Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE CENTRAL & FIFE AT FALKIRK

 

Case No. F429/08

 

 

JUDGMENT

 

Of

 

Sheriff Thomas McCartney

 

In causa

 

JG,

 

PURSUER

 

AGAINST

 

JF DEFENDER

 

 

 

 

Falkirk: April 2011

 

The Sheriff, having resumed consideration of the cause,

FINDS IN FACT:

1.                  The pursuer is JG. She is aged 42 years. She resides at

2.                  The defender is JF. He is aged 33 years. He resides at.

3.                  The parties met in December 1998.

4.                  At some point between March 2000 and April 2001, the parties began cohabitation at the pursuer's then home at [address].

5.                  Between April 2001 and June 2007 the parties cohabited at [address]. Between June 2007 and November 2007 they cohabited at [address].

6.                  The parties' relationship of cohabitation ended in November 2007. They then occupied separately the house at [address] until March 2008.

7.                  There are two children of the relationship, being JF (born 11^th April 2002) and MF (born 5^th May 2006).

8.                  The pursuer has a son, J, born 1 October 1988, from a previous relationship.

9.                  The first floor flat at [address] was a local authority tenancy of which the pursuer had been the tenant since 1989. In about July 2000 the pursuer obtained an offer from the local authority to sell to her the property at a price of £12,500 which was a discount from the then market value of £35,000. Had the purchase proceeded the secured loan which the pursuer would have taken was £15,000.

10.             The market value of [address] at November 2007 was £75,000.

11.             The pursuer did not proceed with the purchase. The pursuer's relationship with the defender was a factor in her decision not to proceed.

12.             The pursuer had rent arrears at the time of the possible house purchase. She subsequently rented out the property for about one year after April 2001, contrary to the terms of the tenancy. Possession of the property was ultimately recovered by the local authority by court order in about July 2002.

13.             The pursuer and defender moved from [address] to [address], in April 2001.

14.             The house at [address] was purchased in April 2001 at a price of £70,500 by the defender's employer. It was a tied house which was made available to the parties as part of the defender's employment contract. Title was in the name of the partners of the firm of JP & Sons.

15.             No rent was payable in respect of this property. Repairs and building insurance and, from 2004, council tax were paid by JP & Sons.

16.             In June 2007 the parties moved with their children to [address]. Title was taken in the name of the defender. The whole purchase price was funded by loans, £72,000 from the firm of J & D K, the partners of which are the defender's mother and stepfather, and £143,548 .13 from the firm of JP & Sons.

17.             The loan of £143,548.13 was transferred to JP & Sons Ltd following incorporation of that company on 6 July 2007. A standard security in respect of the debt was granted by the defender over the property at [address] in favour of JP & Sons Ltd on 5^th June 2009. JP & Sons Ltd is owned by the defender's uncles

18.             The terms of the loan to the defender from J & D K are for repayment at the rate of £55 per week from 1^st December 2008. The terms of the loan to the defender from JP & Sons Ltd are for repayment on the sale of the property or on demand. No repayment has been made.

19.             Between November 2007 and March 2008 the parties continued to live separately at [address]. In March 2008 the pursuer and the children moved out, initially to the home of the pursuer's sister and then to the pursuer's own house at [address].

20.             The pursuer has purchased her home at [address] at a price of £62,000 with a mortgage of £40,000 and financial assistance from her mother of £22,000. She resides there with her adult son and the two children of the parties' relationship.

21.             The defender continues to live at [address].

22.             The pursuer is a hairdresser. In December 1998 when the parties met, the pursuer worked at MJ's Hairdressing Salon. Aside from maternity leave, she continued to work there during and after the period of cohabitation. Following J's birth she reduced her hours to 16 per week due to child care commitments. She currently continues to work 16 hours per week. Her work days are Friday and Saturday.

23.             The pursuer earns £120 per week, working on a self-employed basis. She is in receipt of tax credits of £500 per month and child benefit of £128 per month. She receives £60 per week from the defender.

24.             The defender worked as a general farm worker when the parties met, initially employed by his mother and step father. From about April 2000 he has been employed by his uncle's business, initially the partnership and then the limited company. The defender earns £223 per week from which he pays £60 to the pursuer.

25.             The child, J, is in primary 4 at primary school. The child, M, attends pre-school, which she attends for the whole day on Friday while the pursuer works at a cost of £91 per month. The pursuer's mother collects J after school on Fridays and looks after her until the pursuer finishes work.

