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Home > Judgments > 2006 archive

A v M [2006] EWHC 1721 (Fam)

Appeal by a father against an order under Schedule 1 of the CA 1989 for a capital sum and periodical payments. Appeal allowed in part.

The father could not complain if the judge drew inferences about the father's assets since he had not been frank about his financial affairs. The capital sum awarded did not exceed the generous amount within which a reasonable disagreement was possible, nor was it plainly wrong. However, the periodical payments were reduced on account of the considerable costs of contact, the father's obligations to his other children and his modest income.

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Case No: FD03P02023

Neutral Citation Number: [2005] EWHC 1721 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Friday, 29th July 2005

Before :

THE HON MR JUSTICE SUMNER

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Between :

A Applicant

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M Respondent

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Mr James Roberts for the Respondent

Mr A appeared in person

Hearing dates: 30 June 2005

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Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

.............................

THE HON MR JUSTICE SUMNER

This judgment is being handed down in private on 29 July 2005. It consists of 14 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

The Hon. Mr Justice Sumner :

Introduction

1. This is an appeal by a 40 year old father, Mr Xavier A against an order of District Judge Bowman in the Principal Registry on 8th April 2005. It related to a claim by the mother, 33 year old Miss Elizabeth M under Schedule 1 of the Children Act 1989. She sought a capital sum to house herself and their son W born 29 April 2003, now 2 years of age, and periodical payments.

2. By her judgment District Judge Bowman awarded a capital sum of £175,000 for the benefit of W and periodical payments of £500 per month. The capital sum was to be held in trust until W is 18 and would then revert to Mr A. I shall for convenience refer to the parties as the mother and the father and Mr A's wife by that title.

3. Since December 2003 the father has acted in person. This has included –

i) a hearing relating to parental responsibility, residence and contact heard by District Judge Roberts in the Principal Registry of which I have a judgment of 27 October 2004,

ii) an appeal which I adjourned in May 2004 to January 2005,

iii) the 4 day hearing that led to the judgment of District Judge Bowman in April 2005, and

iv) a further hearing before District Judge Roberts on 23 June 2005.

4. The mother has been represented throughout save for one hearing, by Mr Roberts of counsel. The father again acted in person before me to present his appeal.

The issues

5. What has been in dispute between the parties is the true extent of the father's assets and the housing and living needs of the mother and W. It is part of the mother's claim that the father has not been frank and open about his means. She has never known the full picture. She made a without prejudice offer to settle in July 2004 in the sum of £100,000 with £555 per month maintenance. Mr Roberts says that that was not because that represented her housing needs but because she was so concerned by her escalating costs and the difficulty of discovering the father's assets. It is her case that the father never offered more than £55,000 until after the final hearing before District Judge Bowman had started. He then offered at one stage £125,000 and £200 per month, reducing this to £85,000 by the end.

6. This is relevant because her costs have dramatically increased over time as she has sought to discover his true means. She had also to defend his claim for residence and contact, and meet a series of appeals to which I have referred. I am told that they now total some £174,000. This is a truly appalling figure given that her open offers to settle have not exceeded £200,000 nor her claims for maintenance for W been more than £550 a month. It is I am satisfied substantially caused by the aggressive and uncooperative stance taken by the father.

Background

7. The father is a French national now living in France. He is married with 3 young children of 10, 7 and 3. In 1995 when he was working and living in London he and his wife bought a flat in Kensington Mansions, Earls Court, which they still own.

8. Between 1991 and 1996 he worked for the well known management consultants McKinseys, then a firm of brokers, before setting up an Internet bank. In 2000 there was, to use his expression, a settlement of his interest in the bank. He received shares now he says of no value and a cash sum of 1.8 million euros.

9. He had separated from his wife when he met the mother in July 2001. In February 2002 he purchased a house in Cambria Street, Fulham for £588,000 on which further money was spent. Whether the mother lived there or not was in dispute at the hearing as well as her earlier claim to have an interest in that property. The parties separated in March 2003. The mother says this was because of the father's relationship with other women. This was one month before W was born.

