Family Law Hub

M v F [2018] EWFC 35

An interim order for child maintenance was made as well as an order for costs in favour of the mother in circumstances where the father, despite his vast wealth, had defied various orders and was resisting making payments towards the children's upkeep.

  • Neutral Citation Number: [2018] EWFC 35

    No. ZC17P04085 / ZC17P01336

    IN THE FAMILY COURT

    (Sitting at Swansea)

    Caravella House

    Quay West

    Quay Parade

    Swansea

    SA1 1SP

    Wednesday, 23 May 2018

    Before:

    MR JUSTICE MOSTYN

    (In Private)

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    B E T W E E N :

    M (Applicant)

    - and -

    F (Respondent)

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    MR C. HALE QC (instructed by Kingsley Napley LLP) appeared on behalf of the Applicant.

    THE RESPONDENT was not present and was not represented.

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    J U D G M E N T

    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.

    MR JUSTICE MOSTYN:

    1 This matter was before me on 8 May 2018 when I dealt with the mother's appeal against the decision of District Judge Gibson as to her jurisdiction under the Child Support Act 1991. That appeal was dismissed.

    2 I went on to consider the mother's application for historic costs funding, which I awarded, and I made an interim order for child maintenance in circumstances where I was satisfied that the infant was plainly habitually resident in France and R was likely also to be. So, by virtue of s.44 of the Child Support Act 1991, I had jurisdiction to make the order. However, given that the business before me was principally concerned with the appeal, I considered it to be unjust that the question of substantive future interim maintenance and substantive future costs funding should be, so to speak, sprung on the respondent on that occasion, and I therefore fixed this hearing on 23 May 2018 on circuit in Swansea to determine those matters.

    3 My order (which is in fact incorrectly headed to be in the High Court of Justice when it should have been headed in the Family Court, the matter having been an appeal from a district judge as opposed to a circuit judge) recorded that the respondent must attend this hearing in person, he having to failed attend the hearing on 8 May 2018 in breach of the rules.

    4 As I have stated, my order provided for an interim award of child maintenance until today in the sum of £5,000 and also in respect of historic costs in the sum of £80,000. The respondent has not complied with those orders and he has not attended today. So he is doubly in contempt of court. Moreover, he has instructed his solicitors to write a final letter to the mother's solicitors which states that:

    "The father cannot afford to remain within these proceedings and therefore will be withdrawing from the proceedings."

    5 That letter goes on to make an offer in peremptory, take-it-or-leave-it terms which is described by his solicitors as "our last action in this cause". His solicitors have since then, in the absence of a signed notice of acting in person from the father, applied to come off the record. However, this morning, at 9.36 a.m., his solicitors forwarded a signed notice of acting in person from the father and so they are automatically discharged from the proceedings without the need for a court order. The notice of acting in person is dated yesterday, 22 May 2018, and gives the father's address for service, which is where his children from his previous relationship live. The letter from his solicitors indicates that the father intends to relocate to America.

    6 It is obvious that the father has now decided to adopt a policy of non-engagement and has decided that he will defy the authority of this court. It is a wearily familiar syndrome normally practised by men who believe that their view of the justice of a situation should prevail over that of a court of law, and who engage in self-help with an arrogant and contemptuous disregard for the rule of law and the authority of the court. Time and again this syndrome is demonstrated, and time and again (although delays and expense are often incurred) the court's order is, by virtue of reciprocal enforcement in other jurisdictions, almost invariably enforced. However, it is very concerning that the respondent father has regarded himself to be above the law to the extent that he does, in circumstances where we are talking about support for two extremely young children, one of whom is an infant.

    7 The father's policy, on any view, is not a recent development, and has not been recently formed by him. There are in the bundle emails from him which he had previously disavowed as being the product of being emotionally overwrought, but which now must be seen as, in fact, a statement of serious intent. He wrote, for example, back in the autumn of 2017:

    "If you take this matter to court, I will put up a severe and protracted fight and you will get the absolute minimum. Think it over. It will take a few years to play out. I will be unrelenting and highly motivated because your behaviour is deeply immoral and there is nothing I dislike more."

    "I'll end up hating your guts and making sure you get the absolute minimum. It's your decision."

