Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS   Case Number: F823/11
	Judgment by   SHERIFF PRINCIPAL MHAIRI M STEPHEN   in appeal   ALASTAIR (formerly WALTER ALASTAIR) WILSON Appellant   in the cause   HELEN TERESA LENAGHAN or WILSON   Pursuer and Respondent   against   ALASTAIR WILSON Defender and Appellant   ___________________________

 

Act: Appellant, Party Litigant

Alt: McAlpine, Advocate instructed by Messrs Thorley Stephenson, solicitors

 

 

 

EDINBURGH, 22 April 2013

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal; adheres to the sheriff's interlocutor of 6 June 2012; finds the appellant liable to the respondent in the expenses of the appeal and allows an account of expenses to be given in and remitted to the Auditor of Court for taxation; refuses the respondent's motion to certify the cause as suitable for the employment of junior counsel for the purposes of the appeal.

(signed) Mhairi M Stephen

NOTE:

1.              This appeal is taken against the sheriff's interlocutor of 6 June 2012 which followed proof on 15 May 2012. The action is for divorce at the instance of Mrs Helen Wilson the respondent against her husband Alastair Wilson the appellant. Divorce was not contested. The parties had been separated since 7 February 2006. The controversial matters which the sheriff required to determine related to the respondent's craves for periodical allowance and aliment. After proof the sheriff granted decree of divorce; periodical allowance of £1,000 per month until December 2013, a period of 18 months all in terms of section 9(1)(d) of the Family Law (Scotland) Act 1985 ("the 1985 Act"). Furthermore, the sheriff awarded the respondent periodical allowance of £500 per calendar month from January 2014 until September 2018 by which time the parties' son Callum will be 16 all in terms of section 9(1)(c) of the 1985 Act.

 

2.              The parties married on 15 September 2001 and separated on 7 February 2006. The marriage was relatively short. There is one child a son Callum born on 25 September 2002 who resides principally with the respondent. Both parties have been significantly involved with Callum's upbringing and welfare throughout his life. Callum sees his father and stays with him on Tuesday and Wednesday nights and alternative weekends during the school term. Callum divides his time between his mother and father during the school holidays.

 

3.              The sheriff found that it was inappropriate to make an order for capital sum or indeed for transfer of property or a pension sharing order given the parties' capital and pension status. There was no significant difference between the parties' respective pension funds. The parties now live in the properties they owned individually prior to their marriage. These properties are roughly of similar market value. The parties lived in the respondent's property during the course of their marriage.

 

4.              The respondent is a registered general nurse and worked as a nurse from 1979 to 1988 at which time she took up employment as a sales rep initially for Cow and Gate and then with Astra Zeneca a large pharmaceutical company. She gave up work in 2001 just prior to her marriage following discussion about that with her husband to be. She has now returned to nursing and has secured part-time casual employment as a staff nurse with the NHS nursing bank and with a private Nursing Home. She is able to do this work when Callum is staying with the appellant. She is also undertaking study to refresh and update her nursing skills and enhance her prospects of employment. She earned approximately £9,000 gross in the tax year to April 2011. She also receives child support payments together with child benefit and working tax credit.

 

5.              The appellant is a chartered accountant employed by RBS in Edinburgh. At the time of the marriage the appellant was employed with RBS. He gave up working with RBS to run his own business in 2003. That enterprise does not seem to have been successful and he returned to employment with RBS in 2006 after the separation. He earns a substantial salary in the region of £94,000 per annum.

 

6.              The history of alimentary payments and CSA payments are set out in the sheriff's findings in fact and note.

 

7.              The appellant supported the respondent and child throughout the marriage and after the separation until September 2009 when he ceased paying aliment to the respondent. From September 2009 to September 2011 the respondent relied on CSA payments; benefits/tax credits and some part-time earnings. In September 2011 an award of interim aliment was made at this court and since then the appellant has paid £1,000 per month to the respondent in addition to the CSA payments in respect of the child. At the time of the proof these payments in respect of child support amounted to £436.36 per month. The appellant told me that figure had now reduced to £384.

 

8.              The parties entered into a joint minute of admissions prior to proof. This is No 16 of process. The appellant took no issue with the sheriff's approach to capital namely, that it was inappropriate to make an order for a capital sum or property transfer or pension sharing order.

 

9.              The appellant in his note of appeal makes four substantive points:

·       That the sheriff erred in finding that the respondent had the main economic burden of caring for the child of the marriage.

·       That the sheriff erred in concluding that it was reasonable that the appellant pay periodical allowance to the respondent from January 2014 until the child's 16^th birthday in terms of section 9(1)(c) of the 1985 Act.

·       That the sheriff erred in concluding that award of periodical allowance at the level of £1,000 per month from the date of decree until the end of 2013 was justified in terms of section 9(1)(d).

