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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> E -v- F (Family) [2014] JRC 184 (26 September 2014) URL: http://www.bailii.org/je/cases/UR/2014/2014_184.html Cite as: [2014] JRC 184 |
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Family - appeal against order made by the Registrar on 27th Sept, 2013.
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Before : |
Sir Michael Birt, Kt., Bailiff, and Jurats Morgan and Nicolle |
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Between |
E (the father) |
Appellant |
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And |
F (the mother) |
Respondent |
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IN THE MATTER OF ISABELLE (FAMILY)
AND IN THE MATTER OF SCHEDULE 1 OF THE CHILDREN (JERSEY) LAW 2002
Advocate H. J. Heath for the Appellant.
Advocate V. Myerson for the Respondent.
judgment
the bailiff:
1. This is an appeal by the appellant ("the father") against an order made by the Registrar on 27th September, 2013, whereby she ordered the father to make certain payments (including a lump sum of £250,000) to the respondent ("the mother") pursuant to paragraph 1, schedule 1 of the Children (Jersey) Law 2002 ("the Law") for the benefit of their child. The mother has cross-appealed.
2. Shortly after the hearing, the Court announced that it had dismissed both the appeal and the cross-appeal, subject only to a variation in the time for the payments ordered by the Registrar to take account of the passage of time since her decision. What follows constitutes our reasons for dismissing the appeal and cross-appeal.
3. Article 15 of the Law provides that the Court may make orders for financial relief with respect to any child in accordance with Schedule 1. Paragraph 1 of Schedule 1 is in the following terms:-
4. Paragraph 4 of Schedule 1 sets out the matters to which the Court is to have regard in making orders for financial relief:-
5. Finally, paragraph 5 of Schedule 1 provides as follows:-
6. In I v J [2013] JRC 156 the Court (Commissioner Clyde-Smith) quoted with approval the principles adopted by the English courts in relation to the equivalent provisions of the Children Act 1989 as summarised by Bodey J in re P (Child): Financial Provision) [2003] 2 FLR 865 at 877:-
7. The Court in I v J went on to say the following at paragraphs 61 - 62:-
8. We respectfully endorse the observations in I v J as to the principles which are applicable in considering orders under Schedule 1 of the Law.
9. Most of the essential facts are not in dispute but where they are we have taken them as from the findings of the Registrar.
10. The father is now 49 and the mother is now 41. They never married but they lived together from approximately 1998 until November 2008 when they separated. They have one child, Isabelle (not her real name), who is now 7.
11. Following the separation, the parties attempted to negotiate financial support for Isabelle without the involvement of lawyers. Between 2008 and September 2010, the father states that he paid child maintenance of £500 per month together with half of Isabelle's swimming fees, nursery fees and nanny's fees, although the mother says that maintenance was sporadic. From September 2010 to December 2011, the father's father ("the grandfather") paid the mother £950 per month by way of child maintenance. Unknown to her, the father was reimbursing this sum to the grandfather. In January 2012, the father reduced child maintenance to £769.78 per month to take into account one further night which Isabelle was then spending with him. In April 2012 he reduced payments to £678.49 per month plus half of school fees and this was reduced again from 1st April, 2013, to £500 per month. The mother pays half the school fees and the grandfather the other half.
12. On 19th October, 2012, the father was granted parental responsibility by agreement. The mother continued to try to resolve matters with the father and reach an agreement with respect to financial provision for Isabelle. Eventually the mother issued her application for Schedule 1 financial relief for Isabelle on 21st November, 2012. The father then brought an application for a shared residence order on 7th December, 2012. That in due course was resolved by way of a consent order dated 26th February, 2013, whereby detailed arrangements were made for contact between Isabelle and the father. In broad outline, during the school terms Isabelle stays with the father from after school on Tuesday until Wednesday morning when he takes her to school on one week and stays with the father for the weekend from after school on Friday until 5pm on Sunday the other week. In holidays, Isabelle stays with the father from 9am on Tuesday until 6pm on Wednesday one week and the following week she stays with the father from 11:30am on Friday until 5pm on Sunday. Subject to these contact arrangements and particular arrangements for special periods such as Christmas, Isabelle lives with the mother.
13. Since 2001 the mother has been employed by a local company. She works 40 hours a week and her average net salary is approximately £2,167 per month. The Registrar found that she was maximising her earning capacity.
14. The mother's monthly expenditure was £4,225 of which the Registrar considered £1,318 was specifically related to Isabelle. Her expenditure included mortgage payments of £850 per month. The mother therefore had a monthly deficit of some £2,058. The Registrar found that the mother's expenditure was not excessive.
15. In September 2001 the mother bought a property ("the Present Home") as a buy to let property and it is where she now lives with Isabelle. It is valued at £275,000 and the outstanding mortgage as at December 2012 was £113,287. After allowance for notional selling costs of 2% there was therefore an agreed equity of £156,213. The only other present capital asset of the mother is a car worth £3000. Although not mentioned by the Registrar in her judgment, the mother appears to have pensions with a CETV of £35,766 (taken from the mother's schedule of assets and liabilities).
16. At the time of the Registrar's judgment, the mother's total liabilities were £86,285. These comprised a personal bank loan of £10,985, a bank overdraft of £4,454 and family loans of £13,759. Apart from a credit card bill, the balance appears to have been legal fees.
17. The father worked as an air traffic controller from 1996 to September 2008 when he earned about £70,000 - £80,000 per annum. As a result he has a public employees contributory pension fund worth some £661,204. He left to work as a private pilot but just before his induction the company he was going to work for went bankrupt. He appears to have had only occasional work for a while thereafter but from mid-May 2010 he worked as a pilot for a local business on a permanent full time basis earning £50,000 per annum. However, by the time of the hearing before the Registrar, he was working with the company only on a part time freelance basis some10 days a month. After deduction of tax and social security, his monthly pay was £1,850.
18. In his affidavit of means dated January 2013, the father put his own income needs at £4,865 per month. However, in his affidavit of evidence in June 2013, he put his income needs for himself at £6,650 per month together with £217 for Isabelle making a total of £6,867 per month.
19. The father owns three properties. The first is Property 1 where he lives. This is a two bedroomed apartment with parking, double garage, balcony and sea view with access onto a cycle track and the beach. It is valued at £750,000. After deduction of the mortgage as at December 2012 and notional selling costs of 2% there is an equity of £483,332.