    "The more you involve your lawyer the less I'll ultimately give you."

    Then this, by reference to the mother of his children from his previous relationship:

    "she went down the path of the court and she now lives in poverty. She got absolutely nothing except an enormous legal bill, huge amounts of stress, and loss of custody of the children. You will end up in a similar place, regretting taking the path you did. You will say your life didn't turn out the way you expected it to. You have the opportunity to make the choice of which path you'll follow now."

    8 I would say that the arrogance of these statements is remarkable but, unfortunately, one has seen these so often and the court always deals with them in precisely the same way. The court is not intimidated or overawed by aggressive, hostile, intimidatory threats of this nature. The court is here to mete out justice and mete out justice it will, and ultimately, its orders will be enforced. Of that there can be no doubt.

    9 The final letter from his solicitors, which I have read, stated as I have already recited:

    "The father cannot afford to remain engaged within these proceedings."

    That is a flat lie. The father is an exceedingly rich man.

    10 On 25 July 2017, the father sent the mother an email which referred to the advice that he had received from his then solicitor. In the email that the father sent to the mother on 25 July, he said:

    "Just to be totally transparent with you, here is his original advice to me that followed belatedly from a meeting last year when we originally discussed matters."

    11 That attached advice is a letter dated 4 January 2017. In it his solicitor states:

    "You are a business man and have assets in the region of £100 million. Your family also have significant wealth which you may stand to inherit."

    12 Assets of £100 million were confirmed by the father in a witness statement which he made on 30 November 2017 in proceedings under the Family Law Act 1996. In paragraph 9, he said this:

    "To assist the court, I have personal assets of approximately £10-15 million the majority of which are not liquid, so would take time to realise. Overall, as a result of being a discretionary beneficiary of trust assets with my siblings, the total resources potentially available to me (including my personal wealth) are around £100 million."

    13 The father applied to the court to be relieved of the obligation to file a Form E but the court rightly decided that there was not here one law for the rich and one law for the poor and that he could fill in the form just like every other litigant, which he duly did on 8 December 2017. That form is designed to capture not only assets which are in the personal and direct ownership of the maker of the form but also assets which could be made available to him. Therefore, under section 4.5, it is required to include:

    "...trust interests including interest under a discretionary trust, stating your estimate, the value of the interest, and when it is likely to become realisable. Further, you are required to disclose any asset that is likely to be received in the foreseeable future."

    14 Yet, the Form E as prepared, and declared to be true, by the respondent father declared in relation to trust and other assets only £10.7 million and no other assets other than those. Liabilities were stated giving a total value of all his assets of £9.124 million. That Form E is impossible to reconcile with the statement in his witness statement, or the statement in his solicitors' letter, to which I have referred, and the conclusion that I reach is that it was deliberately untrue.

    15 So I am faced with a man who has defied my orders to make payments of interim awards and to attend this hearing. I am faced with a man who writes through his solicitors that he is disengaging and relocating to foreign parts. I am faced with a man who has made and filed a demonstrably false statement of disclosure in his Form E. The conclusion I reach is that he is a man of great wealth who can well afford to support his children properly pending a final hearing. I have agreed with counsel that an FDR in this case would be futile in view of the stance that the father is taking, and that the matter should be set down at the earliest opportunity for a final hearing before me.

    16 The question is what funding the mother should receive in the interim. She has made a witness statement, the contents of which confirm what I had already provisionally found, namely that both the children are habitually resident in France. The infant, L, has in fact lived her entire existence in France and has never set foot in this country. R himself, notwithstanding the terms of an agreement that was recorded in an order made in December, has been in France now for five months. He is at a French school. He is registered with a French doctor. He speaks entirely in French and has virtually forgotten English. He is unquestionably habitually resident in France. Therefore, quite apart from the residence of the father which now would appear to be outside the United Kingdom, manifestly the Child Support Agency does not have exclusive jurisdiction in relation to child support by virtue of the terms of s.44 of the Child Support Act 1991. I therefore have full power to make an interim award.

