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Home > Judgments

Roxar v Jaledoust [2017] EWHC 977 (Fam)

Application to discharge or vary a periodical payments order which provided for payment on a joint lives basis.

The husband applied to discharge or vary a periodical payments order made in December 2010. The order required him to pay global maintenance of £2,250 pcm on a joint lives basis.

At first instance, after a contested hearing in December 2015, a deputy district judge varied the level of ongoing periodical payments to £1,750 pcm.
The husband appealed.

The appeal came before HHJ Hess in April 2016 who set aside the order and directed a re-hearing before him which took place in September 2016. Prior to the re-hearing the husband disclosed, for the first time, the value of his NHS pension (£194,000) and the wife applied to enforce the arrears of maintenance.

HHJ Hess varied the periodical payments order as follows:

1. With effect from 1 November 2015, quantum of the payments was varied from £2,250 pcm to £2,000 pcm.
2. With effect from 1 November 2016, the payment was divided into two parts: the sum of £1,300 pcm to be paid on an ongoing basis and the sum of £700 to be paid for four months, during which time child maintenance was to be agreed, failing which an application to the CMH would have to be made.
3. With effect from March 2020 (6 months after the youngest child's 18th birthday) the figure of £1,300 was to reduce to £850 pcm to continue until the husband's state retirement age.
4. There would be a pension sharing order for 50% of the husband's NHS pension.  
5. The arrears of £19,000 were secured by way of a charge on the husband's property.

The husband appealed, inviting the court to discharge the periodical payments order and achieve a clean break between the parties.

Appeal before Baker J
The appeal centred upon HHJ Hess's treatment of the parties' respective incomes, earning capacities and liabilities.

In each respect, Baker J held that the analysis carried out by HHJ Hess was clear and comprehensive:

Income – the court had been entitled to base the husband's likely future income on that received in the previous year.

Earning capacity – HHJ Hess had been justified in concluding from the husband's oral evidence that he had an unexploited earning capacity. HHJ Hess cited the following passage:

"it is totally right to say that I've taken my foot off the throttle. I don't see why I should pay my ex-wife what I do. I don't see any benefit to myself … "

Debts – HHJ Hess was entitled to conclude that the existence of a debt of £38,000 to his brother's company had not been established to the requisite standard of proof. The one-paragraph letter, upon which the husband sought to rely, was insufficient. 

Baker J further held that the additional evidence filed by the husband prior to the appeal before him was insufficient to justify the court disturbing HHJ Hess' careful evaluation of the husband's income and earning capacity.
The appeal was dismissed.

Summary by Tom Harvey,barrister, 1 Hare Court
_________________

Case No: 2016/0037
Neutral Citation Number: [2017] EWHC 977 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

On appeal from HHJ Hess in the Family Court at Portsmouth
Case number PO10D00174


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28th April 2017


Before :

THE HONOURABLE MR JUSTRICE BAKER

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Between :

ABBAS ALIMOHAMMADI ROXAR
 Appellant
- and - 
MARYAM JALEDOUST Respondent
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Rachel Chisholm (instructed by Meadows Ryan) for the Appellant
Baljinder Bath
(instructed by Mackarness and Lunt) for the Respondent

Hearing dates: 14th March 2017
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Judgment
MR JUSTICE BAKER :

1. This is an appeal by a husband against an order made by HHJ Hess dated 1 November 2016. Under the order, the learned judge varied a periodical payments order made some years previously in matrimonial financial remedy proceedings, and made a number of other orders including a pension sharing order which had not been made previously in the proceedings. The effect of the order was to reduce the sums payable to the wife but the husband is dissatisfied with this outcome and invites this court on appeal to set aside the periodical payments order and achieve a clean break between the parties.

Summary of background

2. The wife is now aged fifty and employed as a care worker. The husband is now aged forty-nine and employed as a dentist. The parties are of the Iranian origin and were married in Iran in 1990. They have two children, one aged twenty-four, the other now aged fifteen. The family moved to the UK in 2003 and have lived here ever since. In 2010 the marriage broke down and the parties separated. The wife started divorce proceedings and a decree absolute was granted in May 2011.