20. The second is Property 2 which was purchased in 1998 by the father from his sister. It has three double bedrooms, house bathroom, kitchen, lounge and utility area and garage. There is a garden and a separate one bedroom flat. It is valued at £525,000. After deduction of the mortgage of £128,363 as at December 2012 and notional selling costs, there is an equity of £386,137. Both the main house and the flat are let at a total rent (net of agents fees) of £2,110 per month. The father contended that, after deduction of the mortgage of £980 per month, maintenance, rates and expenses of £462, a 15% discount to cover vacant periods and income tax at £422, there was a net loss of £7 per month. As discussed later, the Registrar did not accept this and considered that there was a net income of £362 per month.
21. Thirdly, there is Property 3, a property purchased by the father in October 1999 with two double bedrooms, a single bedroom, two bathrooms, kitchen and lounge. It has a sea view and a garden area. It is valued at £470,000 and there is no mortgage on the property. After allowance for notional selling costs there is an equity of £460,600. The property is let out at a rental of £1,550 per month. After allowance for tax, maintenance, rates etc., the Registrar found there to be a net income of £1,055 per month.
22. The father also has a reversionary interest in a commercial property ("the Commercial Property") which is leased to a local business. The property is subject to a life interest on the part of the grandfather and the grandfathers' sisters, the youngest of whom is about 85. The Registrar felt unable to place a value on this reversionary interest although she was satisfied that there was a value.
23. The net equity in the first three properties mentioned above was £1,330,069. As to other assets, the father has an endowment policy maturing in September 2017 but with a surrender value as at September 2012 of £35,658. He has two cars and a motorbike valued in total at £18,000. His pensions have a CETV of £665,195.
24. At the time of the Registrar's decision, the father had unpaid legal fees of £37,665, a loan from the grandfather of £77,581 and unpaid tax for 2012 of £13,226. Of the loan from the grandfather, the origin of a substantial proportion of this was the fact that the father was fined £110,000 for an offence of failing to declare rental income in respect of his properties and had to borrow £85,000 from the grandfather in order to pay the fine. He has over the years made three repayments to the grandfather totalling £30,000, the last payment being in August 2011. He therefore owes the grandfather £55,000 in respect of this loan and a further £22,581 which he has borrowed from the grandfather for legal fees, child maintenance, school fees etc. There is no fixed time for repayment of the loan and no interest is payable.
25. The mother contended that the Present Home was too small and was unsuitable for Isabelle. She wished to buy in its place a three bedroomed house so that she could accommodate an au pair, which would enable her to dispense with the services of the nanny and thereby save substantially on her monthly expenditure. She sought a lump sum of £300,000 from the father towards this purchase, such sum to be repaid (increased proportionally to the increase in the value of the property) when Isabelle attained the age of 18 or ceased tertiary education. She also sought a lump sum of £10,000 towards the cost of furnishing and equipping the new property and that the father should bear the purchase costs in relation to the new property. She sought a lump sum of £60,000 (apparently increased to £86,285 in the course of the hearing) to reflect what she termed 'inadequate financial provision' which the father had made in respect of Isabelle. It appears this sum may also have been intended to cover legal costs although this was not very clear to us. The mother also sought child maintenance of £700 per month, with the father also paying Isabelle's school fees of £339 per month together with half of various extra-curricular activities, making a total of £1,081.62 per month.
26. The father did not agree that the mother and Isabelle should move from the Present Home. He offered a lump sum of £4,000 and child maintenance of £410 per month together with half the school fees and half of the various extra-curricular activities up to a maximum of £750 per annum. The offer of a lump sum of £4,000 was however withdrawn during the course of the hearing before the Registrar.
27. The Registrar gave a detailed reasoned judgment comprising 36 pages. In essence, she agreed that the Present Home was unsuitable for Isabelle and that it would be reasonable for the mother to purchase a three bedroomed property in its place so as to accommodate an au pair, thereby enabling her to dispense with the services of a nanny.
28. Having considered the parties competing contentions on this topic, she concluded that a suitable property could be purchased for the sum of £410,000. The mother would have a net equity from the Present Home of £156,213 and the Registrar therefore considered that a lump sum of £250,000 would be appropriate. She further ordered that the father pay £10,000 towards furnishing the new property, the purchase costs (which she estimated at £7,000 but which were said during the course of the appeal to amount to £6,250 by way of legal fees and stamp duty) and £11,000 in respect of liabilities and expenses already incurred in maintaining Isabelle. The Registrar therefore estimated the total at £278,000 (see para 77, although she also referred to £277,000 in para 82). She envisaged that this would be provided by the sale of Property 2, so that the father would be left with £108,137 from that sale after provision of the amounts ordered by way of lump sum.
29. She further ordered that the lump sum of £250,000 should be secured by judicial hypothec over the new property in favour of the father and would become repayable to the father (together with any increase in the value of the new property proportionate to his contribution) upon Isabelle attaining the age of 18 or completing tertiary education (whichever should be the later) or the mother selling the new property. The payment to the father would be the first priority upon a sale after payment of the selling costs.
30. The Registrar further ordered child maintenance at the rate of £590 per month together with payment of school fees and 50% of reasonable costs incurred in connection with school trips, extra-curricular activities etc. Finally, she ordered the father to pay the costs of the Schedule 1 application at 50% of the legal aid rate (including costs incurred prior to the actual issue of the Schedule 1 proceedings) and half of the costs at 50% of the legal aid rate in connection with the residence application which the father had brought. She also reaffirmed that the father had previously been ordered to make a specific payment of costs in respect of a failure to make proper disclosure during the course of the Schedule 1 proceedings.
31. During the course of her judgment the Registrar made a number of findings, many of which were adverse to the father. We think it appropriate to refer to the following:-
(i) As mentioned earlier, the grandfather appeared to be paying the child maintenance of £950 per month from September 2010 to December 2011. However, as recorded in paragraph 9 of the judgment, the father admitted that he was in fact reimbursing the grandfather and in cross-examination conceded that it was deliberate that he let the mother think the grandfather was paying rather than him because he did not want to set a precedent that he was happy to pay as much as £950 per month. The Registrar found that he misled the mother as to who was paying and was prepared to manipulate matters for what he sees as his own advantage.
(ii) Much time was taken up in the hearing before the Registrar on the father's allegation that the mother had been inflexible about changing contact arrangements and that it was because of her intransigence in this respect that he had had to move from permanent employment to freelance work. The Registrar considered the issue at paragraphs 10 - 13 of her judgment and referred in particular to the fact that the father was unable to provide any example of inflexibility when cross-examined whereas the mother had produced contemporaneous notes of a number of changes. The Registrar completely rejected the father's allegations and found at paragraph 13:-
(iii) The father considered that the mother was not maximising her earning capacity. However, he produced no evidence in support of that contention. Given that she was working 40 hours per week and is the primary carer for Isabelle so cannot work more hours, the Registrar had little difficulty in rejecting the father's contention and holding that the mother was maximising her earnings.
