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Home > Judgments > 2013 archive

Tattersall v Tattersall [2013] EWCA Civ 774

Appeal against an ancillary relief order made in the Principal Registry of the Family Division in which the judge had declined to make a Mesher order.

The parties were in their mid 30s and were married for 10 years. There was one child of the marriage, aged 3 ½ years old, who lived with M under the auspices of a residence order. At the time of the hearing before HHJ Wright, H was not having contact but sought residence.

Both parties were employed: W worked at the University of Oxford earning £1,100 pcm after nursery payments.  Her total net income, including child benefit and H's child support payments, was £1,760 pcm. H earned around £2,400 pcm at the time of the hearing as a lecturer at the University of Liverpool, although on the Judge's assessment could earn £4,000 pcm (as he had previously). The parties owned between them 5 properties, one of which H lived in. The total net equity in the properties was some £217,000 and the parties had a further £18,877 of assets and £65,876 of pension CEV available to them. The parties had agreed that the difference in pension CEVs would be dealt with by offsetting. Each party also had a car and both had significant liabilities.

HHJ Wright heard the case at first instance. Her Honour worked on the basis that W would have to sell the properties in order to buy, and therefore did not attribute any rental income to her. W's needs were assessed at £2,250 pcm, meaning that she required global provision from H of some £1,070 pcm. HHJ Wright therefore made an index-linked periodical payments order in that sum, on an extendable term until the parties' child reached 18.  The Circuit Judge then divided the capital as to 30% to H and 70% to W on the basis of W's greater needs, H's higher income and earning capacity, W's day-to-day childcare responsibility, the parties' liabilities and the disparity in pension provision. HHJ Wright declined to make a Mesher order as she considered both parties' needs were met and did not wish to store up litigation for the future.

H had acted in person throughout the first instance proceedings but was represented at the appeal hearing. His central challenge to the order was on the basis that the Circuit Judge had erred in dividing the capital unequally, ordered him to pay too much maintenance for too long, and should have made a Mesher order. In particular H took issue with the fact that Circuit Judge did not take into account that W's child care costs would decrease when the child started school, that Her Honour was wrong to assess his income on the basis of overtime given his desire to have contact with the child, and that she had wrongly assessed W's income and needs. Black LJ, giving the lead judgment, dismissed the appeal, noting that H had (inter alia) sought to advance arguments not put before the Circuit Judge and that in other respects there was insufficient material before the court to accept H's criticisms of the judgment. HHJ Wright had heard the evidence, the outcome was within her discretion and she was entitled to reach the conclusions she had. Although some judges may have imposed a Mesher order, it could not be said that HHJ Wright was wrong to do so, particularly taking into account the potential for future conflict.

Sir Stephen Sedley and Hallett LJ agreed. The appeal was dismissed.

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers


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Case No: B6/2013/0049
Neutral Citation Number: [2013] EWCA Civ 774

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION
HER HONOUR JUDGE WRIGHT 
FC11D01750

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 09/07/2013

Before :

LADY JUSTICE HALLETT

LADY JUSTICE BLACK

and

SIR STEPHEN SEDLEY
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Between:

MARK TATTERSALL Appellant

- and - 

AMANDA TATTERSALL Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Ms Michele O'Leary for the Appellant
Ms Sally Jackson
(instructed by Hopkin Murray Beskine Solicitors) for the Respondent

Hearing dates : 22nd May 2013
- - - - - - - - - - - - - - - - - - - - -

Judgment
Lady Justice Black:

1. This is an appeal against an ancillary relief order made by HHJ Wright in December 2012 reflecting the decisions made by her in a judgment dated 28 September 2012 after a three day hearing in August 2012.

2. Judge Wright's order regulated the parties' financial positions in the aftermath of their divorce which was finalised in April 2012. The appellant, Mark Tattersall, was the respondent in the court below and Amanda Louise Tattersall was the petitioner. To avoid confusion, in this judgment I will call them simply the husband and the wife (H and W).

3. Both parties are in their mid 30s. They were married in September 2000, separating in December 2010. They have one child, E, who is 3 ½ years old. E lives with W pursuant to a residence order made in December 2011 and reaffirmed in July 2012. At the time of the hearing in front of Judge Wright, there were continuing proceedings relating to E and these are still not resolved. H indicates that he is and at all material times has been actively seeking residence. As things stood when Judge Wright heard the case, however, he was not yet having any contact with E but it was agreed that contact should take place and H was hoping that E would come to stay with him at weekends and in the holidays. 