·       There was no basis in fact to justify the level of periodical allowance of £500 per month from January 2014 to September 2018 and therefore the sheriff erred.

 

10.           Finally, the appellant appeals the sheriff's decision to award expenses against him. In essence this ground of appeal appeared to be that the appellant sought the expenses of the appeal and proof if successful. The appellant indicated to me that he had offered to settle the respondent's financial craves to avoid proof but did concede that the respondent had bettered his offer by a very significant amount or margin by proceeding to proof. Further, the appellant argued that he should not be liable for his wife's expenses in any event, as he had not been provided with a detailed breakdown of the costs incurred by his wife in maintaining the home. This was not produced until the time of the proof and accordingly he had not had the opportunity of taking these into account prior to proof. Each party should bear their own costs incurred at proof.

 

11.           The appellant represented himself at the appeal hearing. He had been represented by solicitors at proof and these solicitors had lodged the original grounds of appeal (No 19 of process). The appellant lodged amended grounds in January 2013 prior to the hearing of the appeal adding his final ground relating to expenses. The respondent was represented by counsel at the appeal instructed by the firm of solicitors who had appeared for her at proof.

 

Appellant's submissions

12.           The appellant made submissions based on his note of appeal. His submissions were supplemented by various papers apart, numbered 1 to 5, which he presented to support his oral submissions.

 

13.           Ground 1 of Appeal

In support of Ground 1 Mr Wilson, the appellant, argued that the care arrangements for Callum reflect in effect a shared care situation. The respondent looks after Callum for the majority of the time however this in percentage terms is 55% of the year with Callum being in the appellant's care for the remaining 45% of the time. In terms of days Callum was 181/2 days more with the respondent than would be a truly equal shared care arrangement. Further, it was anticipated that this figure would fall to 15 days in 2013. Mr Wilson supported his submissions with Paper Apart 1 which takes account of payments received by the respondent from the appellant and the State including CSA payments. This leads to the conclusion that the appellant, not the respondent, bears the main economic burden of caring for the child of the marriage. The appellant adopted a mathematical approach to this issue and criticised the sheriff for failing to identify the economic burden borne by the appellant and for failing to calculate or acknowledge the significant sharing of the economic burden by both parties particularly the appellant. The sheriff had failed to have regard to the nature and purpose of the CSA payments and its impact on section 9(1)(c) of the 1985 Act and the principles to be taken into account all as set out in section 11 sub-section 3(a). He failed to have regard to the fact that the CSA award was an award to the parent with care and the methodology used in calculating that award which took account of the means of the non-resident parent and the actual care arrangements. Further, the sheriff failed to have regard to the fact that the award of interim aliment was not aliment for the child and accordingly that he had taken into account an irrelevant consideration in para [58] of his judgment when he took account of that award of interim aliment in relation to Section 11(3) of the Act. The sum awarded by the court being an alimentary payment for the respondent herself rather than a decree or arrangement for aliment for the child in terms of section 11(3)(a) of the 1985 Act.

 

14.           Ground 2 of Appeal

The appellant argued that the sheriff had erred both in fact and law in concluding that the payment of a periodical allowance by the appellant to the respondent was reasonable in terms of section 9(1)(c) of the Act to continue to maintain a suitable home and standard of living for the child until his 16^th birthday. There had been no adequate averments or evidence to support the respondent's contention that she required to carry out works to the home she shared with Callum. The sheriff failed to have regard to the fact that the respondent had accumulated funds from alimentary payments and other income; that the expenditure envisaged by the respondent included capital expenditure which would enhance the respondent's assets and it was therefore contrary to the clean break principle and unreasonable for the sheriff to require the appellant to contribute to these costs by way of periodical allowance in terms of section 9(1)(c).

 

The appellant asserted that the respondent had, following proof, lodged an application with the local council planning department to build an extension to her property. That demonstrated an inconsistency with the evidence given by the respondent at proof about her need for support and funds to maintain the property. Furthermore, the sheriff had failed to take account of the respondent's ability to work for longer periods when the child becomes more mature and independent. The appellant maintained that there had been an element of double counting in so far as the sheriff had taken into account factors which were common to both 9(1)(c) and (d) principles and in so far as these factors may have supported an award under 9(1)(d) no additional award ought to have been made under section 9(1)(c).

 

15.           Ground 3 of Appeal

The appellant argued that the sheriff fell into error when considering there was justification for an award of periodical allowance under section 9(1)(d) at the level of £1,000 per calendar month. In particular there had been no quantification of the pursuer's needs and insufficient regard had been had to the paucity of evidence as to the pursuer's income. Indeed there had been no finding in fact with regard to the pursuer's current income. The pursuer's averments with regard to income and outgoings were unvouched and therefore unsupported. The sheriff had failed to have regard to certain benefits received by the respondent. The appellant produced papers 3, 4 and 5 with regard to the respondent's earning capacity and disposable income.

