TW v MW - Judgment

¶ 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 1 of 38 1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 2 FAMILY DIVISION 3 CAUSE NO: FAM 165 OF 2018 4 5 BETWEEN: TW 6 PETITIONER 7 AND 8 9 MW 10 11 RESPONDENT 12 13 Appearances: Mr. David Holland of Cayman Family Law for the Petitioner 14 15 Respondent in Person 16 17 Before: The Hon. Justice Cheryll Richards Q.C. 18 19 Heard: 26th October 2021 20 21 Draft Judgment: 30th November 2021 22 23 24 25 HEADNOTE 26 Family Law, Section 19 and Section 23 of the Matrimonial Causes Act (2005 Revision), 27 Principles on an application to vary child maintenance order. 28 29 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 2 of 38 1 JUDGMENT 2 3 1. By Summons filed 24th August 2021, the Respondent seeks the variation of a Consent Order made on 4 the 11th April 2019 and a Final Ancillary Consent Order (FACO) made on the 3rd October 2019. The 5 variations sought are as follows: 6 7 (1) An order to the effect that the Respondent will no longer be liable to pay the school fees 8 for the children of the marriage L and C whilst they attend private school. 9 (2) An order to the effect that L and C shall be enrolled in ‘a public government school’ with 10 effect from 1st September 2021. 11 (3) Such further and other relief as this Honourable Court may deem just and equitable. 12 13 2. The Respondents’ application is opposed by the Petitioner. In this judgment I will refer to the 14 Respondent as ‘the husband’ and the Petitioner as ‘the wife, although the marriage was dissolved on 15 the 14th October 2019. 16 17 3. The parties were married on the 22nd March 2008. The husband is 57 years old and the wife is 48 years 18 old. There are two children of the marriage, both boys, L aged 13 years and C aged 11 years. 19 20 4. By the Consent Order made on the 11th April 2019, residence arrangements were made by which the 21 children L and C reside with the husband every other week during the school term from Wednesday at 22 6pm until Sunday at 6pm. On alternate Wednesdays when the husband is not to have the children 23 overnight, he is to have contact with them from the end of the school day until 7pm. During school 24 breaks and holidays each party is to have equal time with the children as far as is possible. 25 26 5. By the FACO orders were made for division of property and child maintenance. It is of significance to 27 the present hearing that the agreements and declarations to the FACO included the recognition that the 28 wife was then unemployed and that the maintenance arrangements therein made would continue for the 29 foreseeable future even if she secured employment. Also included was the continuation of the earlier 30 agreed residence arrangements. The FACO stated inter alia: 31 32 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 3 of 38 1 2 3 4 “viii. AND UPON it being recognized that the Petitioner is presently unemployed but is actively 5 pursuing work and it being agreed by the parties that it is intended that the maintenance 6 arrangements contained at paragraph 4 of this Order shall persist for the foreseeable future even if 7 the Petitioner secures employment. 8 … 9 ix. AND UPON the child residence arrangements having previously been agreed by Consent Order 10 dated 11th April 2019 and those arrangements remaining in effect.” 11 12 6. With respect to maintenance arrangements, no order was made for spousal maintenance. By paragraph 13 4 a) and b) of the FACO the husband agreed to pay US $500.00 per month per child (US $1000.00 or 14 CI $840.00) until age 18 years or completion of high school education whichever is the later, as well 15 as monthly health insurance premiums for both children. 16 17 7. By paragraph 4 c) of the FACO the husband agreed to continue to pay the school fees of the children 18 whilst they attend the private school. 19 20 8. All other reasonable costs incurred over and above school fees for the children and insured costs were 21 agreed to be shared by the parties equally. 22 23 9. The former matrimonial home was sold, and by the FACO there was distribution of the proceeds of the 24 sale, to the parties in agreed proportions (40/60), after payments of certain outstanding expenses. A 25 pension transfer order in the sum of $80,000.00 was made in favour of the wife. Each party retained 26 other items of property. In particular the wife retained all her interest in a one-bedroom apartment in 27 the district of Spotts Newlands. This had been owned by her prior to the marriage. 28 29 10. The husband has 2 children from a first marriage T, a son now 19 years of age and H, a daughter 17 30 years of age. At the time of the FACO, all four of the husband’s children attended the same private 31 school. The school offers discounted rates for school fees where multiple children from the same 32 household are enrolled. This meant that the fees for the third child to attend, L were discounted by 25% 33 and no fees were payable for the fourth child, C. 34 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 4 of 38 1 2 3 4 11. In the two years since the FACO was made, T has now graduated from the school and is now enrolled 5 in tertiary education overseas. He is on a full scholarship. The husband makes no payments towards his 6 education. H will complete her studies there at the end of this school year. She is also on a full 7 scholarship. The changed position following T’s graduation has been highlighted by the husband. This 8 is because the monthly school fee for L, who would be the second rather than third child from the same 9 household in attendance at the school is $1,265.00 and for C it is $948.75. In the next school year 10 commencing in 2022 when H graduates, if L and C continue to attend the school, there will be only 11 two children attending from the same household and the full rate will be payable for C. 12 13 THE POSITIONS OF THE PARTIES 14 15 12. The husband’s position on this application is that his financial situation has changed substantially and 16 he can no longer afford to pay the fees for the private schooling of L and C. He says that he has changed 17 employment and that as a result his earning capacity has changed. He no longer receives an end of year 18 bonus of some $24,000.00. He used to rely on this to pay the school fees. His expenses are said to be 19 more than his earnings. He also says that the only alternative which he sees is either for the wife to pay 20 the school fees herself or for the two children to be moved from the private school to a public 21 government school where no fees are payable. He has produced excerpts from the school inspection 22 reports for both schools and says that the public school is rated as ‘good’ while the private school is 23 only rated as ‘satisfactory’. He asks that this Court make an order “regulating which school the children 24 should attend.” 25 26 13. The wife’s position is that the husband’s application should be dismissed as it is not in the best interests 27 of the children. She states that to move the children from the only school that they have ever known 28 since kindergarten would be disruptive and detrimental to their well-being. They are doing well at the 29 school as is evidenced by their end of year term reports. The wife also says that there has been no 30 material change in circumstances that was not contemplated by the FACO and further that there has 31 been no significant change to the husband’s income. The assertion is that the husband’s income position 32 has actually improved in that his base salary has increased and he is no longer paying for school for his 33 two older children. 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 5 of 38 1 THE STATUTORY PROVISIONS 2 3 14. The Court’s power to vary the terms of an ancillary order is set out in s.23 of the Matrimonial Causes 4 Act (2005 Revision) which provides as follows: 5 6 “Either spouse or the personal representatives of either spouse may make application for variation 7 of any order made under section 21 and, the Court, after hearing the parties, may make such 8 variation.” 9 10 15. Section 19 of the said Act provides that: 11 12 “In dealing with all ancillary matters arising under this Law, the Court shall have regard first of 13 all to the best interests of any children of a marriage and thereafter to the responsibilities, needs, 14 financial and other resources, actual and potential earning power and the deserts of the parties.” 15 16 THE APPLICABLE PRINCIPLES 17 18 16. In 2008, in the case of VB v. JP1, the wife in that case applied pursuant to s.31 (7) of the English 19 Matrimonial Causes Act 1973 for an increase in the amount of periodical payments payable under a 20 consent order dated June 2001. This was about 6 years after the order had first been made. She applied 21 on the basis that the sums which were being paid in respect of spousal and child maintenance were 22 inadequate based upon her needs and upon the principle of compensation as detailed by the House of 23 Lords in the case of Miller v. Miller, McFarlane v. McFarlane2. She claimed an entitlement to a 24 premium over budget, over and above need, for loss of her earning capacity (relationship generated 25 disadvantage). 