Leapingwell v Sinclair

JurisdictionJersey
CourtRoyal Court
JudgeThe Deputy Bailiff
Judgment Date16 November 2012
Neutral Citation[2012] JRC 215
Date16 November 2012

[2012] JRC 215

ROYAL COURT

(Family)

Before:

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Kerley and Olsen.

F
Petitioner
and
G
Respondent

Advocate M. E. Whittaker for the Petitioner.

The Respondent appeared on his own behalf.

Authorities

Pacific Investments Limited -v- Christensen [1997] JLR 170.

Matrimonial Causes (Jersey) Law 1949.

BJ -v- MJ [2011] EWHC 2708 (Fam).

Whaley -v- Whaley [2011] EWCA Civ 617.

Matrimonial — applications for financial relief ancillary to divorce.

The Deputy Bailiff
Introduction
1

This is the Court's judgment on the hearing of the applications for financial relief ancillary to the divorce of the petitioner and the respondent. The parties were married on 6 th November, 1999, in New South Wales, Australia. They first lived in Australia, and then moved to Hong Kong, returning to Jersey in or about 2009. There are two children of the marriage, D born in 2001 and E born in 2002. The decree nisi was granted on 2 nd November, 2011. There have been numerous proceedings involving the children and the financial matters between the parties, including proceedings commenced by way of Order of Justice restraining the respondent from removing the children from the jurisdiction. The dispute between the parties concerning the children rumbled on until July 2012 when, by consent, it was settled that the interim residence orders in favour of the petitioner be confirmed, the injunctions against the respondent lifted, and contact arrangements were set out in detail. Each party was ordered to bear their own costs in relation to children's matters save in respect of costs orders previously awarded. One of those orders had been to grant the petitioner indemnity costs in relation to a contention by the respondent that the younger child may not have been his, resulting in DNA testing which confirmed conclusively that he was indeed the father. There was no basis for this particular contention by the respondent. It caused the petitioner great distress, and the indemnity costs order was a result. The decree nisi was made absolute on the petitioner's application on 3 rd September, 2012.

2

The core issues for the Court as described by Advocate Whittaker in her opening, with which the respondent agreed in this respect, were:

  • (i) What level of maintenance should be payable by the respondent to the petitioner for each of the children?

  • (ii) Should there be any annual increase in that maintenance?

  • (iii) Should there be any nominal order for spousal maintenance due by the respondent to the petitioner?

  • (iv) Should the petitioner be ordered to pay the respondent a lump sum, and if so, how much and from what source would the petitioner be expected to derive the funds to make it?

  • (v) Should any cost orders in relation to financial matters be made against either party?

3

The matter of costs was by agreement left over until after the Court's decision was given in relation to the other issues.

4

The hearing in this case took place over three days. Much of the evidence was concerned with the parties' lifestyle in the early days of their marriage. In our judgment, this was unnecessary. The assets of the parties today make it plain that essentially this remains a needs-based case, rather than one where the issue for the Court is a fair division of a financial pot accumulated over the course of the marriage. We were told that the parties have between them run up legal fees in excess of £340,000. If this is so, it is a disgraceful waste of money.

5

It is clear from the evidence which we have heard that the parties enjoyed a good standard of living in both Australia and Hong Kong. This was no doubt in part due to the respondent's success in business – he had worked for Deutsche Bank, and then Dow Jones as a director of marketing to specialist derivative experts in investment banks and hedge funds in Asia, whilst living in Australia, and in Hong Kong he worked with UBS in the specialist area of derivatives and prime brokerage. However, the petitioner also worked in the early years of the marriage before their children were born, and the standard of living was no doubt improved by the availability of domestic help when the parties lived in Hong Kong. Furthermore, the petitioner had from time to time some distributions from a family trust called the K Trust, based in Jersey, to which we will refer in due course. There does not seem to be any dispute that the respondent had a net worth at the date of the marriage of approximately AUD $550,000, consisting of a house in Sydney, pension funds, investments and cash at bank. At that time, the petitioner had a beneficial interest in the K Settlement and some cash which she had generated in part by her savings whilst employed in Jersey. We have recorded these facts in relation to the parties' lifestyle during the course of the marriage because we heard a considerable amount of evidence in this connection, and not because we consider this to be material, with one exception to which we will come in due course at paragraphs 46–50, for the purposes of what we have to decide.