 

16.           Ground 4 of Appeal

This ground of appeal essentially related to the quantification of periodical allowance (£500 per month) until the child's 16^th birthday. There was no basis for quantifying the award of periodical allowance at this level and for this duration. The sheriff failed to have regard to the clean break principle and failed to take account of the respondent's true earning capacity. The sheriff failed to have regard to her capacity to work increased hours reflecting the child's age and the assistance provided by the appellant with regard to child care. The respondent's earning capacity increases as Callum gets older and more independent.

 

17.           Finally, the appellant addressed me on his ground of appeal with regard to expenses as described in paragraph 10 above. In essence the appellant argued that the parties should have borne their own expenses at proof. He had received no advance notice of the detail of the respondent's case, in particular, he had not received specification of the schedule of costs with regard to home improvements. He was therefore not in a position to anticipate or deal with these matters prior to proof. In any event the appellant had sought to avoid proof by offering to settle. The appellant fairly conceded that the respondent did better by proceeding to proof than she would have done had she accepted his offer to settle. In any event if successful the appellant sought the expenses of the appeal and also his expenses before the sheriff.

 

RESPONDENT'S SUBMISSIONS

18.           Mr McAlpine for the respondent emphasised the discretionary nature of the sheriff's function in applying the relevant sections of the 1985 Act. He reminded me of the statutory requirements whereby section 8(2) required the court to make such order, if any, as is justified by the principles set out in section 9 and that was reasonable having regard to the resources of the parties. In doing so section 11 provided assistance on the specific matters to be considered under section 9(1)(c) and 9(1)(d). Lord Hope in Little v Little 1990 SLT 785 emphasised the discretionary nature of the court's function and therefore the appeal court should not interfere unless there had been some clear error. Mr McAlpine also referred to Miller v Miller 1990 SCLR 666; Hutchison v Hutchison 1990 SCLR 819. The appeal was unarguable and nothing put forward on behalf of the appellant indicated any error on the part of the sheriff which would justify the appeal court interfering with the sheriff's decision.

 

19.           Turning to the first ground of appeal and the sheriff's application of the principles set out in 9(1)(c) of the Act Mr McAlpine sought to show by reference the 1985 Act and the sheriff's judgment that the particular points which the appellant sought to raise were in fact misconceived.

 

20.           The appellant's argument under Ground 1(a) is flawed in so far as the arrangement for the care of Callum was not a shared care arrangement and the appellant's arithmetic approach omitted the important fact that the child resides principally with the respondent and the economic burden of looking after and caring for Callum is not diminished or divisible by the days he stays with his father. The weight of economic responsibility lay with the principal carer. Even if a shared care arrangement was established it still does not preclude an award under section 9(1)(c). In this regard I was referred to B v B 2012 FamLR 65.

 

21.           Turning to the first ground sub-paragraph (b) there had been no error on the part of the sheriff. He takes account of the payments of child support allowance and again an award of CSA does not preclude an order under this section. I was referred to McLaughlan v McLaughlan 1998 SLT 693 and the dicta of Lord McFadyen at page 698.

 

22.           With regard to the first ground of appeal sub-paragraph (c) Mr McAlpine argued that no error can be detected on the part of the sheriff. Section 11(3)(a) relates to a decree or arrangement for aliment for the child. Clearly the sheriff has taken account of this in considering the CSA payments referred to above. The Sheriff has had regard to the award of interim aliment which benefited the respondent. The sheriff makes no specific reference to section 11(3)(a) and accordingly in paragraph [58] takes account of the interim aliment awarded to the respondent and also the CSA payment. I was referred to Lessani v Lessani 2007 FamLR 81.

 

23.           Turning to paragraph (d) of the appellant's first ground of appeal I was reminded that the sheriff was under no obligation to quantify the economic burden. A loss of earning capacity is a factor that the court must have regard to in terms of section 11(3)(b). It is not necessary for the sheriff to quantify that loss but mere detriment to earning capacity is in itself a factor which the court must take account of. The respondent was examined and cross-examined on this matter. The sheriff had regard to this evidence as he required to in terms of the Act. The sheriff discusses this aspect at paragraph [58] of his judgment.