(iv) The father also maintained that the mother's total monthly outgoings of £4,225 were excessive. Indeed he went so far as to say that her spending habits 'do not reflect the behaviour of a person with a sound state of mind'. The Registrar analysed the expenditure of the mother and also noted (at para 35) that by the time of the hearing, the father was putting his monthly income needs at £6,650 per month together with £217 for Isabelle. The Registrar rejected the father's contention that the mother's spending was excessive or that it indicated someone who does not have 'a sound state of mind'.
(v) The father submitted that the Present Home met Isabelle's needs. The Registrar rejected this assertion. She noted (at para 16) that the second bedroom, where Isabelle sleeps is approximately 7 feet by 7 feet and so small that a full size single bed does not fit into it, so she presently sleeps on a cabin bed. There was limited storage space, no room for a desk for her, no room to play in her bedroom or elsewhere in the property and when friends came round to the house, they had to sit on the floor to eat as there was only a small table and a few chairs. There was no outdoor play area and no garden. The Registrar found that the Present Home did not meet Isabelle's needs given particularly that there was not even room for a full size bed or for her to do her homework in her bedroom.
(vi) The Registrar found that the mother's net monthly income was £2,167 whereas her total monthly outgoings were £4,225 of which £1,318 specifically related to Isabelle. She therefore had a deficit of £2,058 per month.
(vii) Considerable time was spent at the hearing before the Registrar examining the reasons for the fact that the father was now only working part time on a freelance basis whereas previously he had been working full time. The mother's case was that essentially this was a lifestyle decision on the part of the father, whereas he had given the impression to his employers that it was because of the mother's intransigence. The Registrar recorded that the father had accepted that he had said to his parents that, if the mother sought increased child maintenance, he would work part time and seek shared residence. That is exactly what he did shortly after the mother had submitted her Schedule 1 application. The Registrar recorded at paragraph 23:-
[The references to 2013 are clearly in error for 2012].
The Registrar went on to note that the father had conceded that he could earn £50,000 per annum working full time but that it was far better for him to be freelance. She went on (at paragraph 24):-
(viii) The father submitted evidence that, in relation to Property 2, he was making a loss of £7 per month after allowing for tax, mortgage payments, maintenance, rates and a 15% discount to allow for vacant periods of the tenancy. The Registrar did not agree to the 15% deduction given that the tenant of the flat had been there since December 2008 and the tenant of the main house had been there since April 2012 and the tenancy was until March 2014. More significantly, she pointed out that the father had assessed the tax payable by taking 20% of the gross rental whereas, of course, tax is only calculated after deduction of expenses such as interest on the mortgage, repairs, maintenance etc. These adjustments turned a loss of £7 per month into a net profit of £362 per month, a difference of £4,428 per annum. The father made the same submissions in relation to Property 3 and again the Registrar did not accept his calculations. She found that the net income from the letting of Property 3 was £1,417 per month rather than the figure of £823 put forward by the father.
(ix) In relation to the father's expenditure, she noted (see para 36 of her judgment) that he had double counted a number of items. Furthermore, he had allowed for holidays of £200 per month whereas the mother (whose expenditure he had criticised so strongly) had made no provision for holidays in her figures. He had also put in for replacement of household items at £200 per month whereas the mother had only allowed £10 per month. In short therefore the Registrar did not accept in full the father's figures for his income needs.
(x) The mother estimated that an appropriately sized house would cost about £450,000. She provided a list of properties at about this sum together with one of £415,000. Conversely, the father provided details of properties ranging from £279,000 - £309,000. The Registrar noted that the property in which the father resided was worth £750,000 and she concluded at para 77 that the mother should look for a home in the region of about £410,000 for Isabelle and herself.
32. The parties were agreed that the test on appeal was that laid down in Downes v Marshall [2010] JLR 265 where Bailhache, Commissioner had said this at paragraph 12:-
33. Although the observations of Bailhache, Commissioner refer specifically to decisions by the Registrar under the Matrimonial Causes (Jersey) Law 1949, the Court held in B v A [2010] JLR 262 at para 16 that the test for appeals from decisions made under the Law was the same.
34. Evidence from the parties was given over the course of some two days and the Registrar had a good opportunity of observing them under cross-examination. In our judgement, there was ample evidence upon which she could properly come to conclusions described at paragraph 31 above.
35. The father's Notice of Appeal seeks to overturn the Registrar's decision in relation to the lump sums and the orders in respect of costs. He contends that there should be no lump sum order and that the mother should pay the costs of the Schedule 1 proceedings. The Notice of Appeal does not seek to change the Registrar's order in relation to the periodical payments and this is repeated at paragraphs 257 - 258 in the appellant's contentions on appeal. However, the father's open position on appeal suggests that periodical payments of £410 (rather than £590) would be appropriate and this was repeated in the subsequent contentions and submissions. We do not consider that it is open to the father to appeal against the order for periodical payments without seeking leave to amend the Notice of Appeal but we have considered the point below in any event.
36. The mother, on the other hand contends, by cross-appeal, that the Registrar made an insufficient award. She submits that the lump sum towards the purchase of a new property should be increased from £250,000 to £300,000 (but otherwise on the same terms as ordered by the Registrar), the child maintenance should be increased to £700 per month and the lump sum in respect of past expenditure in relation to Isabelle should be increased from £11,000 to £37,000. Furthermore, the costs order against the father should be on a more generous basis.
37. Both parties have filed very detailed written contentions. However, at the outset of the hearing, Advocate Heath helpfully agreed that we should consider the appeal under the 13 grounds which Advocate Myerson had extracted from the appellant's original contentions and which she (Advocate Heath) had addressed in the father's contentions in reply. We shall therefore consider each of these, although some of them overlap and we shall in those cases consider them together.
38. In the hearing before the Registrar, Advocate Heath placed considerable reliance upon a detailed comparison of the facts of I v J with the present case and submitted that, as no lump sum was ordered in I v J, a similar result should follow in this case. She submitted that the decision of the Registrar was at variance with the Court's approach in I v J and that, if her decision were upheld, there would be two inconsistent judgments of the Royal Court.
39. We cannot accept that submission. At paragraph 48 of her judgment, the Registrar quoted fully from the relevant paragraphs of Commissioner Clyde-Smith's judgment and in particular quoted the relevant extract from the judgment in Re P, which was adopted in I v J. She then went on at paragraphs 49 - 57 to consider the facts of I v J in some detail and point out the distinguishing features compared with the present case.
