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MT v OT [2018] EWHC 868 (Fam)

Judgment of Cohen J dealing with four applications under Schedule 1 to the Children Act 1989

This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

Case No: ZW16P01277
Neutral Citation Number: [2018] EWHC 868 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/04/2018

Before:

THE HON. MR. JUSTICE COHEN

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Between:

MT
 Applicant
- and - 
OT Respondent
- - - - - - - - - - - - - - - -

Mr Nicholas Allen QC (instructed by Lodders LLP) for the Applicant Mother
Mr Adedamola Aderemi
(instructed by K & S @ Law) for the Respondent Father

Hearing dates: 11.4.18 to 13.4.18
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Judgment
Mr. Justice Cohen:

Introduction:

1. I have before me a number of applications brought under Schedule 1 of the Children Act 1989.  These total four in number, being three brought by the Applicant mother and one brought by the Respondent father of twin girls E and U, born on 20th June 2001 and so now aged nearly 17 years.

2. Their parents are MT and OT.  It is a sad fact that these parents have been litigating against one another in England and Wales and in Nigeria without cessation since 2003 at the latest.  Thus, for virtually their entire lives, the children have known their parents only to be engaged in litigation on a number of fronts against one another.  Although he has a contact order, the girls have not seen their father since 2005 at the latest and the father has not made any visit, at any time, to the home in which they live.

3. The first substantive Children Act application concluded after a lengthy hearing before Mr. Justice Charles and he gave judgment on 2nd March 2007.  It is reported at [2008] 2 FLR 1311.  It is unnecessary for me to go into significant detail of the judgment but I do note a number of matters.  Some of them I will refer to later in this judgment but, for the present, I note particularly the judge's finding that the mother had consistently exaggerated her claims so as to make it difficult for him to accept anything that she said in relation to her expenditure and that, so far as the father was concerned, the learned judge felt that, notwithstanding his attitude of generosity and caring towards his children, the court could not take his word that he would pay whatever sum the court ordered without their being security provision to make him do exactly that.  I bear in mind what Mr. Justice Charles has said about the level of the mother's claims and have, therefore, considered them very carefully.  History has plainly shown the judge's caution towards the father's fine words to have been amply justified and there has had to be repeated litigation to ensure that the father pays what he has been ordered to pay and maintains an adequate fund so as to provide payments for the mother when he does not pay.

4. I do not intend to lengthen this judgment by setting out the details of the litigation that has taken place since 2007.  It has been both extensive and expensive.  But, it is unnecessary for me to go into its detail because the father accepts that, rather than there being a continuing order for monthly payments to be made by him henceforth for the benefit of the children with the fall-back of a guarantee and security provision to be utilised when he is in default, I should instead do my best to assess the proper amount of provision to be made for the children until the end of their tertiary education; that that sum inclusive of index-linking should be lodged by him with the mother's solicitors; and that the solicitors will administer the fund by making monthly payments to the mother so as to enable her to discharge the expenses of the children and her own expenses as their carer over the remaining period of their minority and their education.  This provision will supersede the current arrangements of a security fund which now stands at some £290,000 and the guarantee in to which the father has entered which, after a payment ordered by Mr. Justice Mostyn in January 2018, has a balance of approximately £1.054 million.

The Current Position:
The Father:
5. The father divides his time between England and Nigeria and, possibly, elsewhere.  It has been unnecessary to go into any of the details of his life.  His stance throughout this litigation has been to run what is commonly called the "millionaire's defence".  He accepts that he should be treated as being worth at least some £40 million by way of capital and with an ability to meet any order which the court deems to be appropriate.

6. In reply to an order that he provide the outline details of his means, he has stated at C68-9 that he owns property assets in the UK, but all held in trust, to the value of some £15 million, with all his other significant assets being held in Nigeria, and that he has an income of some £790,000 p.a.

7. The school fees of the children are paid by the mother's solicitors from the secured fund which the father has established pursuant to various orders.  As far as I am aware, the father makes no provision for the children over and above the sums that he has been ordered to pay.