3. Financial remedy proceedings were pursued to a fully contested hearing before a district judge. By his order of December 2010, the following provision was made. The matrimonial home was to be held by the husband on trust for the wife, who was entitled to free and exclusive occupation of the property with the children, subject to the outstanding mortgages thereon. A further property was retained by the husband subject to mortgage and he also kept the proceeds of sale of a property in Iran together with dowry monies, valued respectively at £46,000 and £30,000. The effect of this order (excluding pensions) was a 53%/47% division of the capital in favour of the wife. There was no division of pensions at this stage because the husband has failed to disclose a CE value for his NHS pension. The income provision under the order was that the husband should pay spousal periodical payments to the wife in the sum of £2250 per month on a joint lives basis, and that this figure would be reduced on a pound for pound basis in the event of a child support assessment. To date, no such assessment has taken place.

4. In 2013 the wife formed a relationship with another man, although the judge accepted her evidence that this was not a relationship of cohabitation or financial support. In the same year, the husband remarried and his wife is currently expecting a baby. As the mortgagees had been unwilling to agree the transfer of the mortgage on the matrimonial home into the wife's name, the property remained on trust as described above and the monthly periodical payments were met by the husband directly making the monthly mortgage repayments (which totalled £1384 per month) and paying the balance of the £2250 by way of a separate payment to the wife. In November 2015, the husband stopped making the balancing payments to the wife and in April 2016 he stopped paying the mortgage payments. As a result, maintenance arrears rose to a figure in excess of £20,000 by the time of the hearing before Judge Hess. In addition, the mortgage was significantly in arrears and the mortgagees threatened repossession.

5. In December 2014, the husband applied for a discharge or variation of the spousal periodical payments order. After a contested hearing in December 2015, a deputy district judge varied the level of periodical payments to £1750 per month. As in 2010, the husband did not supply any information about the CE value of his pension, so again no pensions-related orders were made. The husband appealed the deputy district judge's order. That appeal came before HHJ Hess on 28 April 2016. For reasons set out in a judgment delivered by the judge on that day, he set aside the order and directed a re-hearing before himself which took place on 29 September 2016. Prior to the hearing, the husband disclosed a CE value for his NHS pension of £194,848. Also in the interim, the wife applied for the enforcement of the arrears of maintenance, which application also came before Judge Hess on 29 September.

The judge's decision on the rehearing
6. Having reminded himself of the relevant statutory provisions and case law, Judge Hess noted that he should give first consideration to the welfare of the fifteen-year-old younger child of the family. Since he lives with the wife, the judge observed that it was necessary for her to have sufficient income to ensure that he is securely housed and his other needs met. The judge noted that both parties retained the houses left to them as a result of the 2010 order, in the wife's case subject to the trust arrangement as described above. He rejected an argument put forward by the husband that the wife was likely to receive a substantial inheritance following the death of her parents earlier that year. He noted that both parties have significant debts. Each has an outstanding student loan of about £30,000 from the period when they were studying in Sweden. There were outstanding credit card debts of, in the wife's case, £10,000 and, in the husband's case, around £2000. The judge noted that the husband had stated in oral evidence that he owed his brother's company the sum of £38,000. He recorded that the husband produced a one-paragraph letter dated 21 November 2015 from his brother purported to confirm the same. The existence of this debt had not, however, been mentioned in the husband's Form E dated March 2015, nor in his statement dated only two days before the hearing nor at the outset of the proceedings. The judge concluded: "I do not consider that the existence of this debt has been established to the requisite standard of proof and I shall not take it into account in dealing with the case."

7. The wife's income had increased since the 2010 hearing. At that point, she was receiving only state benefits, but by the time of the hearing in September 2016 she was receiving a total of £1282 per month, consisting of £580 earnings as a part-time care worker and the balance in tax credits and child benefit. The judge recorded that the husband had sought to persuade him that the wife had a greater earning capacity but concluded:

"having heard her compelling evidence, in particular what she told me about her medical condition (in particular the dystonic tremor in her right arm which was identified by the medical reports… and was readily visible in court) and also her reasonable wish to be at home to care for [her son] … I have been satisfied on the evidence that she is currently working to her earning capacity. It is possible that she may be able to increase her earnings slightly in future years, perhaps when [her son] leave school, but not I think substantially."

The judge did accept, however, that it was reasonable for him to work on the basis that the parties' older son who was working and living with his mother and brother could contribute £300 per month for his occupation of the property. The judge accepted the wife's contention that she was not cohabiting with her partner and there was no relevant financial involvement between them.