26.             Were it not for child care commitments the pursuer would have worked four days per week between November 2007 and March 2011 earning about £240 per week.

27.             Once M starts primary school in August 2011, the pursuer intends to increase her hours of work with the intention of working five days per week as from August 2012. She hopes to earn about £400 per week from August 2012.

28.             The current cost of after school care for two children is £14.40 per day. The current cost of after school child care for two children for a full day in school holidays is £39.15 per day.

29.             No Child Maintenance and Enforcement Commission/ Child Support Agency maintenance assessment has been carried out or requested. The sum of £60 per week currently paid by the defender to the pursuer exceeds the likely amount of any current CMEC assessment by about £15 per week.

 

 

FINDS IN FACT AND IN LAW:

1.      From April 2001 until November 2007 the parties were cohabitants in terms of s.25 (1) (a) of the Family Law (Scotland) Act 2006 ("the 2006 Act").

2.      The children of their relationship, J (born 11^th April 2002) and M (born 5^th May 2006), are relevant children in terms of s. 28(10) of the 2006 Act.

3.      The pursuer has suffered economic disadvantage in the interests of the relevant children to the extent of £20,760.

4.      That economic disadvantage suffered by the pursuer is offset by economic advantage the pursuer has derived from contributions made by the defender to the extent of £2,595.

5.      In exercise of discretion, no order for payment under s.28 (2) (a) or s.28 (2) (b) of the 2006 Act should be made.

 

 

THEREFORE, SUSTAINS the pleas in law for the defender, REPELS the pleas in law for the pursuer, REFUSES craves 1 and 2 for the pursuer, RESERVES meantime the question of expenses and appoints parties to be heard thereon on

 

 

NOTE

1.      In this action the pursuer seeks payment of a capital sum in terms of s. 28(2)(a) and an order for payment in terms of s.28(2)(b) both of the Family Law (Scotland) Act 2006 ("the 2006 Act"). A proof proceeded on 28 March and 1 April 2011. The pursuer was represented by Mr Hayhow, advocate. The defender was represented by Ms Dowdalls, advocate.

Evidence

2.      The pursuer gave evidence. Her sister, DG, her friend KM, and Andrew McEwan, chartered surveyor, were called as witnesses for the pursuer. The defender gave evidence and called as witnesses, JK, his mother, and RP , his uncle.

3.      In certain respects I did not feel able to accept the evidence of the pursuer. In her evidence she had in two respects demonstrated a willingness to be less that honest in respect of circumstances that could adversely affect her financially. Her evidence was that the defender lived with her in her flat at [address] between March 2000 and April 2001. While ultimately I did not accept that evidence she accepted in cross-examination that she would have been under an obligation to declare that and did not as it would have adversely affected benefits. The impression she gave was that she regarded that as a good reason for not making an honest declaration. Secondly after she moved from [address] she rented out the flat knowing that it was in breach of her tenancy agreement.

4.      Mr McEwan's evidence was restricted to valuation of heritable property. He was not cross-examined and I accepted his evidence. DG and KM were honest witnesses. However the main thrust of their evidence was directed to the issue of whether or not the parties were cohabiting in the period between March 2000 and April 2001 and for reasons explained later I did not consider that I could rely on that evidence.

5.      The defender presented as a straightforward witness whose evidence I could accept as credible and reliable, subject to my assessment that the evidence of all the witnesses could not be regarded as reliable as to whether or not there was cohabitation in the period between March 2000 and April 2001. My comment in relation to the pursuer's friend and sister applied equally to JK, the defender's mother. In respect of issues relating to the defender's employment and the acquisition of heritable property relating thereto, I accepted the evidence of RP as credible and reliable. His evidence on these matters was crisp and businesslike. It is only in relation to the issue of where the defender was living in the period between March 2000 and April 2001 that I found, as with the other witnesses, his evidence to be unreliable.

The Law 

6.      S.28 of the 2006 Act , so far as material to the present case, provides as follows:

"(1) Subsection (2) applies where cohabitants cease to cohabit otherwise than by reason of the death of one (or both) of them.

 

(2) On the application of a cohabitant (the "applicant"), the appropriate court may, after having regard to the matters mentioned in subsection (3) -

 

(a)   make an order requiring the other cohabitant (the "defender") to pay a capital sum of an amount specified in the order to the applicant;

(b)    make an order requiring the defender to pay such amount as may be specified in the order in respect of any economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents;...