4. I will set out briefly the facts as they were when the hearing before Judge Wright took place.

5. Both parties were employed.

6. Until March 2011, W had been working at the University of Cambridge as a researcher. The judge did not set out what W's earnings were in that job. H asserts in his skeleton argument for this appeal that her salary was approximately £37,000 gross. Having given up the Cambridge job at around the time of the separation, there was a period when W did not work. Then in February 2012 she took up employment again, this time with the University of Oxford. Her gross salary was £28,000 per annum, producing a net income of £1,725 per month. She had the additional benefit of nursery vouchers; payments to the nursery were made directly from her salary leaving her with £1,100 per month. She received £88 per month by way of child benefit and had child support payments from H of £572 per month. Her total net income was therefore approximately £1,760 per month after nursery costs were paid.    

7. H had been employed as a clinical lecturer in obstetrics and gynaecology at the University of Liverpool since January 2011. He had been earning approximately £75,000 per annum in this job, giving him an average net income of around £4,000 per month. Shortly before the hearing he reduced his working hours, cutting out weekends as he did not wish to work then, particularly once he had the opportunity to see E at weekends. He was earning around £2,400 per month net at the time of the hearing. From H's skeleton argument for the appeal, it seems that may equate to a gross salary of approximately £46,500.

8. During their marriage, the parties lived and worked in various university cities. Their practice had been to buy a property to live in wherever they were based at the time and then to keep it and rent it out when they moved on. They had accumulated five properties in all, in Oxford, Cambridge, London, Liverpool and Birmingham. W was living in none of the properties; she was renting a property in Oxford. H was living in the Liverpool property, a two bedroomed flat which met his housing needs at present and for the foreseeable future. The judge worked on the estimated net values of each of the properties after deduction of the outstanding mortgages and costs of sale. The figures she took were:

Cambridge

Net equity £45,052

London

Net equity £71,092

Oxford

Net equity £73,845

Birmingham

Net equity at best nil

Liverpool

Net equity £27,205



9. The Cambridge property was unoccupied and could be sold.

10. The London property was let on an assured short hold tenancy. There was a potential difficulty over selling it as an internal wall had been created without planning permission by the previous owners. The judge accordingly accepted as realistic a valuation for it of £374,950 which proceeded on the basis that it was a 2/3 bedroomed unit rather than a 3/4 bedroomed unit. H says that the rental income from it, net of expenses, is £1,325 per month and he says that there is no income tax to pay on this or indeed on any of the rental income from any of the properties.

11. The Oxford property was also let on an assured short hold tenancy. The rental income amounted to £440 per month net of expenses. The judge said that it was common ground that this property should be sold although I am not sure that that remained H's position before us. The mortgage was a buy to let mortgage and W's case was that she could not return to live in the property without changing the mortgage to a normal repayment mortgage and in any event, she did not wish to do so because the property was not in a good catchment area for schools.

12. The valuation of the Birmingham property, which is rented, was in dispute. A joint valuation had been obtained in January 2012 which put the value at £80,000. W attempted to persuade the judge that it was worth more but, there not being any other reliable valuation evidence, the judge accepted the figure of £80,000. H was prepared to retain this property rather than sell it and potentially end up with negative equity. There is no mention of the property producing any rental income in excess of the expenses of it.

13. Other capital available to the parties was:

Accrued rent after payment of debts

£8,331

H's investments

£10,546

W's pension CETV

£23,250

H's pension CETV

£42,626



14. The parties were agreed that the difference between their pension entitlements would be dealt with by adjustment in relation to the rest of their capital rather than by the making of a pension sharing order. 

15. As a result of an arrangement arrived at between the parties during the hearing, each would have a car of similar value, free of loans.

16. There were significant debts as follows:

W's debts

Loans from friends and family £13,840

(not requiring immediate payment)

 

Outstanding legal costs (estimate) £20,085

(of which £13,803 could possibly be made the subject of a statutory charge attached to a new property if she bought one)

H's debts

3 credit card accounts in relation to liabilities from the marriage totalling £12,770

 

Sums due as a result of litigation with JS Bloor:

£500 compensation

+ 80% of the plaintiff's costs as to which the judge worked on the basis of her estimate that H would have a liability of around £30,000



17. H acted in person throughout the proceedings at first instance hence the absence of any legal costs amongst his debts.