8. So far as the husband's income is concerned, the judge included the following schedule in the judgment which he accepted demonstrated a diminution in his income:

Year

Gross Receipts

Net income before tax

2011

129,896

103,519

2012

not available

not available

2013

113,000

89,503

2014

106,000

94,192

2015

101,500

86,148

2016

not available

not available



The judge commented that the husband had "showed a lack of enthusiasm for producing any written information" about the 2016 accounts, but accepted that the figures for that year were similar to those in 2015. On the basis that HMRC had accepted the 2015 accounts, the judge concluded that the figures were accurate and that the husband's current income was therefore £4844 per month, significantly less than the 2010 figure of £6138, but greater than the figure put forward by the husband.

9. As to future income, the judge reached the following conclusion (at paragraph (12)(xi) of his judgment).

"The husband invites me to find that, in fact, his income is likely to go down in the foreseeable future because his brother has now… sold the business (in which the husband works on a self-employed basis) to a third party … The sole evidential basis of the husband's assertion that the sale will lead to a diminution in his income is a one paragraph letter from his brother dated 27 September 2016. The letter actually relates to the pay arrangements of his brother and not the husband himself and there is no accompanying explanation as to whether that would also apply to the husband. There is absolutely no evidence from the new owner of the business. Whilst I can see that the new owner might be reluctant to produce detailed information, it was quite striking that the husband appeared to have made no efforts at all to enquire of the new owner as to what his position might be after the completion of the sale, despite the fact that he knew the hearing before me was approaching. The husband has not satisfied me on a balance of probabilities the sale of the business will lead to a significant diminution in his income."

10. The judge went on to record the wife's case that the husband in fact had a earning capacity significantly greater than his current earnings. He noted the husband's evidence that he worked only 4.5 days a week, having Wednesday afternoons off and deliberately reduced the number of patients he saw. The judge recorded that the husband had suggested in evidence that tiredness played a factor in this, but concluded that the true motivation for his decision emerged from the husband's oral evidence when he said:

"it is totally right to say that I've taken my foot off the throttle. I don't see why I should pay my ex-wife what I do. I don't see any benefit to myself … I don't see any return … [Our son] can come and stay with me … My ex-wife doesn't need to live in that house … The district judge's judgment was wrong … I can't do more psychologically. I am not willing."

On the basis of this evidence, the judge found that the husband, aged 48 and in good health, did indeed have an available and unexploited earning capacity and that he had deliberately put himself in a position where it appeared that he could not afford to pay what the court had direct him to pay. He concluded:

"he has simply decided that he wishes to be rid of her whatever his legal and other obligations may be. In my view it is not appropriate for me to deal with this case on the basis that he should be permitted to do this … In particular it is wholly inappropriate for him to manipulate the position so that the wife cannot afford to house [their son] … I therefore propose … to deal with this case on the basis that the husband should and could be earning £6000 per month net (this being a reasonable mathematical estimate of what his earnings would be if you worked a full week at a reasonably full level)."

The judge added, however,

"it is also, however, appropriate for me to note that an order structured in a way which appears to impose an obligation upon the husband which he sees as unjustifiably large and endless may, in the end, be counter-productive. In particular I shall consider whether a solution to the case which constructs an order which incentivises the husband to work harder to sort out the wife's current housing crisis, whilst being able to see a better future for himself as well in due course, that would probably be to everybody's benefit. In this context, it is reasonable to factor into the equation a transition to independence."

11. The judge concluded that it was entirely reasonable for the wife to wish to remain in her current house until the younger child reached the age of eighteen and completed secondary education. Thereafter, however, he thought it reasonable for her to trade down to a house at a similar level and cost to that of the husband. He accepted that it was entirely reasonable for the husband to be in a position to meet his own monthly mortgage repayments. Having analysed the wife's schedule of income needs, he reduced some items and concluded that her immediate need was for £2000 per month by way of maintenance. When the younger son attained the age of eighteen, however, her housing costs will be reduced so the judge concluded that from that point the fair figure of payments would be £850 per month. He noted that in reality part of the spousal periodical payments order represented disguised child periodical payments and concluded that it was better to disaggregate the figures so that £700 of the maintenance would be categorised as child payments.

