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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> G v J (Matrimonial) [2022] JRC 218 (18 October 2022) URL: http://www.bailii.org/je/cases/UR/2022/2022_218.html Cite as: [2022] JRC 218 |
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Before : |
J. A. Clyde-Smith OBE., Commissioner, sitting alone |
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Between |
G (the Mother) |
Petitioner |
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And |
J (the Father) |
Respondent |
The Petitioner appeared personally
Advocate C. R. G. Davies for the Respondent.
judgment
the commissioner:
1. The Petitioner seeks leave to appeal against the decision of Elizabeth Daultrey, Registrar, Family Division, of 17th March 2022 which determined the Petitioner's claim for ancillary relief.
2. The parties married in August 1993 and separated in November 2015. The Petitioner issued divorce proceedings on 18th July 2016 and filed her application for ancillary relief on 4th October 2016. They have four children, the elder three being over the age of 18 when the Petitioner filed her application for ancillary relief. The main reason for the ancillary relief application not being pursued for so long was that until November 2020, the parties were engaged in hard fought and acrimonious proceedings regarding the youngest child, ("Child 4"), who despite a final shared residence order made by consent, now lives with the Petitioner with little contact, if any, with the Respondent.
3. The parties had separated the bulk of their finances prior to separation and of the three distributive principles of need, compensation and sharing, the Registrar was concerned with the principle of sharing, as the parties' assets were sufficient to meet their needs, whatever order was made (paragraph 75 of the Registrar's judgment) [unpublished].
4. In the ancillary relief proceedings, the Petitioner made what Advocate Davies, for the Respondent, described as two unusual applications, one being for financial provision for the eldest child of the marriage, ("Child 1"), now 26, who had recently been diagnosed [redacted], and who lives with the Petitioner. The Petitioner says he is completely financially dependent upon her.
5. The other application was for what the Petitioner described as her "unmatched contribution" of expenditure of some £217,000, on all of the children following separation, for which she sought a greater share of the matrimonial assets.
6. The Registrar found that she had no jurisdiction to make an order against the Respondent for financial provision for Child 1, who was well over 18 when the application for ancillary relief was filed and declined to give the Petitioner a larger share of the matrimonial assets in recognition of the unmatched contribution. The Petitioner challenges both decisions.
7. The Petitioner requires leave to appeal, which is opposed, because she failed to comply with Rule 62(8) of the Matrimonial Causes Rules, 2005 ("the Rules"). The Registrar's judgment was circulated on 20th April 2022. Carey Olsen, who were acting for the Petitioner on a limited basis, filed on her behalf Form 18 (Notice of Appeal) and Form 19 (Grounds of Appeal) with the Court, accompanied by a letter which stated that the Petitioner would make an appointment for a date fix once the transcripts had been produced. The forms were served on the Respondent on 3rd May 2022, marginally after the expiry of the ten days required by Rule 62(5). The letter from Carey Olsen would not appear to have been copied to either the Respondent or to Advocate Davies. Rule 62(8) and (9) provide as follows:
"(8) Within 14 days after filing Forms 18 and 19, the appellant must, having given due notice to every other party, attend before the Bailiff's Secretary to fix a date for the hearing of the appeal.
(9) If the appellant does not fix a date for the hearing in accordance with paragraph (8), the appeal shall be deemed to have been abandoned."
8. The Petitioner did not apply to fix a date until 13th June 2022 and when she did so, Advocate Davies responded, correctly, that pursuant to Rule 62(9) the appeal was deemed to have been abandoned.
9. It seems clear on the face of it that the Petitioner, who had relied on Carey Olsen for the procedural aspects of the appeal, had made a straightforward procedural error. She says she had not intended to abandon her appeal and the Court might ordinarily give favourable consideration to exercising its powers under Royal Court Rule 1/5 to expand the time for a date fix. The position of the Respondent in opposing such an extension appears at first blush to be somewhat unreasonable. However, there are a number of factors that need to be taken into account:
(i) The very extensive history of litigation between the parties going back to 2016.
(ii) On 8th June 2022, Carey Olsen sent a letter before action to the Respondent on behalf of Child 1 seeking direct financial support for Child 1 under Paragraph 2 of Schedule 1 of the Children (Jersey) Law 2002 ("the Children Law"). I note that subsequently, on 9th August 2022, Child 1 has now applied for leave to bring such proceedings.
(iii) On 10th June 2022, the Petitioner issued a summons seeking a review of the maintenance ordered by the Registrar as recently as 17th March 2022 for the Respondent to pay for Child 4.