18. The judge assessed the parties' future income positions. She decided that W was likely to continue earning at the same rate for the next few years, certainly whilst E was at nursery and for the first few years of primary school, although in due course her income might increase if she got a senior post. The judge did not attribute any rental income to W. She worked on the basis that W would buy a property and that she would have to sell such rented properties as were hers following the hearing in order to do so. 

19. As for H, the judge took account of his wish to see E but did not consider that arrangements to see her, even at weekends and in the holidays, would preclude him from working or being on call on some weekends. She worked on the basis that he may well find that his ability to work and pursue his career would improve so that he could return quite quickly to his higher income.

20. The judge took W's monthly income as £1,100 net from employment after deduction of the nursery costs, plus child benefit of £88 and CSA payments from H of £572, a total of £1,760. She took her monthly income needs as approximately £2,250 after meeting child care costs, which was rather less than W's own estimate. W's present income of £1,760 per month left a shortfall. The judge proceeded on the basis that W would need maintenance from H for herself and E at the rate of approximately £1,070 per month (including the CSA element). She took that figure as the foundation for the periodical payments order she made. She ordered H to make periodical payments at that rate, index-linked, at least until E started secondary school in 2020. She did not impose a bar pursuant to section 28(1A) Matrimonial Causes Act 1973 on W applying for an extension of the term at that stage but did impose such a bar in 2027 when E will be 18. The judge's calculation was based on W purchasing a property with a mortgage of £100,000, costing around £500 per month. W's case was that she wanted to buy a property in Kidlington and that that would cost about £250,000 and the judge accepted this plan. 

21. The judge took the view that H's income needs could be catered for from the £2,900 which, working on the assumption he would revert to earning about £4,000 net per month, she considered he would have left per month after paying W £1,070 per month. She estimated his mortgage repayment would be approximately £670 per month. The judge took into account that some matrimonial debts would remain which he would have to discharge on a monthly basis and the debt to JS Bloor would have to be paid from what limited capital was available to him following the order.

22. The judge divided the capital unequally between the parties, in proportions which she calculated were approximately 30% to H and 70% to W. She summarised her reasons for doing this as follows:

"I am satisfied it is appropriate to depart from equality in this case for the following reasons: W's needs for herself and E, H's higher income and earning capacity in the foreseeable future, W's responsibility for the day-to-day care of E, the liabilities which will need to be met by both parties, and inequality albeit not that significant of pension provision." (§24)

23. She set out her more detailed analysis in §25 of her judgment. She started from W's need to fund the purchase of a property at £250,000 and her mortgage capacity of £100,000. W therefore needed £150,000 towards the purchase and needed also to pay off her debts. The judge proceeded on the basis that W should have the equity in the Oxford property of £73,845 and should have the London property together with the accrued rent which would amount to £79,423. To that the judge added just over £10,000 from the sale of the Cambridge property so that W would receive £163,320 in total. Having funded her property purchase, she would be able to pay off her private debts and some of her legal aid costs, leaving the rest to be the subject of the statutory charge against her new property. H would retain the Liverpool property, keep his savings, and receive £35,000 from the sale of the Cambridge property. He would be able to discharge the JS Bloor debt from that and would have the Liverpool property (with mortgage) to live in.

24. The judge summarised her approach to the division of the capital in this way:

"I am satisfied it is appropriate to divide the available capital as to just under 70% in W's favour, effectively to give W sufficient to purchase a property for herself and E with the assistance of a mortgage, and to pay off a small amount of her liabilities, in particular her private legal costs and possibly a debt owed to one of her friends. She will be able to attach her publicly funded costs by way of the statutory charge, and when she is able to increase her income, she may wish to increase her mortgage in order to pay these off. The division of capital will leave H in his own property which is sufficient for his needs, he will have sufficient funds to pay off the debt to JS Bloor, and some of the debt incurred on credit cards during the marriage." (§26)

25. She declined to make a Mesher order, because she considered there was sufficient available for both parties' needs to be met and also in order not to store up litigation in the future.