26 27 17. In the course of the judgment in the case of VB v. JP, Sir Mark Potter, President of the Family Division, 28 reviewed the case of Miller v. Miller, McFarlane v. McFarlane and a number of cases following. The 29 learned Judge concluded inter alia that where periodical payments are necessary, any element of 30 compensation is best dealt with by a generous assessment of a wife’s continuing needs unrestricted by 1 [2008] EWHC 112 2 [2006] UKHL 24 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 6 of 38 1 2 3 4 18. purely budgetary considerations.3 The questions arising for the Court’s consideration on the matter 5 included, whether the strand of compensation also falls for consideration upon a variation application. 6 The Court noted that in the case of Lauder v Lauder4, the matter had been rightly reconsidered in the 7 light of the guidance provided in Miller v. Miller, McFarlane v. McFarlane. The learned Judge 8 approached the question of a variation by considering, in some detail, the s.25 (2) factors. 9 10 19. In 2016 in the English Court of Appeal case of Morris v. Morris5, Mr. Morris appealed inter alia a 11 variation order made in respect of certain periodical payments which were to be made by him to his 12 former wife. He contended that the learned Judge at first instance in reducing the amount to be paid 13 only by a small amount had failed to properly weigh the s.25 factors. Proper weighing would have 14 included taking into account his decreased income, housing needs, debts and the wife’s improved 15 circumstances. This should have led to a substantial rather than small reduction in the maintenance 16 and/or an adjustment of the term over which the payments were to be made. 17 18 20. The issue for the Appellate Court included the extent of the Court’s considerations on a variation 19 application. Counsel on behalf of the husband submitted that, in determining such applications, the 20 court must consider the matter de novo and that the learned Judge at first instance had approached the 21 matter with an extremely “light touch” which had led to focus on the single factor of the increased 22 earnings of the wife. The Appellate Court dismissed the husband’s appeal, holding that the court, on a 23 variation application, is not required to consider the matter de novo. What is required is that the court 24 conducts an exercise which is proportionate to the requirements of a case. The Court has the flexibility 25 to determine what is required in each case. This may, in some circumstances, require a complete review, 26 but, in others, a light touch review may be justified. The Court also referred to the distinction between 27 an appeal against an order made and a variation of an order which would usually require the justification 28 of some change in circumstances. 29 30 3 Supra, paragraph 59 4 [2007] 2 F.L.R. 802 5 [2016] EWCA Civ. 812 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 7 of 38 1 2 21. The Court stated: 3 4 “87. On a variation application is the court required to consider the matter de novo? In my 5 view, the simple answer is that it is not. The court must conduct an exercise which is 6 proportionate to the requirements of the case. They might warrant a complete review but 7 they can also justify, what Mr Duckworth refers to as, a light touch review. In this respect, 8 Mr Duckworth was right to acknowledge that the court can confine its consideration to 9 factors relevant to the variation application. 10 11

¶ [88] I do not consider that the authorities on which Mr Duckworth relies support his submission 12 that the court must undertake the exercise de novo. He can point to the passage in Ward 13 LJ’s judgment in Flavell v Flavell when he says (at p. 357): “the court is not required to 14 proceed from the starting-point of the original order but looks at the matter de novo.” But, 15 this has to be seen in context, namely that it was in response to a submission that the court 16 does not have jurisdiction to vary an order unless the applicant can show exceptional 17 circumstances or, at least, a material change. Further, Ward LJ’s observation is not the 18 same as saying that the court is required to consider the matter de novo. That Ward LJ is 19 not saying this is clear because he agrees “entirely” with what Cazalet J had said in 20 Garner v Garner [1992] 1 FLR 573: 21 22 “Almost invariably, an application to vary an earlier periodical payments order will be 23 brought on the basis that there has been some change in the circumstances since the 24 original order was made; otherwise, except in exceptional circumstances, the application 25 will, in effect, be an appeal. If an order is not appealed against, or is made by consent, 26 then the presumption must be that the order was correct when made. If it was correct when 27 made, then there will usually be no justification for varying it unless there has been a 28 change in the circumstances.” 29 30

¶ [89] In addition, in Lewis v Lewis [1977] 1 WLR 409, that great family judge, Ormrod LJ, also 31 does not say that the court must start de novo: “I am bound to say that it has always seemed 32 to me … that the powers of variation, which were given by statute to this court in a series 33 of enactments going right back to 1857, have been, if anything, progressively enlarged, 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 8 of 38 1 2 3 and that the intention of Parliament is that, in handling these family matters where money 4 is concerned, the court should have as unfettered a discretion as possible to deal with the 5 situation as it is when the matter comes before it” (p. 412F). 6 7 … 8 9

¶ [92] The court has “enormous flexibility” to determine the “nature” of the substantive hearing. 10 This includes, as Mr Duckworth accepts, focusing on the relevant factors and in my view 11 also, where appropriate, conducting a light touch review. Specifically, to require the court 12 to undertake the exercise de novo would be contrary to the overriding objective and the 13 obligation for a case to be dealt with proportionately.” 14 15 22. In reaching a conclusion on the appeal the Appellate Court noted the recency of the final order which 16 had been made only two years earlier in August 2014 and the absence of sufficiently significant changes 17 in the circumstances. With respect to the issue of varying the term of periodical payments, the Court 18 stated: 19 “Given that the final order had only been made in August 2014, the husband’s application 20 to alter the term imposed by that order, so soon after it was made, would have required 21 more significant changes that have occurred in this case. 22 23 … 24 25 Changes in employment and changes in income, as occurred in this case are not unusual 26 and they are not sufficient to support the need for a substantive review of this element of 27 the 2014 order.” 28 29 23. The dicta in the case of Morris v. Morris has been approved in this jurisdiction in the Grand Court case 30 of SD v. AL6 In the judgment in that case Williams J. provides helpful guidance on the approach to 31 variation applications of the kind sought in the instant case. With respect to s. 23 of the Matrimonial 6 Judgment dated 5th September 2017 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 9 of 38 1 2 3 4 Causes Act, the learned Judge stated that this provides the Court with a broad discretion to make 5 variation orders for which applications is made, once it has heard from the parties. In doing so a court 6 will have regard not only to s. 19 of the said Act but will also be guided by the relevant factors raised 7 in s.25 (2) of the English Act. These include: 8 9 i) The income, earning capacity, property and other financial resources which each of the 10 parties to the marriage has or is likely to have in the foreseeable future, including in the 11 case of earning capacity any increase in that capacity which it would in the opinion of the 12 court be reasonable to expect a party to the marriage to take steps to acquire; 13 14 ii) The financial needs, obligations and responsibilities which each of the parties to the 15 marriage has or is likely to have in the foreseeable future; 16 17 iii) The standard of living enjoyed by the family before the breakdown of the marriage; 18 19 iv) The age of each party to the marriage and the duration of the marriage; 20 21 v) Any physical or mental disability of either of the parties to the marriage; 22 23 vi) The deserts of the parties including the contributions which each of the parties has made 24 or is likely in the foreseeable future to make to the welfare of the family, including any 25 contribution by looking after the home or caring for the family; 26 27 vii) The conduct of each of the parties, if that conduct is such that it would in the opinion of 28 the court be inequitable to disregard it; 29 30 viii) The value to each of the parties to the marriage of any benefit which, by reason of the 31 dissolution or annulment of the marriage, that party will lose the chance of acquiring.”7 7 Statutory Factors in England and Wales 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 10 of 38 1 2 24. As to the manner in which the discretion ought to be exercised the learned Judge stated: 3 4 “Having regard to Morris, the following principles are appropriate as a guide to the Court 5 in the exercise of its discretion: 6 7 (i) The practice has developed where the Court looks for a material change in 8 circumstances since the last order when considering varying periodical payments 9 order. However the wording of s. 23 and s. 19 MCL give the Court wide powers to 10 vary its ancillary relief orders and contemplates that there may be other 11 circumstances other than a change of means which would justify a variation in the 12 original order; 13 14 (ii) Whilst the Court has a broad discretion when determining variation applications, 15 such discretion should be exercised in a proportionate manner :proportionate to 16 the money involved, the cost and complexity; 17 18 (iii) In conducting its s. 23 MCL exercise the Court should have sufficient information 19 available to it for the relevant issues to be addressed in a way which is fair and 20 proportionate against the backdrop of the Overriding Objective. The provision of 21 information for the exercise is a mutual and reciprocal obligation; and 22 23 (iv) A full, exhaustive and expensive representation of a final ancillary relief hearing 24 should be avoided. That would be contrary to public policy, detrimental to the 25 parties interests and a drain on the limited resources of the Court.” 