 

(3) Those matters are -

 

(a) whether (and, if so, to what extent) the defender has derived economic advantage from contributions made by the applicant; and

(b) whether (and, if so, to what extent) the applicant has suffered economic disadvantage in the interests of --

(i) the defender; or

(ii) any relevant child.

 

(4) In considering whether to make an order under subsection (2)(a), the appropriate court shall have regard to the matters mentioned in subsections (5) and (6).

 

(5) The first matter is the extent to which any economic advantage derived by the defender from contributions made by the applicant is offset by any economic disadvantage suffered by the defender in the interests of -

 

(a)   the applicant; or

(b)    any relevant child

 

(6) The second matter is the extent to which any economic disadvantage suffered by the applicant in the interests of

 

(a)   the defender; or

(b)    any relevant child

is offset by any economic advantage the applicant has derived from contributions made by the defender.

 

(7) In making an order under paragraph (a) or (b) of subsection (2), the appropriate court may specify that the amount shall be payable-

(a)   on such date as may be specified;

(b)    in instalments.

...

 

(9) In this section -

...

 

"child" means a person under 16 years of age;

 

"contributions" includes indirect and non-financial contributions (and, in particular, any such contribution made by looking after any relevant child or any house in which they cohabited); and

 

"economic advantage" includes gains in -

(a) capital;

(b) income; and

(c) earning capacity;

 

and "economic disadvantage" shall be construed accordingly.

 

(10) For the purposes of this section, a child is "relevant" if the child is-

(a) a child of whom the cohabitants are the parents;...."

 

7.      In the course of submissions I was referred to several reported cases on the application of s.28 of the 2006 Act from the Sheriff Court and the Outer House of the Court of Session. All these cases pre-date the decision of the Second Division of the Inner House in the case of Gow v Grant. While some assistance can be gleaned from the various earlier cases to which I was referred, I considered that the approach taken in each, which has in any event been varying and at times contradictory, had to be evaluated with the benefit of the opinion of the Inner House in Gow v Grant delivered by Lord Drummond Young.

8.      The cases to which I was referred were:

M V S 2008 SLT 871,

F v D 2009 FAM LR 111,

Lindsay v Murphy 2010 Fam LR 156,

Mitchell v Gibson (Sheriff Principal Dunlop, Falkirk Sheriff Court, 14 February 2011)

Gow v Grant (Second Division, Inner House, Court of Session, 22 March 2011)

9.      From the leading authority of Gow v Grant two main points are clear. Firstly, s.8-10 of the Family (Law) (Scotland) Act 1985 have no bearing on the construction of s.28 of the 2006 Act. Secondly, in applying s.28 the court must have regard to the precise wording used in the section, the objectives of which were limited in scope to enabling the court to correct any clear and quantifiable imbalance that might have resulted from cohabitation.

10. In Gow v Grant Lord Drummond Young stated;

"Thus the scheme of section 28 is quite different, both in substance and in form, from s.8-10 of the 1985 Act, and cases on the latter provisions cannot be regarded as guidance in the construction of s.28. Secondly, we are of opinion that in applying section 28 a court must have regard to the precise wording used in the section, and in determining whether financial provision should be awarded it must ensure that the requirements set out in the section are satisfied on the evidence. Section 28 has been criticised for the lack of guidance that it gives to the court, and it is clear that first instance courts have had considerable difficulty in applying its provisions in particular cases. Indeed, in the present case the sheriff (at paragraph [39] of her Note) regretted that no clear statement of the approach which Parliament intended is immediately discernible from the wording of the provisions. We can see considerable force in these criticisms. Nevertheless, we are of the opinion that the difficulties will be minimized if it is recognised that the objective of the section was limited in scope: it was intended to enable the court to correct any clear and quantifiable economic imbalance that might have resulted from cohabitation. The section was not designed to confer a general power to deal with any wider financial issues that might have arisen between the parties. Consequently, we consider that the section should be applied in accordance with its precise terms, which appear to us to reflect its limited objective."

In deciding this case I therefore require to have regard to the precise terms of the section and ascertain whether any clear and quantifiable economic imbalance has resulted from cohabitation, and, if so, whether to make order(s) under s.28(2)(a) and/or s.28(2)(b).