    17 In a careful witness statement, the mother has spelled out the budget for the children, and for herself in her capacity as carer for the children, in France where she will remain until the final hearing. That comes to €17,015 per month as broken down in the schedule in the bundle at section D, page 174. I am perfectly satisfied that the expenses as broken down there in the eight separate schedules are reasonable.

    18 Therefore, there will be an award for interim maintenance by way of child support in the sum of €17,015 per month which I backdate to 1 January 2018 being the day after L was born. That means that €85,075 of arrears have arisen. However, the respondent is entitled to credit for the sums that he has paid which have been calculated in that period at £9,633 or €11,077. Therefore, under my award, a sum of arrears arises of €73,998 which I direct shall be paid by 4.00 p.m. on 25 May, that is to say in two days' time. On 1 June, the first payment after today of €17,015 will fall due. The €17,015 is intended to cover those items of a periodic nature but not certain singular capital needs. The singular capital need is set out in two places in the schedule to the mother's witness statement. There are certain one-off fees, white goods, and a second-hand car totalling €42,467, and then there is in addition a schedule of costs for furnishing an apartment which will be needed because furnished rentals are not available in Lyons. This has been set at £48,871 according to the schedule. That is €56,201. So the aggregate of those two sums is just a few pounds short of €100,000. That sum I direct to be paid on 25 May 2018.

    19 I now turn to the legal fees funding. On the last occasion, I dealt with the sums that were required to be paid up to and including 8 May. From then, it has been calculated that to take this case to final trial, £110,630 will be needed in respect of legal fees. That has been broken down before me as follows: counsel's brief fee and attendance with three refreshers, £63,000; solicitor's attendance at trial, £12,675; costs of a forensic accountant, £6,000; costs of solicitors in preparing statements, £5,000; costs of a pre-trial conference, £3,500; costs of attendance on client, writing correspondence in the period, £16,715; costs of preparing a bundle, £2,520; costs of preparing a brief, £720; and costs of correspondence with the expert, £500. A total of £110,630. In my judgment, that is a reasonable estimate of costs from now until the conclusion of the trial. Indeed, I would say that they are, in fact, comparatively conservative compared to some costs budgets that I have seen.

    20 In addition to that, the mother seeks a payment of £24,104 in respect of the costs of and incidental to the hearing before me today, that is the costs incurred from 8 May until the conclusion of the proceedings today. I have seen the detailed Form H which breaks down those costs and I am satisfied that that is a reasonable sum. I will, in fact, award it as an inter partes costs order or, put it another way, I will award it as a legal fees funding order but full credit is going to be given for its repeat as an inter partes costs order.

    21 The final legal fees claim that is made is for a sum of £80,000 being for an enforcement fund in respect of apprehended non-compliance by the respondent with my orders for payments. That fear or apprehension is well grounded, in my judgment. The figure of £80,000 is necessarily a stab in the dark but Mr Hale QC has explained that it has been calculated by anticipating that advice and proceedings will need to be taken in (probably) three jurisdictions and at £20,000 per jurisdiction, plus £20,000 dealing at this end with those jurisdictions, a sum of £80,000 is arrived at. I agree that this is crude, in a sense arbitrary, but manifestly a sum needs to be provided to the mother to enable her to have the means to enforce the court's award. So that will be awarded in addition giving a total of £214,734 and that sum is to be paid by 4.00 p.m. on 25 May 2018.

    22 Therefore, in summary, by 4.00 p.m. on the day after tomorrow, 25 May 2018, the respondent father is to pay arrears of child support of €73,998 which I round up to €74,000. He is to pay €100,000 singular expenses in relation to the rental property that will be obtained by the mother and he is to pay the sum of £214,734 which I round up to £215,000 in respect of future legal fees.

    23 I have already indicated that I have determined that an FDR in this case is futile. I require that dates for a final trial before me are obtained as soon as practicable by the clerk to Mr Hale QC. I direct that a final witness statement is filed by the applicant by 4.00 p.m. on the day 28 days before the commencement of the final hearing, with the respondent filing a statement in response 14 days thereafter. The rest of the order has been discussed in court and has been approved by me. So that concludes this judgment.

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    OPUS 2 DIGITAL TRANSCRIPTION

Judgment, published: 03/07/2018

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Published: 03/07/2018

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