10. The father says that he offered the mother in April 2003 a capital sum of £75,000 for housing and £25,000 by way of capitalised maintenance. This is not accepted. Thereafter there were payments by the father of some £200 per month, though not regularly.

11. In April 2003 the father and his wife moved back to France. Divorce proceedings were started at one stage. They were for a time living in separate properties. I understand that there has now been a reconciliation.

Father's assets and earning capacity

12. It is not in dispute that the Cambria Street property was sold for £785,000. £250,000 was frozen on an application of the mother which the father took successfully to appeal. £535,000 was released to the father.

13. The Kensington Mansions property is worth £776,000, £460,000 net after mortgage. It is presently let. The father has lived in a holiday property near Bordeaux valued by him at £144,000. He now lives with his wife and 3 children at an address near Toulouse for which no value has been given.

14. The wife gave evidence before District Judge Bowman. She said that she had purchased the Toulouse property with £50,000 from a bank account, £50,000 from her parents and a mortgage. This says the mother was the first time that information about that property was forthcoming. It adds up to total family assets of £1.265m if the wife's property is worth £150,000.

15. The father says his wife is not working but training to be a teacher. He has a consultancy with a Madame S. He produced a document for the appeal showing that his contract as a consultant had been renewed for a year at £2,500 a month; last year it was £2,000 a month.

The father's case on appeal

16. It is not right to describe him as hiding his assets. He has produced about 500 pages of documents. The court has not understood the community of assets owned equally by a wife and husband in relation to all property acquired after marriage. He has been responsible and not antagonistic during the course of the proceedings.

17. A Community of Property Agreement which he was asked to produce setting out his and his wife's assets in May 2001 does not exist. It is all too easy to say that he has not disclosed documents but when he does they are wrongfully not accepted.

18. Of the settlement of 1.8m euros, his wife did not want to invest her share of some 400,000 euros. He did make investments; he gave me details of 140,000 euros investment in 2 companies which turned out now he says to have no value. He points to a payment to him of 80,000 euros in June 2001 which is from his parents.

19. He was told in the first hearing that he ought to obtain another better paid job but his consultancy gives him an okay living though not massive. In particular he has to work on Saturdays which causes real problems as his contact to W is now only at a contact centre on Saturdays on the Isle of Wight. His consultancy involves seeing people and seeking planning permission for Tesco style supermarkets.

20. The costs of access have not been taken into account. He can only get to London once a year on business. On other occasions it is £400 for the round trip. This together with £500 per month by way of payments is totally disproportionate to his income. It ignores the proper demands and rights of his wife and their 3 children. He would need to earn £80,000 to care financially for his own children in the same proportion as the order for W. The award does not have any proper regard to his present lifestyle.

21. He compared the mother's demands as per her budget with average earnings from national statistics. He has set them out in a detailed schedule in an additional bundle of documents. He points out that what is said to be W's direct costs at £600 per month are almost double the average.

22. Furthermore her total budget is about a third higher than the average. She has exaggerated them because of her determination to get as much money out of him as she can. Equally she has put her housing costs too high as figures for comparable properties on the Isle of Wight show.

23. Given that, she can realise £50,000 from the sale of her flat in Battersea. She does not need £170,000 from him to re-house herself hear her parents. A proper figure would be £100,000, a sum which in total he repeats he offered at the time W was born. This is not accepted.

24. His wife gave evidence before District Judge Bowman. He submitted that she was wrongly accused of lying when she had difficulty in remembering financial details which could readily have been forgotten.

25. He pointed out that the mother tried at the beginning to obtain the whole of Cambria Street property from him. What she is now seeking is, in addition to an excessive sum for housing, is disguised maintenance for herself. He and his family in France have important rights under Article 8 of the European Convention on Human Rights namely respect for their private life. These have been violated by the orders that have been made.

26. On costs he accepts he should pay only half of the sum determined after a proper assessment. He confirms that he is not getting any money from any of the companies in which he is invested either by way of dividends or because they are of any value. A letter from a Monsieur Huber supports this.