12. The judge stressed that in carrying out the analysis it was necessary to have the husband's needs firmly in mind. Having asserted capacity at £6000 per month net, and considering the schedule of expenditure produced on his behalf, which the judge described as "really rather unhelpful", the judge found that, once the husband had paid £2000 per month to the wife and his own mortgage repayments of £777, he will be left with £3223 to spend on himself and his new family. The judge was satisfied that this was affordable and that he would therefore have enough to meet his own expenditure needs.

13. The judge noted that the loss of potential pension benefits arising from the divorce now fell for consideration. Under the statutory provisions in the Matrimonial Causes Act 1973, it was open to him to make a pension sharing order when varying the periodical payments order to limit its period. Noting that the wife has a need for income in retirement and that it was good practice to make provision for this by way of a pension sharing order if this could be done fairly, he decided to terminate the wife's spousal periodical payments as at the husband's state retirement date and to make a pension sharing order of 50% of the husband's interest in the NHS scheme.

14. In summary, therefore, the judge's decision was as follows:

(1) the spousal periodical payments order from 2010 was varied from £2250 per month to £2000 per month with effect from 1 November 2015;

(2) with effect from 1 November 2016 the order was varied so as to be divided into two parts: the sum of £1300 per month payable on an ongoing basis and the sum of £700 per month payable for four months. If within the four-month period a child payments order can be agreed, then such an order terminating at the end of August 2019 could supersede the second tranche of the spousal payment. If not, then a CMS application would follow;

(3) with effect from 1 March 2020 (summer 2019 + 6 months) the figure of £1300 a month would be reduced to the figure of £850 per month to continue until the husband's state retirement age when it would terminate completely and will not be extendable;

(4) there would be a pension sharing order for 50% of the husband's NHS scheme.

15. The judge then made an enforcement order in respect of the arrears of maintenance which, on the basis of the order as varied above, amounted to £19,080 with effect from 1 November 2016. Having expressed the view that it was wholly unacceptable for the husband to put the younger son's housing at risk and that the issue of arrears therefore needed to be dealt with quickly, he made a charging order against the husband's property to be enforced by an order for sale of that property if proposals for payment of the arrears were not made quickly to ensure that the mortgagees do not take any action.

16. Finally, the judge noted that there had been no action in furtherance to a recital to the 2010 order to the effect that the order should be made subject to a declaration of divorce made in the Iranian Embassy in London in accordance with Iranian law. He further noted, however, that he had been told that the wife had recently issued divorce proceedings in Iran. He therefore indicated in his judgment that he would require the wife to give an undertaking that she would not make any application for financial remedies in Iran, although in the event no such undertaking was included in the order ultimately drawn and sealed following the hearing.

The appeal

17. On 20th December 2016, the husband filed a notice of appeal seeking permission to appeal against Judge Hess's order. Having been legally represented up to that point, he was acting in person when he filed the notice. In his grounds of appeal, he contended that the judge had erred in not accepting the evidence about his earnings and had reached the wrong conclusion as to the parties' earning capacities, expenditure and liabilities. He also included grounds of appeal concerning the pension sharing order and the Iranian divorce. In the event, however, these latter issues were not pursued at the hearing before me so I need not refer to them further. The application for permission to appeal was listed for an oral hearing on 1st February 2017. At that hearing, Moor J granted the husband permission to appeal and set the appeal down for hearing before me on 14th March. He further gave the husband permission to file fresh evidence as to his income as a dentist, "by way of a statement which is to include details as to his contract, his hours of work, the split between NHS and private patients and changes to the position between 2010 and today; the contract is to be exhibited to the statement." He directed that the wife should have permission to file evidence in reply and any event should file further evidence concerning the outstanding sum under her Swedish student loan. He stayed the judge's order save that the husband was to pay periodical payments to the wife in the sum of £1300 per month.

18. Subsequently the husband filed a further statement purportedly pursuant to Moor J's order but which in fact covered other matters in support of his case for a reduction in periodical payments, and which, with exhibits, stretches to no fewer than 354 pages. On behalf the wife, it was claimed that, although the statement was dated 17 February, it had not in fact been served until 6 March. On 9 March, the wife filed a short statement in response, including details concerning her Swedish student loan. Her statement including exhibits round to over fifty pages. It is not acceptable that the parties to appeals should file evidence that goes beyond directions given when listing the appeal. Parties who fail to comply with directions by filing statements that go beyond what is permitted by the court's directions may well find themselves penalised in costs.