 

24.           Turning to the second ground of appeal which criticises the sheriff's discretionary order that payment of a periodical allowance in terms of section 9(1)(c) was reasonable having regard to the requirement to maintain a suitable home and to provide the main care for the child until his 16^th birthday. Overall it was the respondent's submission that this ground of appeal was unarguable in terms of the assessment of the court's function in Little v Little. There was no requirement for the sheriff to make a specific finding quantifying the cost of maintaining the child's principal residence and therefore the absence of such a specific finding did not constitute a proper ground of appeal. Likewise this sheriff's approach to needs and the respondent's ability to save for unforeseen costs would not preclude the sheriff from making a finding that an award of periodical allowance was reasonable and justified. Mr McAlpine considered it irrelevant that the necessary improvements to the home that the respondent shared with Callum conferred an additional capital benefit on the respondent. Likewise the new material which the appellant sought to introduce regarding the planning application for an extension was an irrelevant consideration. Furthermore, no errors in law are apparent from the sheriff's approach to the principles. The sheriff carefully takes account of the respondent's employability and the family circumstances. She is examined about her past, current and future employment prospects by her solicitor and also by the sheriff himself. I was referred to Toye v Toye 1992 SCLR 95 as an example of the interaction between an award being made under section 9(1)(d) and 9(1)(c). The reasonableness of the respondent's position vis à vis employment is dealt with fully by the sheriff and in particular at paragraph [69] concludes that her decision with regard to employment seems reasonable. No error of Law is disclosed.

 

25.           Ground of Appeal No 3

Ground of appeal No 3 relates to the sheriff's order in respect of periodical allowance in terms of section 9(1)(d) of the Act. This ground of appeal is directed towards the failure on the part of the sheriff to quantify the respondent's needs. In terms of the Act the sheriff requires to consider the section 9(1)(d) principle in the light of the factors set out in section 11(4). The respondent's submission with regard to this ground of appeal is based on the unchallenged Finding in Fact and Law 5 that the value of the matrimonial property including pensions as at the relevant date is such that it is inappropriate and insufficient to make an order for the payment of a capital sum or transfer of property. The sheriff had applied his mind to the evidence and to the factors in section 11(4). The sheriff also had regard to the joint minute of agreement between the parties. But for the award of periodical allowance interim aliment would cease on divorce. The sheriff has considered the parties' respective financial situation and has had regard to their resources, means and earning capacity. Dealing specifically with paragraph (c) of this ground of appeal the lack of a finding with regard to child benefit is by no means fatal to the decision.

 

26.           The fourth ground of appeal is directed towards the level of or quantum of the award of periodical allowance to be paid from January 2014 until Callum's 16^th birthday (September 2018). For the reasons set out above the sheriff is entitled to make this order on the evidence before him and the findings in fact which he derives from that evidence. The sheriff had regard to all relevant factors and the evidence before him. Furthermore, the sheriff was entitled to have regard to the respondent's ongoing burden of maintaining a home for herself and Callum and the costs involved in the upkeep.

 

27.           The sheriff's decision was justified in accordance with the principles and lay entirely within his discretion. There was sufficient evidence to justify his findings and the order which he made.

 

28.           Finally, on the matter of expenses I was asked to decline to interfere with the sheriff's award which again was essentially the exercise of the sheriff's discretion having regard to the nature of the evidence and the outcome of the proof. Having regard to the assessment of success which Mr McAlpine acknowledged was not the sole criterion, the sheriff was entitled to find the appellant liable to the respondent in the expenses of the original action and proof.

 

29.           Accordingly, I was urged to refuse the appeal and reserve all questions of expenses in respect of the appeal or alternatively simply refuse the appeal and award the expenses of the appeal procedure to the respondent. I was also asked to certify the cause as suitable for the employment of junior counsel for the respondent due to the importance for the respondent given her financial dependence on the appellant.

 

FAMILY LAW (SCOTLAND) ACT 1985

30.           The important and relevant provisions of the Family Law (Scotland) Act 1985 are:

Orders for financial provision

Section 8(1) In an action for divorce, either party to the marriage and in an action for dissolution of a civil partnership, either partner may apply to the court for one or more of the following orders - .......

 

   (b) an order for the making of periodical allowance to him by the other party to the action;...

 

 (2) subject to sections 12 to 15 of this Act, where an application has been made under sub-section (1)above, the court shall make such order, if any, as is -

  (a) justified by the principles set out in section 9 of this Act; and

  (b) reasonable having regard to the resources of the parties.

 

(3) An order under sub-section (2) above in this Act referred to as an "order for financial provision".

 

Principles to be applied

Section 9(1) The principles which the court shall apply in deciding what order for financial provision, if any, to make are that - .................

 

  (c) any economic burden of caring, should be shared fairly between the persons -

(i)    after divorce, for a child of the marriage under the age of 16 years;...

 

  (d) a person who has been dependent to a substantial degree on the financial support of the other person should be awarded such financial provision as is reasonable to enable him to adjust, over a period of not more than three years from,

(i) the date of the decree of divorce, to the loss of that support on divorce

(ii) the date of the decree of dissolution of the civil partnership, to the loss of that support and dissolution.

 

  (e) a person who at the time of the divorce or of the dissolution of the civil partnership seems likely to suffer serious financial hardship as a result of the divorce or dissolution should be awarded such financial provision as is reasonable to relieve him of hardship over a reasonable period.