27. A sum of nearly £10,000 spent by him at a casino was not gambling. It was in effect relevant market research. Finally he says the present order is outrageous. It is not fair. £100,000 only should go towards housing costs and £300 a month for maintenance.

The papers

28. Before me are 6 lever arch files which were before District Judge Bowman. Other than to the father's original form E I have not been taken to them other than the father's form E. There is another slimmer bundle with District Judge Bowman's judgment and her conclusions on the mother's application for costs. There is a schedule of offers together with a chronology, a note for the hearing in January 2005, and an opening and closing note by Mr Roberts.

29. Finally there is the father's grounds of appeal. I have also looked at and been referred to extracts from an additional bundle produced by the father for the hearing in front of District Judge Bowman and a shorter bundle produced by him for the appeal.

Assets

30. On the face of it they are the £525,000 which the father has had released from the Cambria Street property, the value of the holiday home £144,000, the property where he lives with his wife again with no valuation but perhaps worth in equity between £100,000 and £200,000, the Kensington Mansions equity of £460,000, a total of between £1.229m and £1.329m. He also has earnings he says of some £1,600 a month net.

31. The mother works for a company specialising in producing events. This is part-time, 100 days a year earning £22,500. This it is pointed out is more than the father claims to earn.

Non disclosure in January 2005

32. When the matter came before me on appeal in January 2005 Mr Roberts pointed out in relation to the Toulouse property there had been no disclosure of the money advanced to purchase it. It was not known by whom it was held. No valuation had been provided. The father said that he had answered this query but he had not. He had also not shown from which account the mortgage on the Kensington Mansions property was paid.

33. Requests for evidence from banks of transfers for purchase of properties had not been provided it was said. A complete set of accounts had not been disclosed about where his directors fees were received. He would not confirm whether certain payments were withdrawals at a casino and there were no up to date accounts from the companies in which he had invested.

34. No documents were produced showing where the 1.8m euros went nor any details of the establishment or accounts of the A family trust. It appears that there was an account in Jersey terminated in May 2003.

35. Next it was said there were no documents showing where the £625,000 came for the purchase of Cambria Street. Further the father did not say whether he had or had not attended an auction in the Isle of Wight of November 2002 in relation to the prospective purchase by him of a property for £300,000.

36. There was no disclosure of tax returns nor a schedule of income. Finally there were no details of the settlement he received when he left his E-bank.

37. I mention these matters because the father was well aware by the hearing in April 2005 that further disclosure was sought. He knew the nature of it. Substantially he did not provide the details requested before the case started, even though he knew what was being sought.

Mr Roberts' closing submissions

38. For a better understanding of the relevance of these matters it is helpful to see Mr Roberts' extensive submissions at the end of the hearing before District Judge Bowman. I shall refer only to the main points. He made his case clear. It was that the father together with his wife had minimised their assets and hidden the true picture. The 2 day hearing before District Judge Bowman had been adjourned for a further 2 days. It was only in that time that documents relating to transfers from the father's parents and payments of the money for the Cambria Street property were disclosed.

39. There were only 6 months of bank accounts. They showed sums totalling just over £200,000 and £100,000 for 2002 and 2003 from unexplained sources. The father had not disclosed his true employment situation nor the full extent of his assets. Questions were raised about the extent of the father's parents investment in Kensington Mansions and in particular a mortgage in March of 2005 where he appeared to give his share to his brother.

40. Cambria was purchased from an offshore account in the father's own name. There was no evidence to establish where the money came from as the father said that it was jointly owned with his wife.

41. There was much dispute about the agreement between the father and his wife of May 2001 which was never produced either by the father or his wife. Only an extract from it was given on the date before the final hearing. It set out their asset position. It could have altered the effect of the community of property otherwise binding on the father and the wife. On the basis that joint assets were just under a million at 40% that would put the total at nearly £2½ million.

42. His income was doubted given his high qualifications and intelligence. It appeared to be less than the mother was earning part-time.