8. The last substantive order is dated 9th July 2013 and ordered the father to pay child maintenance of £3,000 per month per child, in addition to school fees and extras and several other relatively modest items.  This sum was a small reduction from the previous child maintenance figure as the children were shortly to commence boarding school.  After taking into account RPI increases, the current figure for the two children is £6,504.31 per month (£78,051 per annum) and is due to increase with effect from 1st May 2018 by reason of the annual RPI increase to £6,739.38 per month (£80,872 per annum). 

The Mother:
9. The mother is a qualified lawyer in Nigeria and it is the father's case that she should now be in paid employment.  She responds by pointing out that she last practised in Nigeria some 18 – 20 years ago before coming to live in England.  Since her arrival here she has had no significant employment, the totality being a small amount of unpaid and part-time work in 2004-5 and which was brought to an end by the father's intervention and a short period of work for a friend in 2010 – 11 which was also unpaid.

10. In some cases the court can make a reasonable assumption that a party could obtain employment if he or she chose to do so.  But in this case it would be wholly improper for me to do so.  There is no evidence that this mother, at the age of 50 with an almost non-existent employment history, would be able reasonably to obtain any employment.  I refer to paragraph 42 of N v F [2011] 2 FLR 533.  In this case I would have expected evidence from an employment consultant as the best way of evidencing employment possibilities but at the very least details of opportunities open for Nigerian lawyers in England.  I have been provided with nothing at all and I am not prepared to accept that this mother has a current earning capacity which she can or should be exercising. I am further satisfied that her commitment to the children, even at their relatively senior age, is an impediment to significant earnings.

The Girls:
11. The two twins are very close to one another but, for the first time in their lives, are being educated separately.  E has educational difficulties to which I will refer later and attends college in London.  Her sister U attends the same organisation but at a different college outside London.  These are residential 6th Form colleges and the girls are in year 12 studying towards A levels.  They return home to their mother during the holidays and for some weekends.  The mother visits each child at least once per week which takes up most of the day for each visit.  It is plain that the girls miss one another and, in their different ways, each is struggling.

The Home:
12. The home of the mother and children is in London.  It is a detached property in a street which runs straight into the Great North Way (A1).  It is where the mother has lived with the girls since Mr. Justice Charles made provision in his order in 2007 for the purchase of a property at a price of up to £975,000.  The size of the property varies according to which document I refer but it is clear that on the second floor there are two bedrooms, one of which is the result of the two smallest bedrooms being knocked through into one.  On the first floor is the master bedroom which is currently unused because, says the mother, the heat from the adjoining boiler makes the room far too hot.  There is another bedroom on the lower ground floor but it has no external windows and is used for storage.

13. The mother says that the property is no longer suitable for the family and by one of her applications seeks an order that she be permitted to move house and relocate to somewhere which she says will be more suitable and congenial. 

14. I shall deal with this application separately from the other three applications all of which relate to the amount of the continuing provision.  Before doing so I wish to refer to various matters which are partially agreed and which will be dealt with by way of lump sum orders.  These are as follows:

i) The mother's debts:  The mother has substantial credit card and other credit debts.  The total indebtedness is in excess of £26,000, excluding three debts for which no details were provided.  The largest part of that sum is owed to NCO and totals approximately £17,500.  I am told it is a very historic debt going back to about 2004.  It was expressly excluded by Mr. Justice Charles in 2007 as being a liability for which the father should not bear any responsibility.  I have not been asked to re-visit this.  However, there are debts to Next Card, Capital One and Barclaycard which, between them in respect of five accounts, total £8,617.  The mother is paying monthly instalments in respect of those debts, in the approximate sum of £6,000 per annum. The father, at my invitation, has agreed to provide the sum of £8,617 to clear those debts and thus remove the repayments from the mother's budget.

ii) There is a shortfall in the costs allowance allowed by Mr. Justice Mostyn in the sum of £5,495 which the father has agreed to pay.

iii) Pursuant to the order of Mr. Justice Charles the father was due to provide the mother with a car or replacement car every five years, being in 2007, 2012 and 2017.  The sum permitted was £20,000 less the proceeds of sale of the previous vehicle. 