 

Factors to be taken into account

Section 11(1) In applying the principles set out in section 9 of this Act, the following provisions of this section shall have effect,........

 

  (3) For the purposes of section 9(1)(c) of this Act, the court shall have regard to -

(a)   any decree or arrangement for aliment for the child;

(b)   any expenditure or loss of earning capacity caused by the need to care for the child;

(c) the need to provide suitable accommodation for the child;

(d) the age and health of the child;

(e) the educational, financial and other circumstances of the child;

(f) the availability and cost of suitable-child care facilities or services;

(g) the needs and resources of the persons; and

(h) all the other circumstances of the case.

 

  (4) For the purposes of section 9(1)(d) of this Act, the court shall have regard to -

(a)   the age, health and earning capacity of the person who is claiming the financial provision;

(b)   the duration and extent of the dependence of that person prior to divorce or to the dissolution of the civil partnership;

(c)    any intention of that person to undertake a course of education or training;

(d)   the needs and resources of the persons; and

(e)    all the other circumstances of the case.

 

  (5) For the purposes of section 9(1)(e) of this Act, the court shall have regard to -

(a)   the age, health and earning capacity of the person who is claiming the financial provision;

(b)   the duration of the marriage or of the civil partnership;

(c)    the standard of living of the persons during the marriage or civil partnership;

(d)   the needs and resources of the persons; and

(e)    all the other circumstances of the case.

 

  (6) In having regard under sub-sections (3) to( 5) above to all the other circumstances of the case, the court may, if it thinks fit, take account of any support, financial or otherwise, given by the person who is to make the financial provision to any person whom he maintains as a dependent in his household whether or not he owes an obligation of aliment to that person......

 

Orders for Periodical Allowance

Section 13(1) An order under section 8(2) of this Act for a periodical allowance may be made -

(a)   on granting decree of divorce or dissolution of a civil partnership;

(b)   within such period as the court on granting the decree may specify; or

(c)    after such decree where -

(i)       no such order has been made previously;

(ii)     application for the order has been made after the date of decree; and

(iii)    since the date of decree there has been a change of circumstances.

 

  (2) The court shall not make an order for a periodical allowance under section8(2) of this Act unless -

(a)   the order is justified by a principle set out in paragraph (c), (d) or (e) of section 9(1) of this Act; and

(b)   it is satisfied that an order for payment of a capital sum or for transfer of property or a pension sharing order or pension compensation sharing order under that section would be inappropriate or insufficient to satisfy the requirements of the said section 8(2)

 

  (3) An order under section 8(2) of this Act for a periodical allowance may be for a definite or an indefinite period or until the happening of a specified event..........

 

Interpretation

Section 27(1) In this Act, unless the context otherwise requires-..........

"Resources" means present and foreseeable resources;........

 

 

 

31.           DECISION

The Family Law (Scotland) Act 1985 governs the court's power to make orders for financial provision on divorce. The Act sets out the principles which the court must apply and the factors which the court must take into account. Normally the first task for the court is to value the matrimonial property as at the relevant date which in the present case appears to be 7 February 2006. The parties agreed certain facts in a Joint Minute of Admissions (No 16 of process). The issue for the sheriff to decide related to the pursuer and respondent's crave for periodical allowance following divorce. The parties' respective capital position appears to be neutral in the sense that the sheriff finds that there is no significant difference between the pension funds of the parties as at the date of separation and that the parties own their respective houses with similar market values. Accordingly, the sheriff requires to decide whether the orders sought by the respondent for ongoing financial provision following divorce could be made under section 8 of the 1985 Act. Any such order must be justified by the principles set out in section 9 of the Act and be reasonable having regard to the resources of the parties (as defined in section 27(1) of the 1985 Act).

 

32.           It is both important and necessary to appreciate that the court's approach to its decision on the orders to be made is essentially a discretionary decision. In this regard I refer to the Inner House decision in Little v Little 1990 SLT 785. The then Lord President (Hope) at page 787 had the following observations after analysing the provisions of the Family Law (Scotland) 1985 and the detailed approach which the legislation requires.

"But, despite all the detail much is still left to the discretion of the court. This is clear from an examination of section 8(2), which provides that the court shall make such order, if any, as is justified by the principles set out in section 9 and reasonable having regard to the resources of the parties. The concept of sharing the net value of the matrimonial property fairly, the flexibility which is given by the expression special circumstances in section 10(6) and the repeated references in section 11 to all the other circumstances of the case serve to emphasise that, despite the detail, the matter is essentially one of discretion, aimed at achieving a fair and practicable result in accordance with common sense. It remains as important as it always has been that the detail should be left in the hands of the court of first instance and not opened up for reconsideration on appeal."