26 27 APPROACH 28 29 25. I approach this matter with the above statutory and guiding principles in mind. I am not necessarily 30 required to proceed de novo. I am required to carry out a review which is proportionate to the 31 circumstances of this case. I must have in mind first of all the best interests of the two children of the 32 marriage. Their requirements continue to include adequate housing, education and on-going general 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 11 of 38 1 maintenance. I will consider to the extent that it is necessary to do so, the responsibilities, needs, 2 financial and other resources, actual and potential earning power and the deserts of the parties as well 3 as the relevant factors raised in s.25 (2) of the Matrimonial Causes Act 1973. 4 5 26. This is not an appeal hearing as noted in the cited case above. Thus while I have due regard to all the 6 relevant factors and all the circumstances of the case, I am considering in particular any changes in the 7 matters considered by the Court upon the making of the original maintenance orders. In the cited case 8 of VB v. JP, the Court noted that maintenance orders: 9 10 “… are by their very nature ongoing, concentrate upon continuing need and are themselves subject 11 to later variation.” 12 13 27. The primary issues are whether it is in the best interests of the children to remain at the private school 14 and whether the expense for this is feasible in light of the cost and the income and outgoings of the 15 parties. 16 17 THE EVIDENCE 18 19 28. The material before the Court initially consisted of the following Affidavits: 20 21 (i) Husband’s Affidavit dated 24th August 2021 22 (ii) Wife’s Affidavit in Reply dated 8th October 2021 23 (iii)Husband’s Affidavit dated 14th October 2021 with exhibits of financial information in 24 response to a request for further and better particulars. 25 (iv) Husband’s Affidavit dated 7th June 2019 26 27 29. Additionally, the wife provided documents in response to a request for further and better particulars. 28 29 30. On the morning of the hearing, the husband indicated that he wished to produce further evidence to 30 include summaries of school inspectorate reports, a revised income and expense schedule and some 31 other factual information. He produced a note setting this out. At the request of the Court, he undertook 32 to provide a further Affidavit formally producing this material in a matter of days. Counsel for the wife 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 12 of 38 1 took no issue with this course and indicated that an adjournment was not required. The further Affidavit 2 produced by the husband is dated 28th October 2021. 3 4 PROPOSED CHANGE OF SCHOOL 5 6 31. The two children, L and C have been attending the private school for eight years since 2013, when C 7 was enrolled in the Nursery at the school and L in Reception. T and H had been attending the school at 8 the time and a decision was made by all parents for all four children of the husband to attend the same 9 school. 10 11 32. Two years ago in 2019, at the time of the divorce and FACO, the parties were both agreed that it was 12 in the best interests of L and C for them to remain in attendance at the private school. The husband was 13 pointed in his statements to this effect and offered at that time despite his then indication of a monthly 14 deficit of $2,094.90 that he would shoulder the responsibility of making the school payments. 15 16 33. At that time with four children in attendance at the school the husband’s payments amounted to 17 CI$1,866.40 for the two older children and CI$745.00 for L. The total was $2,611.40. The table below 18 shows the school fees for 2021 with H still in attendance at the school and the projected school fees for 19 2022 if L and C remain at the school. 20 21 22 23 24 25 26 27 34. The above table also illustrates that in each case for 2021 and 2022 there is and would be a reduction 28 rather than increase in total school fees since the FACO was made. The material change is that the fees 29 are higher for both L and C because the two older children have either completed or are about to 30 compete their education at the school. However, the husband no longer has to pay school fees for T 31 and H. 32 School fees 2019 - School fees 2021- Projected School fees 2022- $2,611.40 $2,213.75 $2530.00 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 13 of 38 1 35. In cross-examination, the husband was asked about the statements previously made by him at the time 2 of earlier applications and the making of the FACO. He admitted making these statements and sought 3 to say that his position has only changed because of his inability to afford the fees. 4 5 36. The fact is that he made a series of statements emphasizing the importance of education and his desire 6 for the children to remain in private school because it is in their best interests. 7 8 37. In response to the wife’s application for maintenance pending suit, (“MPS”) in an Affidavit sworn on 9 the 7th June 2019, under the heading the importance of education, he stated: 10 11 “20. The Court will recall that I have 4 children in total, and almost everything I earn is devoted 12 to looking after my children and ensuring all four of them have the best education we (in essence 13 now I) can afford. In my affidavit, filed in support of the Children’s Law issues, I stated at page 14 117 that: 15 16 Paragraph 69 – Educational Needs: I would like to stress that this is a very important 17 consideration for me. I want the children to receive consistent and good quality schooling, 18 which is and which I hope will continue to be at … It is a very good school. Whilst keeping 19 4 children at private school is expensive, I am a firm believer that it is the best gift we as a 20 parents can give them.” 21 22 38. In that Affidavit he also asserted that there was no point to the wife’s’ maintenance application and 23 referenced the fact that he would shoulder the burden of making all the school fee payments for the 24 children in the monthly sum of approximately CI$2,622.90 and would have no surplus funds thereafter. 25 Under the heading school fees he stated: 26 27 “41. As previously alluded to, I view quality education as the most important gift a parent can give 28 a child. I am of the view that all my children should benefit from a private education and enjoy the 29 stability of attending the same school (namely ..) if at all possible. I have somehow managed to 30 pay school fees throughout this process, albeit at times with the help of loans from my parents as 31 alluded to otherwise herein.” 32 33 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 14 of 38 1 2 3 39. He also stated that he had no doubt that keeping the children in private school is in their best interest 4 and that there is huge importance that is attached to their stability to continue their education at the 5 private school: 6 7 “58. I have been able to pay 1 month of L’s school fees since the Petitioner stopped paying the fees 8 and will endeavor to somehow find the arrears. I am determined to continue to keep the children 9 in private school as I have no doubt that is in their best interests. The Petitioner has indicated that 10 I must pay the school fees, otherwise they would (in her words) have to be transferred to the public 11 school system. In an email dated 3 January 2019 (page 23) T. admits that such a course would be 12 a “very traumatic, emotional experience for the boys”. I agree that we must not inflict this trauma 13 if at all possible, upon the children. There is a huge importance that is attached to the boys’ stability 14 with regard to continuing their education at ... They need and want that stability to continue, not 15 only from an educational perspective, but also from a social and sporting perspective.” 