26. H felt that W had taken deliberate actions to try to gain advantage in a final settlement and he wanted the judge to take W's conduct into account in approaching the finances, in particular what he considered to be her excessive legal expenses, her unreasonable conduct of the legal proceedings, her efforts to delay settlement and her rejection of generous offers before the hearing. The judge did not consider it appropriate or necessary to do this. Aikens LJ, when granting permission to appeal on the basis of most of the other grounds of appeal, refused permission to pursue this issue before us. This matter is now closed, therefore.

The arguments on appeal
27. H continued to act in person until very shortly before the appeal hearing. He drafted his own grounds of appeal and skeleton argument and presented his application for permission to appeal in person. However, for the appeal hearing, he had the benefit of representation by counsel, Ms O'Leary, who assisted him by concentrating on the grounds of appeal which were most likely to find favour with the court.

28. H argued that the judge erred in dividing the capital unequally and in ordering him to pay too much for too long by way of periodical payments.

29. He submitted that where the court is considering departing from equality on the basis of the need of one party, it should be rigorous in determining what constitutes need. I have no difficulty in accepting that as a general proposition but it only assists H if he can identify particular respects in which the judge was over-generous in assessing W's needs.

30. Grounds 1a and 1b of H's Grounds of Appeal sought to do this, asserting that the judge failed to look sufficiently critically at W's case with regard to housing, failing to consider whether W could have managed in a smaller property, or a cheaper property such as the Oxford property which the parties already own, or whether she could live in the north where property would cost her less. Ground 1c asserted that the judge failed to consider whether W could and should be earning what she was earning in Cambridge, that is to say £37,000 per annum gross rather than the £28,000 she is presently earning.

31. Ms O'Leary sensibly recognised that these three grounds of appeal were not likely to find favour with the court and I need not dwell on them further. In my judgment, the judge was entitled to accept that W would live in Oxford where she had a job, that her earnings would remain at their present rate for the next few years, and that provision should be made for her to purchase a property somewhere within the catchment of a satisfactory school.

32. Ms O'Leary took a similarly realistic approach with regard to H's argument (Ground 1d) that the judge should have considered the possibility of W utilising the mortgage on the London property, which was on a tracker rate with interest currently at 2%, by seeking to have it transferred to another property and thereby taking advantage of mortgage repayments which would be significantly less than the figure the judge took in her calculations for W's likely mortgage repayments. This was not a ground of appeal that was going to succeed. As Ms Jackson for W pointed out, current interest rates are at a historic low and in my view the judge was entitled to take account of the likelihood that they would rise and to work on the basis of 3.5% interest. Furthermore, it appears that H produced no evidence to substantiate the argument that the mortgage would, in practice, be transferrable to another property 1.

33. Ms O'Leary advanced the remaining grounds of appeal with more vigour.

34. One area of need upon which she concentrated was W's child care costs. Ground 1e of the Grounds of Appeal asserted that the judge erred in failing to take into account that these costs would decrease in September 2014 when E started school. H's skeleton argument added that account should be taken of the "value of the free nursery education that E is now entitled to having reached the age of 3 years".

35. As we went into the question of child care costs in argument, it became apparent that we were being invited to consider matters which had not been advanced or explored before the judge. H's case about child care before us was that E is now entitled to a subsidy equivalent to the cost of 15 hours of nursery provision which it was thought could be put towards the cost of the private nursery which she attends. We were told that the provision for free nursery education is not new but that H was simply not aware of it at the time of the hearing before Judge Wright and did not raise it. The question of child care costs when E is at school was similarly being advanced before us without any foundation having been laid before the judge or even by way of the sort of inquiries that H could have made himself in preparation for his appeal. As we asked questions during the hearing, it emerged that W needs child care from 8 a.m. until 6 p.m. each day and it was suggested on H's behalf that the cost of this might be £15 to 20 per hour 2. This made the current nursery provision, which costs £737.67 per month (or £34 per day), look very reasonable and it also seriously undermined H's submission that child care costs would reduce when E was at school. £34 per day would not go far, particularly bearing in mind the need to make provision for the school holidays as well as the period before and after school. No evidence was produced as to the cost of after-school clubs or similar provision but even taking into account that that may be a cost effective option during term time, I do not see how the judge can be criticised for working on the basis that W's child care costs are not likely to reduce significantly before E starts secondary school. 