6

At the close of the three day hearing, we gave leave to the parties to file written submissions, and in the case of the respondent such additional written evidence as he wished, within two weeks. The respondent was required to deliver to the petitioner any additional evidence within two weeks to give her an opportunity to comment. These orders were made in an effort to be fair to the respondent who was representing himself.

7

Pursuant to that order, the respondent filed written submissions running to 283 paragraphs on 69 A4 typed pages and two lever arch files of documents, many of which were already in the Court bundles. We have reviewed all this documentation and considered the written submissions, many of which are unnecessarily vituperative about the petitioner and do the respondent no credit.

The Petitioner's Overall Position
8

The petitioner's open position was that the respondent should pay maintenance for each child at the rate of £600 per month and that it should be subject to automatic annual review; for her at the rate of £1 per annum, thus establishing the principle of spousal maintenance in case the respondent's financial position should change; and that there should be no lump sum payments from either spouse to the other. She expected to make submissions about costs.

The Respondent's Overall Position
9

The respondent claimed that the petitioner was a very wealthy woman with access to many millions of pounds; that she had always promised him that he would share in this fortune with her; that her home in Jersey would be available for the two of them if his business ventures failed; that she had cynically and wrongly abused the court process on divorce to conceal her wealth and cause him loss and damage; and that she had deliberately applied for a decree absolute so that he would have no opportunity of acquiring a reasonably priced property in the local housing market and no realistic chance of obtaining employment, the effect of which would be to drive him from the island. He claimed the petitioner had through her family connections prevented him from obtaining legal representation and had caused him to run up large legal fees. The respondent through his open position and pleadings stated that there should be no order as to costs and that should any costs be considered that he wished the right to claim these.

What level of maintenance?
10

The petitioner currently lives with the two children of the marriage in a property in Jersey owned ultimately by the Trustees of the K Trust. Both she and the children are beneficiaries of the Trust and she pays no rent for the property, although she is required to meet the outgoings incurred in respect of it. The parties' elder child is now aged 11 and attends a local school. She appears to be doing well, and causes no more problems to her parents than any 11 year old girl customarily does.

11

Her brother is nearly 10 years old. He is in a different position because he is a special needs child. He has been formally diagnosed with Microcephaly, autistic spectrum disorder and attention deficit hyperactivity disorder. He suffers from long sightedness. He is progressing with language communication and social skills, although he remains significantly delayed. He is currently achieving academically the equivalent of a child some four years younger than him. He is exquisitely sensitive to loud and unanticipated noise in his environment, which can be a considerable source of distress. The medical reports show him to be a very dependent child requiring continuous supervision, who is easily distracted and cannot be relied upon to ensure his own safety. Although he is gaining some of the skills of daily living, Dr Jones, the consultant paediatrician, anticipates that he will have the need for continuous adult supervision throughout his childhood and adolescent years. He remains very reliant upon his mother, and upon his father when he is with him. Although he has become better at dressing himself, he cannot do up his buttons or shoelaces. He needs help in washing and with his toiletries. The petitioner said in her evidence that while she hopes that he will one day be able to live independently, she does not in her heart believe that he will. She told us that she could not imagine leaving him alone at home, even if he were unwell, because he has no sense of danger.

12

We have gone into this detail in relation to the second child's needs because those requirements emphasise that the petitioner will find it difficult to obtain remunerative employment. She is an intelligent woman, who has previously worked, firstly as a secretary and later as a personal assistant, but her formal educational qualifications tend to suggest that she is unlikely to obtain the type of employment which would...

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    ...appeared in person on her own behalf. The Respondent attended on his own behalf via telephone link. Authorities F -v- G (Matrimonial) [2012] JRC 215 . Matrimonial — application by the respondent for a variation to the maintenance agreement due to a change of circumstances. Bailiff THE DEPUT......

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