It is now apparent that that part of the order was intended to be subject to the RPI provisions contained at paragraph 12 of the order but, as a result of miss-numbering consequent upon the addition of a further paragraph in the order, the RPI provision has been overlooked.  I am quite satisfied that, when in paragraph 12 there is reference to the lump sum referred to in paragraph 7 of the order, it is plainly intended to apply to paragraph 8 which is the car provision.  That must be the case because RPI has no relevant application to paragraph 7.  If the RPI provision is applied to the sum of £20,000 from 2007 the figure would now stand at approximately £27,000.

The mother did indeed purchase another car in 2017 spending £50,000 largely on finance.  There is no reason why the father should pick up the bill for any more than £27,000 less the sum of £5,000 received by the mother on the sale of the previous model.  The money was due on 1st May 2017 and I, therefore, order that, as part of the lump sum, the father shall pay £22,000 plus statutory interest from 1st May 2017.

I reject his assertion that the mother should have obtained more than £5,000 for the previous model.  I accept that she did receive £5,000 and there is no evidence at all before me which would permit me to say that this was an under-value.

iv) The order of 2007 provided at paragraph 27 that the father should pay £7,500 into the mother's solicitor's account which was to be applied solely for the purpose of advising the mother on making applications pursuant to the Children Act and as further set out at that paragraph.  It is repayable to the father at the expiry of the Schedule 1 order insofar as it has not been utilised.  Bearing in mind the enormous forensic history of this case it is proper, in my judgment, that this contingency fund should be restored to £7,500.

v) I disallow the request for payment of the solicitor's time in preparing a draft order following judgment.  In my experience this is something normally done by counsel within the brief.  I shall deal with the costs of administering the fund within the allowance for maintenance.

Relocation:
15. The mother says that she and the children have never been happy in the house.  It was not a property that she chose.  The one that she wanted was lost and she accepted one that was chosen in substitution by the father's agent. 

16. Following the delivery by Mr. Justice Charles of his 2007 judgment, there was an issue as to whether there should be provision for a replacement property.  The father said that it should be the one property and no other.  The mother wanted the ability to relocate.  The order provided:

"In the event of a significant issue arising which reasonably requires the relocation of the twins (to include but not be limited to the following – the education of the twins or one of them, a dispute with a neighbour, or redevelopment or change in the area of the property acquired which affects the enjoyment or amenity of that property) and in the event that agreement is not reached as to all terms relating to the location and provision of a replacement home…. there should be permission to refer the matter back to the court".

17. The mother says the home is not suitable.  Her principle objections are as follows:

i) The children share a bedroom and, at the age of nearly 17, that is no longer appropriate.

ii) Their bedroom is in the eaves of the house.  Both girls are tall and the room is not only too small but too low for them.

iii) E, with her asthma, struggles on the stairs.

iv) A large amount of new housing has been built in the vicinity, bringing a substantial increase in traffic and an increase in crime.

v) Neither she nor the twins have ever liked the property.

vi) It is in disrepair and, although the husband does cause works to be done to the property from time to time, they are never of an appropriate standard or efficient in remedying the defects.

18. The father resolutely opposes any permission to relocate.  He says that the court has no power to make such an order.  He says that is to be seen from Phillips v Peace [2005] 2 FLR 1212 which makes clear that there can only be one application for a settlement or transfer of property.  To permit the replacement of one property by another would be permitting a second settlement.  When I pointed out to Mr. Aderemi that orders are often made permitting the substitution of a property whether in a Schedule 1 case or when a Mesher order is made in financial remedy proceedings, Mr Aderemi argued that all such orders were made beyond the jurisdiction of the court.

19. I do not accept his submission.  The replacement of one property by another does not amount to a new settlement of property.  It is simply the substitution of one property for another.  Of course, if Mr. Aderemi is right, Mr. Justice Charles had no power to make the order set out above and the provision should have been the subject of an appeal.

20. I have had the benefit of a report from a single joint expert (SJE) which describes the property as being in average condition and requiring updating in part.  I have seen photographs of it both produced by the SJE and by the father's agent whose report I refused to admit for reasons that I gave at the time save as to the photographs.  The photographs clearly illustrate the deficiencies in the children's bedroom.  They also show that the house is both dated and cluttered.  Its very closeness to the main road is unlikely to make it a congenial home.

21. I accept that there has been a lot of new housing in the area.  There are some four or five blocks of flats which have been built at the end of the road which is only a couple of houses down from where the mother and children live.  I am unable to make any finding as to whether this has brought an increase in crime but it would be surprising if it had not brought an increase in traffic.