40. Advocate Heath has repeated her submissions before us; in particular she has gone into very considerable detail about the respective financial positions of the parties in I v J and this case and has sought to suggest that they are so similar that a similar decision must be reached in the present case as was reached in I v J.
41. We have to say that this is a very perilous path for any court to take. The correct course is to remind oneself of the principles and then apply those to the facts of the particular case. It is not appropriate to undertake a detailed comparison of the facts of one case (which may well be incomplete in any event because not all the relevant facts will be recited in the judgment) and then suggest that this dictates the correct result in another case. We do not propose to enter into a detailed comparison of the facts of the two cases. Suffice it to say that in our judgment, there are a number of distinguishing features which lead to a different conclusion in this case from that in I v J:-
(i) The father's assets in that case consisted of a single property (in which he and one of the children lived) which was also the source of his income by way of the business carried on there. The Court was not willing to make an order which would in effect require the sale of the property so as to put the business in jeopardy nor did it think it right to force him to borrow funds on the strength of its security given his liquidity position. That is quite different from the present case where the lump sum can be raised by the sale of one of the father's three properties.
(ii) The mother in that case resided with one of the children and the Court found that the accommodation, albeit rented, was entirely satisfactory for herself and the child. Conversely, in this case the Registrar has found that the Present Home is unsuitable for the mother and Isabelle.
(iii) There was a real possibility that, within a year or so, the child living with the mother in I v J might follow the example of her older sister and opt to live with the father. The Court did not think it right to incur all the costs of purchase etc in circumstances where the accommodation might only be needed for a short time. Lump sum payments for the purchase of accommodation were more suitable, the Court said, where that accommodation was going to be required for a lengthy period of time i.e. for younger children. There is no suggestion in the present case that Isabelle may move to live with the father and she is in any event much younger than the child in I v J, so that the new accommodation is likely to be required for a lengthy period.
(iv) In I v J, the mother would have had to borrow about £100,000 herself to purchase an appropriate property even with the benefit of a lump sum order. Although she said that she had a mortgage capacity, no evidence to that effect had been produced to the Court which felt that taking on such a liability would not, having regard to her level of earnings, increase her financial security. Conversely, in the present case, the mother produced written evidence of her mortgage capacity. In any event, the Registrar's order envisages that the mother will not have to take out a mortgage when purchasing the new property because the lump sum and her equity in the Present Home will be just about sufficient; if a mortgage does turn out to be necessary, it will be very small. There will therefore be an increase in her financial security in the present case as compared to a reduction in I v J.
42. These are clearly highly significant differences and accordingly we see nothing inconsistent in the Registrar's decision when read with I v J. As already indicated, this Court expressly endorses the principles summarised in I v J and our dismissal of the appeal is not in any way inconsistent with I v J because of the material differences in the facts of the two cases. We therefore reject this ground of appeal.
43. In certain respects these two grounds go to the heart of the father's submissions. In his written contentions, he submitted that the effect of the Registrar's order would be that he would have to sell Property 3 as well as Property 2. We were given various figures by Advocate Heath during the course of the hearing designed to show the effect upon the father and these were in turn subject to further amendment as the hearing continued. For example, the sums expressed to be payable by the father under the order initially included the selling costs of Property 2 and the Present Home. However, the selling costs were of course taken into account in assessing the net equity figures attributable to these two properties, which were the figures taken by the Registrar in her judgment. The figures also initially included a provision for the selling costs of the new property and buying a lesser substitute property when Isabelle attains the age of eighteen. Those costs are too far off to be taken into account at this stage and in any event it was not clear that they would be payable by the father.
44. In our judgement, the position is as follows. In relation to the capital position, the father will receive the net sum of £386,137 on the sale of Property 2. From this he will have to pay £250,000 towards the purchase of the new property, £10,000 for furniture, £11,000 towards past liabilities, and the legal fees and stamp duty on the purchase of the new property. The Registrar took these as £7,000, although the figures provided to us suggested that the figure would actually be £6,250. We take the figure used by the Registrar for convenience and this means that the total amount payable by the father under the Registrar's order comes to £278,000. This will leave £108,137 from the sale of Property 2. The Registrar estimated that the costs payable by the father under her order would come to approximately £60,000. We were initially given figures of £65,927 for the Schedule 1 fees, £3,103 for the residence proceeding costs, and £4,484 for the other financial issues. However it then appeared that the first figure included the other two figures and we proceed on that basis. Thus deducting £65,927 from the sum of £108,137 leaves the father with £42,208 from the sale of Property 2 after paying in full all amounts ordered by the Registrar.
45. As at the date of the Registrar's judgment, the father had liabilities consisting of outstanding legal fees of £37,665, £13,226 outstanding income tax, and £77,581 in respect of the loan from the grandfather. We were informed by Advocate Heath that since the hearing the father had in fact paid off the outstanding income tax and had reduced the outstanding legal fees by approximately £18,500. There was some confusion in what we were told as to whether these repayments had been funded by a further loan from the grandfather or had been paid for by the father making interest only payments on the various mortgages. Either way, it means that the balance of the outstanding legal fees could be cleared from the sale proceeds of Property 2 leaving the father only with the debt to the grandfather.
46. The loan from the grandfather has been outstanding for a considerable period and there is no reason to think that the grandfather will suddenly call in the loan. In the circumstances we do not accept the submission that the result of the Registrar's order is that Property 3 will have to be sold as well as Property 2. On the contrary, all the payments ordered can be funded by the sale of Property 2.
47. Advocate Heath further submitted that the effect of the Registrar's order would be grossly unfair in terms of income for the father. It is perhaps worth pointing out that, on the father's figures, he was losing £7 per month from Property 2, so that any sale of that property would benefit him. Nevertheless, we agree with the Registrar's findings and therefore proceed on the basis that the sale of Property 2 will result in a loss of £362 per month (although the father will thereby be able to settle most of his liabilities). On the basis of the Registrar's figures, his net income will be a salary of £1,850 plus the net income from Property 3 of £1,055, making £2,905 per month.
48. From this will fall to be deducted the child maintenance ordered by the Registrar of £590 together with half the extra-curricular activities at school of £43. He will still have to pay the mortgage on his home which is £1,346. That leaves £926. If one then adds in the school fees (as per the Registrar's order) at £339, this leaves only £587 for all other expenditure of the father. That was to be compared, said Advocate Heath, with the situation of the mother. She has a net salary of £2,167 per month, to which must be added the child maintenance of £590 making £2,757. She no longer has a mortgage and therefore the only regular deduction is half the extra-curricular activities of £43 leaving £2,714.