10. In the light of the threat of proceedings by Child 1 for what appeared to be the same financial relief sought by the Petitioner on Child 1's behalf, the Respondent had assumed that the appeal had been abandoned. Furthermore, with a combination of the appeal, the threat of proceedings by Child 1, which the Respondent felt the Petitioner was coordinating, and the summons for the review of the maintenance for Child 4, the Respondent was concerned that the Petitioner was acting vexatiously with intent to cause him harm and distress and undermine his relationship with the children.
11. In the case of Walker v Downes [2009] JRC 238, it was held that the Court had the power to reinstate an appeal that had been abandoned under Rule 62(9). The Court will require to be satisfied that there is a good ground for reinstatement and in this respect, referred to the Court of Appeal decision in Leeds United Association Football Club Limited v Admatch [2009] JCA 097, where Sumption J A said at paragraph 9:
12. The factors that have to be applied when considering leave to bring an appeal out of time are well established, namely:
(i) The extent of the delay.
(ii) The reason for the delay.
(iii) The prospects of success, and
(iv) The risk of prejudice to the respondent
(see Pitman v Jersey Evening Post [2013] JCA 149 and Syvret v Treasurer of the States [2014] JCA 185).
13. In this case, the extent of the delay is not substantial and the reasons for the delay have been explained by the Petitioner, as set out above. I am concerned, therefore, in considering the application for leave to appeal with the prospects of success and the risk of prejudice to the Respondent.
14. The test on appeal from a decision of the Family Registrar is set out in the case of Downes v Marshall [2010] JLR 265:
15. In the Notice of Appeal, the Petitioner states that she intends to appeal against the decision of the Registrar refusing to order that:
16. The grounds of appeal are as follows:
17. It is important to note at the outset that the Petitioner's contentions relate to the jurisdiction of the Court under the Matrimonial Causes (Jersey) Law 1949 ("the Matrimonial Causes Law"). She accepted that the Court had no jurisdiction to order the Respondent to make financial provision for Child 1, an adult child, under Paragraph 1 of Schedule 1 of the Children Law.
18. The Registrar took the question of the Court's jurisdiction under the Matrimonial Causes Law to make orders regarding an adult child as a preliminary issue on the first day of the ancillary relief hearing. The question of the Court's jurisdiction had been addressed extensively in the skeleton argument filed by Advocate Glynn, who represented the Petitioner at the ancillary relief hearing, and in the skeleton argument filed by Advocate Davies on behalf of the Respondent.
19. I am informed by Advocate Davies (supported by the transcripts) that the Court was unable to start hearing evidence that morning because of confusion as to the order of the Petitioner's witnesses, and the Registrar wished to make use of the Court's time by dealing with this discreet issue of the Court's jurisdiction. She had the benefit of the skeleton arguments and the parties' evidence in chief, and Advocate Glynn agreed that it was appropriate for the Court to proceed in that way, but requested some additional time which was granted.
20. It seems to me to be eminently sensible for the Registrar to deal with this discreet point of law at the start of the hearing. It was well within her powers of case management to do so and in accordance with the overriding objective. Neither party was taken by surprise.
21. The Registrar held that the Court did not have the power to make the orders the Petitioner sought under the Matrimonial Causes Law against the Respondent regarding Child 1, stating that her application in that regard was misconceived for the reasons set out in the skeleton argument of Advocate Davies which the Registrar quoted and endorsed as being correct in law. I summarise those reasons as follows:
(i) Article 25(1) of the Matrimonial Causes Law 1949 relates to provision for children:
(ii) Under Article 25(2) of the Matrimonial Causes Law, the Court has the ability to order a sum to be secured and to approve a deed or instrument for that purpose. By virtue of Article 25(3) of the Matrimonial Causes Law a sum cannot be secured beyond the date when a young person attains the age of 21. This provision does not therefore assist the Petitioner in relation to Child 1.
(iii) Under Article 28(1) of the Matrimonial Causes Law the Court may:
(iv) The phrase 'child of the family' or in the plural "children of the family" as used in both Article 25 and Article 28 of the Matrimonial Causes Law is defined in Article 1 as having the same meaning as in the Children Law.
(v) Article 1(1) of the Children Law has the following definition:
(vi) "Child" is defined as follows:
(vii) Paragraph 13 of Schedule 1 of the Children Law contains only two exceptions to that rule, namely that a 'child' includes any person in relation to whom an application is made under Paragraphs 2 or 6 of Schedule 1. These two paragraphs relate respectively to orders for persons over 16 who bring an application themselves, which Child 1 has done (Paragraph 2) and to applications to vary an existing order (Paragraph 6). There is no current order that can be varied.
