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A v M [2005] EWHC 1721 (Fam)

Father’s appeal against order to pay periodical payments under Schedule 1 of the Children Act 1989 is allowed in part. Relevance of expenses for contact and obligations to other children.

A v M [2005] EWHC 1721 (Fam)

Family Division: Sumner J (29 July 2005)

Father's appeal against order to pay periodical payments under Schedule 1 of the Children Act 1989 is allowed in part. Relevance of expenses for contact and obligations to other children.

The Mother of W, at the time aged 2, sought a capital sum to house herself and her son and periodical payments under Schedule 1 of the Children Act 1989. The Father, a French national, was living in France with his wife and 3 children of 10, 7 and 3. District Judge Bowman awarded a capital sum of £175,000 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 the Father and his wife. The Father appealed.

The appellant Father attacked the order on several grounds; that he was not hiding his assets; the costs of access to the child had not been taken into account at c£400 per round trip; the Mother's budget was exaggerated and she was seeking disguised maintenance for herself. The Father argued his offer of £100,000 for housing was sufficient as the Mother could release £50,000 from her own property and £300 per month maintenance was appropriate given she was earning more than him. The Father submitted there was a community of property regime with his wife in relation to all property acquired during their marriage, yet he failed to produce more than an extract from this agreement. However he did on appeal produce a contract showing an income of £2,000 gross per month from consultancy fees

The issues in dispute were the true extent of the Father's assets and the housing and living needs of the Mother and W. The Father had been guilty of substantial non-disclosure in relation to his properties, bank accounts, tax returns and the whereabouts of €1.8m received from the sale of his interest in an Internet bank. However it was clear that he owned with his wife, a number of properties in London and France creating at the absolute minimum total family assets of £1.12m.

The Mother's case was that the Father and his wife had minimised assets and hidden the true picture. He had given no disclosure about the full extent of his assets and or his true employment position and therefore the judge was entitled to draw inferences which were less fortunate than might have been if the Father had been more frank. The Mother doubted the disclosed income given his high qualifications and intelligence.

Held, allowing the appeal in part, to the extent that the District Judge's award in relation to periodical payments was too high. The District Judge's conclusions as to the Father's income were plainly wrong. It was not clear whether she had decided to consider the cost of contact between the Father and W, which was plainly a significant factor and a proper expense to which regard must be had. Furthermore there had to be an acknowledgment of the Father's obligations to his other 3 children.

Sumner J had difficulty finding sufficient basis for the District Judge's finding that the Father should be regarded as in receipt of a good income. The CSA regime provided a check against the level of child maintenance orders and a Father paying £115 per week would be appropriate if he was earning £50,000pa. There was no evidence to suggest that the Father's income was near this level. Whilst there were unexplained sums moving in and out of his accounts these were probably capital sums rather than income. Sumner J considered the Father's income may be more than £2,500 as he had accepted but it would not permit payment of £500 per month whilst allowing for his obligations to his other 3 children in France and the cost of travel to see W. Accordingly, the monthly payments would be reduced to £375pcm and increased to £450pcm if the Father did not exercise regular contact.

However, the award of £175,000 did not exceed the generous ambit within which a reasonable disagreement is possible nor was it plainly wrong; it represented less than 16% of the absolute minimum capital owned by the Father and his wife.

Appeal allowed in part.

Cases referred to in the judgment:
G v G (Minors: Custody Appeal) [1985] FLR 894
Baker v Baker [1995] 2 FLR 829

Digest prepared by Lynsey Cade-Davies

Read the full text of the judgment here