16 17 40. In cross-examination in the course of this hearing in response to a direct question, the husband gave 18 evidence that he accepts and stands by what he said at paragraphs 20 and 21 of his earlier Affidavit. He 19 said: 20 21 “I am not saying that if there was another way, I would prefer that they stay at … but I 22 cannot afford it.” 23 24 41. He said that he agrees that trauma should not be inflicted on the children by changing their school and 25 that he is sure that the change would not be pleasant for them. He also said that it is possible that the 26 age at which they are now at, social stability is even more necessary. However, he was adamant that 27 affordability is the issue and said that: 28 29 “Not if it means that their father is homeless and will not have a place to stay.” 30 31 42. The evidence of the wife is that the first communication of the husband’s change of position to her was 32 on Tuesday 11th May 2021. This was in response to her inquiry made of him on the 10th May 2021, as 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 15 of 38 1 to whether the usual signed financial commitments for the new school year commencing August 2021 2 had been completed. It was at this time that the husband indicated that he did not intend to pay the 3 school fees and would be advising the school that he was no longer responsible for the payments. He 4 said also that he would be signing up the children for public school. The wife objected to the unilateral 5 change and various correspondence followed between them. Given the wife’s objection, on the 10th 6 June 2021 the husband filed a Notice to Act in Person and a Notice of Intention to Proceed in the case. 7 In the interim the wife has paid the school commitment fee of $300.00. The wife said that she did this 8 because the children would otherwise have lost their place at the school and no alternative arrangements 9 had been made for them to attend another school. On the 30th August 2021 the children commenced the 10 school year at the private school. 11 12 43. In her responsive Affidavit of the 23rd August 2021, the wife states that the husband has offered no 13 reasons or basis for his view that the government school would be a good choice for the children and 14 as to how their educational needs would continue to be met at this school. She states that the children 15 are currently happy and have a number of friends at the private school. They are doing well at the 16 school. In support of this statement, exhibited to her Affidavit are copies of their reports, graduation 17 and merit certificates for the school year ending June 2021. It is her view that to take them out of the 18 school at this time would cause them much emotional distress after they have already had to deal with 19 the aftermath of the divorce and the ongoing pandemic. The wife states further that: 20 21 “The Government school system is completely different from that of the school which they now 22 attend. Government schools are recognized to be of a lower standard with much bigger class sizes 23 and hence many people choose to pay and prioritize their children’s education at the sacrifice of 24 their own priorities where possible. 25 … 26 “The Government schools are known to have many behaviour issues along with bullying, gangs 27 and use of drugs. Although I accept that these behaviors can occur anywhere, to my knowledge, 28 the children have never been exposed to such conduct at… and they are thriving in their current 29 setting. I also feel that it is in the children’s’ best interests to be in a smaller focused setting which 30 cannot be received at the Government School.”8 31 8 Affidavit of wife dated 8th October 2021, paragraphs 29 and 31 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 16 of 38 1 44. In answer to questions from the husband in cross-examination the wife did not accept the suggestion 2 that the private school was rated as ‘satisfactory’ at the end of 2020. She said that there are different 3 grades for the various areas in the school and that while the overall average grade was probably 4 ‘satisfactory’ due to administrative issues, the teaching and learning components of the school were 5 rated excellent. She said that this is what is important. She said that she had not seen the report on the 6 public school and does not in fact know whether it is rated as good and that there are different social 7 issues there. 8 9 45. In response to a direct question from the husband, she stated that if the Court decides to move the 10 children, she would support them in whatever way is needed. 11 12 46. In response to questions from the Court as to the possible effect of any transition if this had to be 13 undertaken, she described the personalities of the children. Both are said to be emotional in personality, 14 with L being an expressive child while C internalizes his emotions. She said that she thought that it 15 would be extremely difficult for them to make the transition to a new school and that this would set 16 them back. They are presently going into years 7 and 8 and over time have established ‘friend groups’ 17 including homework groups and other support groups. A new school would be a new setting for them. 18 She said that she believed that they would have to have some sort of counselling in order to make the 19 transition at this point. She said that she has attended parent teacher conferences and all the teachers 20 have spoken about how well they are doing at the school. She does not know whether moving them 21 would be in their best interests and does not know how well it would be taken by them. She was asked 22 further questions by the husband as to whether their interaction with students from other schools such 23 as during sporting events would not make it easier for them to make the transition. She agreed that there 24 was interaction for example during inter school football matches but said that the interaction was not 25 at the friendship level which they have with other students who attend their present school. 26 27 47. The wife maintained that she thought that the change of school would be detrimental for them at this 28 point and that the support required for them, if the change is to take place would require additional 29 expenses. The husband suggested to the wife and to the Court that the change would not be as 30 detrimental as the wife stated. The husband also sought to re-enforce this suggestion by stating that he 31 attended public school in the past. 32 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 17 of 38 1 48. In his Affidavit of 28th October 2021, the husband formally produced summaries from the school 2 inspectorate reports for both schools. These indicate that the public school in question is rated as good. 3 It is said to have made significant improvements and to have excellent leadership. There are high 4 standards for students in subject areas and teaching and learning are good. In contrast the private school 5 had a lesser grade of satisfactory. It was found to have weaknesses in leadership and governance. 6 However, many aspects of its educational provision were found to be good with students achieving 7 well. The summary stated in part that: 8 9 “Students achieved well, due to dedicated and effective teaching staff who developed motivating 10 lessons and used effective teaching strategies.” 11 12 49. As I understood the summaries, the teaching and learning components were rated as good across both 13 schools. This is not a case where the quality of learning is said to be substandard at one as against the 14 other, such that other considerations would arise on this application. 15 16 50. From the evidence of the husband given in 2019, he accepted that it was in the best interests of the 17 children for them to remain at the school. From all of the evidence now before the Court it is plain that 18 the husband recognizes that there will be some trauma attendant upon any change of schools. He 19 repeatedly said that if there was another option for him to pay the school fees, he would pay the fees in 20 order for them to remain at the school. Implicit in these statements is the recognition and continued 21 acceptance that it is in fact in the best interests of the children for them to remain at the school. 22 23 51. One area of concern is the possible unfortunate manner in which the husband has gone about this. The 24 wife suggested that the timing is significant coming as it did in May 2021 only about two months after 25 his remarriage in late February 2021, when he had never before raised the issue of affordability. I do 26 note that the purchase of his new home was in November 2019 and that he commenced new 27 employment on June 1 2020, some eleven months before May 2021. I give him the benefit of the doubt 28 as to possible motives. It may be that there was genuine urgent panic on his part at a particular point in 29 time when he looked at his finances. However, I do consider that it was deeply undesirable to seek to 30 tell the children without warning or forward planning only two months before the start of the new 31 school year that they would have to change schools. 32 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 18 of 38 1 52. The first issue as I see it when considering the best interests of the children, is not whether one school 2 is public or private, the issue is uprooting them from the only school they have ever known, without a 3 period of preparation, and just two years after the divorce. This means taking them from established 4 study support systems as well as from their friends and social groups in circumstances where the rating 5 of the teaching and learning components of both schools is the same or comparable. The timing is also 6 a serious concern, in particular that this should be a few months before or during a school year. I would 7 have expected to see some significant transitional planning and preparation over a period of time such 8 that the parents could be assured of the environment at any new school and also that each child would 9 be comfortable making any proposed change. 