19. By the time of the hearing before me, both parties were represented by solicitors and counsel and the dispute was sensibly focused on the key issues arising on the appeal – the judge's treatment of the parties' respective earnings, earning capacities and liabilities.

The appellant's case
20. Although I have read the skeleton argument initially filed by the husband in support of his appeal, I have primarily relied on the substituted skeleton prepared by his counsel who appeared at the appeal, Ms Rachel Chisholm, when considering the merits of the husband's case. In summary, it is the husband's case that the current award to the wife of £2000 per month leaves him with £2652 per month with which to meet his needs and those of his child who is expected very shortly. The husband asserts those needs to amount to £6012 per month, leaving him with a deficit of £3360.

21. Ms Chisholm submits that the judge was wrong to impute an earning capacity to the husband of £6138 per month. In doing so, he failed to take into account the changes in the dental practice in which the husband works as a result of the recent sale of the business, or the increase in professional expenses, or the fundamental changes in his working practices which have caused a reduction in income and patients. As I observed during the hearing, however, it seemed to me there was no possible challenge to the judge's analysis on the basis of the evidence before him. The only evidence about these matters was a two-line letter dated 27 September 2016 from the husband's brother. The heart of the husband's case on appeal therefore lies in the fresh evidence adduced in his statement.

22. It is contended that this fresh evidence demonstrates two significant factors. First, NHS dentists are now being paid for each completed course of treatment and no longer by each individual treatment. Under his 2010 contract, the husband was being paid £12 per "unit of dental activity" ("UDA") whereas under his new contract that rate is reduced to £10.50. It is submitted that these changes are industry-wide and not within the husband's control. Secondly, the husband's new contract following the sale of the business reduces his private income from 50% to 45% of what he bills. The husband asserts that, as a result of the changes, his gross income will reduce by £11,500 per year and his net income to £48,000 after tax so that, in assessing the appropriate level of periodical payments, the starting point should be his net income of £4000 per month, as opposed to the figure of £4884 adopted by the judge.

23. In addition, Ms Chisholm relied on a number of other changes which restricted the husband's income. Changes in the NICE guidelines have brought about an increased allocation of time for each patient thereby reducing the number of patients who can be treated each day. In addition, the dental practice is not taking any new patients as a result of the changes in the UDA. Ms Chisholm also alluded to the physical and mental pressures of working in the NHS as described by the husband, together with the fact that he is suffering from carpal tunnel syndrome.

24. Turning to the judge's conclusions as to the husband's unexploited earning capacity, Ms Chisholm contended that the husband has always worked 4.5 days per week, even during the marriage. The judge's conclusions on his earning capacity were wrong because he drew an erroneous inference from the absence of evidence from the owners of the new business. The husband had not signed his contract with the new owners before the hearing so could not be faulted for not wishing to involve the new owners in his dispute. Furthermore, the agreement with the new owners of the business now exhibited to the husband's latest statement demonstrated that his evidence was correct as to the significant reductions in his income resulting from external agency decisions. The judge had not placed sufficient weight of the impact of the changes in circumstances affecting his income. He wrongly relied on the husband's reference to "tiredness". In short, he was wrong to find that there could be an increase in the husband's earning capacity which it would be reasonable to expect him to take steps to acquire.

25. As for the husband's expenditure, loans and liabilities, Ms Chisholm contended that the judge had been wrong to disregard the business loan. In his recent statement in support of the appeal, the husband exhibited bank statements and the agreement relating to the loan. The judge's criticism that there was no reference to the loan in the Form E was countered by reference to the fact that the loan payments were not made until March 2015, some time after the Form was signed. It was therefore submitted that the judge was wrong not take into account the impact of the husband's hard debts on his outgoings, demonstrated by the fact that the husband is having to sell his house, which in turn will impinge upon his outgoings as it will involve the need to rent a property to accommodate his new family. It was submitted that the level of debt that the husband now finds himself in amounts to a change of circumstances that the court should have taken into account.

26. With regard to the wife's circumstances, Ms Chisholm submitted that the judge erred in his decision as to her earning capacity. He was wrong to rely upon his assessment of her health condition which was not supported properly by the evidence. In so far as she has a dystonic tremor, there was no evidence that this would impinge upon her earning capacity. Furthermore, the court did not consider whether she will be able to work in a different capacity so minimising any impact of the tremor on her ability to work. Furthermore, the judge erred in limiting her earning capacity on the basis that she wished to be at home when her younger son returned from school. It was pointed out that the teenager's personal problems, to which the judge had referred as providing a reason for the wife wishing to be at home, had abated. In addition, it is submitted that the court gave no consideration to a possible increase in the wife's earning capacity once the son has left school.