22. I recognise that the father will "lose" in the region of £100,000 by way of the irrecoverable costs of sale and purchase.  I do not overlook that but I need to see it in the context also of his overall wealth and the needs of the children.

23. In my judgment it is reasonable for the mother and girls to require to be housed elsewhere.  I direct that the mother shall be permitted to choose a replacement property for herself and the children which shall be purchased for their occupation on the same terms as before subject to the power of the father to veto the property if it is not a proper investment of his funds.

24. The question then arises as to the value of the housing fund.  The property has been valued by the SJE at £1.35 million.  The value reflects the condition of the property.  If it had been maintained and updated in the way that it might have been by the father, then it would have been worth more. 

25. The mother accepts that the costs of sale and the legal costs and SDLT of the new purchase should come out of the proceeds of sale.  However, she asks that she should be provided with the sum of £2,500 towards removals and £47,500 for what she describes as "kitting out".  Thus, she seeks from the father, the sum of £1.4 million. 

26. I direct and order as follows:

i) The father may, if he so wishes, keep the property for himself and provide the mother with £1.35 million plus the further sums that I set out below.

ii) If the property is sold, the father shall provide the mother with a housing fund, out of which the costs of sale and purchase shall be paid, in a sum which is the greater of £1.35 million or the actual sum obtained upon sale.  It is the mother who will have to bring up the children in the new house and, bearing in mind the extent of the father's wealth, it would not be appropriate that the mother and children should bear the consequences of any sale at less than £1.35 million.

iii) The father shall pay the additional sum of a maximum of £50,000 of which not more than £25,000 may be spent by the mother on equipping the property and removals and the balance of which may be spent on works to the property.  The sum spent on works will in due course accrue at least to some extent for the father's benefit as the property will eventually revert to him.  The sum spent on equipping the property and removals is a necessary incidence of moving from a property bought some 10/11 years ago and when the children were very much younger.

iv)  The mother will be entitled to take with her to the new property the furniture in the current home. 

The Girls (continued):
27. It is appropriate at this stage that I should say a little more about each of the girls.  E had a traumatic birth and has, throughout her life, been under treatment from a variety of health professionals.  She currently has an ENT Consultant for chronic asthma and the help of a surgeon as she suffers from mobility issues. She is also very forgetful and her mother does not trust her to travel home on her own.  At times she struggles academically and needs significant help with her work.

28. In recent times she has been having assistance with her studies in her three A-Level subjects and it is her hope that, in due course, she may become an accountant.  In the meantime, it has to be said that her academic progress is likely to mean that reaching that goal will be challenging.

29. U is described by her mother as being "a brilliant child" and in good general health apart from dental problems.  However, she too is plainly struggling in her three A-Level subjects.  There is the most enormous discrepancy between her low marks and her high marks.  Her college reports that her principle weakness is a lack of good knowledge of the subject areas at GCSE level which means that she struggles with her A levels.  She hopes to be a medical student but that most exacting of disciplines is likely also to be a challenge unless she picks up.

30. Both girls have been receiving significant additional tuition during the school holiday and I am asked to make provision for that to continue.  The father opposes saying, not unreasonably from his standpoint, that he is already paying £12,000 per child per term and that the extent of the extra tuition sought is unreasonable.

Periodic Expenditure:
31. I turn now to the items of periodic expenditure.  In doing so I bear in mind always, as Mr. Aderemi has rightly urged upon me, that I am dealing with an application under the Children Act and that monies, insofar as they are paid for the benefit of the mother, are to be paid to her purely in her role as a carer of the children and differ in kind from payments that might be made to her if she had been a wife in financial remedy proceedings.  I also bear in mind the point that he properly makes that, as the children grow older and, in particular, as they proceed from secondary to tertiary education, their need for a carer diminishes.

32. There is one matter that is agreed.  The children have another four terms of schooling to complete and, inclusive of a small sum for extras, the parties agree that the sum of £121,900 should be put aside. 