36. Ground 2 of H's Grounds of Appeal dealt with the judge's approach to his own income and is of central importance in his appeal. H submitted that the judge overestimated his income and should have based herself on his current salary without overtime. He said that the judge was wrong to expect him to work more than a normal 40 hour working week rather than, as he put it in his skeleton argument (§21), "trying to increase the time he spends with his daughter and credibly pursue his application for a residence order with respect to her". If he has to pay £1,070 per month to W, he says that the balance of £1,430 per month which is what would be left on his current earnings will not cover his income needs.

37. The judge proceeded upon the basis that E was going to have her main home with W and given the recent residence order in her favour, that must be correct. However, the judge entirely recognised that H and E would have contact and H's arrangements needed to be such as to enable him to spend time with E at weekends and in the holidays. Her assumption as to his earning capacity took that into account.

38. The working pattern that was involved when H was formerly earning a higher salary was not set out in the documentation for the hearing before Judge Wright or in the appeal documentation and it was not possible for us to establish by our questions what it was. This made it difficult for H to mount a challenge to Judge Wright's finding that that working pattern would not get in the way of his contact with E. The judge had obviously formed the view from the evidence that she heard that it was not necessary for H to work every weekend in order to earn the higher salary and that assumption has not been undermined by the submissions made to us. 

39. The problem about this ground of appeal went further than just disabling H from making an effective challenge to the judge's view that longer working hours would not impede his contact with E. As we persisted with questions about H's terms of employment, it became clear that there was a great deal of material information that was lacking. The issue was barely dealt with in the written material presented to the court below. It was impossible to know to what extent it had been covered in oral evidence as there were not even any notes of the hearing, let alone a transcript. By the end of the hearing before us, I at least understood that H receives a basic salary and can earn more by being on call at the hospital doing clinical work. Extra earnings are in the form of a payment termed a "banding supplement" on his pay slip. Much confusion remained, however, of which I will give one example. Some way into the argument, H referred, through his counsel, to the implications of the European time directive which he said had begun to apply to his work and would restrict his working hours to 48 per week. This was the first mention of such a restriction. Indeed, it was the first suggestion, as far as I am aware, that H could not now work the hours that he had formerly worked as opposed to did not wish to work those hours. It was impossible to proceed upon this new basis. Not only was there no reliable information about the time directive, there was no reliable information as to how many hours per week H had been working when he was earning at the rate of approximately £75,000 per annum (although the figure of 56 hours emerged from somewhere). Furthermore, no information at all was available as to what he could earn by working 48 hours as opposed to 40 hours. Given all these problems, challenging the judge's approach to his working capacity was bound to be an uphill struggle for H.

40. Unlike us, the judge was in a position to assess at first hand the evidence of both H and W about his work and in the light of that to arrive at a view as to H's earning capacity. She was entitled, it seems to me, to take account of H's previous working pattern, noting that he had earned at the higher rate from starting his job in Liverpool in January 2011 until, as she put it, "very recently". It does not seem that it was suggested to her, as it was to us, that there was any cap on H's earnings and it is not surprising that she found that H could earn £75,000 per annum gross. In assessing what should be the position for the future, it is clear from a reading of §22 of her judgment as a whole that she took his working history into account, gave weight to his dedication to his job, and worked on the basis that although he had found the proceedings difficult and stressful, "at the conclusion of these proceedings, and if contact between H and E can be re-established, [he] may well find his day to day circumstances including his ability to work and pursue his career will improve, so that he can return quite quickly to his higher income".

41. In considering the judge's view that H should be working more than 40 hours a week, the whole context must be borne in mind.  She was not considering his career choices in a vacuum. She was considering the whole picture of capital resources, needs, earning capacity and so on. The exercise of providing for the needs of both parties and E was not an easy one as resources were relatively tight. The judge accepted that W's earning capacity was likely to remain at its present level until E was older and it followed that H was the only one of the parties who, on the judge's findings, had the capacity to earn more and thus to ensure that the family's needs were met.

42. In all the circumstances, I am not persuaded that the judge was wrong to make the finding that she did about H's earning capacity.