10 11 53. Having considered all of the available evidence including the clear statements previously made by the 12 husband, I conclude that the best interests of the children would be for them to remain at their present 13 school if that is at all economically feasible. 14 15 INCOME OF THE HUSBAND 16 17 54. The husband’s evidence is that at the time of the FACO he was employed with an income of $10,735.00 18 per month, net of pension deductions it was $10,010.49. He also received a discretionary bonus of 19 $24,000.00 per annum or $2,000.00 per month. He says that he effectively used this bonus to pay school 20 fees. On the 1st June 2020, he commenced new employment. His monthly salary is $ 10,609.75 and he 21 no longer receives a bonus. He states: 22 23 “As can be seen, there has been a significant reduction in the amount of money that I have after 24 paying my outgoings, and I quite simply cannot afford to continue paying the school fees for L and 25 C.9 26 27 55. He points to what he says is a monthly deficit between his income and expenses even before factoring 28 in the payment of school fees. 29 9 Affidavit of husband dated 23rd August 2021, paragraph 14 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 19 of 38 1 56. His evidence is that in addition to his salary, he has two additional income streams. He has continued 2 as a consultant to his former employer and receives a quarterly director’s fee of US $2,225.00, which 3 amounts to US $741.66 or CI $615.00 per month. 4 5 57. At the time of the FACO the husband was living in rented accommodation. In November 2019, he 6 purchased a house using funds received from the divorce settlement and an additional voluntary 7 contribution from his pension funds. The house has three rental properties. The total rental income is 8 $2,850.00 per month. His total income inclusive of these two income streams is therefore $14,074.00 9 per month. 10 11 12 2021 INCOME OF THE HUSBAND 13 $ 1 Salary (before pension) 10,609.75 2 Consultancy 615.00 3 Rental Income 2,850.00 Total 14,074.75 14 15 16 58. By way of assets the husband says that he has no savings. His only asset is the recently purchased home 17 which is presently valued at $665,000.00 with an outstanding mortgage of $554,220.26. Thus, the 18 equity is about $110,780.00. 19 20 59. In response to questions in cross-examination, the husband accepted that he now has more income than 21 when the FACO was agreed. His income in 2019 inclusive of a bonus of $19,800.00 was CI 22 $148,500.00 per annum. In 2021 it has increased by $20,000.00 to CI $168,888.00 per annum. This 23 includes consultancy fees and rental income. He also accepted that he is no longer paying school fees 24 for T who is now enrolled in tertiary education on a full scholarship. Neither is he paying school fees 25 for H who also has a full scholarship. He used to pay 60% of the fees for both which was about 26 $1800.00 per month. Their mother paid the other 40%. 27 28 60. He said that the mortgage which he now pays of $4,698.00 is not necessarily offset by the income of 29 $2,850.00 from tenants. This is because the income from the tenants is reduced by related expenses 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 20 of 38 1 such as electricity, water and cable. Additionally there are insurance fees and other costs and the 2 properties may not be rented continuously. 3 4 61. He agreed that in 2019 at the time of the MPS hearing that the deficit which he declared was $2,094.00 5 and that at that time he had said his bonus was discretionary and was not guaranteed. 6 7 62. He said that the declaration made in his signed Statement of Information for the Consent Order that: 8 9 “H wants to keep the children at.. school and the order provides for that.” 10 11 was based on his getting a bonus which he no longer receives and that his additional income is offset 12 by his expenses. He said that despite the fact that his total household income is over $17,000.00, the 13 school fees of about $2,200.00 are not affordable. 14 15 63. He accepted that by the FACO the wife’s employment position is not the important factor and that the 16 FACO states that irrespective of her employment position he would be still responsible for the school 17 fees. 18 19 20 EXPENSES OF THE HUSBAND- 2021 21 22 64. The husband’s evidence is that his total expenses amount to $19,381.00 when school fees are factored 23 in and that he has a short fall of $1,806.97. He points out that in addition to financial support for the 24 children by way of maintenance payments, he also provides for them when they are staying with him. 25 26 65. The husband re-married on the 27th February 2021. There are no children from this marriage. His wife, 27 R earns a small income of $3,500.00 from two jobs. Forty two percent of this income, $1,500.00 is used 28 to support her own family overseas and $600.00 is used by her for her own personal needs. Based on 29 the calculations provided by the husband, R makes a contribution of $1,400.00 towards the household 30 expenses. 31 32 66. Excluding at this stage, the income and contribution from R, and excluding the payment of school fees 33 for L and C, the husband gives his expenses in a revised schedule as follows: 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 21 of 38 1 2 Table of Husband’s Expenses -2021 3 Description $ 1 Pension 636.59 2 Mortgage 4,698.00 3 House Insurance 647.14 4 Home Gas 50.00 5 House Maintenance 300.00 6 Medical Insurance includes coverage for L and C 152.91 7 Medical Co-Pay 400.00 8 Dental Expenses for C – ½ payment for outstanding bill 200.00 9 Maintenance for L and C as per FACO 840.00 10 School lunches for L and C 160.00 11 School for H, L and C, at $100.00 each 300.00 12 Children’s activities 200.00 13 H- CC 200.00 14 H- Life Insurance pay 2’nd 527.48 15 H- Monthly 300.00 16 Domestic Helper / Transport 925.00 17 Domestic Helper / Medical 160.00 18 Phone 300.00 19 Electricity including provision for tenants 800.00 20 Internet and Cable TV including provision for tenants 305.85 21 Internet including provision for tenants 65.00 22 Water – includes provision for tenants 300.00 23 Food 2,000.00 24 Gasoline 300.00 25 Car Insurance 150.00 26 Car maintenance 150.00 Total $ 15,067.12 Total $ less pension of $636.59 14,430.53 4 5 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 22 of 38 1 2 3 67. The husband was cross-examined about various expenses and whether or not any savings could be 4 made from any of these items. In each case he disagreed that any savings could be made. 5 6 68. With respect to his spending of $2,000.00 per month on groceries, he says that this is for three adults 7 to include the live-in helper, his daughter H who resides with him two weeks per month and L and C 8 who reside with him eight nights in every four-week period during the school terms. T no longer resides 9 with him. He said that while the amount for groceries in 2019 of $1,600.00 was at a time when more 10 children were living with him, that was some time ago and food is more expensive now. 11 12 69. He accepted that the wife has more day-to-day expenses than he does but says that he does not think 13 that there is a significant difference. He said that he also contributes to food and expenses for the 14 children when they are with the wife. 15 16 70. As to his spending on gasoline of $300.00 per month, he agreed that he lives fairly close to his place of 17 work but said that this amount is for three vehicles because his daughter H also uses a vehicle which 18 her boyfriend drives. 19 20 71. His evidence was that the majority of the cable/internet bill of $365.85 is for the tenants and he did not 21 agree that there are other cable packages which could be purchased at a lesser cost. The phone bill of 22 $300.00 per month is a package for himself, his wife and H. 23 24 72. It was suggested to him that a full-time helper is not an absolute necessity given the ages of the children 25 and that a part time helper would be sufficient. His response was that he does not have the ability to 26 leave work in order to transport the children from school or events. He said that if the children stay 27 after school it would be $10.00 per hour and he would have to arrange with people to pick them up. It 28 was suggested that he could make arrangements for R, his friends or the wife to pick them up. In 29 response he referred to past communication issues with the wife. 30 31 73. He denied the suggestion that he was embellishing his expenses slightly and also denied having a 32 tendency to inflate some of the figures which he had provided. 33 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 23 of 38 1 74. In response to an inquiry as to the difficulty of verifying some of his spending with documents, he said 2 that he uses cash on occasion because he receives cash from his tenants. 