33. Pursuant to the order of Mr. Justice Charles in 2007, the father is to provide the sum of £5,000 per annum towards insurance premiums and maintenance costs of the property.  The dispute between the parties is as to the duration for which that sum should be payable.  The father says five years, being the remaining one and a half years of schooling plus three years of tertiary education – rounded up.  The mother says seven years to allow for a maximum of five years of tertiary education in the event that U studies medicine as she wishes.  I take the view that the right duration is five and a half years being from 1st April 2018 until 30th September 2023.  That comprises one and half years of secondary education and either a four-year course of tertiary education or a gap year and a three-year course.  It would be wrong for me to assume both a gap year and a four rather than a three-year course of tertiary education when both must be the subject of some doubt.  It follows, therefore, that under this heading I allow £27,500. 

34. The next item is that of periodical payments and its duration.  On this the parties are very far apart.  The mother seeks the sum of £840,000 being £10,000 per month for the girls and their mother over a period of seven years.  The father argues for £7,000 per month for 18 months (i.e. until the cessation of secondary education) and thereafter £6,000 per child in respect of a gap year.  He deals with the girls' costs of living during tertiary education within the sum that he sets aside under that heading.  I say at once that I am not attracted to the notion of dealing with the costs of the girls' support when in tertiary education as an educational issue when they will continue to have their base with their mother at the family home.

35. The mother has produced a budget which approximates to £10,000 per month for herself and the girls.  This has been the subject of significant attack by the father who says that it is grossly inflated and is the subject of duplication.  It is right that I should look at the budget critically but also holistically rather than getting too bogged down in the precise sum appropriate for each individual item.  As I have already mentioned, I also review the budget against the background that this is a Children Act claim and not a claim for financial remedy orders. 

36. In my judgment the appropriate budget is one of £90,000 per annum or £7,500 per month.  I have reached this figure by making the following significant deductions from the mother's budget:

i) I have reduced the figure for interest on debts by £6,000 per annum as set out at paragraph 13(i) above.

ii) There is significant duplication of food, eating out and provision of housekeeping for the girls to buy food.  I reduce this figure by £3,000 per annum.

iii) There is duplication of house maintenance costs as the sum of £5,000 is included in the figure at paragraph 33 above.

iv) The girls' holidays are put in the budget at £18,500 per annum and I have reduced that by £5,000.

v) Tuition for U is in at £6,000 per annum. I deal with this under a separate heading.

vi) I have reduced the mother's discretionary expenditure by £2,500 per annum.

Thus, her budget of £117,000 reduces to one of £90,000.  Whilst the girls are still in secondary education it is a matter for the mother as to how she divides the money between herself and the children.  Thus for 18 months the maintenance provision will be £7,500 per month i.e. £135,000.

37. Having concluded that the correct duration for maintenance is five and a half years I now have to fix the appropriate provision for the last four years comprising tertiary education/ gap year.  It seems to me right that there should be a reduction for this period and Mr. Allen QC accepts that on behalf of the mother, albeit urging me to keep it at a modest level.  In broad terms I think he is right because the children's need for a home will not be removed whilst they are at university and, bearing in mind that they are now at residential college, the reduction in expenditure will not be enormous.  Doing the best I can and exercising my judicial discretion I conclude that the appropriate figure during tertiary education is the sum of £1,500 per month per child and the sum of £3,500 per month as the carer's allowance meaning a global figure of £6,500 per month.  Over a four-year period this totals £312,000.  The figures for this ongoing provision commencing in September 2019 will be index-linked.

38. The father has volunteered the sum of £12,000 being £6,000 for each child's gap year.  I do not make further provision for this sum as it is included in the maintenance figures that I have already expressed.

Tertiary Education Costs:
39. The mother seeks the sum of £245,000 and the father £230,000 but this apparently modest difference conceals a significant difference in approach.  The father's figures include periodical payments for the girls.  I prefer the mother's approach in principle although not the figures that she puts forward.

40. I accept the tuition fees figure at £9,250 per annum, per child and I allow it for the period of seven years on the basis that one child might take a three-year course and one may do a four-year course.  In the current political climate where student fees are so topical, it would be wrong for me to index-link it.  This figure totals £64,750.  To that I add accommodation costs at £12,000 per child per annum, bringing a total of £84,000 and a kitting out fund of £5,000 per child as a one-off cost.  This produces a total figure for tertiary education of £158,750.  If the extra costs are less, the difference will, in due course, be refunded to the father.