 

33.           Accordingly, it could be said that is the end of the matter and the emphasis on the discretionary nature of the sheriff's function is clear and obvious. This is a discretionary decision by the sheriff and unless it is plain that the sheriff erred in law then the facts should not be opened up for re-consideration by me on appeal. It is therefore only open for me to interfere with the sheriff's decision in the event it is shown that the sheriff had clearly made an error.

 

34.           I turn to the first ground of appeal in which the appellant argues that the sheriff erred in finding in fact and law that the pursuer and respondent would have the main economic burden of caring for the child of the marriage. In the course of his submissions the appellant, who presented the appeal without the benefit of legal assistance, looked upon the child care arrangement as in effect a shared care arrangement and using an essentially arithmetic approach sought to suggest that essentially the respondent looked after the child for only 37 days in the year more than the appellant. In other words 181/2 days more than an equal or equally shared arrangement. This factor is likely to decrease during 2013. The approach adopted by the appellant being an almost mathematical approach to the annual care commitment to the child by each parent, is perhaps understandable due to the appellant's own professional qualification as an accountant. Nevertheless, the flaw in this approach is that, the responsibility of caring for a child and therefore the economic burden of caring for a child does not readily lend itself to such an approach. In the circumstances of this family it is necessary for the child to have a principal carer and principal home. The burden, economic or otherwise, of bringing up and looking after a child is not diminished during the days when the other parent cares for the child. The child's principal residence requires to be maintained; council tax paid; insured with the usual utilities irrespective of whether the child is living there four nights or seven nights a week. Children are prone to illness which prevents them attending school and it is necessary for the principal carer to adapt at short notice to such eventualities. This may prevent the principal carer from attending work or pursuing better paid employment options. Inconveniently, schools can without notice close due to adverse weather; industrial action and other school training or in service days. These may be planned or they may crop up at short notice. It would be folly to ignore the vicissitudes and realities of ordinary life and these factors must be recognised. The appellant's approach to the actual care and contact arrangements is therefore flawed to the extent that it merely gives an arithmetic indication of the time that is planned that the child stay at home or be with his father. It is said that fate loves a plan so that it may be disrupted. The appellant's approach to the question of where the main economic burden of caring for the child lies is fundamental, not only to this ground of appeal, but has an impact throughout the other grounds of appeal. Caring for a child involves many unquantifiable responsibilities. The burden of caring for a child cannot be committed to a mathematical equation.

 

35.           It is therefore important to consider the true nature and weight of the burden on the parent with the principal responsibility of looking after the child of the marriage.

 

36.           In my view the sheriff fully considered the facts relevant to the matter of where the main economic burden lay. He discusses his reasoning in his note particularly at paragraphs [57] and [58]. It is clear that the main financial responsibility relates to the costs associated with maintaining a home for the child and the respondent. The second aspect is the restriction on the respondent's ability to earn due to her responsibilities towards her son.

 

37.           Conversely the appellant at paragraph (c) of Ground 1 of the note of appeal considers that the sheriff has erred in having regard to the award of interim aliment made at this court in 2011. It is clear from the sheriff's judgment that he has had regard not only to the maintenance payments made by the appellant in the form of child support payments but also the effect of the award of interim aliment for the pursuer and the impact that has had on the household finances. The appellant did not elaborate on the interaction between the child support payments and the interim aliment awarded by the court or the effect of the sheriff having regard to what he considered to be an irrelevant consideration. In my view the appellant has failed to recognise the sheriff's overall consideration of the maintenance and alimentary payments. The legislation requires the sheriff to have regard to all circumstances of the case in addition to the specified matters in section 11(3) (a) to (g) accordingly no error is disclosed at all. On the contrary the sheriff has had regard to the factors he requires to take into account for the purpose of determining what order or orders for financial provision to make. This leads me to the final part of the first ground of appeal which relates to the failure to quantify the loss of earning capacity or identify the economic burden. Again, it is necessary to look at the 1985 Act which requires the court to apply principles. The principles set out in section 9(1)(c) and the factors mentioned in section 11(3). The law requires the sheriff to conduct the checks and balances mentioned. It is also a requirement that the provisions of section 13 be adhered to. There is no requirement to have a calculation of loss or disadvantage or burden but rather a fair sharing. The overall guiding provision for the sheriff is section 8 which, of course, requires the court only to make an order if justified by the principles set out in section 9 and if such an order is reasonable having regard to the resources of the parties. For these reasons the first ground of appeal fails.

 

38.           Turning to the remaining grounds of appeal. Ground 2 challenges the finding that payment of a periodical allowance under section 9(1)(c) was reasonable "to continue to maintain a suitable home and standard of living to provide the main care for the child until his 16^th birthday" and Ground 4 challenges the amount and duration of that award namely, at the level of £500 per month from January 2014 until September 2018 when the child becomes 16. Ground 3 challenges the order for payment of periodical allowance under section 9(1)(d) of £1,000 per month from June 2012 until December 2013.