(viii) Accordingly, neither Article 25 nor Article 28 of the Matrimonial Causes Law give the court jurisdiction (a) to order the Respondent to make financial provision for Child 1 or (b) to order the Respondent to transfer property to Child 1, who was over the age of 18 when the ancillary relief proceedings began.
(ix) When it comes to adult children, the jurisdiction of the Jersey Court under the Matrimonial Causes Law is different to the jurisdiction of the English Court under the Matrimonial Causes Act 1973 ("the Matrimonial Causes Act"). Jersey lacks Section 29 of the Matrimonial Causes Act which states that the English court may not make an award in favour of a child (of the family) once they have reached the age of 18, unless they remain in education or 'special circumstances' apply. The Matrimonial Causes Act has its own definition of 'child' and 'child of the family' in Section 52. The definition does not contain an age limit. Jersey has taken a different approach.
(x) Whilst an order for periodical payments made in Jersey under Paragraph 1 of Schedule 1 of the Children Law can certainly extend beyond the age of 18 (Paragraph 3), an order cannot be made in favour of a parent where a child was already over 18 as at the date of the application. In this respect, the position is the same as would be in England in respect of applications made under the Children Act 1989.
22. Advocate Davies referred the Registrar to the case of UD v DN [2021] EWCA Civ 1947, in which it was held that the jurisdiction of the English Court under the equivalent provisions of the Children Act 1989 is based on the relevant child being under the age of 18 at the date of the application (paragraph 63 and 68). As the Registrar pointed out at paragraph 20 of her judgment, this decision does not assist, in that Child 1 was over 18 when the application was made and in any event we are dealing with the jurisdiction of the Court under the Matrimonial Causes Law
23. The Registrar was right to reject what she described as the surprising if creative argument put forward by Advocate Glynn that the Court should redefine what is meant by "child" in Article 1 of the Children Law, on the basis that 'child' is defined more widely under Paragraph 2 of Schedule 1. As the Registrar pointed out the wording of Paragraph 2(1)(b) makes it clear that the definition of a child is one to whom special circumstances apply and relates only to applications made under that paragraph.
24. The Registrar said at paragraph 22 of her judgment that it was a leap too far for the Court to conclude that the Children Law did not mean what it says in simple wording, and I agree. The position can be reduced to the following:
(i) Articles 25 and 28 of the Matrimonial Causes Law refer to "child of the family". Article 1 defines "child of the family" as having the same meaning as in the Children Law.
(ii) Article 1(1) of the Children Law defines "child of the family" as a "child" of both parents or treated as such and the word "child" is separately defined as a person who has not yet attained the age of majority, subject to certain exceptions that do not apply here.
(iii) The power of the Court to make financial or other provision for a "child of the family" under Articles 25 and 28 of the Matrimonial Causes Law is therefore restricted to a child who has not yet attained the age of majority, i.e. 18, subject again to certain exceptions that do not apply here.
(iv) Child 1 was over the age of 18 when the Petitioner's application for ancillary relief was made and therefore the Court has no jurisdiction under Articles 25 and 28 of the Matrimonial Causes Law to order the Respondent to make financial or other provision for him.
25. The Petitioner accepts that the Court has no jurisdiction to make an order in favour of Child 1 under Paragraph 1(1) of Schedule 1 of the Children Law which is in the following terms:
The use of the word "child" is defined in Article 1 of the Children Law which restricts it to a child under 18. However, Child 1 can bring an application against the Respondent under Paragraph 2 of Schedule 1 which is in these terms:
26. The Petitioner maintains that Articles 25 and 28 of the Matrimonial Causes Law are not so restricted. It is wrong, she says, to import into the definition of "child of the family" in the Children Law, the definition of "child" in the same law. She puts it this way in her skeleton argument at paragraphs 29 and 30:
"29 It appears that she was led into this error of statutory interpretation because she was persuaded to import into the phrase "child of the family" the (separate and distinct) definition of "child" from the Children Law. In (wrongly) importing into the phrase "child of the family" the restrictive definition of "child" being a person who has not reached the age of majority the registrar wrongly narrowed the category "child of the family" so as to exclude all children over the age of majority at the date of the petitioner's application which is not what the relevant legislation says.'
