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X v Y [2019] EWHC 1713 (Fam)

This case concerns an application by a husband / father ‘X’ for permission to appeal orders made by HHJ Tolson QC at the conclusion of financial remedy proceedings and proceedings under the Children Act 1989. Theis J refused permission to appeal in respect of all of the grounds raised in the financial remedy proceedings. Permission to appeal was granted on “a narrow but important point” in respect of the form that arrangements for the child ‘C’ to spend time with her father ‘X’ should be set out in the order: in the body of the order or as a recital.


The parties to these proceedings: 'X' (H/F) and 'Y' (W/M) were married for 24 years. They have two children: 'B' and 'C'. 'B' suffers with a genetic condition which severely limits her interaction with the outside world. B has 24-hour care needs and the family home is adapted to meet these. B's life expectancy is limited and at the time of the final hearing her condition was deteriorating. In terms of income, Y is a teaching assistant and X is a solicitor who works for a firm on a consultancy basis. X's income and earning capacity was an issue in the proceedings below. In terms of capital, there were two properties: the family home with an agreed net value of c. £645,000 and an investment property with net equity between £268,000 (Y) and £241,000 (X). In addition, X had savings in the region of £44,000. Y had a pension.

The decision below
At a final hearing in February 2019, HHJ Tolson QC considered applications under the Matrimonial Cause Act 1973, under Children Act 1989 and the Family Law Act 1996 for injunctive relief (a non-molestation order). Both parties were represented at final hearing. B was represented by the Official Solicitor. Oral evidence was heard from both parties.

At the conclusion of the final hearing, X agreed to move out of the family home. A non-molestation order was made which was not appealed. In terms of the financial division, the judgment provided that Y should continue to receive nominal child maintenance, that X should receive a 30 per cent share of Y's pension, and the capital assets would be divided resulting in a two-thirds / one-third split in favour of Y. The order provided that Y could remain in the family home after it was no longer required for B. The investment property (subject to a mortgage) would be transferred to X and he would keep his savings. The judge found that a departure from equal division of the capital assets was justified on the basis that: (a) an inheritance received from Y's family that contributed to the purchase of the family home; (b) the conclusions about X's earning capacity; (c) C's need for a stable family home beyond B's death; and (d) the fact that X's needs would still be met under the terms of the order.

Child arrangements in respect of both B and C were agreed. In respect of C, the judge declined to make an order. In her oral evidence, Y asked for some discretion in respect of C's contact and a period of transition in case C did not wish to go. The judge agreed with this considering that a 'firmly-worded' order would likely become a further battleground between the parties with X insisting that the order be adhered to precisely. The agreement in respect of arrangements would be recorded as a recital to the order. The arrangements going forward would be left to the parties' discretion. In particular the judge had in might for Y to have the discretion to change arrangements "in the light of any opposition from [C] either to a particular occasion of contact or to elements in the regime as a whole."

The appeal

At a hearing on 30 May 2019, Y's income was corrected in the judgment from £10,000 pa to £16,700 pa. The judge also confirmed that in respect of the CGT liability on the investment property that he was approving Y's open offer and the liability for any CGT should rest with X. PTA was refused.

X appealed the decisions of HHJ Tolson QC on the following grounds:

(1) the judge had made an improper assessment of his income and failed to consider disclosure in respect of his income;

(2) the judge had failed to give sufficient weight to the sharing principle and the actual needs of Y and C once B reaches the end of her life. As a result, the capital division was wrong;

(3) there was a procedural irregularity in ordering that X pay the CGT liability on the investment property on transfer of that property from Y to X;

(4) (5) & (6) the judge's conduct throughout the hearing gives rise to a case of bias towards Y. Examples of this bias included the judge's decision to order X to pay nominal maintenance for C to Y if C takes a gap year, which was wrong. It was said that there were other errors highlighting procedural irregularities which made the judgment unsafe; and

(7) The judge was wrong not to order the child arrangements between C and X as agreed between the parties.