 

39.           As a preliminary observation on the nature of a periodical allowance it is important to look again at the legislation. The 1985 Act makes specific provision for either party to a marriage making application for an order for the making of periodical allowance. An order for the making of periodical allowance is one of a number of orders which can be made for financial provision on divorce. No order is sought for the payment of a capital sum or transfer of property or a pension sharing order. The sheriff deals with these matters in his judgment and in Finding in Law 2 states:

"an order for the payment of a capital sum or a transfer of property or a pension sharing order by the defender to the pursuer being inappropriate or insufficient to satisfy the requirements of section 8(2) et seq of the after mentioned Act payment by the defender to the pursuer of a periodical allowance is justified in terms of section 9(1)(c) and (d) of the Family Law (Scotland) Act 1985."

 

The sheriff required to be satisfied as to these matters in view of the provision set out in section 13(2) of the Act namely that the court shall not make an order for periodical allowance unless some other order relating to capital or property or pensions is either inappropriate or insufficient to satisfy the section 8(2) requirements.

 

40.           This is no doubt in keeping with the so called clean break principle. Section 9(1)(d) refers to "such financial provision as is reasonable to enable him to adjust, over a period of not more than three years from the date of decree of divorce". Accordingly, periodical allowance is part of the matrix of fair sharing and equitable distribution of assets and liabilities on divorce. The function of the court is not to assess simply the needs of a party for continuing support but rather to put in place a fair adjustment of resources. This is clear from the provisions in sections 9 and 11. In section 11, in particular, the factors to be taken into account by the court do not refer to the needs of the person claiming but rather "the needs and resources of the persons" ie the parties to the marriage. Apart from setting down specific factors the legislation requires the court to take into account all the other circumstances of the case with a view to the principles set out in section 9. Then, if the court is satisfied that an order is justified by these principles it must also be reasonable having regard to the resources of the parties. Accordingly, it appears to me, quite clearly, that the 1985 Act requires the court to perform a series of checks and balances with a view to achieving a just and equitable distribution.

 

41.           I observe that my predecessor, Sheriff Principal Nicholson in Hutchison v Hutchison 1990 SCLR Notes 819 adopted a similar approach in a case involving variation of periodical allowance with divorce having occurred prior to the 1985 Act. At page 822 he states:

"While an award of aliment is intended to provide for a person's support and financial needs, that has never, so far as I am aware, been the purpose of an award of periodical allowance. Granted, the precise purpose of an award of periodical allowance was never made explicitly clear until the passing of the 1985 Act, but in as much as it replaced the old pre-1964 law which on divorce entitled the spouse to legal rights as if the other spouse had died, I think that it may be assumed that in general the purpose was not to provide continuance of support but rather to effect an equitable distribution of wealth between the former parties to a marriage. Upon that view, it seems to me, that a consideration of parties' outgoings is likely to be relevant to periodical allowance not so much in relation to what one party requires but rather in relation to what the other party can reasonably be expected to pay."

 

42.           It appears that the appellant reads into the legislation an obligation on the part of the court to provide specification and quantification of needs and expenditure. There is no such requirement in the 1985 Act and therefore no basis for the appellant's criticism of the lack of such specification. The legislation requires the sheriff to have regard to the principles and the factors set out in section 11 referable to these principles. There requires to be evidence available to the sheriff which would allow him to be satisfied that one or several of the principles are met justifying the order or orders. B v B 2012 FamLR 65 is authority for the making of orders based on several principles as the sheriff does in this case.

 

43.           Clearly the sheriff accepted the respondent's evidence with regard to her economic dependency on the appellant and the steps she has and will take to seek employment and retrain. The adjustment, according to the sheriff's view of the evidence, can be made over a period of 18 months during which time the continuation of the same level of financial support as she received at the time of the proof is considered by the sheriff to be reasonable. The sheriff sets out the important factors justifying the order in paragraphs [67] to [70].

 

44.           The award justified by the 9(1)(c) principle - sharing the economic burden of caring for the child has been discussed earlier. The impact of caring for Callum obviously restricts the respondent's earning capacity which can be contrasted starkly with the appellant's earning capacity. Although distinct from the considerations which justified an award under section 9(1)(d) of the Act, the overall effect on her ability to work significant hours due to child care is one significant aspect whereas her marriage to the appellant affected and interrupted her career and skill levels.

 

45.           It is in my view entirely proper for the sheriff to take account of the overall position of the respondent in determining whether to make an order. In this case it is abundantly clear that the sheriff is satisfied that the fair sharing of the economic burden of caring for Callum following divorce and the financial dependency of the respondent on the appellant during the marriage justified the making of the orders for periodical allowance. The respondent's earning capacity during the period following divorce will continue to be restricted by the need to care for Callum even allowing for co-operation between the parties and the part played by the appellant in his son's life. The respondent clearly requires to provide for Callum - his needs and accommodation. The respondent gave evidence about these costs.