11. In terms of s. 28(1), subsection 2 applies where cohabitants cease to cohabit otherwise than by reason of the death of one (or both) of them. That is the case.

12. Subsection (2) provides that on the application of a cohabitant the appropriate court may make certain orders as specified in s.28 (2) (a) and (b). The pursuer was a cohabitant and has applied for orders in terms of both s.28 (2) (a) and s. 28(2) (b). S. 28(2)(c) provides for interim orders, but no such order has been craved in this case.

In considering an application under s.28(2) the court is to have regard

 

to the matters mentioned in subsection (3) of s.28. The matters

 

mentioned in s.28(3) are:

 

"(a) whether (and, if so, to what extent) the defender has derived economic advantage from contributions made by the applicant; and

(b) whether (and, if so, to what extent) the applicant has suffered economic disadvantage in the interests of --

(i) the defender; or

(ii) any relevant child."

13. In this case the pursuer craved an order under s.28 (2) (a) on three accounts:

a.      Economic advantage claimed to have been derived by the defender from the pursuer keeping the defender while the parties cohabited in the period from March 2000 until April 2001.

b.      Economic disadvantage which the pursuer claimed was suffered by her in the interests of the defender or relevant children being the loss of capital appreciation in respect of the prospective purchase of the flat at [address].

c.      Economic disadvantage which the pursuer claimed was suffered by her in the interests of the children in respect of her loss of income occasioned by a restriction on working days to two days per week due to childcare commitments in the period from the end of cohabitation to the date of proof.

14. As all those matters were advanced in relation to a claim for a capital sum in terms of s.28(2)(a), s.28(4) of the 2006 Act requires that in considering whether to make an order regard is to be had to the matters mentioned in s.28(5) and s.28(6). These are the extent to which any economic advantage derived by the defender from contributions made by the pursuer is offset by any economic disadvantage suffered by the defender in the interests of the applicant or relevant children, and, secondly, the extent to which the economic disadvantage suffered by the applicant is offset by any economic advantage the applicant has derived from contributions made by the defender.

15. The pursuer also sought an order in terms of s.28(2)(b) to reflect the economic burden of caring for the children after the end of the cohabitation based upon future childcare costs that would be incurred upon her return to full time work. As this aspect of the pursuer's claim was for an order in terms of s.28 (2) (b) the offsetting provisions in s.28 (5) and s. 28(6) do not apply.

 

Period from March 2000 to April 2001

Pursuer's submission

16. The pursuer sought an order under s.28(2)(a) having regard to the economic advantage which the pursuer claimed was obtained by the defender in the form of the support provided to him while the parties cohabited at [address] from March 2000 until April 2001. Whether the parties were cohabitants during that period was a matter of factual dispute.

17. It was submitted for the pursuer that on the balance of the evidence the pursuer's position was to be preferred and the court should find that the parties commenced cohabitation from about March 2000. The pursuer claimed £1,680 in respect of this calculated at £30 per week for the general additional household costs of an additional adult in the house during the period from March 2000 to April 2001.

Defender's submission

18. For the defender it was submitted that on the evidence it was more likely that the parties were not cohabiting during this period. If it was found that there had been cohabitation during that period any economic advantage to the defender would have to be offset by economic disadvantage suffered by the defender later in the relationship. It was submitted that it was not appropriate to divide the cohabitation into chunks, but the overall period of cohabitation had to be looked at. If that was done it would be seen that at the end of the cohabitation neither party had any economic advantage or had suffered any economic disadvantage.

Decision

19. On the evidence I have not been able to find as fact that the parties cohabited during the period referred to. It was the evidence of the pursuer that the parties cohabited during that period. Her evidence was supported by her sister and her friend. The defender's evidence was that during that period he lived partly at the pursuer's home and for two or three nights per week at the home of his grandmother. His evidence was supported by his mother and uncle. In fairness to the pursuer's sister and friend and the defender's mother and uncle they were giving evidence about a situation that ended ten years ago in which they were not directly involved and about which they would have no particular cause to pay close attention. Their evidence conflicted and all gave the impression of not being entirely sure.

