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Galbraith-Marten v De Renee [2023] EWFC 253

Mr Justice Cobb dealt with the latest round of this long-running saga, dealing with the mother’s application under Schedule 1.

The litigation between the parties has had a long and troubled history. The mother is Australian, the father English. They married in Nov 2006 and divorced in 2009. The child, A, was born in the UK. Post-divorce financial proceedings were concluded by agreement in Australia in 2009. The mother’s first application in this jurisdiction under Schedule 1 was dismissed by consent in August 2011. The mother then issued proceedings in Australia for further relief, which were unsuccessful and thereafter an application in this country under Part III (in 2015) which was also rejected. This was followed by an application under Schedule 1 which was determined in June 2018 with F being ordered to pay £1,315 per month for the benefit of A. In 2019, the mother made her third Schedule 1 application and an application to re-open the Part III proceedings. Mostyn J struck them out in October 2019, but in July 2022, the mother made her fourth Schedule 1 application, seeking an increase to £4,350 per month. These proceedings were resolved by consent In December 2022 with an order for £2,684 per month using the formula used by the CMS and promulgated for use by Mostyn J. However, in April 2023 Mostyn J delivered judgment in James v Seymour [2023] EWHC 844 (Fam) in which he recognized the potential anomalies arising under the earlier formula and proposed the “Adjusted Formula Methodology” (“AFM”) for the computation of child support for most cases where the payer’s income exceeds £156,000 and is less than £650,000. This prompted F to apply to set aside the December 2022 order. Cobb J received written submissions from the parties and set aside the earlier order, substituting an interim figure based on the James v Seymour formula. This latest hearing was the determination of F’s substantive application.

On behalf of F, it was argued that the figure should be determined according to the AFM, certainty was required in this area of the law and unless there was a good reason not to adopt the formula-based approach, applications should generally be approached by using a reliable formula. Further, the James v Seymour approach would withstand any discretionary review, applying the checklist in para 4 of Schedule 1 CA 1989. M made a wide range of allegations against F, including material non-disclosure of financial assets, “manipulation” of his finances, and severe financial hardship. She asked Cobb J to restore the ‘calculative formula’ from the December 2022 agreement.

Cobb J explained that he was statutorily obliged to have regard to “all the circumstances of the case” including the matters set out in para 4 of Schedule 1, and the welfare of A. He proposed some reasons for the durability of the formula approach to calculating maintenance since 2003 but cautioned that no formula could displace the obligation on the court to undertake its statutory discretionary review when deciding how to exercise its powers. He also pointed that even the James v Seymour formula is not purely algorithmic and there is an element of judicial subjectivity built into it; and that the formula will inevitably create anomalies.

He gave the following examples of areas where the formula will not be appropriate at all:

i) in a case where there are 4 or more children for whom CSM is to be paid;ii) if the exigible income is more than £650,000;

iii) if the father’s income is largely unearned;

iv) if the father lives on capital;

v) if the court is concerned with a variation application under para 6 of Schedule 1 where the application is founded on a “change in any of the matters to which the court was required to have regard when making the order”, and where the focus will be on what the change of circumstance is, and what impact the change has on the original award;

vi) Where the Schedule 1 claim is the ‘centrepiece’ of the financial dispute between the parties (not subsidiary to a claim for post-divorce financial relief for a child under the Matrimonial Causes Act 1973); in those circumstances, a Household Expenditure Child Support Award may be more appropriate.

Having said that, in view of all the circumstances of this case, Cobb J came to the conclusion that the James v Seymour formula was not just the appropriate starting point but also the correct endpoint and an order was made for F’s ongoing liability for periodical payments to be calculated in accordance with that formula.

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