30. There is no age-related restriction in the definition of "child of the family" whether in Jersey or in England. The definitions of 'child' and 'child of the family' are autonomous and not cumulative - i.e. an adult child of the family is still a child of the family and not excluded from that categorisation by virtue of their majority".
27. It is not possible, in my view, to isolate the definition of the phrase "child of the family" from a word within the phrase which is itself defined. Where it says "child of the family" means a "child" of both parents, the latter word 'child' has to be interpreted in accordance with the definition of that word in the same law, namely a person who has not yet attained the age of majority. If the phrase was to be given such an isolated definition as contended by the Petitioner, then that definition could have been contained in the Matrimonial Causes Law; there would have been no point in referring to a definition in the Children Law. By referring to the definition in the Children Law there is now consistency between the Children Law and the Matrimonial Causes Law as to the definition of a "child". The Registrar was right to regard the petitioner's argument as misconceived.
28. The petitioner placed considerable reliance on the decision of the Court in Byrne v Hall 2001/221. In that case, the Court concluded that the word "children" in Article 25(1) of the Matrimonial Causes Law was not limited to children under the age of majority (paragraph 16). That case was the subject of correspondence between counsel prior to the hearing before the Registrar, but it was not referred by either party to her for good reason:
(i) The decision was made in 2001 some four years before the Children Law came into force;
(ii) Article 25(1) was then in substantially different terms:
(iii) There was no interpretation provision within the Matrimonial Causes Law as it then was and therefore no definition of the word "children".
(iv) Articles 25 and 28 of the Matrimonial Causes Law now refer to "child of the family" which is defined by reference to the definition contained in the Children Law.
This case is of no assistance to the Petitioner.
29. As to the other arguments put forward by the Petitioner in her grounds of appeal, Advocate Davies rightly points out that the overriding objective in Rule 47 of the Rules to deal with the case justly is concerned principally with case management, but in any event, it cannot broaden the jurisdiction of the Court or give it a jurisdiction it does not have.
30. In her very detailed and carefully researched skeleton argument, the Petitioner stresses the impact the Registrar's decision will have, namely, to impose upon her the financial obligation to meet Child 1's needs irrespective of the Respondent's wealth, which she says derives from her endeavours. She referred extensively to the differently worded English legislation and case law and conducted a review of the position in fourteen other European states. She feels keenly that there is a legal and/or moral obligation for parents to provide for a child until that child is truly independent if that is ever achievable for him. As a matter of policy, she says the Court should not restrict its powers under the Matrimonial Causes Law to children under 18, so that it can make provision for adult children for so long as they remain financially dependent. That is a perfectly reasonable view for her to hold but such questions are for the legislature, not the Court, which must act within the jurisdiction it is given.
31. It is the case, however, that under Paragraph 2 of Schedule 1 of the Children Law an adult child is able with leave to bring proceedings against his or her parents for financial provision in the circumstances set out in that Article. Child 1 is an adult and therefore has a remedy which as an adult he can be expected to pursue and indeed he has issued proceedings against the Respondent seeking such leave. That is the way the law works. Advocate Davies submits, and I agree, that those proceedings should be allowed to take their course.
32. Ultimately, the issue before the Court is a narrow one of statutory interpretation and I conclude that the Registrar was right to rule that the Court has no power to make orders against the Respondent under Articles 25 and 28 of the Matrimonial Causes Law to make financial provision for Child 1.
33. In her position statement of 6thJanuary 2022, the Petitioner stated that in the event of her receiving less than 60% of the total net assets, the Respondent should pay the sum of [£217,000] or such other sum as the Court assessed to be fair and reasonable, to the Petitioner in respect of expenses incurred by her for the children of the family since separation.
34. The Registrar dealt with this at paragraphs 68 and 69 of her judgment as follows:
35. In her grounds of appeal (paragraph 5), the Petitioner stated that the factual determination of the Registrar that she did not seek contribution from the Respondent was in direct contrast to the sworn evidence of the parties. I asked the Petitioner to take me to the affidavit evidence of the parties and to the transcripts upon which she relied in making this statement, but I could see no support for the proposition that the Petitioner sought a contribution for expenses at the time they were incurred. She said in evidence that she had asked the Respondent for over a year in 2016 to come and explain his own costs, but he never responded to her emails, so she kept a note and invoices in relation to the costs she was incurring since then. She had not spoken to the Respondent in a long time and agreed that he was never consulted over holidays taken and that she spent what she felt was fit on her own household expenses.