20. For reasons stated earlier I did not consider that the pursuer could be regarded as a wholly reliable witness. Therefore I do not find as a matter of fact that the parties were living together as if they were husband and wife during the period from March 2000 to April 2001. On the balance of probability the parties' relationship developed further between March 2000 and April 2001 and they moved to a situation where they were cohabiting at some point during that period. I find support for that conclusion from the fact that the defender did not leave his mother's home in March 2000 due to a decision to live with the pursuer, but left due to a fall-out in the family. However there was simply inadequate reliable evidence to find in fact exactly when cohabitation began. Whether that was earlier or later in that period I have been unable to determine. As cohabitation has not been established during the period from March 2000 to April 2001 no question of economic advantage arises.

21. I may add that I did not find attractive the pursuer's approach to assessment of economic advantage whereby a discrete period of cohabitation is taken and a one dimensional arithmetic calculation as to the cost of bed and board is applied to that period. That is particularly so when, as in this case, the parties have continued to cohabit for more than eight years thereafter. It seems to me that most relationships have more depth and complexity and have multiple dimensions. If two adults choose to cohabit, in most cases at the time of cohabitation they will have made an arrangement as to respective contributions to that relationship, financial and otherwise, which they find acceptable. It will seldom be appropriate to present many years later when circumstances change a bill for bed and board. No doubt there can be cases where such an approach can be justified, but it seems to me that these will not be the norm.

22. As I have not found there to be any economic advantage to the defender from contributions made by the pursuer in this regard, I need not go on to consider any offsetting in terms of s.28(5).

[address], Falkirk

Pursuer's Submission

23. The pursuer sought an order in terms of s.28(1)(a) having regard to economic disadvantage which the pursuer claimed was suffered by her in the interests of the defender or relevant children in the loss of capital appreciation in respect of the prospective purchase of the flat at [address]. It was submitted that the decision not to invest in the purchase of her local authority house at a discounted price was taken by the pursuer in the interest of the defender and the (as yet unborn) children as she and the defender then perceived those interests. The extent of this disadvantage was assessed to be £27,500, being one half of the increase in net equity between June 2000 and November 2007 based upon the unchallenged valuation of Mr McEwan. Defender's Submission

24. For the defender, it was submitted that whatever the pursuer's reason for not purchasing the local authority house it was not a decision taken in the interests of the defender or the not yet born children. The pursuer's decision not to buy the house may, in retrospect, appear to have been a bad decision, but that does not bring it within the scope of s.28 which, as Gow v Grant makes clear, is limited in its scope. The pursuer is seeking a notional loss of something which she never owned. There has been no economic disadvantage suffered in the interests of the defender.

Decision

25. I concluded that the decision not to proceed with the purchase of [address] and any notional loss occasioned thereby was not an economic disadvantage suffered by the pursuer in the interests of the applicant or the children. It certainly could not have been in the interest of the children as there were no relevant children at the time. The pursuer's relationship with the defender may have been a factor in her decision not to proceed ( and I have found that it was), but it was not a decision in his interests.

26. I do not accept on the evidence that but for her relationship with the defender the pursuer would have proceeded with the purchase. In coming to that conclusion on the evidence I took into account that the pursuer had not herself actively pursued a possible purchase of her local authority house. The process had been instigated by a company who had apparently cold called all tenants in the street. There was no evidence that the pursuer did anything other than meet with the representative of that company and allow them to proceed with an application on her behalf. The pursuer had little recollection of the details and gave the impression of having little active involvement in the process. She had rent arrears at the time. While she said in evidence that her mother would have cleared them, there was no evidence that they were ever actually cleared, something that may have made securing mortgage finance difficult. In the course of that summer the pursuer went on a cruise. While that is absolutely fine, given her limited income, it does not suggest someone seriously considering their first house purchase. While the pursuer puts forward her relationship with the defender as her reason for not proceeding, surprisingly she did not give up the tenancy on moving to another house with the defender but rented it out until it was ultimately repossessed by the local authority. The reality on the evidence is that the pursuer never seriously engaged with the process of house purchase and her decision not to purchase was not in any way in the interests of the defender. Just because that relationship may have been a factor, does not make it in his interests.

27. As there has been no economic disadvantage suffered by the pursuer in relation to [address] in the interests of the defender or any relevant child, I need not go on to consider any offsetting in terms of s.28(6).