43. His investments were not accepted as being of no value. He had received 40,000 euros in 2003 from one of the companies in which he invested. Reliance was placed on the father bidding for a property on the Isle of Wight for £300,000 when the parties were together. This was at a time when they already owned property worth £1.4m. Other inconsistencies were pointed out. The credibility of the father and his wife was raised in clear terms.

44. It was pointed out that the mother's claim for £170,000 was only £20,000 more than was transferred in 2002 into a HSBC offshore account. His wife had received £35,000 over 10 months and the father £27,000 from one of the companies in which he had invested.

The judgment

45. District Judge Bowman set out the background in some detail commenting –

"It is difficult to give in this short judgment a flavour of the intensity and complexity of the proceedings before me and of the bad feelings between the parties and, in particular the father's animosity towards the mother."

46. She set out the mother's proposal and in particular her wish to purchase a property in the catchment area on the Isle of Wight of a school she had chosen for W and near to her parents. She noted that the father's view was that her existing 2 bedroomed Battersea flat was adequate, alternatively she could purchase a bigger flat there and in any event cheaper properties on the Isle of Wight could be purchased. The sum of £170,000 would be grossly unfair to him and his family. He varied in his proposals from £75,000 or £100,000 in April 2003, £125,000 on day 2 of the trial and £85,000 on day 4.

47. District Judge Bowman held that the mother's plan to relocate to the Isle of Wight was reasonable and realistic. She considered the mother's budget of just under £2,500 a month; it could be reduced in most areas. The father offered £200 per month. She considered what she described as the father's well prepared binder of late-lodged documents. She was asked to bear in mind the heavy costs incurred in exercising contact.

48. The father wanted to fund investments opportunities provided by his present employer from the sum frozen in court. He was reminded by District Judge Bowman that he should not rely on that bearing in mind he was proposing to pay the mother a substantial sum and costs also had to be considered. The father put his net income at £18,000.

49. She queried the sum of some £127,000 going into a Jersey bank account in 18 months to December 2003 and the father's accounts for them. She said the father could not explain substantial deposits going through a Lloyds TSB account.

50. She did not accept his modest budget noticing that in October 2003 his mobile phone bill was nearly £500. Credit card statements showed a level of expenditure in excess of his budget. She described his nearly £10,000 of withdrawal from the Grosvenor casino said by him to be market research as plainly ludicrous. She said she was in the dark as to the true extent of the father's income and outgoings. She said similar considerations applied in relation to his capital position.

51. She noted that when challenged about the A family trust he said that the mother had broken into Cambria Street and stolen details of them. She did not accept this describing it as another ludicrous assertion. The father's capital was extremely difficult to ascertain. She looked at the value of the Bordeaux property, Kensington Mansions and accepted from the wife that the father's parents had an interest in it, the father's interest being £150,000.

52. It appeared that the wife had £400,000 on deposit from the sale of the Cambria Street in France. She pointed out that the Community of Property Agreement did set out as the wife agreed all the A assets. The father had "resolutely and persistently refused to produce a full copy of the agreement".

53. She pointed out that if that agreement divided their assets as to 40% jointly held and 30% held by each of them separately the father's sole assets would be £995,000. She found the father's evidence very unsatisfactory. She had reached her own conclusion about the parties before seeing what District Judge Roberts had concluded in October 2004.

54. District Judge Roberts had considered that the wife gave evidence with great difficulty in very difficult circumstances. So far as the father was concerned she concluded that he was content to say to different Judges what he thought would assist him and it is no more than unfortunate if that involved any untruths. He was prepared to lie to assist his case and she preferred the evidence of the mother and her father.

55. District Judge Bowman agreed with this assessment but not about the wife. She considered she was brought in to the application to lie about various matters that is what she did. Her evidence was often vague and contradictory and she gave convoluted accounts which she did not accept.

56. Following the hearing, the wife sent a letter of protest to District Judge Bowman including just an extract but not the whole of the Community of Property Agreement. She accepted the mother's case where there was a conflict of evidence.