49. In our judgement there are three responses to this. Firstly and most importantly, the calculations are based upon the father's current net monthly income of £1,850. However, the Registrar found that he had deliberately reduced his income and that he was capable of earning up to £50,000 per annum gross. If he were to work full time and fulfil his earning capacity, his financial position would be very different. Secondly, the grandfather has been paying half of Isabelle's school fees. The Registrar was entitled to have regard to the realities of the situation and the expectation that the grandfather would continue to fund the school fees of his granddaughter to the extent that the father was unable or unwilling to do so. It is likely therefore that the father will not in practice have to pay the school fees. Thirdly, it has to be recalled that the Registrar found that the mother's monthly expenditure of £4,225 was not excessive. Even if one deducts £850 for the mortgage which she will no longer have to pay, she is left with expenditure of £3,375 per month for her and Isabelle. This is greater than the figure of £2,757 referred to earlier so she will still be hard pressed to make ends meet, which is why the replacement of a nanny by an au pair is considered by her to be so significant.
50. Although he was not formally appealing against the order for periodical payments of £590 per month, we have considered the father's submission that it should have been £410. Advocate Heath argues that child maintenance should be fixed by reference to the CSA Guidelines having regard to his current level of income. In our judgement, the Registrar deals with the position accurately at paragraphs 65 - 68 of her judgment and we would summarise the position as follows:-
(i) Although the CSA Guidelines are often a useful starting point, the Court is directed by paragraph 4 of Schedule 1 to have regard to the factors listed there. The Court should not adopt a mathematical or formulaic approach but should have regard to all the relevant circumstances - see FG v MBW (Financial Remedy for Child) [2011] Fam Law 1334 per Charles J.
(ii) The Court may in a suitable case order that periodical payments be paid from capital - see FG v MBW (supra); SW v RC [2008] EWHC 73 (Fam) per Singer J.
(iii) Paragraph 4 of Schedule 4 directs the Court to have regard to earning capacity as well as income and the Court can therefore have regard to earning capacity when determining the level of periodical payments for a child.
In our judgment, on the basis of the material before her, the Registrar was entitled to conclude that £590 was an appropriate monthly sum for periodical payments.
51. It is worth standing back to look at the overall position in order to assess whether the Registrar's order is a fair provision, always bearing in mind that the provisions of Schedule 1 are for the benefit of the child, not for the benefit of one or other of the parents. The present situation is that Isabelle is living in accommodation which is completely unsuitable for her as she grows up. The mother's expenditure exceeds her income largely because of the cost of the mortgage on her property and the necessity for the fees of a nanny in order to enable her to work full time. Conversely, the father owns three properties with an equity of £1,330,069, together with an endowment policy with an immediate surrender value of £35,658, and pensions with a CETV of £665,195. He also has a reversionary interest in a substantial property which is likely to be realised in the reasonably near future given the age of the life tenants. The two properties which are let bring in a net income (after all expenses including mortgages) of £17,004 per annum. The father has chosen to work part time so that his net earnings are £22,000 per annum, but he could earn £50,000 gross per annum if he chose to work full time.
52. Is it in these circumstances unreasonable to expect the father to sell one of his properties to enable Isabelle to live in suitable accommodation, thereby also helping the mother to balance her income and expenditure, which will be to the benefit of Isabelle? We think not. On the contrary, we think it would be highly unreasonable to allow the present situation to continue. We remind ourselves of the observation in Re P (approved in I vJ) that a child is entitled to be brought up in circumstances that bear some relationship to the father's current resources and present standard of living.
53. Furthermore, the Court is not depriving the father of the sum of £250,000. At present that sum is invested in immovable property in Jersey in the form of Property 2; in future it will be invested in immovable property in Jersey in the form of his interest in the new property by means of the hypothec and the fact that the sum to be repaid will increase in proportion to the increase in the value of the new property.
54. As mentioned earlier, it seems to us that grounds 2 and 9 lie at the heart of the father's criticism of the Registrar's decision. Having rejected the father's submissions on this aspect, we shall endeavour to deal with the remaining grounds more briefly where possible.
55. We think that these two grounds are closely related and propose to consider them under one heading. As to Ground 4, the father submitted that there was no need for the mother and Isabelle to move from the Present Home; it was perfectly suitable. This ground was not pressed at the hearing before us and we have no hesitation in rejecting it. The Registrar explained with clarity at paragraph 16 of her judgment why she considered that the Present Home was not suitable for Isabelle and we have endeavoured to summarise that finding at paragraph 31(v). In our judgment the Registrar was amply justified in coming to this conclusion. Given the number of properties owned by the father and the quality of that in which he lives, it is wholly unreasonable to expect that Isabelle should continue to be brought up such a tiny bedroom with no room for a desk or a full size single bed.
56. As to Ground 3, the father suggested more than one alternative. Firstly, he pointed out that the mother had an equity of £156,213 in the Present Home, and a mortgage capacity of £138,000. She could therefore purchase a property for £294,213. The list of properties which he produced included two bedroomed properties where the second bedroom was larger in order to meet Isabelle's needs.
57. Given the father's financial position, we do not think this was a reasonable suggestion. The mother would still have to pay the mortgage and would still have to employ a nanny because any such alternative accommodation would only have two bedrooms. It would not ease the financial position of the mother and Isabelle at all and would incur substantial moving costs in terms of legal fees, estate agent fees, stamp duty etc. for no real advantage.
58. His other suggestion, which only emerged during the hearing before the Registrar, was that Isabelle and the mother should let the Present Home and move in to the main property at Property 2. It is true that the Registrar did not specifically deal with this argument in her judgment but we can understand why she did not take it seriously. The relationship between the mother and the father is acrimonious. We think it would be wholly inadvisable and not in Isabelle's interests for the mother and Isabelle to live in accommodation owned by the father with all the possibility for tension which that would give rise to.
59. The father submits that the Registrar did not explain adequately why she had rejected properties in the range put forward by the father and had instead determined that a property in the region of £410,000 would be appropriate.
60. The key passages in the Registrar's judgment are as follows:-
61. The Registrar went on to give her decision as to the amount of the lump sum in paragraph 77, the relevant parts of which read as follows:-
62. In our judgment there was ample evidence upon which the Registrar could properly come to the conclusion which she did, namely that £410,000 was an appropriate sum. It is implicit in her reasoning that the mother's request for a 3 bedroomed property was reasonable, both on the grounds of a comparison with the accommodation occupied by the father and on the basis of an au pair being employed rather than a nanny, thereby saving expenditure. All of the properties suggested by the father except one were 2 bedroomed flats or cottages. It is true that he included one 3 bedroomed flat for £299,000 at Les Quennevais but the Registrar was entitled to take the view, as she clearly did, that this entailed too great a differential between the accommodation which would be occupied by Isabelle and that which would be occupied by the father.