3 4 75. He was asked about a payment from his accounts in September 2021 of $500.00. He said that this was 5 a payment to the Department of Commerce and Investment for the establishment of a mobile business 6 that he intended to commence but which has not yet come to fruition. In response to the question how 7 he could be investing in a new business when he says that he cannot afford to pay school fees, he said 8 that this was an attempt by him to identify other options in order to be able to provide for the children. 9 10 76. He acknowledged that the school fees are presently in arrears in the amount of some $6,000.00. He has 11 made no payments towards this since the start of the school year. 12 13 77. He said that over the two summer months he had obtained a waiver from his Bank in relation to the 14 payment of his mortgage. The waiver was granted because his property had received some damage 15 during the recent storm and needed repairs. Some shingles had come off the roof and some trees had 16 been uprooted. He accepted that he had not provided evidence of this in the disclosure which he filed 17 and that despite the significant mortgage savings, he still had not paid any school fees. He said that he 18 could have contributed to the children’s school fees but that this would have been at the expense of 19 other things. 20 21 78. He said that at his age, his mortgage is already up to age 70, the equity in the house is less than 22 $100,000.00 and that “he would think that it is fairly obvious that he would not be able to access 23 personal loans because of the level of his expenses”. 24 25 INCOME AND EXPENSES OF THE HUSBAND- 2019 26 27 79. The evidence of the husband10 is that shortly before the FACO his income was $10,010.49 net after 28 pension deductions. His expenses amounted to $12,305.38. The deficit of $2,094.89 (including school 29 fees) was initially met by the bonus payment which he received and thereafter by pension withdrawals. 30 The living arrangements at the time were two adults, being the husband and a domestic helper and the 31 four children when they reside with him. His expenses were therefore said to include utilities and food 32 for six people. 10 Affidavit of the husband dated 7th June 2019 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 24 of 38 1 2019 INCOME 2 Description Income $ 1 Net salary after pension deduction 10,010.49 2 Payment from sister being contribution towards her use of domestic helper 200.00 3 Bonus payment (CI $19,680/12) 1,640.00 Total 11,850.49 3 4 5 2019 EXPENSES 6 Description Expenses $ 1 Estimated payment for medical co-pay 200.00 2 Domestic Helper – salary plus health 930.00 3 Rent 3,000.00 4 Electricity 400.00 5 Water 150.00 6 TV and internet 225.00 7 Cellphone 225.00 8 Life Insurance 527.48 9 Medical Insurance 436.00 10 Car Insurance 50.00 11 Car Maintenance 200.00 12 Gas 250.00 13 School fees – 1st child -T 933.20 14 School fees – 2nd child – H 933.20 15 School fees - L 745.50 16 Children’s Activities and Lunches 600.00 17 Children’s Clothing 200.00 18 Food for self, helper and 4 children 1,600.00 19 Personal Clothing 100.00 20 Personal Expenditure 600.00 TOTAL $ 12,305.38 Monthly deficit of $2,094.90 7 8 9 80. Based on the figures he provided in 2019, he paid and was able to pay $2,611.90 in school fees while 10 earning a lower level of income and with more people living in his household. 11 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 25 of 38 1 THE WIFE’S INCOME AND EXPENSES 2 3 81. The wife has obtained employment since the FACO was made. She earns a gross salary of $5,586.06 4 per month which after pension deductions is $5,111.90 per month. 5 6 82. In February 2020 the wife used pension funds to complete mortgage loan payments on the one-bedroom 7 apartment referred to above. The Pensions Department has caused a restriction to be entered on the 8 Land Register for the property under s.133 of the Registered Land Act (2004 Revision). 9 10 83. The wife was initially living in a three-bedroom rental property which she has now been able to 11 purchase from her landlady at a discounted price. The discounted price was offered on the basis of the 12 improvements which she had made to the property while a tenant. The purchase was completed in 13 September 2021. She gave evidence that the reason for the purchase was to obtain a home in which the 14 family could live. The one-bedroom apartment which is too small for the family was used as collateral 15 for the purchase of the three-bedroom property. An outstanding car loan was also consolidated with the 16 mortgage on this property. 17 18 84. The wife receives rental income from the one-bedroom property of $1,550.00 per month and child 19 maintenance of $840.00 per month together with payments for school lunches. She says that the amount 20 of child maintenance which she receives is reflective of the fact that the children spend more time with 21 her than with the husband. Her total income is set out below: 22 23 THE INCOME OF THE WIFE 24 25 26 27 28 29 30 31 32 CI $ CI $ 1 Salary 5,586.06 Less Pension 335.20 Medical 139.00 Net Salary 5,111.86 2 Rental Income (1 bedroom) 1,550.00 3 Children Maintenance 840.00 4 School Lunch (10 months) 160.00 Total $ 7,661.86 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 26 of 38 1 85. The wife’s evidence is that she has tried to structure and reduce her expenses as much as is possible in 2 order to live within her means. She says that she does not have a full-time helper as she came to the 3 realisation that this is not affordable on her budget. The children are older and she encourages them to 4 do their own chores. 5 6 86. She also states that it would be a great financial strain for her to bear the full expense of the children’s 7 private schooling. She could not do so on her own. Whereas the school fees would amount to a 8 substantial portion of her income, it would be only about 15% of the husband’s income. She gives her 9 expenses as follows: 10 11 12 THE EXPENSES OF THE WIFE 13 Description $ Note 1 Mortgage (3 bedroom) 1,865.00 2 Strata (3 bedroom) 775.00 3 Apt Maintenance (3 bedroom) 200.00 4 Strata (1 bedroom) 354.43 5 Maintenance (1 bedroom) (AC etc.) 150.00 6 Food 1,200.00 7 Electricity 500.00 8 Water 100.00 9 Internet/Cable 170.90 10 Phone house, personal phone, pre-paid phone for children 185.00 11 Credit Card 250.00 12 Gasoline 240.00 13 Car maintenance & licensing 100.00 14 Car Insurance 79.83 958.99 ann. 15 Afterschool classes for L 220.00 16 School lunch 220.00 17 Medical Co-Pay etc. (children and wife) 200.00 18 Life Insurance 132.67 19 Clothes, football and track gear etc. for children 200.00 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 27 of 38 20 Children Misc (Haircut, Birthday Parties, School trips, etc., projects) 200.00 21 Children Clubs (Football $450.00 per child and $100 track yearly) 50.00 900.00 is to be split 50/50 22 Cleaner 160.00 (Bi weekly for deep cleaning) $80.00 per cleaning) Personal 100.00 TOTAL $7.653.33 Monthly surplus $8.53 1 2 3 87. In her evidence the wife questions the timing of the husband’s application and expresses surprise that 4 if the husband was genuinely experiencing financial difficulty this was not made known earlier than 5 May 2021. She states that one month after the husband remarried in February 2021, in March 2021 he 6 began to “renege on his maintenance support.” This was in reference to his one month arrears of 7 maintenance and unwillingness to pay medical co-pay for podiatrist appointments for L. He also refused 8 to authorize dental treatments needed by C. 9 10 88. She says that it is not true that in the past the husband relied on his bonus payments to pay school fees. 11 She said that these were paid monthly and did not await the end of year. The bonus payments when 12 received were used for vacations and other activities. It is her view that he is seeking to absolve himself 13 of responsibility for paying the school fees despite what he specifically agreed to and ‘pushed for’ when 14 he agreed to the FACO. 15 16 89. The husband highlights the wife’s asset position. He says that she owns two properties and has rental 17 income from one. In his cross-examination he focused on two main areas. Firstly, as to whether the 18 wife had capital which could have been used towards school fees and secondly that presently she is still 19 in a better position than he is with respect to capital assets. He suggested to her that she chose to 20 purchase the three bedroom property and to use the one bedroom apartment as collateral when she could 21 have used the capital in the first apartment to pay school fees. 22 23 90. The wife responded that the one-bedroom apartment was not sufficient space for the three of them. She 24 explained that she had been renting the three-bedroom property at $1,900.00 per month and that her 25 landlady offered to sell her the property at a price below market value. She was grateful for the 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 28 of 38 1 2 3 opportunity to make the purchase. It was valued at $350,000.00 and the agreed sale price was 4 $250,000.00. As she had no funds, she used the one bedroom apartment and pension funds. There is 5 now a charge on that apartment of $150,000.00 and the restriction from the Pension Board mentioned 6 above. 