Financial remedy orders: PTA refused

The main finding that X sought to attack by his appeal was the judge's broad-brush calculations of his income. This went to grounds 1 and 2. Theis J was referred to NG v SG (Appeal: Non-Disclosure) [2011] EWHC 3270 (Fam) which emphasises the need for any inferences to be properly drawn and reasonable. It was submitted that the calculation undertaken by the judge are not securely founded on evidence and as a result the finding in respect of the father's income was improperly drawn and unreasonable. Theis J considered that the judge's finding as to X's earning capacity was based on figures and information that came from X in his oral evidence and the documents produced by him to the court. As a result, the judge was fully entitled to reach his conclusions on the evidence he had available to him as to X's earning capacity.

It was submitted that in ordering that the family home be transferred outright to Y and not sold after B's death the judge did not properly apply the principles of need and sharing. It was further submitted that there was an over-reliance on the Y's contribution to the family home (Robson v Robson [2010] EWCA Civ 1171). The family home had been enjoyed as a joint-asset for 17 years and there was no evidence that the parties intended for their contributions to be ring-fenced. It was submitted that Y and C would not need a 4/5-bedroom house after B's death. There was no evidence before the court that moving after B's death would adversely impact C's mental health. Undue weight was placed on the upset this would cause to Y and C and the judge was overly influenced by the adverse view that he had formed of X.

Y submitted that the judge's decision on this issue was "unassailable". The decision took into account C's emotional needs not to have to move school at the time of B's death having already experienced emotional harm following the parties' separation. In terms of sharing, the decision also took into account both Y's contribution to the purchase of the family home and a capitalised sum of spousal maintenance based on the finding in respect of X's income. Theis J found that the judge was entitled to reach the findings that he did in relation to both need and sharing and that in the context of his assessment as to X's earning capacity his findings were justified on the evidence.

In respect of X being responsible for the CGT liability, Theis J found that in ordering X to pay this the judge was being consistent with his decision to give effect to Y's open offer which specifically provided for this. This decision did not support X's contention of bias.

Overall, Theis J did not find the ground of apparent bias made out. She was not satisfied that the judge's questioning of X was evidence of apparent bias. Theis J acknowledged that credibility had been an important factor in this case and the judges questioning went to the parties, particularly X, having an opportunity to give full and frank disclosure and put their case. The judge's questions went to X's vague responses to cross-examination by Y's counsel in respect of his income. During his exchanges with the father the judge sought to explain his concerns about the quality of the father's evidence and the impact that could have. After the conclusion of the evidence and during submissions the judge, in somewhat direct terms, set out his concerns about the father's evidence but making it clear his mind remained open, for example by saying to Dr Proudman 'So over to you, although I appreciate this is a bit of a short ball'. None of this was evidence that the judge had approached the case with a closed mind.

Child arrangements (ground 7): PTA granted

On appeal, X did not challenge the structure of the time that C was to spend with him. X's appeal was mounted on the basis that he was not provided with an opportunity to make submissions about the form of the order and whether it should appear as a recital to the order or within the body of the order itself.

At the permission to appeal hearing, C had not spent any time with X for four months. Theis J noted that were this situation to continue then X would be forced to make a fresh application in order to restore his relationship with C. There is no obvious way for X to enforce a recital to an order in respect of the arrangements for C to spend time with him. The appeal on this ground was found to have some prospects of success and PTA was granted.

Per Curiam

Theis J is critical in her judgment of the fact that despite three directions orders by Cohen J in respect of skeleton arguments and the appeal bundle, she was presented with a bundle of over 1,000 pages and four skeleton arguments at the PTA hearing. This, Theis J states, meant that she had to reserve her judgment and slowed the progress of the appeal. This was particularly unfortunate in her view as only around 100 pages of the bundle were referred to at the hearing.

Summary by Rachel Cooper, barrister, Coram Chambers.

You can read the full judgment of X v Y [2019] EWHC 1713 (Fam) on BAILII