Pursuer's loss of income from November 2007 to March 2011

Pursuer's submission

28. The pursuer sought an order in terms of s.28 (2) (a) having regard to economic disadvantage which the pursuer claimed was suffered by her in the interests of the relevant children in the form of her loss of income occasioned by a restriction on working days to two days per week from the four days per week which she stated in evidence she had worked when she met the defender. The pursuer's submission was that the measure of that loss of income was the difference between her current net income for two days per week (£120) and what she would have been earning if working four days per week (£300) measured over the period from the end of November 2007 (when cohabitation ceased) to the end of March 2011 (date of proof). The loss claimed in this regard is £31,140. It was submitted that there was no economic advantage accruing to the pursuer by reason of the defender's contributions against which the disadvantage should be offset.

Defender's Submission

29. For the defender the court was invited to accept the defender's evidence that the pursuer had worked only two and a half days per week when their cohabitation started. Reference was made to the definition of "economic advantage" and "economic disadvantage" in s.28 (9) of the 2006 Act and the reference there to "earning capacity." It was submitted that on the evidence there had been no reduction in the pursuer's "earning capacity," albeit she has worked less hours. It was submitted that at the end of cohabitation neither party had any economic advantage or disadvantage due to the cohabitation and therefore there was no clear and quantifiable economic imbalance to be corrected by an award of a capital sum.

Decision

30. While on certain points I felt I could not rely on the pursuer's evidence, I did accept her evidence that she was presently working two days per week and but for child care responsibilities she would be working four days per week. That evidence was not seriously challenged and it seemed inherently likely.

31. I agreed with the pursuer's submission that the loss of income thereby incurred by her in the period from April 2007 to March 2011 was an economic disadvantage which the pursuer has suffered in the interests of the children. It was a clear and quantifiable imbalance.

32. The figure of £31,140 put forward for the pursuer was calculated based upon four days work at £300 per week rather than her net income of £120 for two days per week. I was not persuaded on the pursuer's evidence that her increase in earnings to four days would exceed the pro rata rate which she currently earned. The pursuer's figures were not supported by any vouching, which was slightly surprising. Therefore I assess the economic disadvantage at £120 per week as more probable on the basis of two additional days at the same daily rate as current earnings which over the period in issue amounts to £20,760.

Cost of childcare from August 2011 until August 2019

Pursuer's Submission

33. The pursuer sought an order in terms of s.28(2)(b) to reflect the economic burden of caring for the children after the end of the cohabitation based upon the pursuer's evidence of childcare costs that would be incurred upon her return to full time work, which she anticipated doing over one year from August 2011. It was submitted that this burden was distinct from an alimentary obligation. It related to the cost which would have to be borne by the pursuer if she were to return to work full-time which she legitimately wishes to do.

34. These costs, of which payment was sought by instalments, were quantified based upon current daily childcare rates for the period from August 2011 until completion of first year at secondary school which will be August 2015 for J and August 2019 for M.

Defender's Submission.

35. For the defender it was submitted that before making an order under s.28 (2) (b) the court required to consider the matters set out in s.28 (3). Those matters are historical and do not permit speculation as to the future which it was submitted was what the pursuer was inviting the court to do. In effect what was being sought was future alimentary provision which is not what the section was designed to do. An order under s.28 (2) (b) could only be made if on the evidence economic advantage has been derived or economic disadvantage suffered. Decision

36. Having regard to the precise wording of s.28 and applying its precise terms, as I require to do in terms of Gow v Grant, I concluded that future childcare costs are not an economic disadvantage which the appellant has suffered. While s.28(2)(b) provides that the court may make an order requiring the defender to pay in respect of any economic burden of caring, after the end of the cohabitation, for a relevant child, such an order can only be made after having regard to the economic advantage which has been derived or economic disadvantage suffered. Thus an order relating to future child care costs can be made only if there has been economic advantage/disadvantage as set out in s.28 (3).

37. The future childcare costs are relevant in considering whether to make an order in terms of s.28 (2)(b), and, if so, the amount of such an order and how it is to be paid. Future childcare costs are not in themselves a freestanding ground on which an order for financial provision in terms of s.28 can be made. It is only once economic advantage/ disadvantage has been established in terms of s.28 (3) that the court can consider any economic burden of caring, after the end of the cohabitation, for a child of whom the cohabitants are the parents.

38. Such an interpretation of the terms of s.28 may appear to be unfair to the pursuer and that may indeed be the case. However it could be at least as unfair to the defender to make an order of a payment, even if payable by instalments in respect of costs that may or may not be incurred and in circumstances, financial and otherwise, which may alter radically over the period upon which the order was based. It has to be remembered that such an order could not be varied no matter how circumstances alter and I note that in this case the calculation was based upon the period from August 2011 to August 2019. Who can say how circumstances could alter over that period?