7 8 91. The wife accepted that she had spent in total about $1,500.00 on a recent overseas trip to include 9 $700.00 on an airline ticket. She said that the purpose of her travel was to visit a friend who is seriously 10 ill with cancer. The children did not travel with her. 11 12 92. She said that she is not able to and cannot further draw down on pension funds in order to pay school 13 fees. The amounts withdrawn on the divorce have already been taken into account. She has to pay back 14 an additional 1% because of the funds which have been previously withdrawn. 15 16 93. She agreed that she does not contribute to the school fees for the children but says that she does pay for 17 extra classes in mathematics for L. 18 19 94. The husband suggested to her that she has two properties “tied up” and that if she was to liquidate her 20 holdings she would have $400,000.00 and be able to pay for the education of the children at the private 21 school. The wife responded that the children need a home and that this would mean that she would then 22 have to pay rent of about $2,500.00. Her present mortgage is $1,865.00 with strata fees of about 23 $600.00. She said that she would lose the additional income from the one bedroom apartment. 24 25 95. She said that she has endeavoured to structure her expenses to meet her budget and to consider how 26 best to make things work. She is not able to pick up the children after school because of the distance of 27 the school from her place of work. She manages with the help and support of other parents at the school. 28 She said that the children are now 13 and 11 years old and should be taught responsibility. 29 30 96. In answer to the suggestion of the husband that he cannot afford to pay the school fees, the wife said 31 that she believes that if he structured his household expenses properly he would be able to afford it. 32 33 97. In response to a question from the Court as to whether if she is required to make a contribution to the 34 school fees, whether she would be willing and able to do so. She said that she would have to try to 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 29 of 38 1 structure her finances but some things could not change such as mortgage and insurance payments. 2 Additionally she said that she has been given notice of departure by her tenant who will vacate the 3 premises by 1st November 2021. She will have the expenses of changing and fixing items before she 4 could seek a new tenant. 5 6 THE SUBMISSIONS 7 8 98. In closing submissions, the husband submitted that on the facts he is not in a position to pay the school 9 fees. He says that he is struggling on a personal level in a way that he has never struggled before. He 10 says that at age 57 years, he has a limited time to work, he has no pension, no assets and is in a far 11 worse financial position than the wife who has eight more years to work than he does. 12 13 99. Counsel on behalf of the wife submitted that there is no material change in the husband’s circumstances 14 from two years ago when the FACO was made. He is in fact better off than before. On the figures the 15 ability to pay does exist, the husband can afford to pay his mortgage and school fees and would have 16 $10,000.00 left to meet his responsibilities. The reference to the absence of a bonus which was 17 previously used to cover school fees is said to be a ‘red herring’. It is also submitted that it is very 18 difficult to assess the husband’s expenses because he refers to cash payments which are unsupported 19 by documentation. 20 21 100. Counsel submitted further that the husband has acknowledged that it is in the best interests of the 22 children for them to remain at the private school and that he has not considered the dramatic impact 23 that the proposed change would have on them. Counsel also submitted that the husband is making a 24 specific issue application for which other than inspectorate reports, it is devoid of any information as 25 to the basis for belief that this is the appropriate school choice for the children. 26 27 101. With respect to a possible contribution from the wife, Counsel said that it is difficult to see what can 28 be afforded on the wife’s budget, but that if she was required she would be willing to try to assist with 29 the differential for the 2022 school year. 30 31 32 33 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 30 of 38 1 DISCUSSION 2 3 102. Both parties entered into the FACO in 2019, only two years ago. At that time the husband was insistent 4 that the children should remain at the private school and that he would pay the fees. He was clear that 5 he wished all his children, both younger and older to be educated at the private school. It is evident that 6 the wife relied on and structured her finances around that arrangement. She was entitled to do so. On 7 the husband’s part it appears to be the case that despite making that arrangement and knowing full well 8 what the Court order required, he thereafter made a series of commitments as to the purchase of a home 9 at a particular cost with a resulting high-level mortgage and as to various high expenses. It appears that 10 this may have been done without any priority given towards or planning for his responsibility for the 11 private school education of his two younger children. He would have known that the two older children 12 would have completed their studies at the school before the two younger ones and the resulting changes 13 in the discounts offered by the school. This cannot have taken him by surprise. 14 15 103. While I bear this background in mind, it is but one element. I must consider all the relevant statutory 16 factors and in so doing give due consideration to the present circumstances of both parties. 17 18 104. The bank account statements provided indicate that neither party has any significant savings. Both have 19 made withdrawals from their pension funds to cover the down payments on house purchases or other 20 expenses. Further pension withdrawals are said to be unobtainable. Other than their monthly income, 21 there is no indication that either party is likely to have other financial resources in the foreseeable future. 22 23 105. The wife is some eight years younger than the husband and will as he points out, have the ability to 24 work for a longer period. She will thus have more time to contribute towards the payment of a mortgage. 25 However, it is the case that her income level and earning capacity is significantly less than the husband 26 who is employed in an executive role. She does not appear to have the earning capacity to make 27 mortgage contributions at a high level. Even if an additional loan could possibly be obtained by her 28 which is doubtful, it is difficult to see how she would be able to meet any additional loan payments on 29 her present income. 30 31 106. Other than personal motor vehicles, the only major assets owned by both is real property. While the 32 wife has a one-bedroom apartment which is free of mortgage loan it has been used as collateral towards 33 the recent purchase of the three-bedroom apartment in which she resides with the two children. Sale 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 31 of 38 1 of the properties would generate equity of about $100,000.00. I cannot see how this would be an 2 optimum solution given that it would deprive the children of a stable home and would also lead to rental 3 payments for a new home which would likely be more than or the same as the mortgage and strata fees 4 which are currently being paid. Additionally, the sale of the one-bedroom apartment would deprive the 5 wife of the small rental income which she presently receives. 6 7 107. The husband has the house which he recently purchased. The equity in it is about $110,000.00. He has 8 obligations by way of outgoings in respect of this property, mortgage, maintenance and insurance costs 9 which are to some extent fixed and are high. He too must provide a home for his children and for his 10 new family. While he made the choice to purchase a property with a high mortgage cost, I accept that 11 home ownership and equity build is the optimum course. I note also and take into account that at his 12 age, the time which he has to complete payment of his mortgage is not extensive. 13 14 108. The level of income, outgoings and obligations of each party are of particular issue in this case and any 15 changes thereto since the FACO was made. The wife is now employed. This was contemplated by the 16 FACO and the husband accepts that this cannot by itself now be a basis for his non-payment of school 17 fees. 18 19 109. The wife has primary care for the children who are resident with her for most of each month during the 20 school terms. She earns less than one half the amount earned by the husband. The husband pays child 21 maintenance of $840.00 and school lunch contribution of $160.00, a total of $1,000.00 per month. The 22 husband recently agreed to the above mentioned dental treatments and the wife now has an additional 23 $200.00 per month in medical co-pay. The wife’s outgoings for the children amounts to $1090.00 per 24 month: 25 26 i) After school math classes $220.00 27 ii) School lunches $220.00 28 iii) Medical copay $200.00 - payable for a year and ½ 29 iv) Kids club – $50.00 30 v) Clothes – $200.00 31 vi) Misc, hair cuts, projects, school trips, birthday parties – $200.00 32 33 110. This $1,090.00 per month does not include food for the children and utility costs such as water and 34 electricity. 