Coutts and approximately 21%/79% proposed by Mrs Scott. These proportions ought to be derived from the Lord Ordinary's conclusions as to the respective incomes of the mother and the father. But there are other imponderables: the uncertainty about the father's candour in disclosing his full resources, the unpredictability of the mother's income, and the fact that the father has another family to aliment in the USA. We conclude that a broad approach is appropriate and that we should apportion the responsibility on a one-fifth/four-fifths basis. Applying that apportionment to the historical 'needs' figure, the calculation yields a figure for the basis of the defender's liability in respect thereof: it is £128, being 80% of the approximately figure of £160.

[15] We do not regard the ascertaining of the appropriate sum for weekly aliment to be a purely arithmetical exercise based upon actual levels of expenditure during the relevant period. We must also take account of the submissions advanced by Ms Coutts as to the general circumstances referred to by the Lord Ordinary in his Opinion, and as to the particular fact that Mahein's needs ought to be calculated on the basis of what she, as the child of parents earning in total what the father and mother earned in total, could reasonably have expected to enjoy, namely a higher standard of living than she was in fact able to enjoy during the relevant period when her mother's resources were so obviously limited. Furthermore, she was entitled to be treated no less favourably than the children of the defender being brought up by him in the USA. Nor, though it does not provide any clear pointer, should the Court altogether ignore the fact that the father agreed, on the eve of the Proof in the Minute and Answers, to pay £150 per week towards the support of Mahein's older brother; he lives at home only part of the time. All these considerations point to the appropriateness of fixing the weekly sum at a higher figure than the £128 derived as above. They do not enable this Court to calculate arithmetically an appropriate addition to the calculated figure; yet it would be quite wrong to ignore these matters simply because they are not amenable to precise calculation. A broad approach to this factor in the quantifying of the claim is inevitable. We consider that it is appropriate to take such an approach and to modify the calculated figure in a way that broadly reflects the whole picture. Even if we were to accept the main thrust of Mrs Scott's analysis, modified as noted, and with an addition in respect of these factors, we consider that a material increase above the calculated figure of £128 would be well justified: further reference to this possible increase is reflected to in paragraph [18] below.

[16] We now turn to the medical expenses (£9,500) and the driving lessons costing £416. The reclaimer accepted that he should pay about four-fifths of these expenses, £9916, giving a net liability rounded off at £8,000. The reclaimer's argument appeared to be that they were "time limited": that is to say they were not recurring items of expenditure having to be met in and after October 2000. For example, the driving lessons were not paid for before Mahein's seventeenth birthday - therefore there was an argument for fixing different rates of aliment for the periods respectively before and after that birthday (hence the reference in Mrs Scott's calculations to periods of 61 weeks and 27 weeks, being the periods from 11 October 2000 to 17 December 2001 and from 17 December 2001 till the date of the Lord Ordinary's interlocutor, 25 June 2002). The same reasoning applied to the medical expenses. It was further submitted that the reclaimer had in effect overpaid aliment and that the overpayments should be offset against the liability for the time limited items.

[17] In assessing the needs element of the calculation, what the Lord Ordinary has done is to use the material provided by the pursuer to assess the actual expenditure on Mahein during the period from 11 October 2000 to the date of his interlocutor, 25 June 2002. The liability to pay the varied amount was, of course, to continue after that latter date. It appears that he averaged out that expenditure over the whole period, without making any express allowance for the fact that the actual spending was uneven or irregular from month to month. The submission that, in determining the weekly amount, he should have allowed for and made calculations based on the submissions about the time-limited character of certain payments might have been persuasive if presented to the Lord Ordinary. However, it appears that it was not. There is no trace of any suggestion to the Lord Ordinary that the rates of backdated aliment should have been different for the periods before and after Mahein's seventeenth birthday. Nor did any question of overpayments or offsets arise for consideration by him; this is not a point raised in the Grounds of Appeal.

[18] We now turn to examine the difference that the approach now suggested (and insofar as it is acceptable) makes to the defender's liability for the period down to the date of Mahein's 18^th birthday. If we take that full period, of 113 weeks from 11 October 2000 until Mahein' 18^th birthday, i.e. 15 December 2002 and use the Lord Ordinary's rate of £220 per week, the result is a liability for that period of a total sum of £24,860 (113 x £220). If one takes the weekly liability as £128 for the same period (113 x £128 = 14,464) and adds the £8,000, the result is a liability for £22, 464. The difference between the two is a mere £2396, or £21.20 per week. Accordingly one would only have to increase the calculated figure of £128 per week (referred to in paragraphs [14] and [15] above) to £150 per week to arrive at virtually the same overall result as that which results from the Lord Ordinary's figure of £220. We are of the Opinion that such an addition of £22, is well within the range of figures that might have been considered appropriate to reflect the imponderable element referred to in paragraph [15] above.

[19] In these circumstances, we are not persuaded that the Lord Ordinary fell into error in arriving at the sum of £220 per week as aliment for Mahein for the relevant period. No basis has been provided for interfering with the decision of the Lord Ordinary. The reclaiming motion is therefore refused.