27. It was submitted that the judge was wrong to rely on the wife's oral evidence as to the extent of her Swedish student loan for which there was no documentary support. Given that she trained as a dental nurse, it was submitted that it was unreasonable to suggest that her loan would be the same as that of the husband, who trained as a dentist. Accordingly, Ms Chisolm submitted that the alleged student loan repayments should be discounted when assessing the wife's liabilities and needs. In addition, it was submitted that the judge failed to give sufficient consideration to the possibility that the wife could downsize now from the former matrimonial home into a smaller property without causing hardship to her or the younger son. In oral submissions, Ms Chisholm contended that by downsizing now the wife could reduce her mortgage repayments so that she would not need any periodical payments except for those payable for her son.

28. It was further submitted on behalf the husband the court should remit the arrears. The husband had met the payments under the order until October 2015 and continued with the mortgage repayments until April 2016. Subsequently he started paying again in accordance with earlier orders and had recently paid the sum required under Moor J's order. If the court accepted the submissions as to the appropriate level of periodical payments, the award should be backdated so as substantially to reduce the arrears as calculated by HHJ Hess. Given the impact of the arrears upon the husband in the context of his overall indebtedness, and the comparative capital positions of the parties, the right course would be to remit the arrears entirely.

The wife's response

29. On behalf of the wife, Ms Bath submitted that the judge had been perfectly entitled to reach the conclusions in his judgment. It is the trial judge that hears the oral evidence and has the opportunity to assess the credibility of the witnesses. In this case, Judge Hess concluded that the reason why the husband's income had reduced was a choice made by him to defeat the level of periodical payments he had been ordered to pay to the wife. As demonstrated by the direct quotations from his evidence set out in the judgment, he did not see why he should work to pay the wife. The judge was entitled to conclude that there were no cogent reason for the reduction in his hours or level of work or income and that the evidence about the changes to his future income due to the sale of the dental practice was very thin.

30. In analysing the husband's evidence filed in support of his appeal, Ms Bath was at some disadvantage as a result of the late filing of the husband's statement. Consequently, her written skeleton argument did not analyse that statement in any detail. In oral submissions, however, she drew attention to the statement in the husband's new contract that "the practice owner shall pay the associate £10.50 per UDA (net) in considering for the associate providing 7869.50 units of dental activity". Ms Bath therefore submitted that the husband was able to earn up to £82,629.75 per annum from the NHS portion of his practice. In his statement, the husband asserted that the number of units prescribed was in reality a target which he had never come close to reaching in his thirteen years of practice.

31. In respect of the husband's private practice, Ms Bath submitted that the husband had failed to file complete evidence in accordance with Moor J's direction. In a schedule set out in his statement filed for the appeal hearing, the husband divulged the split between NHS and private practice for the years 2014 and 2015 but not for the previous years nor for 2016. For 2014, his gross receipts of £106,000 were said to have consisted of £42,400 from his NHS work and £63,600 from his private practice. For 2015, the total gross receipts of £101,500 was said to be split between £36,540 from his NHS work and £64,960 from his private practice. Ms Bath therefore submitted that such evidence as we have suggested that his private fees had increased. Although under the new contract the percentage retained by him has reduced from 50 to 45%, Ms Bath submitted that the amount of private billing is a matter for the husband himself to determine. She pointed out that he had not produced evidence of how much he had in fact billed for private practice in 2016. She also pointed out that, under the contract, he is supposed to receive a monthly statement but no such statements have been produced. Ms Bath submitted that it was not a satisfactory way to proceed and that the husband was in effect asking the court to rely on a "guesstimate". What was missing was evidence as to what the husband was actually receiving.

32. In that context, Ms Bath reiterated her principal submission that the judge's finding on the basis of the husband's oral evidence that he had deliberately decided reduces working hours because he did not want to support the wife was of crucial importance.