43. Ground 3 of the Grounds of Appeal was to the effect that the court erred in failing to consider the order as a whole, taking into account the implications of there being both an unequal division of the capital assets and a periodical payment order. At its most radical, H's submission was that there should have been no periodical payments order at all. He supported this submission by an assertion that the reality was that W was intending to rent a home for herself and E for the foreseeable future rather than buying one and accordingly the judge should have proceeded on the basis that she would not be selling the London and Oxford properties which were to be hers under the judge's order and would have her income boosted by rental income from them. With a rental income from the London property of £1,325 per month and from the Oxford property of £752, W would have an income (including the periodical payments ordered) of £4,935 net per month which would significantly exceed her needs.

44. H's case that W will in fact rent seemed to be based on the assertion that she will be unable to get a mortgage immediately because there are arrears on one of the mortgages in her name and she will have to establish a 12 month arrears free period before she will be accepted for a mortgage.

45. The judge expressly considered whether a rental income should be attributed to W (§21). She decided that it should not be because she accepted W was likely to sell the property in Oxford. She was aware of the argument that the arrears may be an obstacle to obtaining a mortgage. It seems that it was in fact W who was advancing this argument at that point whereas we are told that H produced documentation from mortgage companies to support his argument that she would be able to borrow. The judge found against both parties, accepting that W would be able to borrow but not as much as H said. H has not dislodged this finding. Accordingly, there is no reason to suppose that W will not buy a property as the judge anticipated she would, utilising the capital from the sale of the rented properties so that there can be no question of her having a rental income. In so far as it relied upon the rental income argument, Ground 3 therefore fails. And H having produced nothing concrete to call into question the judge's conclusion that W's mortgage capacity was limited to £100,000, an argument that W should have been given less capital and left to have recourse to a larger mortgage cannot succeed either.

46. H made a more limited challenge to the periodical payments order on the basis that it should have terminated earlier and that the judge had not explained why she chose the dates that she did for it to reduce to a nominal amount and then finally cease. Given the judge's findings as to W's earning capacity and given that the judge's approach to child care costs is unassailable, this challenge to the periodical payments order cannot succeed either. It is clear that she chose 2020 as the date at which the payments would reduce to a nominal amount because that was when E would begin secondary school and child care considerations (and costs) could be expected to be less of a burden on W and less of a hindrance to her career.

47. There was no sustained challenge to the judge's assessment of W's needs apart from in the respects I have outlined above. I set out earlier how the judge met these, giving W a total of £163,320 which would provide her with the £150,000 she needed towards her home and £13,320 towards her debts which would be reduced to just over £20,000.

48. H would receive £72,751 in that he would keep his Liverpool home with an equity of £27,205, the Birmingham property with a nil equity, his savings of £10,546 and £35,000 from the Cambridge property which would be needed to pay off the JS Bloor debt, estimated at £30,000. He would also have to continue to discharge the credit card debts of £12,770 dating from the marriage which the judge anticipated would be done on a monthly basis. W's counsel said that since the hearing the Bloor debt has been paid in full, W understands for a sum in the region of £18,000. H said he was not able to comment on this as the settlement was confidential. Of course, if W's information is correct, and we have no way of knowing whether it is, it would mean that H had managed to clear the Bloor debt for £12,000 less than the judge thought and his position would be improved to that extent.

49. The judge left to one side the debts in working out what proportion of the capital each party would get under her order, thus arriving at her calculation that W had received 70% (of £236,071) and H 30%. Instead of considering what proportion of the gross capital each party had received from which they would discharge the debts for which they were taking responsibility, it would have been possible to calculate the capital net of debts and to work out what proportion each party was to receive of that. However, no one argued that that should have been done here. It may well be that there is and always was a realistic acknowledgment that this is essentially a "needs" case rather than a case that would turn on whether 50% of the assets was appropriate or whether it should be some other percentage. The challenge to the judge's division of the assets was founded principally on the argument that she had been over-generous in assessing W's needs and taken a higher income from which H could meet his various needs and liabilities than was appropriate. Those two lines of attack having been despatched, it can be seen that the judge's approach to the division of the capital was within her discretion and that a differential between the parties was justified for the reasons she gave (see §§22 and 24 above). Effectively what she did was to start with the needs of W and E, which could not be satisfied unless W had access to more than half of the family resources. This was in accordance with her duty under section 25(1) Matrimonial Causes Act 1973 which requires that first consideration must be given to the welfare of any minor child of the family. In considering how to meet W and E's needs, the judge did not ignore H's needs which also had to be met. She satisfied herself that he could continue to live in his current accommodation and afford to pay his mortgage and other expenses from the £2,900 per month he would have after making periodical payments if he reverted to his former working pattern.