63. While she might have spelt out more clearly why she was determining that 3 bedroomed accommodation was appropriate, her conclusion that it was cannot be faulted.
64. The Registrar said the following in relation to this topic at paragraph 17 of her judgment:-
At paragraph 77 of her judgment, the Registrar said:-
65. Advocate Heath submitted that the mother's evidence was insufficient to justify the Registrar's finding that £10,000 was required. The mother's evidence consisted merely of a list of items. She did not produce any brochures, print outs from furniture shop websites, invoices or quotes to verify the costs of the furniture that she was seeking.
66. In our judgment the Registrar was entitled to come to the conclusion which she did. Given the comparatively modest amount involved, it was not necessary to increase the cost of the proceedings to the parties by insisting on the sort of detailed information suggested by Advocate Heath. Costs must be kept in proportion to what is at stake. There is clear authority that awards under Schedule 1 may include not only the purchase of suitable accommodation for the child and the parent with whom the child resides, but also a capital allowance for setting up the home (see Re P at para 76 (vi)).
67. Advocate Heath referred to the observations of Commissioner Clyde-Smith in I v J at paragraphs 81 - 83 where he pointed out that paragraph of 3 of Schedule 1 stated that an order for periodical payments in favour of a child could begin with the date of the making of the application for the order in question and went on to hold that the Court therefore had no power to backdate an order of periodical payments beyond the date of the mother's application. She submitted that the Registrar had acted inconsistently with that decision by her award of £11,000 and had no power to award a lump sum to cover liabilities and expenses incurred before the date of the Schedule 1 application, i.e. 21st November, 2012.
68. We respectfully agree with the observations of Commissioner Clyde-Smith which were directed entirely towards the issue of periodical payments. But the Court in I v J was not considering the provisions of paragraph 5 of Schedule 1 (quoted at para 5 above) which specifically empower the Court to order payment of a lump sum to meet liabilities and expenses incurred in maintaining the child in the past. There is no restriction on how far back the Court can go in considering this and indeed one of the expenses specifically referred to in paragraph 5 is those in connection with the birth of the child.
69. The Registrar was alive to this distinction and specifically stated that her award of £11,000 was a retrospective lump sum in respect of liabilities and expenses already incurred in maintaining Isabelle. There was ample evidence upon which she could come to the conclusion that this sum was properly payable and we therefore reject this ground of appeal.
70. The father submits that the Registrar showed an unjustified preference towards the position of the mother. He pointed to the Registrar's rejection of the father's reasons for only working part time (namely that working full time was not compatible with fixed contact arrangements), to her finding that the father had a greater earning capacity than his current earnings, to her rejection of the father's contention that there should be a 15% deduction from the rents in order to allow for periods when the property in question was not let, and to the fact that the Registrar appeared to treat the monies loaned from the grandfather as gifts despite the fact they were being repaid, albeit very slowly.
71. As to the last point, we do not think that this is a fair categorisation of the Registrar's finding. At paragraph 37 she referred to the loan and pointed out that the last repayment had been in August 2011, but went on to say:-
We do not regard that as a finding that the monies were in fact a gift. She merely found that the grandfather was not pressing for repayment and, by implication, was unlikely to do so in the short term.
72. We regard this ground as unarguable. It really amounts to no more than that, because the Registrar found against him on certain aspects, she was biased against him. That is a wholly inadequate and improper basis on which to allege bias. In our judgment there were ample grounds to justify the Registrar's finding in respect to each of these matters and therefore there are no grounds for suggesting a preference towards the position of the mother.
73. Advocate Heath submitted that the Registrar failed to distinguish between the needs of Isabelle and the wants of the mother, thus over inflating the quantum of the lump sum awarded. She pointed to the fact that much time was spent producing evidence about historical child care arrangements, the relationship with the father, whether or not Isabelle was planned, how the father reacted to the pregnancy, who was responsible for childcare in the early months of Isabelle's life, and generally matters regarding the conduct of the father. She submitted that this may have led the Registrar into paying too much regard to the mother's needs as opposed to Isabelle's needs. The mother had not demonstrated a specific need for a lump sum and the Registrar had failed adequately to distinguish between Isabelle's needs and the mother's needs.
74. While it is of course important to ensure that orders under Schedule 1 are made for the benefit of the child and are not a disguised payment for the benefit of the mother, the authorities have recognised that 'benefit' is a wide expression and that the Court can properly take account of the needs of the parent with whom the child resides. Thus, to repeat (iii) from the observations of Bodey J in Re P referred to already:-
75. The position is further elaborated in the case of N v D [2008] 1 FLR 1629 at paras 23 and 27 as follows:-
76. We do not accept that the Registrar failed to distinguish between the needs of Isabelle and the needs of the mother. She had reminded herself of the principles in I v J which make this very clear, and in our judgment the provision of suitable accommodation for Isabelle and the mother by way of a lump sum contribution by the father and payment of the purchase costs, a contribution to the cost of furnishing the property, and a contribution towards past maintenance of Isabelle in circumstances where the mother was in deficit all fall comfortably within the sort of orders which can properly be made under Schedule 1 and, on the facts of this case, can properly be regarded as having been made for Isabelle's benefit.
77. The father's skeleton argument focusses on two aspects to support this ground. The first is in relation to his employment and his reason for going part time. That has already been dealt with in relation to other grounds.
78. The second is an assertion that the mother's affidavit, which stated that she earns £24,000 per annum net, was not consistent with her bank statements because, as the Registrar pointed out at paragraph 14 of her judgment, an analysis of the payments into her bank account shows her salary averaging about £2167 per month, which is the sum the Registrar took for the purposes of her judgment.
79. We have to say that we do not consider that the mother's affidavit was inconsistent with the Registrar's findings. What paragraph 55 of the mother's affidavit said was:-
80. This seems to us entirely fair and accurate. She made it clear that there was occasional extra pay from time to time and that this would show on her wage slips. The analysis of bank statements showed that this was indeed the case and that the average was £2,167 rather than the approximate sum of £2,000 that she had put in her affidavit. We have to say we see nothing in ground 11.
81. The Registrar states in her judgment (paragraph 70) that the mother's advocates were charging her at 50% of the legal aid rate. She ordered that the father should pay the costs of the Schedule 1 proceedings limited to that level of fees. She did so on three grounds (paragraph 79 of the judgment) namely that the mother had been largely successful and was effectively the winner, that the mother would suffer hardship if she had to meet her own costs from any lump sum ordered, and there had been litigation misconduct on the part of the father.