36. The Respondent said this at paragraph 86 of his affidavit of 15th February 2022:
"Reimbursement
86 In the event that the lump sum is not ordered, [the Petitioner] seeks a payment of £231,000 for expenses incurred since separation. I do not know how this figure is calculated or what it relates to. As far as I can see, it is not mentioned in [the Petitioner's] 2021 affidavit of means. The last time I can recall [the Petitioner] mentioning expenses for our adult children was in 2017, at which point the amount was modest. I cannot therefore comment further at this stage other than to say that I feel I have made an appropriate contribution to the needs of [Child 4], and to the needs of my adult children whenever they have asked me for help It would not be appropriate to require me to make a backdated contribution to expenses I was not consulted about at the relevant time."
37. The Registrar was perfectly entitled to say it appeared that the Petitioner had not sought an appropriate contribution from the Respondent at the time the expenditure was incurred. I was also shown the summary sheet setting out the expenses claimed going back to the date of separation, broken down between each of the four children, covering a very wide range of expenses, including direct payments, university or school costs, travel, holidays, basic living costs and entertainment, and this at a time when the Respondent was also making a contribution. The Petitioner was claiming some £84,000 for Child 2, £43,000 for Child 1, £46,000 for Child 3 and £42,000 for Child 4. The expenses cover a period when the parties had separated their finances, and each had sufficient assets to meet their respective needs.
38. I agree with the submission of Advocate Davies that the decision of the Registrar on this issue is unassailable for the reasons the Registrar put forward in her judgment to which I can add nothing other than to observe that the assets of the parties were valued as at the date of the final hearing; in other words, the Registrar took into account the financial impact on the parties of the money they had or had not spent during their separation.
39. The Petitioner denies that she is a vexatious litigant. She referred me to this extract from the case of Attorney General v Barker [2000] 1 FLR 759 at page 764:
40. Whilst I can understand the concern of the Respondent, in my view these conditions are not met in this case and I do not regard this appeal as vexatious.
41. As to prejudice, the Petitioner submits that there is merit in her appeal which she said raises an important point of law with wide ranging repercussions and which give rise to a significant financial impact upon her, as the burden of maintaining Child 1 will, in all likelihood, fall upon her. Whilst there were multiple summonses in relation to Child 4 in the period from separation to November 2020, this is the first appeal in the ancillary relief proceedings. The summons in relation to the Registrar's order in respect of Child 4 has now been withdrawn.
42. If the appeal succeeds and leave is granted to Child 1 to pursue his application, then she says the Court can avoid any possible duplication, but her application relates to costs she has and will incur, not costs that Child 1 will incur. She referred me to the case of GV v G (Periodical payments) [1997] Fam 1 in which the English Court of Appeal held that there was jurisdiction under Section 23(1) of the Matrimonial Causes Act to make an order for periodic payments to a child, as well as to the parent of the child, and this may well be appropriate for older children.
43. Advocate Davies made the following submissions:
(i) The parties have spent some £1.3 million on legal fees in litigation that has been going on for six years.
(ii) The Petitioner's application and that of Child 1 obviously cannot be heard by two different courts at the same time, but if the Petitioner's appeal is allowed, the Respondent will be tied up in further costly and damaging (in terms of relationships) litigation with her. If Child 1's application is stayed, the Respondent cannot take steps to deal with it and will inevitably remain estranged from his son.
(iii) When the Petitioner failed to fix a date in accordance with Rule 62(8) of the Rules and in the light of the letter before action sent by Carey Olsen (who also act for the Petitioner) on behalf of Child 1, the Respondent was entitled to assume that her appeal had been abandoned.
(iv) Child 1's proceedings bring with it potential procedural complexity in terms of disclosure with the potential for applications for disclosure by the Petitioner of any correspondence between the Petitioner and Carey Olsen in relation to Child 1's claim and the timing of her appeal.
(v) If the appeal succeeds, there will have to be a rehearing of the ancillary relief application. Any order a court might make, for example requiring the Respondent to reimburse historical expenditure or to pay a lump sum to Child 1 (in evidence the Petitioner said she wanted sufficient funds to purchase a two-bedroom property for him), would, of necessity, affect the balancing act which is the nature of ancillary relief proceedings.
44. Substantially for the reasons put forward by Advocate Davies, I agree that there is a risk of prejudice to the Respondent if leave to appeal is granted, but in any event, and centrally, the appeal is in my view hopeless both in terms of the issues of statutory interpretation and the unmatched contributions.
45. Leave to appeal is therefore refused.