 

46.           The appellant appears to confuse the factors which the sheriff must have regard to with the respondent's needs. The needs and resources of the parties are but one factor which the sheriff requires to take account of. The works or improvements set out in Finding in Fact 8 which relate to the pursuer's house and Callum's home are matters which the sheriff is entitled to accept or reject depending on his view of the whole facts and circumstances of the case and on the evidence before him. The costs which the sheriff refers to in that finding are all foreseeable and proportionate to the age of the house. Indeed, they do not appear to be controversial other than the appellant objecting to allowance being made for these improvements due to them bestowing a capital benefit on the pursuer and the lack of estimates. The appellant lived in that house during the marriage. He is familiar with the property. The sheriff was entitled to accept that the respondent was facing necessary expenditure to the home she shared with Callum. The fact that there might be some overall capital benefit for the respondent as a result of these improvements cannot be a factor which would point to an order not being justified given that section 11(3)(c) requires the court to have regard to the need to provide suitable accommodation for the child. The reference in ground of appeal 2(c) to the respondent's planning application for an extension is clearly an attempt to introduce new material which was not and could not have been before the sheriff at the time of proof. In my view this is indeed irrelevant for a number of reasons. Firstly, the lodging of a planning application in itself is not any more than an indication to the planning authority as to a proposal. Secondly, and most importantly, it again misunderstands the sheriff's function in determining the matter of whether an order for periodical allowance is justified and reasonable. The exercise is more about a rebalancing of resources than an enquiry into means.

 

47.           It appears to me that this misunderstanding of the court's function in determining such craves is at the heart of this appeal. The arguments put forward by the appellant disclose no error in law on the part of the sheriff and in the sheriff's reasoning. There is therefore no basis upon which I can interfere with the sheriff's exercise of his discretion and his consideration of the evidence which he heard. For these reasons this appeal fails.

 

48.           I turn to the final ground of appeal which relates to expenses. Ultimately it appeared that the final ground of appeal related partly to the award of expenses made by the sheriff after proof and also to a motion in effect on the part of the appellant that he ought to be granted his expenses in the event of his success on appeal.

 

49.           The award of expenses, again, is essentially a discretionary decision on the part of the sheriff. Again, the Inner House decision in Little v Little supra is of particular importance. Lord President Hope emphasises the discretionary nature of the judge or sheriff's function with regard to expenses. I draw from Little v Little the clear proposition that the sheriff's decision on expenses is pre-eminently one for the exercise of his discretion and he is best placed to deal with these matters. There may be exceptional cases where there has been a clear error on the part of the sheriff. The appellant's submission failed to disclose any error on the part of the sheriff. Indeed, the appellant fairly conceded that the respondent did much better by proceeding to proof than she would have done had she accepted his offer to settle prior to proof. Mr Wilson did complain about late notice of certain matters relating to expenditure at proof.

 

50.           In issues of expenses the normal rule is that expenses should follow success. However, the authorities suggest that it is not a principle which is applied "in its full rigour in cases of this type. It may be quite inappropriate to adopt it in a case where much trouble has been taken to achieve a fair division of the matrimonial property between the parties with the full co-operation of both sides" (Little v Little at page 790). If the principle of expenses following success is applied then there can be no challenge to the sheriff's decision. In any event, as I have said, it is essentially a matter for the sheriff's discretion and there is nothing in the submissions of the appellant that suggest I should interfere with the sheriff's decision on expenses. I therefore reject this ground of appeal and the appeal overall is refused.

 

51.           Counsel for the respondent sought the expenses of the appeal in the event of success. He asked me to certify the cause as suitable for the instruction of junior counsel in the appeal. In support of that motion he suggested that the issue on appeal was of significant importance to the respondent. She was, to a very significant extent, dependent on the financial contribution by the appellant.

 

52.           The respondent, of course, should be entitled to expenses in respect of the appeal as the appellant has ultimately been unsuccessful. The question of whether the cause is suitable for the employment of junior counsel is, however, more finely balanced. The issues raised on appeal related firstly, to matters canvassed before the sheriff in evidence and ultimately were directed towards the sheriff's exercise of his discretion when applying the provisions of the 1985 Act. Jurisprudence relating to the function of the appellate court in these circumstances is fairly settled. Both parties were represented by experienced solicitors at proof. The appellant's grounds of appeal were drafted essentially by the solicitor who represented him at proof. To a very significant extent the appeal touched on issues surrounding the evidence heard by the sheriff at proof. Indeed, the notes of evidence have been extended and produced. Accordingly, it is perhaps difficult to understand why it was necessary to instruct counsel for the respondent when the proof had been conducted by an experienced solicitor. With some hesitation I propose to decline to sanction the employment of counsel for the respondent in this appeal.

(signed) Mhairi M Stephen