Individual Tuition:

41. Both parents agree the principle that the children are in need of individual tuition for the remainder of their secondary education but they are far apart on its quantum.  The mother says the correct figure is £67,680 as set out on a detailed schedule with which I have been provided, whilst the father says £6,000.  It seems to me that the best guidance that I can have is to be found at page G6 being the report of Dr. Walker who, in relation to E, suggests that she would benefit from 14 days additional lessons in the Christmas and Easter holidays; 28 days during the summer holidays and 2 days on each half-term break.  This totals 64 days.  At 4 hours a day and at £60 per hour, this totals £15,360.

42. It is clear that U is in as much need as her sister and is not achieving her academic potential as set out earlier in this judgment.  It seems to me appropriate that I should make identical provision for each girl but adding for U the sum of £2,160 as potential additional help for her BMAT examination.  This produces a total for the two girls of £32,880.

43. There has been a dispute between the two parties as to how much the mother has been arranging additional tuition for the girls over the past 18 months and how much is in their interests.  However, I am not prepared to become excessively involved in this issue.  I have the benefit of Dr. Walker's advice and I shall go by that.

Other Professional Costs:
44. The mother seeks the sum of £70,000 and the father offers £7,000.   There does not seem to be any mathematical explanation of the mother's figure which Mr. Allen admits is an estimate but seems to me to be plucked from the ether.  I do accept, however, that something needs to be allowed for the provision of medical and dental expenditure, a skills tutor and other help that E, in particular, may need.  Doing the best I can from the evidence and from the limited evidence with which I have been provided, I conclude that £5,000 per annum, between the two girls is an appropriate figure, recognising that in some years one child will be more expensive than the other.  For these various professional expenses I, therefore, allow a total figure of £27,500 for the five and a half years duration.  For the avoidance of doubt, it includes the costs of any further assessments by Dr. Walker.

45. The sum of £1,200 plus VAT for the mother's solicitor to administer the fund is sought and that is plainly appropriate.  At £1,440 per annum and a duration of five and a half years a fund of £7,920 is required.

Conclusion:
46. Taking all these matters together I, therefore, conclude that a fund is required as follows:

Capital Sums: (Para 14)

£43,612 + interest

Extra Housing costs (Para 26)

£50,000

School Fees and Extras: (Para 32)

£121,900

Insurance/Property M'ntce. (Para 33)

£27,500

Periodical payments: (Para 36/37)

£447,000

Tertiary education (Para 40)

£158,750

Extra Tuition Costs: (Para 42)

£32,880

Other Professional Costs (Para 44)

£27,500

Administration Costs (Para 45)

£7,920

Total:

£917,062 + interest



47. This sum is to be paid by the father to the mother.  He will receive credit against that sum for the amount presently held by the mother's solicitors.  Upon its payment, the provision for a guarantee or security fund will be reduced to the sum of £100,000. 

48. I hope that this provision will prove sufficient.  If it does not, then the mother has her own remedy.  If it proves over-generous in the sense that the children do not remain dependent for the length of time that I have anticipated, then the father will receive back any surplus.

49. I have considered carefully the mother's plea that there should be a further reserve fund to cover the event that the children's needs exceed my expectation.  She refers to the huge forensic history of this matter and the father's claimed lack of liquidity in this country.

50. I have concluded that this is a fair point.  I direct that the further sum of £100,000 is held by the mother's solicitors to cover anything that I have not adequately allowed for, such as a need for medical or other professional services or a child having to repeat a year or more of education.  It is not to be utilised without agreement or further court order.

51. I do not consider that the father has any grounds for complaint about this sum.  It is plainly critical that the mother should have the funds under her control albeit to be utilised only in the way that I have directed.  There is nothing in the father's conduct that can lead me to assume that he would make provision voluntarily if sought and his intention as expressed to the court to sue the mother for just under £1 million for what he describes as loss that she has caused him does nothing to instil confidence in his good intentions.  Fortunately, the sums that I have provided in this order are allocated for the benefit of the children.

52. I have not set out every submission ably made on behalf of each of the parties but they should rest assured that I have considered all their arguments and the figures for which they have contended.