33. Ms Bath submitted that the judge's assessment of the husband's needs and liabilities was fully supported by his assessment of the evidence. He was entitled, on the evidence before him, to reject the husband's claim concerning the loan said to be owed to his brother's company. Similarly, she contended that the judge had carried out a careful evaluation and analysis of the wife's income and earning capacity which could not be criticised on appeal. She added that, in the event that the wife was able to increase her and income, she would simply lose the tax credits she is currently receiving. So far as the wife's expenditure is concerned, Ms Bath relied on the further details and the wife's statement filed for this appeal which demonstrated that, as at 6 January 2017, the total sum outstanding on the Swedish student loan was £17,024.99, with interest and fees continuing to be incurred.

34. In reply, Ms Chisholm stated on instructions that the dental practice was still going through a process of transition following the sale so no monthly statements were not yet available to demonstrate what the husband was actually earning. She also pointed out that, although the wife had produced evidence of the sums outstanding under the Swedish loan, she had not produced any evidence of a repayment plan.

Discussion and conclusion
35. The analysis carried out by HHJ Hess was clear and comprehensive. Given the paucity of evidence concerning the impact of the husband's new contract following the sale of the dentistry practice, and the frank and revealing statement made by the husband in his oral evidence as to his motivation for reducing his hours, the judge was fully entitled to come to the decisions he reached concerning the husband's current income and his potential earning capacity. The analysis in paragraph 12 of his judgment, including the passages cited above, is to my mind unimpeachable in the light of his assessment of the evidence. In particular, his finding that the husband had not satisfied him on a balance of probabilities that the sale of the business would lead to a significant diminution in his income was one which he was fully entitled to make on the evidence, or rather in view of the paucity of the husband's evidence, on those issues.

36. Similarly, given the husband's inadequate disclosure, the judge was fully entitled to come to his conclusion that the existence of the debt to the husband's brother's company had not been established to the requisite standard of proof. In the same vein, I consider that the judge's findings concerning the wife's income, earning capacity and needs were based on an assessment of the evidence which he was best placed to carry out.

37. On the basis of the evidence before the judge, it would in my judgment be impossible to say that his decision was wrong. On the contrary, his overall analysis and decision to reduce the periodical payments payable to the wife in stages until the husband's retirement when they will be superseded by the pension sharing order was carefully crafted and manifestly within his discretion.

38. The question therefore arises whether the decision should be dislodged on the basis of the evidence subsequently filed for this appeal hearing. The statement filed by the husband, and the exhibits attached thereto concerning the business and in particular the new contract following the sale, demonstrate the structure of the husband's future remuneration and illustrate how the structure has changed in comparison to the previous arrangements. I find, however, that the husband has not demonstrated that he will suffer an overall reduction in his income. It is no more than speculation to say that the income from his NHS portion of his practice will be less than it was before the sale. This will depend on a number of variables which cannot be predicted with confidence at this stage. To some extent, the same goes for his income from private practice. On this issue, however, I accept Ms Bath's submissions. I find that the husband has failed to comply fully with Moor J's order to give details of the split between his NHS and private work. I accept Ms Bath's submission that, insofar as there is evidence, it suggests that his income from private practice is increasing and that the impact of the reduction in the percentage from 50 to 45% cannot be evaluated without knowing how much private work he is actually billing. Overall, therefore, I conclude the evidence on these issues is not sufficient to justify this court disturbing the judge's careful evaluation of the husband's income and earning capacity.

39. It is correct, as Ms Chisholm submitted in reply, that the wife has also failed to comply fully with the direction given by Moor J in that she has failed to give details of the monthly repayments on the Swedish student loan. On balance, I do not consider this failure to be of any real significance. It is in my judgment insufficient to justify this court overturning the judge's overall assessment of the wife's needs and liabilities. Equally, to my mind, there is no basis whatsoever for disturbing the judge's order concerning the arrears of periodical payments.

40. In short, the husband has not demonstrated that Judge Hess's decision was wrong. Although I would not wish in any way to encourage further litigation between these parties, it is conceivable that, once the husband has further evidence concerning the impact of the new contract, he may be able to demonstrate that circumstances have changed so as to justify a further reduction in the wife's periodical payments. Thus far, however, he is not succeeded in doing so and the appeal is therefore dismissed.

41. I will be grateful if counsel could agree the terms of an order reflecting my decision. I also anticipate that there may be applications for consequential orders. I propose that counsel should make submissions on any such issues in writing in the hope that there will be no need for attendance when judgment is handed down.