82. Dealing with the first point, Advocate Heath submitted that the Registrar was wrong to award costs on the basis of a winner. She referred to the practice in cases concerning children of not usually making an award of costs. She referred me to R v R [1997] 2 FLR 95 where Hale J gave a useful explanation as follows at 96-97:-
83. Advocate Heath submitted that this approach should be equally applicable to applications under Schedule 1 of the Law. Advocate Myerson submits that that does not appear to be the case in relation to the equivalent legislation in England. Thus in 'Applications under Schedule 1 to the Children Act 1989' by members of 1 Garden Court, Family Law Chambers, it is stated at paragraph 6.7:-
84. We were not referred to any authority in support of the above extract and, in KS v ND [2013] EWHC 464 (Fam) Mostyn J at para 19 expressed some uncertainty about the position. In those circumstances we are reluctant to lay down any general approach. We would wish to reserve the position for a future case where we could be fully informed of the practice as to costs applied by the English courts in relation to the English equivalent of Schedule 1. Nevertheless, even assuming (without deciding) that the approach is that described in R v R above, we are satisfied that the first and third grounds relied upon by the Registrar were sufficient to justify her award of costs against the father in this case.
85. The mother had clearly won. In advance of the hearing, the father had only offered a lump sum of £4,000 and he had withdrawn even this modest proposal during the course of the hearing. The Registrar had ordered a lump sum totalling £278,000. The father had also offered less by way of periodical payments than the Registrar awarded. He could easily have protected himself by making a Calderbank offer but he chose not to do so. When added to the third ground, it was perfectly reasonable for the Registrar to make the award for costs which she did.
86. As to the second ground, Advocate Heath argued that the rules of the Law Society in relation to legal aid meant that the mother would not have suffered hardship if no award of costs had been made. She referred to the Legal Aid Guidelines paragraph 2.12.4.1 of which provided that where potential financial hardship could be avoided by payment by instalments, this should occur and that ordinarily no client should be asked to pay instalments over a period longer than three years. She further pointed to paragraph 2.12.4.2 which reads:-
She submitted therefore that, even if there had been no order as to costs, the most that the mother would have had to pay would be 36 monthly instalments at the rate she was paying. Although this had apparently at one stage been £200 per month, it was only now £50 per month. There would not therefore be any hardship even if no order as to costs were made.
87. We do not think we are in a position to rule on this point without further assistance on the effect of the Legal Aid Guidelines, probably from counsel on behalf of the Batonnier. However it makes no difference in this case. In our judgment, as already stated, the Registrar's decision was justified simply on the basis of her first and third reasons and therefore it does not assist the father even if the second reason is not substantiated.
88. As to the third ground, the Registrar gave five instances of litigation conduct by or on behalf of the father which she said had increased costs. The first was the father's assertion that the mother's inflexibility had led to the father not being able to work full time. A considerable amount of time was spent on this aspect but, according to the Registrar, the point was abandoned late in the day by the father's advocate. Secondly it was said that the father's advocate had insisted on a large number of cases being added to the bundle of authorities. These had to be read by the mother's advocate and by the Registrar but on the first day the father's advocate announced that she was only relying on the leading cases. The others were therefore unnecessary. Thirdly, the Registrar said that halfway through closing submissions a further bundle of over 100 pages was produced on behalf of the father and time was then spent in argument as to whether to adjourn and why the bundle was filed so late. The Registrar agreed that this had led to unnecessary costs which should not be borne by the mother. Fourthly, the father had provided incorrect figures as to his income from lettings and time was wasted at the hearing in dealing with this aspect. The error was only conceded during the final submissions of the mother's advocate. Fifthly, the father had conceded that he had responded tactically to the mother's Schedule 1 application by failing to instruct lawyers on the application even though he was at the time instructing lawyers on the shared residence application.
89. Advocate Heath submitted that these were all explicable and did not amount to litigation conduct which should be taken into account. We disagree. In our view, the Registrar could properly come to the conclusion that this was litigation conduct which should be taken into account when deciding what award of costs to make.
90. In summary, we see no grounds upon which to interfere with the decision of the Registrar on the costs of the Schedule 1 application. We should add that an award of costs is 'par excellence' a discretionary decision. The judge trying the case has by far the best feel and any appellant wishing to argue that a costs order made below was wrong faces a high hurdle. The father has come nowhere near surmounting that high hurdle in this case.
91. The Registrar awarded the mother one half of her costs (at the same 50% legal aid rate as in the Schedule 1 proceedings, being the rate charged by her advocates) in relation to the application for shared residence made by the father on 19th December, 2012, which resulted in an agreed order for contact on 26th February, 2013. She did so on the ground that she considered the application by the father had been made for entirely tactical reasons. He had said to his parents that if the mother sought increased child maintenance he would seek shared residence. The mother's Schedule 1 application was served on him on 29th November, 2012, and he made his application for shared residence very shortly afterwards. The Registrar at paragraph 80 recorded that the mother had said in evidence that the father had told her in correspondence that if she put in an application for finances he would reduce his working hours and seek to secure more contact and this was not challenged by the father. The Registrar accepted that costs were not normally made in children cases but she concluded that the father should pay half of the mother's costs because of these features.
92. The amount involved appears to be comparatively small. According to paragraph 73 of the Registrar's judgment, the sum which the mother was seeking in respect of the costs of the shared residence application amounted to £3,103. On the face of it, the amount actually awarded by the Registrar was half of that sum but it is possible that we have misunderstood the position and that the mother was saying that half of her costs amounted to £3,103. Either way, in the context of this case, the amount is modest.
93. Advocate Heath submits that the Registrar was estopped from making an order for costs. No order for costs was made at the time of the making of the order on 26th February, 2013, and there have been no further proceedings in connection with the shared residence application. She submits that, as nothing was said about the costs at the time, the Registrar was now estopped from making an order. She relied on the case of Thoday v Thoday [1964] P181. Like the Registrar, we struggled to see the relevance of this case which was concerned with whether a wife could resurrect in subsequent divorce proceedings an allegation which had been considered in earlier divorce proceedings. In the present case, the order of 26th February, 2013, is simply silent as to costs and we therefore do not see that the issue of estoppel can arise.
94. Nevertheless, one must consider what jurisdiction there was to make an order in relation to the costs of the residence proceedings. It seems to us that there are two possibilities. It would be open to either party to bring the residence proceedings back before the Registrar and ask her to make an order for costs in connection with those proceedings. Whilst it would normally be preferable for this to be dealt with at the time, we do not see that there is any jurisdictional bar to bringing it back later, there having been no formal termination of those proceedings.