57. She concluded –

"I think the father is utterly (and unjustifiably) outraged about this Schedule 1 application and has decided to deploy any stratagem to discredit the mother and minimise her proper claims. I think he has also pulled Madame A into his scheme and persuaded her to lie on his behalf……… I think the father will say anything to anyone to accord with what he wants to impart. My conclusion is that he has lied in these proceedings with the intention of securing his own advantage and the mother's disadvantage. I think he has literally given her the run about in order to avoid his responsibilities. The enormous costs bill is the result."

58. Based only on the Kensington Mansions flat, the Bordeaux property, the proceeds of Cambria Street and the Toulouse property she concluded that the father and his wife had £1.12m. They were the absolute minimum figures.

59. She went on -

"By his untruthful presentation the father has deprived me of the opportunity of knowing what the correct asset picture is. In particular I am very doubtful that his parents have any interest in Kensington Mansions and I do not accept that they have any interest in Cambria Street or its sale proceeds. If the father had produced the community of property agreement, I might have reached a very different conclusion about his and Madame A's assets and this trial would inevitably have been much shorter. But he decided not to."

60. She referred to the judgment of Hale J. as she then was in J v c 1999 1 FLR 152 that –

"……..a child's need for a carer enables account to be taken of the caring parent's need ….. in particular for accommodation …… and (that a child is) ….. entitled to be brought up in circumstances which bear some sort of relationship with the father's current resources and the father's present standard of living."

61. She did not consider the mother's claim unreasonable or excessive. She considered that the father could afford the £170,000. She thought the further sum of £5,000 towards the cost of relocation was reasonable.

62. She held that the father had not produced clear information about what his income and expenses were. She pointed to the high receipt into his bank at a time when he claimed only a very limited income which was substantially unexplained. She considered that he could either work on his own account as an entrepreneur or alternatively find paid employment. He should be assessed as a man in receipt of a good income.

63. The sums offered by him by way of maintenance were inadequate. She accepted that the mother's budget exceeded the average but this was not an average family either in England or France. She considered the figure of about £100 a week was about right. She agreed to secure that on the housing trust fund.

The mother's case

64. In his helpful written submissions before me Mr Roberts argued that it was a hopeless appeal. The result of the hearing flowed from the father's lies, his failure to give proper disclosure, and the best assessment that could be made of the father's capital and income position. Not even the receipt of 1.8m euros has been accepted. It was eventually before me.

65. There was every opportunity over 4 days to assess the credibility of the parties. District Judge Bowman's findings of fact could be challenged. The father was given full indulgence and permitted to introduce witness statements and produced over 100 pages of further documents during the hearing.

The law

66. My powers on this appeal are limited. They are set out in the case of G v G (Minors: Custody Appeal) 1985 FLR 894. For present purposes it is sufficient to quote from the head note –

"Even if the appellate court would itself have preferred a different conclusion, it must leave the decision of first instance undisturbed unless it could say that decision was wrong. The limited role of the appellate court in custody cases was not that appeals in such cases were subject to any special rules, but that there were often two or more possible decisions any one of which the court of first instance might reach without being held to be wrong. The appellate court should only interfere when it was satisfied that the court of first instance had not merely reached a decision with which the appellate court might disagree, but had exceeded the generous ambit within which a reasonable disagreement was possible and had reached a decision which was so plainly wrong that it must have erred in the exercise of its discretion. Where the decision of the court of first instance, not being dependent on an assessment of witnesses, was vitiated by an error in the balancing exercise, being an erroneous weighing of the relevant factors, the appellate court could interfere."

Conclusions

67. The father has presented his case with a fluency and a restrained sense of outrage which I have considered with care. He has not offered explanations for documents not disclosed nor the source of sums so far unexplained.

68. The award was in my judgment high. The only question for me has been whether it is so high that it is beyond the generous ambit within which reasonable disagreement is possible.

69. I have found myself in a position with parallels to that of the Court of Appeal in Baker v Baker 1995 2 FLR 829. The case concerned the appeal of a husband who had had an order made against him of £160,000 by way of capital and an initial periodical payment order of £17,500 a year.

