Li v Simons  EWHC 1626 (Fam)30 June 2023
Published: 03/08/2023 11:39
Moor J. Judgment on an appeal against an order made in a variation of maintenance application.
The parties reached an agreement settling the financial claims arising out of their marriage in April 2020, and a consent order was made in those terms in July 2020. There was an interim order for maintenance pending the sale of two properties. Thereafter the appellant was to pay, for the benefit of the parties’ child, K, £2,900 pcm until K finished year 2 of primary school, then £2,400 until the start of year 7 and thereafter £1,900 pcm. In addition, there was a nominal spousal periodical payments order in the sum of £1 to increase if a CMS assessment was obtained in a lower figure than the maintenance.
The appellant applied to vary the periodical payments and remit the arrears in autumn of 2020; he sought an order that the payments were halved on the basis his income had fallen to £6,030 per month in May 2020. Notably, the statement of information dated June 2020 that accompanied the consent order recorded his income as £9,866 per month. In January 2021, the appellant said he was only working three days per week and his income had reduced to £4,011 per month. He had been paying £500 pcm instead of the £2,900 pursuant to the order. That application was heard by HHJ Gibbons, who found that the appellant had deliberately sought to mislead the court and the respondent about his financial circumstances. She drew various adverse inferences and ultimately found that there was no change in his income, but there was a small reduction in maintenance as the respondent’s income had risen modestly. In addition, a costs order was made against the appellant. HHJ Gibbons’ final order was dated 6 December 2021.
Two months after that order, the appellant’s second child, X, was born. The respondent applied to enforce arrears and the appellant applied again to vary the order – just 12 weeks after the order of HHJ Gibbons was perfected. It was recorded at a directions hearing that the sole reason for the appellant’s application was the birth of X. The appellant, however, raised a series of additional points in the witness statement he later filed.
Recorder Chandler KC heard the application over two days, by which time, the Appellant had spent a total of £135,448 on the two applications to vary (approximately 5 years' worth of maintenance). Recorder Chandler KC came to similar conclusions to HHJ Gibbons as to the Appellant’s credibility. He adopted the same income figure and dismissed the appellant’s application, finding that the appellant was seeking to relitigate the matter and that it therefore amounted to an abuse of process.
The appellant was given permission to appeal the decision of Recorder Chandler KC on four grounds.
Firstly, that the judgment was based on his income being £9,866 pcm where it was actually £4,300 as shown on bank statements and payslips. Moor J accepted that his income was £4,300 pcm net, he considered that the adverse findings made by HHJ Gibbons could not safely be made on the current evidence in light of the bank statements, contract of employment and payslips provided.
Secondly, the appellant argued that, per G v G, he should have been permitted to fill a perceived or real evidential void by providing further or better evidence as to his income position on his variation application. The court found this submission to be completely wrong as G v G relates to interim applications and a litigant cannot rely on the dicta in G v G to bring the case back after a final order has been made. The appropriate time to fill any evidential gaps is at a final hearing.
Thirdly, the Recorder was wrong not to hear the evidence of Ms Zhou, HR Director at the appellant’s employers. Her statement was filed late (just two weeks prior to the hearing) but she confirmed the appellant was working part time. Moor J found that the evidence should have been admitted, but that the Recorder should have then allowed an adjournment or costs order to ensure fairness to the respondent.
Finally, that the Recorder was wrong not to dismiss the nominal periodical payments where its only purpose was to create a self varying child periodical payments order. Moor J did not accept any merit in this ground.
Moor J reviewed Recorder Chandler KC’s judgment and repeated what he considered to be clear findings of fact that the appellant should return to full time work and rent out his London apartment. Moor J calculated that the appellant’s income would be £7,166 if he worked five days per week instead of three, that figure was then increased to £7,500 to take account of rental income from the London apartment (doing the best he could without any evidence on rental value). Moor J then applied the same percentage as the maintenance formed in the original consent order, to arrive at £1,650 pcm, reducing to £1,550 when K reached the end of year 2 until further order, without any further reduction. He rejected the suggestion that the birth of X made any difference to the percentage. The new figure was to take effect from the date of the hearing before Recorder Chandler KC. The appellant was to be pay all arrears at the rate of £1,500 pcm.
Moor J found that the appellant had been guilty of litigation misconduct which would be factored into any eventual costs order and listed a separate hearing on costs.