95. The alternative would be to order a lump sum in respect of costs incurred by the mother in other proceedings under paragraph 5 of Schedule 1. There is a clear authority that there is jurisdiction to do this; see CF v KM (Financial Provision for Child; Costs of Legal Proceedings) [2011] 1 FLR 208.
96. The Registrar did not make clear under which jurisdiction she was purporting to make this award of costs. In our judgment she should have done so. If she was purporting to do it in the residence proceedings themselves, she should have made this clear and the Act should have referred to those proceedings rather than the Schedule 1 proceedings. It may be therefore that the order was in fact made in the Schedule 1 proceedings. For the reasons given, applying CF v KM, we are satisfied that there was jurisdiction for her to do so. Whichever jurisdiction she was purporting to exercise, we are satisfied that there were good reasons to do so. She had concluded that the bringing of the residence proceedings was merely done to 'punish' the mother for bringing Schedule 1 proceedings and that alone gave grounds for concluding that this was a case where the father's conduct had been unreasonable such as to allow for an order for costs even in connection with proceedings concerning children (see the observations from R v R recited at para 82 above).
97. It follows that we reject all the grounds of appeal and hold that the Registrar had ample grounds upon which properly to reach the decision which she did.
98. Advocate Myerson contended that the award of the Registrar was insufficiently generous in a number of respects. She argued that the lump sum for the property should be increased to £300,000, the child maintenance should be increased to £700 per month, the lump sum in respect of past expenditure should be increased from £11,000 to £37,000 and the costs order against the father should be costs at the legal aid rate rather than at 50% of the legal aid rate.
99. As to the lump sum of £250,000, she argued that the Registrar should have accepted the mother's evidence that she needed a property which would cost £450,000. We do not agree. The Registrar had to hold a balance between the reasonable requirements for Isabelle's accommodation on the one hand and the ability of the father to pay on the other. The father had shown that there was at least one 3 bedroomed property (with a balcony and communal gardens) which could be purchased for £299,000. Therefore we do not think the Registrar can be criticised for concluding that reasonable 3 bedroomed accommodation could be purchased for £410,000.
100. She next submitted that the Registrar should have ordered a larger lump sum toward past liabilities so as to enable the mother to clear her obligations. She pointed out that the mother had debts of £16,739 (comprising a bank loan of £10,985, overdraft of £4,454 and a credit card debt of £1,300) quite apart from the loans of £13,759 from her family and, of course, her legal costs.
101. It is true that the Registrar did not explain how she had reached the figure of £11,000, but this was a payment under paragraph 5 of Schedule 1. It allows a lump sum to be ordered to meet liabilities or expenses reasonably incurred 'in maintaining the child'. It seems to us that the Registrar was entitled to conclude that not all of the debts were related to the costs of maintaining Isabelle. This is not a matrimonial case where the Court is considering making payments for the benefit of the mother. Applying the test on appeal referred to earlier, we do not consider that the payment of £11,000 is such that we can properly intervene. It is well within the margins of a fair order.
102. Advocate Myerson next submits that the Registrar should have ordered a greater sum by way of periodical payments. The sum ordered will not, she submits, enable the mother to balance her expenditure with her income. However it does not seem to us that we can properly overturn the Registrar's decision. Advocate Myerson's own calculations at paragraph 258 of her skeleton show that, if one assumes an income on the father's part of £50,000 per annum, an application of the CSA Guidelines would result in a monthly payment of £588 per month. The father is in fact earning much less at present and the Registrar had to take into account his overall financial position. We do not think that an order of £590 per month is appealable and indeed we do not really see how an order of £700 per month can properly be justified.
103. Turning to the costs order in relation to the Schedule 1 proceedings, Advocate Myerson accepted that for most of the hearing before the Registrar, she was only asking for costs at the rate that she had agreed to charge the mother, namely 50% of the legal aid rate. Nevertheless, she pointed out that, as the hearing progressed and litigation misconduct on the part of the father was identified, she revised her position. This was done in her closing submissions where she said she had spoken to her partners and that:-
"..... in the event that a costs order is made against [the father], those costs will be calculated on a standard basis....... The basis is taxation on a standard basis which is equivalent to 100% of the legal aid rate. I can confirm that our fees expended are on a 100% LA basis including GST re £131,857.74 as well as disbursements of £500".
104. The Registrar was clearly aware of this figure because she referred to it at paragraph 70 of her judgment. It seems to us that, given that the case had been conducted on the basis that the mother's advocates were only charging her at 50% of the legal aid rate, it was open to the Registrar to decide that that was the appropriate amount to order against the father by way of costs. It is true that she did not specifically mention that Advocate Myerson had said in her closing submissions that she was asking for costs at the full legal aid rate and it would have been preferable for her to have done so. Nevertheless, costs are very much in the discretion of the trial judge and, given the basis upon which the case had been argued until the closing submissions, the rate at which the mother's advocates were charging her and the overall financial position of the parties, we consider that the Registrar's order fell well within her discretion.
105. Finally, Advocate Myerson submitted that, given the tactical nature of the residence application, the father should have been ordered to pay 100% of those costs rather than only half. We can understand that submission but, given the general principle that in cases concerning residence, contact etc., the Court leans against making a costs order, we do not think that a compromise order of half the costs to reflect the tactical nature of the father's application can be said to be outside the bounds of reasonable discretion. The fact is that the proceedings did have a purpose, in that a clear order for contact was made in the course of those proceedings, thereby hopefully bringing to an end some of the difficulties over variations in contact which had occurred previously.
106. We should add that, although it was not raised in argument, we have, before dismissing the appeal, considered whether Article 11(2)(a)(iii) of the Trusts (Jersey) Law 1984 ("the Trust Law") - which states that a trust shall in invalid to the extent that it purports to apply directly to immovable property situated in Jersey - causes any difficulty in relation to the order made by the Registrar. We are quite satisfied that it does not. The new property will be owned absolutely by the mother. The position of the father is that he will be a creditor of the mother with the amount due becoming payable on certain events specified in the order, being secured by judicial hypothec and being repayable in a sum which reflects any increase in the value of the property. Such an order does not confer any interest in the property on the father and does not amount to a trust. We therefore do not need to consider the relationship between Article 11(2)(a)(iii) of the Trust Law and paragraph 1(1)(b) of Schedule 1, which provides that the Court may order that a settlement be made of property to which either parent is entitled. On its face this latter provision appears to suggest that the Court could make order for the creation of a trust of immovable property and may therefore be in conflict with the Trust Law. Fortunately we can leave that issue for decision in a case where the point arises.
107. For the reasons we have given, we dismiss the father's appeal and mother's cross appeal.