70. The headnote reads –

"For over 40 years the principle had been accepted that where a court found that a party had failed in the duty to give full and frank disclosure, in appropriate cases adverse inferences could be drawn from that failure. Although the standard of proof augmented with the gravity of the allegation made, the standard of proof in a case where material non-disclosure was alleged was the ordinary balance of probabilities. On the facts of the case, the judge was entitled to draw inferences adverse to the husband, having found as a fact that the husband had deliberately concealed his true position. Whilst the sums ordered might have been on the high side, they were not so high that the appellate court should interfere with the discretion of the trial judge."

71. The appeal was unsuccessful. Otton LJ in a judgment agreeing with the judgment of Butler Sloss LJ said at p.837 –

"Ward J came to the conclusion that the appellant had deliberately concealed his true financial position. In so concluding he correctly applied the law and he exercised his discretion in accordance with principle. There was sufficient evidence before him, according to how he evaluated it, which clearly entitled him to come to that conclusion and to make the assessments that he did. I heard nothing in the course of the conduct of his appeal to persuade me to take a different view of the appellant's conduct. In my judgment, he has deliberately concealed his true financial position from the respondent, and more important, from the court. He has done so in order to defeat or minimise his former wife's just entitlement ……

Accordingly, the husband cannot complain if the judge following authority explored what was before him and drew inferences which may turn out to be less fortunate than they might have been had he been more frank and disclosed his affairs more fully. Such inferences must be properly drawn and reasonable. On appeal it may be possible for either party to show that the inferences or the award were unreasonable in the sense that no judge faced with the information before him could have drawn the inferences or awarded the figures that he did. I am satisfied that the appellant has not succeeded in demonstrating that the figures Ward J awarded were in any regard unreasonable or unjustified."

Findings about the father's disclosure

72. I refer to the various passages in the judgment where comments and findings are made about the father's income and capital. District Judge Bowman mentions the father's references to property investment and negotiations with his present employer as financial opportunities. It was a significant level of business activity. He also said he and his wife were training as teachers. He expected to have a net income of £22,000 next year.

73. The limited HSBC Jersey bank statements produced on day 3 showed £127,000 going in the 18 months to December 2003. The father's final explanation was that they were repayment of loans to friends unnamed made at times not disclosed. He did not explain substantial deposits into a Lloyds TSB, of which 2 sums totalled £20,000.

74. His income was he claimed expenses from a company he had invested in, deposits from his wife, deposits from another account A and S, inter-bank transfers, and £2,000 per month from his consultancy. His budget was not accepted because of a mobile phone bill of nearly £500 one month, and credit card statements which did not tally.

75. Considerable doubt was expressed about other family ownership of the Fulham property "given his determination to obfuscate his financial position in these proceedings ……. It is impossible to say what the father now has ….. I found the father's evidence very unsatisfactory in certain respects ….. (the wife) was brought in to lie about matters and that is what she did".

76. The capital figures given by the father and wife at £1,128,000 "one an absolute minimum ……. It is not for me to speculate. By his untruthful presentation the father has deprived me of the opportunity of knowing what the correct asset picture is".

77. She did not consider the mother's claim unreasonable or excessive. The property the mother wished to purchase was suitable. The father could afford it. Given those findings and on the basis of Baker v Baker it is argued by Mr Roberts that this father "too cannot complain if the judge ….. drew inferences which may turn out to be less fortunate than they might have been had he been more frank and disclosed his affairs more fully".

78. £175,000 represents less than 16% of the absolute minimum capital found to be owned by the father and his wife. He offered £125,000 at one stage. The difference is less than 5% of that total capital sum. Given the findings, and despite the father's arguments I cannot hold that an award of £175,000 "exceeded the generous amount within which a reasonable disagreement was possible" nor was it "plainly wrong". I dismiss this part of the appeal including within £175,000 the sum of £5,000 towards relocation costs.

Income

79. I have been much more troubled by this aspect of the appeal. At page 12 of the judgment District Judge Bowman records –

"The father also asks me to bear in mind that he has heavy financial expenses connected with exercising contact because of the distances and logistics involved."

