Thu 29 Aug 2019

S V M Paisley Sheriff Court (unreported) - Sheriff Pender - 23rd May 2019

Top up child aliment claims before the Sheriff Court, in terms of Section 2(4)(c)(i) of the Family Law (Scotland) Act 1985 have been rare and in fact there are no reported cases in Scotland.  In a recent unreported Paisley Sheriff Court case, Sheriff Pender considered the criteria to be applied in such applications.

In this case the parties had been in a relationship for a number of years.  They had one child of 7 years of age and had been apart for four years.  Having already been involved in an action where the Pursuer (mother) had received substantial capital in terms of Section 28 of the Family Law (Scotland) Act 2006, the Pursuer then raised proceedings for top up aliment.

The Pursuer raised proceedings before  a Child Maintenance Service ("CMS")  determination at the maximum award had been determined (which is necessary in terms of Section 8(6) of the Child Support Act 1991) Once that determination had been made, the Pursuer argued that the pre-separation lifestyle of the child who had been three at the time of separation had to be maintained.  She sought top up of her CMS award of £1274 per month by a further £1800 per month.  The Pursuer was unemployed, in receipt of a passport benefit and argued her poor mental health meant she could not work.  The Defender earned in excess of £3k per week but refused to disclose his actual income and resources.  The defence advanced by the Defender was three pronged: (1) the sum sought was excessive; (2) the Pursuer had not demonstrated a "need"; and (3) the capital received under the Section 28 action had included a provision for the economic burden of childcare and the Pursuer should not have the same money twice. 

In his decision the Sheriff considered he was bound by the provisions of Section 4(1) of the 1985 Act. The test to be applied when determining child aliment was no different to the test to be applied when determining spousal aliment.  Aliment should not be awarded just because the Defender had a high income and therefore the fact that the Defender had refused to disclose his income and resources was irrelevant to the award to be made.  The duty to provide details of income and resources was only relevant had the Defender wanted to dispute his ability to pay.  Of course, the Pursuer did have to vouch her "need", and she only attempted to do so nearly two years after the proceedings were raised.  Even then the vouching was incomplete and inaccurate and there was no distinction drawn between her costs and those of the child.

When considering if the Pursuer had a "need" the Sheriff did accept some of the criticisms made of the Pursuer's schedule of expenditure, such as £575 per month to feed a 7 year old.  There was some comment about why a child of 7 would require to sleep in silk sheets.  The Sheriff also agreed that purchasing a brand new Mercedes was an "unnecessary extravagance", but recognised that the monthly repayment was an ongoing outgoing nevertheless.

Sheriff Pender did not accept the argument that the capital received under the Section 28 action had included a provision for the economic burden of childcare.  He was of the view that the wording of the Record and subsequent Minute of Agreement in the Section 28 action did not favour that interpretation as it did not specifically state that it was in satisfaction of that part of the claim.

The Sheriff ultimately made an award in favour of the Pursuer for a top up payment of £400 per month  which was less than the sum offered by the Defender extra judicially and within three days of any vouching of her spend having been produced.

Another interesting point arising from this case is the question of expenses. The Defender  sought expenses from the Pursuer.  Despite the Pursuer being in receipt of a passport benefit, she had not applied for Legal Aid.  The Court was told that the Pursuer "did not wish to trouble" the public purse.  It was argued by the Pursuer's agents that she would have difficulty in meeting an award of expenses but the Court was reminded, and accepted, that this is not a matter which should be taken in to account (as per B v B 2012 Fam LR 125).  Sheriff Pender accepted that the conduct of the case by the Pursuer did her "no credit".  He ultimately awarded expenses of the cause in favour of the Defender, which serves as a stark reminder that a Court can and will depart from the more likely finding of no expenses due to or by where there are clear and compelling reasons to do so.

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