39. In my assessment a payment in respect of future childcare costs is in the nature of an alimentary payment fulfilling a parent's legal obligation to financially support his child or children as is reasonable in accordance with the financial circumstances of the parents. Alimentary obligations are regulated by the Child Support Act 1991 and the Family Law (Scotland) Act 1985. It was submitted for the pursuer that beyond payment of maintenance as assessed by the Child Maintenance and Enforcement Commission there was no statutory means by which the pursuer could seek an order for payment from the defender in respect of these future costs. That was not disputed for the defender and may well be the case. In the case of M v S, Lord Matthews commented that it might be far better if matters relating to future child care fell within the ambit of the Child Support Agency (as it then was). That is perhaps a matter for wider debate.

40. However in attempting to apply the terms of s.28 in accordance with its precise terms, I conclude that future child care costs do not come within the matters in s.28(3) to which the court is to have regard as grounds for making an order in terms of s.28(2). If one of the matters set out in s.28(3) is established, an order can then be made in respect of the economic burden of maintaining a child after the end of cohabitation and items such a childcare costs would appropriately be considered in assessing the appropriate amount of such an order and how it is to be paid. But if it is not found that the defender has derived economic advantage from contributions made by the pursuer or the pursuer has suffered economic disadvantage in the interests of the defender or any relevant children, the court cannot make an order based solely upon future childcare costs.

41. In this case I was not in any event satisfied that such costs will, in fact, be incurred. The evidence for this was that of the pursuer and, as stated earlier, I did not wholly accept her evidence. It was clear that all alternative options had not been explored. In particular, the defender's mother who already provides childcare on Saturdays declared that she would be willing to assist further, but she has not been approached. Given that finances for both the pursuer and the defender are likely to be tight, it would seem reasonable to expect other options consistent with the welfare of the children be fully explored and that has not been done.

42. In any event it has been found that the pursuer has suffered economic disadvantage in the interests of the children in respect of the loss of income from November 2007 to March 2011. Since that has been established I can consider making an order under s.28 (2) (b) and can consider future childcare costs as a relevant factor.

 

Offsetting

43. Having assessed that the pursuer has suffered an economic disadvantage in the interests of the defender and their two children, s.28(4) requires that in considering whether to make an order in terms of s28(2)(a) (but nots.28(2)(b)) regard is to be had to the matters mentioned in s.28(6). This is, the extent to which the economic disadvantage suffered by the pursuer is offset by any economic advantage the pursuer has derived from contributions made by the defender. The defender has throughout the period in question paid a weekly sum to the pursuer approximately £15 in excess of what he would have been required to pay if there had been a maintenance assessment in terms of the Child Support Act 1991. Over the period in question that amounts to £2,595. In that calculation I have not used any different figure for the period of weeks when the defender was ill during which the defender's payment to the pursuer was reduced but not so much as his income. I have assumed that his payment during that period continued at about £15 per week in excess of what a maintenance assessment would have been.

44. Therefore in considering whether to make an order for payment of a capital sum under s.28(2)(a), the pursuer's economic disadvantage suffered in the interests of the children, after offsetting the economic advantage she has derived from the defender's contributions in terms of s.28(6) is £18,165 (£20,760 less £2,595). However in considering whether to make an order in terms of s.28 (2) (b) the offsetting provision in s.28 (6) does not apply. Therefore the economic disadvantage for the purposes of s.28 (2) (b) is the sum of £20,760.

Exercise of discretion / Resources

Pursuer's submission

45. The pursuer submitted that the amount of an award under s.28 (2) was not restricted on the basis of the absence of resources to meet it. In the absence of statutory guidance to the contrary the approach adopted by Sheriff Hendry in F v D 2009 Fam LR 111 should be followed. In that case Sheriff Hendry made an award and did not proceed by reference to the parties' resources. Counsel submitted that in the present case there was no material pled by the defender to put his resources in issue. If he had wanted to raise the absence of resources as a barrier to payment he could have done so.

Defender's submission

46. For the defender it was submitted that there had to be some equitable consideration as the decision was discretionary. There was no evidence that the defender had any wealth at all. He had a modest income. He lived in a property burdened by debt. It was submitted that in deciding whether to make an order for payment under s.28 (2) the court must have regard to affordability and enforceability.