80. Before me he contends that each visit costs him some £400. That appears quite possible. District Judge Bowman dealt with the matter at the end of her judgment in this way –

"Turning to the question of maintenance similar points apply to a consideration of the father's present and future income and to his budget as applied to the consideration of his capital – the father has not produced the clear information needed to enable me to take a proper view of what his income and expenses are. I have in mind in particular the evidence about "A and S" and the very high receipts into his bank during a period in which he contended he had only very limited income. These receipts were essentially unexplained. It is simply not credible that substantial sums come from his wife – where would she get them?

The father has clearly investigated a number of business opportunities in recent months. Above that, he is obviously a skilled and experienced financial adviser and he travels widely and frequently in France. It seems to me, on the evidence, that he can either work on his own account as an entrepreneur, doing what he has been doing during the last few years; or he ought to find alternative paid employment. Either way it seems to me that I can and should assess him as a man in receipt of a good income.

I am very clear that the sum offered by him by way of maintenance is inadequate. It is true that the sum sought by the mother exceeds the sort of budget that the "average family" might require to spend on a child, but this is not an "average" family, in England or France. These parents are relatively affluent and it seems to be that a figure of something over £100 per week is about right."

81. The vital conclusion is that the father should be treated as some one "in receipt of a good income". His offer of £250 a month was inadequate. The parents were relatively affluent. She also ordered that the £500 per month should be secured.

82. I have problems with this. Firstly having recorded that the father wanted her to take the cost of contact into account, I am not clear that she decided whether this was to be considered and, if so, to what extent. It is in my judgment a factor to be given some weight as it is plainly significant. It is not to be deducted in total but, given the budget and expenditure of the father, it is a proper expense to which regard must be had.

83. Secondly the position is that W is the father's 4th child. There has to be an acknowledgment of the obligations he has to his 3 older children. This is not mentioned as a factor to be considered though the other 3 children are mentioned.

84. Thirdly there is the finding of District Judge Bowman that the father should be regarded as someone in receipt of a good income. I have difficulty in finding a sufficient basis for this.

85. It means he is either suppressing his income producing ability, he will soon make a strikingly successful investment (not his recent poor ones), or "he ought to find alternative paid employment". He was at the time of the hearing back in France for just 2 years having been in the UK for over 10 years. To gain the success presumed in that time is unlikely nor is it clear where the better paid work was going to be.

86. I bear in mind the unexplained sums moving in and out of accounts. There are more probably capital sums than unexplained income. Furthermore living with his wife and children it is far less likely that he has avoided better income producing prospects.

87. The order of £500 per month is not a substantial sum. But whether as a teacher, a consultant, a would be entrepreneur or otherwise, I do not see that the father can be regarded as having now or in the near future a income to provide such payments, see W, and maintain his own family.

88. Finally I look at the Child Support regime introduced in March 2003. This neither determines nor does it much influence child maintenance orders. It can however be a check on the level of orders made. The weekly payments under the present order are about £115 a week. Using the calculator in 'At a Glance', payments of this amount would be appropriate for a parent earning about £50,000 a year.

89. I have not found evidence to suggest, with all allowance for non-disclosure, that the father's income is of this level or near it. It may be more than £2,500 per month as he now accepts given other income as well. But in any event I do not see that it is such that would permit payment of £500 per month allowing for obligations to his children in France and the cost of travel to see W.

90. In the light of those conclusions and despite the full and clear judgment, I hold that that part of the order was plainly wrong. I propose to reduce the monthly payments. I consider the right figure is £375 per month. If this reduced sum itself is high on the father's true accounts he has only himself to blame. It represents the best balance I can achieve on the present evidence. If the father does not exercise contact regularly then I propose that the order increases to £450 per month.

91. To that limited extent I propose to allow the appeal. I consider that its impact on costs would be modest if at all. I will allow the parties 4 weeks to submit written representations on this – longer if this holiday time of year makes that timetable too restrictive.