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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> A (A Child) [2014] EWCA Civ 1577 (10 December 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/1577.html Cite as: [2015] 1 FAM 277, [2015] Fam 277, [2014] EWCA Civ 1577, [2015] Fam Law 136, [2015] 1 Fam 277, [2015] 3 WLR 48, [2015] 2 FLR 625 |
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ON APPEAL FROM HIGH COURT FAMILY DIVISION
MR JUSTICE BODEY
FD09P02003
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE MACUR DBE
and
SIR STANLEY BURNTON
____________________
A (A Child) |
____________________
Mr M Glaser (instructed by Russell Cooke Solicitors) for the Respondent
Hearing dates : 7 November 2014
____________________
Crown Copyright ©
Lady Justice Macur DBE :
OVERVIEW:
(i) Does the so called "millionaire's defence" (See Thyssen- Bournemisza v Thyssen – Bournemisza (No 2) [1985] Fam 1) still have a proper place in Schedule 1 proceedings?
(ii) If so, by reference to what principled criteria is a Schedule 1 award to be calculated?
(iii) To what extent can the element of carer's allowance take into account the future needs of the carer at the conclusion of the relevant child's dependency by reason of the benefit to the emotional welfare of the child in knowing that his/her parent is not going to be rendered "destitute"?
BACKGROUND
SUBMISSIONS
" Nor in my judgment can [the millionaire's defence] be properly applied to the schedule which (a) requires information to be provided and (b) obliges me to have some regard to avoiding too gross a disparity between the standard of life of the father - [and Z]"
"it is important as a matter of principle that the court should endeavour to determine reasonableness according to the standards of the ultra-rich and to avoid confining them by the application of scales that would seem generous to ordinary people".
This authority is said to establish the proposition that S's reasonable financial needs are a fair proportion of the father's wealth, not on the basis of a specified percentage which lacks 'nuance' but proportionately so as to achieve 'fair outcome'. This is unnaturally curtailed by the methodology proposed in Re P of first determining the child's appropriate accommodation needs thereby to evaluate the associated cost of living in such an environment. This method of quantification of periodical payments by reference to the size, location and value of the home is criticised as adding a 'gloss' to Schedule 1, paragraph 4. Further, it is argued that Re P's failure to consider the ratio in White v White renders the decision per incurium.
DISCUSSION
i. Yes, to some degree;
ii. In accordance with the statutory criteria identified in Schedule 1, and relevant existing jurisprudence;
iii. None.
"Whilst the millionaire's defence is useful (no longer so much so with the advent of 'sharing' between husbands and wives) for bypassing costly disputes about disclosure, it does serve to make it more difficult to ensure that a child the subject of a Schedule 1 claim is brought up in circumstances which 'bear some sort of relationship with his or her father's resources and standard of living' : see J v C (Child: Financial Provision)…and Re P itself. That is why Mr Marks flagged up that he would want to ask some questions of the father at this hearing. He (Mr Marks) submits that the only inference to be drawn from the father's failure to attend is that he, the father, knows that the outcome would probably be more expensive for him if he did so and could be asked a few broad-brushed questions, than if he stayed away. I accept that submission…".
"It is impossible to know the reality of his lifestyle, save to say that his family, the royal family, appears to rank pretty clearly among the super rich, and that as a senior member of that family he moves naturally within a world of opulence …where there is effectively little if anything which he cannot have, or have the use of."
"I then have to consider the several properties owned by or available to the father, both in a middle eastern country and here, as per the mother's evidence. She told me of two penthouses (whether or not there was a helicopter-pad at one of them used by the father does not really matter), a lovely seaside house, and an island with some sort of palace which is accessed by a yacht. She told me that the closets in his seaside house are alone about half the size of Victoria Square. Although the London property in Lowndes Square, a flat, is not owned by the father, but rather by one of the family trusts, he does have the use of it whenever he wants, and it is staffed as necessary…taking into account all these considerations, I am persuaded that the purchase of the freehold of (address) is reasonable…"
"..The fact that this is a colossal sum of money for a five year old (say £400,000 per annum gross) by the standards of the vast majority of people, including even the very well off, is not the point; since this father has the lifestyle of a member of a hugely wealthy royal family."
POSTSCRIPT
"The order...was made on 1 March 2013…by the 12th April 2013..the mother was e-mailing the father's solicitors saying that it would be necessary for her to receive …£11,000 per month more than the court order. Then by 30 August comes the mother's formal application itself …[my] view as to the reasonable amount was taken in March 2013. The remedy was to go to the Court of Appeal, if it was felt that I was insufficiently generous and therefore wrong. If I was right, then it is not right to vary it in the manner now sought".
Sir Stanley Burnton :
Lord Justice Lewison :
"Once that decision has been taken the amount of the lump sum should be easier to judge. For the choice of home introduces some useful boundaries."