AB v BA
[2024] EWHC 1179 (Fam)
Kirsten James v Stephen Seymour
19 April 2023
[2023] EWHC 844 (Fam)
High Court
A mom appealed a judge's decision on how much child support her ex-husband should pay. The judge didn't use a standard formula, and the mom thought the amount was too low. The court said the judge was allowed to make that decision and also that the mom had to pay some of her ex-husband's legal fees because of her behaviour during the case.
Key Facts
- •Appeal against a financial remedies order made by HHJ Vincent in December 2022.
- •The case involves a couple divorced in 2013, with subsequent disputes over child arrangements and financial provision.
- •The mother remarried in August 2022 and sought increased child maintenance.
- •The appeal concerns the calculation of child maintenance, specifically the judge's refusal to apply the Child Maintenance Service (CMS) formula as a starting point, and the amount of child maintenance awarded.
- •The mother's cohabitation and late disclosure were considered by the judge in her costs order.
Legal Principles
In child maintenance cases with incomes above the CMS statutory ceiling but below £650,000, the CMS formula can provide useful guidance as a starting point, but not in variation applications or if it is an award of the HECSA type.
Various judgments of Mostyn J, including GW v RW [2003] EWHC 611 (Fam), Re TW & TM (Minors) [2015] EWHC 3054 (Fam), CB v KB [2019] EWFC 78, Collardeau-Fuchs v Fuchs [2022] EWFC 135, and others.
In variation applications, the starting point for calculating child maintenance is usually the original order's value adjusted for inflation.
Section 31(7) Matrimonial Causes Act 1973 and para 6(1) of Schedule 1 of the Children Act 1989
A refusal to negotiate openly, failure to comply with court directions, or making a ludicrous claim can lead to costs orders against the offending party.
OG v AG [2020] EWFC 52
Outcomes
Appeal on Ground 1 (failure to follow the CMS formula) dismissed.
While the judge's disregard of the formula was arguably a failure to follow established guidance, the judge’s decision was within her discretion and not wrong.
Permission to appeal refused on Ground 2 (insufficient child maintenance) and Ground 3 (incorrect costs order).
The judge's assessment of child maintenance was considered fair and within her discretion, taking into account the variation application and inflation; the costs order was deemed justified due to the mother's conduct.