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Family Law

The leading authority on all aspects of family law

25 MAR 2013


(Family Division, His Honour Judge Hayward Smith QC, sitting as a judge of the High Court, 14 January 2013)

The 12-year-old child had until recently been living with her mother but when relations became strained she moved to live primarily with her father, who was a successful and famous musician. The father applied for a residence and prohibited steps order to prevent the child being removed from the jurisdiction. However, the mother and father agreed that the child would now remain with her father for the majority of the time but would have substantial contact with her mother. No orders were made.

The mother now applied under Sch 1 to the Children Act 1989 for a maintenance order of £2,200 per month and a lump sum of £200,000 for the complete refurbishment of the property she lived in, which was owned by the father. She also wished for the property to be held on trust for the child until she reached 18 or completed tertiary education. In addition she sought funding by the father of all educational expenses. The father on the other hand was willing to permit the mother to remain in the property for a further 6 months only and a lump sum of £10,000. He claimed there was no jurisdiction to make the maintenance order and that the mother had a substantial earning capacity.

 The judge found that the mother had an earning capacity far greater than her current income and that she would be able to support herself financially. She had turned down several reasonable proposals made by the father prior to the hearing and would settle for nothing less than £200,000 and being permitted to remain in the property.

 Pursuant to the Child Support Act 1991, the court did not have jurisdiction to make a maintenance order in favour of a non-resident parent. Even if that construction was wrong, a maintenance order would not be made as it was clear that the mother's focus had been on seeking provision for herself and not the child.

 The father's obligations relating to housing and maintenance related only to the child and to the mother only insofar as they related to the child. He was already providing the child with a home, and was under no obligation to permit the mother to reside in his property to facilitate contact. The father had previously offered the mother £75,000 and permission to remain in the property until the child reached 18 but she had unwisely turned it down. The claim was dismissed.


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