50. Anticipating that this may be this court's conclusion about the judge's essential approach to capital and income, H argued that the detail of the judge's order should have been different. He submitted that instead of the London property being transferred to W, it should have been sold with W receiving the £71,000 which Judge Wright assumed she would receive from this source but with any surplus being made available to H. The reason for this submission was that there was the debate as to the value of the property which H considers may fetch more than the figure on which the judge worked. He argued that it would be fair for him to have any surplus to help redress the unequal treatment of the parties under the judge's order.

51. Looking at H's closing submissions to the judge, I do not think this was argued before her but that is perhaps not surprising as H's proposals then were quite different from the course that the judge took. The judge's approach to the London property was to assess its value as best she could and to transfer it to W. This was an approach which was well within her discretion and she would no doubt have been conscious of the potential difficulty for these two parties in attempting to sell that property when each had a different interest in the price it fetched. W would no doubt have wanted to sell it as quickly as possible for the sort of figure that the judge took as its value whereas H would have wanted to hold on for more so as to supplement his capital. Given the attitude of the parties to each other and the progress of the litigation so far, this would not have been a desirable state of affairs. This argument of H's does not therefore find favour with me.

52. H's final argument is that if this court supports the unequal division of assets imposed by the judge, there should have been a Mesher order in his favour so that the imbalance would be rectified when E is an adult. It was submitted that this would have enabled E's needs as a child and young adult to be met whilst doing justice to both H and W. Conscious of the arguments that can erupt later on in relation to Mesher orders, Ms O'Leary submitted that the order should be for a fixed period (crystallising on E concluding tertiary education) rather than terminable on, for example, W cohabiting for a period of time.

53. There is no doubt that some judges might have made such an order. However, I do not think it can be said that Judge Wright was plainly wrong not to do so. Ms Jackson invited our attention to the case of S v B [2005] 1 FLR 474 in which there was recognition of (1) the conflicts that can arise in relation to the operation of Mesher type orders and (2) the "substantial and protracted contribution to the welfare of the family" that the likely primary carer of the three year old child of that family was likely to make and the impact of her responsibilities to the child on her career. Wilson J (as he then was) described the second of these features as "potent" "in terms of justice" (§35). He referred back to B v B (Mesher Order) [2002] EWHC 3106 in which the then Munby J made a similar point. Although Judge Wright referred to neither of these authorities, in the sentence before she dealt with the question of a Mesher order she had spoken of W's responsibility for the day to day care of E and of H's higher earning capacity in the foreseeable future (§24) and she must have had those in mind in making her decision about it. The potential for conflict to which she expressly referred in this regard was a relevant, if not necessarily decisive, point as well. She could also have given consideration to the practicalities for W in the event of a Mesher order being made along the lines that H was seeking, that is that H's share in W's home would have to be paid to him approximately 20 years or so from now when W would be in her late fifties. In all the circumstances, in my view the judge was entitled to conclude that justice could and should be done between the parties without imposing a Mesher order.

54. For all these reasons, I would dismiss H's appeal.

Sir Stephen Sedley:
55. I agree.

Lady Justice Hallett:
56. I also agree.


Postscript: After the appeal hearing had concluded and after this judgment had been prepared in draft, we received a further communication directly from Dr Tattersall about the Cambridge property. We acknowledge receipt of that but have taken the view that it would be inappropriate to take it into account in our determination.

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1 After the draft judgment was circulated, H questioned the proposition that he had produced no such evidence but I do not recollect any challenge being made on his behalf when the proposition was advanced by counsel for W during the appeal hearing.

2
  Following the circulation of this judgment in draft, a debate arose as to what had in fact been said by H's counsel about child care costs. We have taken that into account but the fundamental point about child care costs is that made earlier in paragraph 35, namely that we were being invited to consider matters that had not been advanced or explored before the judge. Furthermore, as the debate underlined, we were being invited to do so without any concrete foundation in the form of reliable evidence as to child care costs. In the circumstances, this ground of appeal against the judge's order could not succeed.