Decision

47. Section 28 (2) provides that the court may make an order. It does not provide that the court shall make an order. This is important as it was submitted for the pursuer that, unlike the provisions in the Family Law (Scotland) Act 1985 there was no constraint on the making of an order by reference to resources. However in my assessment it must be noted that the provisions of the 1985 Act are indeed very different from s.28 of the 2006 Act. Under s.8(2) of the 1985 Act, the court shall make such an order, if any, as is justified by the s.9 principles and reasonable having regard to the parties' resources. The mandatory nature of an order, if justified by the s. 9 principles, is counterbalanced by requiring the court not to make an order justified by s.9 principles unless it is also reasonable having regard to the parties' resources. S.28 of the 2006 Act does not require the court to make any order if economic advantage/ disadvantage is established. It does no more than allow the court to do so.

48. It is a discretionary decision. That discretion requires to be exercised reasonably. In doing so, the court will consider the particular facts and circumstances of the individual case which may or may not involve weight being attached to present financial circumstances and resources.

49. In the case of M v S, Lord Matthews in considering the lack of provision requiring the courts to have regard to resources suggested at paragraph 261 that it "might be that courts will be slow to make an award which will plainly be unenforceable." In the case of F v D, Sheriff Hendry made an order despite observing at paragraph 63 that it may be that the pursuer would meet with little success in attempting to enforce payments. In Lindsay v Murphy, Sheriff Miller commented at paragraph 67 that where, as in that case, the defender's only assets of any value were quantified and wholly related to the cohabitation, it would be surprising if the result of the court's exercise of discretion under s.28 was an award which exceeded the value of those assets.

While some inconsistency of approach at first blush may appear to exist, on closer consideration what these various observations demonstrate is the discretionary nature of an order under s.28. In F v D the defender had shown an intention to evade payment and in those particular circumstances Sheriff Hendry exercised his discretion in not proceeding by reference to resources.

50. The discretionary nature of any order and the amount thereof is further demonstrated in s.28 (2) which provides that the court may make an order after "having regard to the matters mentioned in subsection (3)". Thus the section does not require the court to make an order equal to any economic advantage/disadvantage. It does no more than require the court to have regard to those matters in the exercise of its discretion.

51. In the present case there was no evidence that either party has at any time had any capital or resources beyond their weekly income and, in respect of the pursuer, tax credits and child benefit. While the defender had suffered economic disadvantage to the extent of her loss of income in the period from November 2007 to March 2011, I noted in passing that she does receive tax credits, the amount of which will be based upon her income. The extent to which the amount of tax credits differed between part-time earnings and full-time earnings was not explored and I do no more than observe that the receipt of tax credits may well have reduced the pursuer's actual loss. However that is not a contribution by the defender and so does not come within the offsetting provisions of the act.

52. As at the date of proof the pursuer was living in a house owned by her purchased with secured borrowing and financial assistance from her mother. The defender was living in a house owned by him purchased with secured borrowing and financial assistance from his mother. The defender is not a high earner having a net weekly wage of £223. He is employed, as he has always been, as a general farm worker. There was no indication that was likely to change. From that he paid £60 per week to the pursuer as alimentary support for the children. This sum was about £15 per week more than he would require to pay in terms of a child support agency assessment. The defender's house is subject to a Standard Security in favour of his employer, JP & Sons Ltd for the sum of £143, 548.13, being the sum advanced towards the purchase price of the property. While no repayment is currently being made that is because his relatives who are the directors of the company are prepared to delay repayment due to the defender's present circumstances. However that could change at any time and the defender's legal liability is for payment in full immediately on the sale of the property or on demand at the company's discretion. In these circumstances the defender's ability to make further payment to the pursuer is constrained, notwithstanding the pursuer's established economic disadvantage.

53. In the circumstances of this case where the defender has generally always made alimentary payments for his children and at a level that has generally exceeded his legal liability in terms of the Child Support Act, I consider that it is not appropriate to make an order for payment under s.28 which he does not have any apparent means to pay. There was no evidence of any means to make a capital payment and given that his currently weekly payment already exceeds the likely amount of any maintenance assessment I do not consider that there is any scope for ordering the defender to make any payment to the pursuer under s.28. Therefore I have decided that no order should be made under s.28(2)(a) or s.28(2)(b).

Expenses

54. I was invited to reserve the question of expenses and I have done so.