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 32 of 38 1 2 111. The total school fees of $2,213.75 amounts to about 16% of the husband’s total income while they 3 would be about one third of the wife’s income excluding the child maintenance which she receives. I 4 have reviewed the budget of the wife and accept her evidence that it is structured to reduce expenses as 5 much as is possible. She appears to have accepted that the standard of living enjoyed by the family 6 before the breakdown of the marriage cannot be maintained. For example she has accepted that she can 7 no longer afford a full time helper. There has been some change in her circumstances. Not only was 8 this contemplated by the FACO but it does not appear to be such as to justify a variation of the FACO 9 for her to bear the education costs. She does not have the means and would be unable to bear these costs 10 on her present income. 11 12 112. With respect to the husband, he has urged that there is a significant change to his income position as he 13 no longer receives a bonus. Having reviewed his income and expenditure schedules, it is difficult to 14 see what significant negative change there has been to his overall income position. He now receives a 15 consultancy fee and rental income. He says that the rental income which he receives is less than the 16 amount of the additional housing costs. It is noted that the mortgage and house insurance costs amount 17 to $5,345.14, a difference of $2,345.00 above the rental cost of $3,000.00 which was payable before 18 the purchase of the house. He calculates that when this $2,345.00 is taken together with internet costs 19 and one-half utility costs for his tenants, the total is $3,114.56, which is higher than the $2,850.00 which 20 he receives as rental income.11 21 22 113. However, it is of note that this is a difference of only $264.00. This means that the increase in his 23 outgoings is not as a result of a significant increase in housing costs. The increased housing costs are 24 mostly offset by the rental income. The tables below show the comparison between his 2019 and 2021 25 incomes. 26 27 INCOME 2019 Description Income $ 1 Net salary after pension deduction 10,010.49 2 Payment from sister being contribution 200.00 11 Paragraph 4 of his Affidavit dated 28th October 2021 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 33 of 38 towards her use of domestic helper 3 Bonus payment (CI $19,680/12) 1,640.00 Total 11,850.49 1 2 3 INCOME 2021 $ 1 Net salary after pension deduction of $636,59 9,973.16 2 Consultancy 615.00 3 Rental Income 2,850.00 Total 13,438.16 4 5 6 114. The change in his circumstances is not as he says. a reduced income, it is in the level of his expenses. 7 8 EXPENSES 2019 Total (including school fees for 3 children) $12,305.38 9 10 EXPENSES 2021 Total excluding school fees for all children $14,430.53 11 12 13 115. It is my view that the percentage of the husbands’ income which is to be paid towards the school fees 14 in this case, is reasonable and fair and that his expenses can be structured in such a way as to make 15 them affordable. 16 17 116. The husband in his Affidavit of 28th October 2021 and in submissions expressed concern that the 18 income of his wife R is to be taken into account with respect to the maintenance of the two children. In 19 the case of Gillooly v. Gillooly,12 the Court following the dicta of Wood J. in Macey v. Macey13 held 12 [1990-199] CILR Note 14b 13 [1982] 3 F. L. R. 7 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 34 of 38 1 that the husband’s cohabitee’s financial contribution to the joint living expenses was also to be 2 considered since this allowed the husband to make a greater contribution to the expenses of the wife 3 and children. 4 5 117. In the case of SD v. AL14, Williams J, stated: 6 7 “58. Although it is not for F’s wife to pay for child maintenance for N and T, her income is relevant. 8 ... Having regard to the Court’s duty under s. 19 of the MCL to have regard to F’s responsibilities, 9 needs, financial and other resources, F was asked to voluntarily provide details of his wife’s income 10 and expenditure. ..” 11 12 118. I consider the contribution of R to be a relevant factor in this case. This is another resource which the 13 husband has. When the contribution of $1,400.00 towards the household expenses is taken into account, 14 the husbands’ expenses are reduced to $13,030.53 per month. He actually has a small surplus income 15 over expenses of $407.63 before payment of school fees. The total school fees are $2,213.75. He would 16 need to find an additional $1,806.12. 17 18 119. I have taken a non-detailed look at the husband’s spending patterns. I noted the evidence of the wife in 19 the course of the hearing that perhaps reducing his spending was one option he could consider. 20 21 120. I reviewed the period in his bank and credit card statements shortly before and after the 11th May 2021, 22 when he indicated that he could no longer afford to pay the school fees. The following was seen: 23 Date Payment Effected by Bank Description - Bills $ Hearing Bundle Page15 15th April 2021 Bar and Lounge 165.63 147 15th April 2021 Bar and Lounge 119.38 147 28th April2021 Bar and Lounge 121.25 147 10th May 2021 Bar and Lounge 129.00 114 10th May 2021 Bar and Lounge 32.50 114 10th May 2021 Four bills 109.98 114 21st May 2021 Bar and Lounge 98.00 119 23rd May 2021 Bar and Lounge 90.88 149 14 Supra 15 Affidavit of husband dated 14th October 2021 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 35 of 38 24th May 2021 Bar and Lounge 53.50 119 7th June 2021 Bar and Lounge 62.00 116 Total $982.12 1 2 3 121. This spending appears to be separate from the $2,000.00 per month budgeted for food. In respect of a 4 request for grocery receipts or bank statement evidence in support of that amount the husband 5 responded, “As cash is paid by the tenants, $1,000.00 and $600.00, some of this cash is used for 6 groceries and other items. I do not keep receipts.” 7 8 122. While it is understandable that the husband would wish to maintain the standard and quality of life to 9 which he is accustomed and he cannot be faulted for this, it does appear that there is room in his 10 spending budget to achieve modest savings for the remaining three to four years that the children will 11 take to complete high school at their present location. Reducing some monthly non-essential bills by 12 one half or even one third may assist him in his endeavor to meet his responsibilities. 13 14 123. I have also given consideration to the nature of some of the husband’s expenses as set out in his budget. 15 In my view a broad assessment of his non-fixed expenses shows that some are elective and can be 16 reduced if there is the will to do so. This is not to be taken as meaning that any of these individual items 17 are irrelevant or unimportant. If he choses, he could utilise the services of a part time rather than full 18 time helper. I do not think that it would be unfair or unreasonable for him to be asked to do so. This 19 would be similar to what the wife has done. His primary objection to this was transport of the children 20 from school in the afternoons. The wife has made arrangements with other parents to assist because of 21 the distance of the school from her place of work. I cannot see that it would be difficult for the husband 22 to make the appropriate arrangements including if necessary, asking the wife to make them. The food 23 budget may possibly be reduced in light of the number of persons in the home and the funds spent on 24 meals outside the home some of which are listed above. Modest savings can also be achieved by 25 changing various home packages. 26 27 28 29 30 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 36 of 38 1 124. While the structure of his budget is a matter for him, one way in which possible savings can be achieved 2 is set out below: 3 4 POSSIBLE SAVINGS ON EXPENSES Description Present $ Saving $ H-Monthly 300.00 -100.00 Domestic Helper / Transport 925.00 - 765.00 Domestic Helper / Medical 160.00 -160.00 Phone 300.00 -100.00 Internet and Cable TV including provision for tenants 305.85 -100.00 Food 2,000.00 -500.00 Gasoline 300.00 -100.00 Total available to meet school fees $ 1825.00 5 6 7 125. This would provide the ability to meet the school fees with funds remaining for small savings. 8 9 126. From his evidence, the view I had of the husband as to his willingness to make efforts to pay the school 10 fees was not entirely positive. This is in part because the position which he put forward appeared to me 11 to be inexplicable and somewhat self-serving. Perhaps recognizing that the income level of the wife 12 does not provide her with the means to pay the school fees, he suggested in summary that the wife’s 13 purchase of the three bedroom apartment using all her capital in the one bedroom apartment was 14 ‘convenient’ and a poor choice. He said that this could have been used to pay the school fees. He also 15 suggested that if the wife liquidates all her assets now i.e. sell both apartments, she would likely have 16 some $400,000.00 and could put this towards the school fees. As to where the children would live for 17 the majority of the month, the rent which would need to be paid thereafter and whether there would or 18 could be the ability to purchase yet another home sometime in the future appeared to be of little concern 19 to him. 20 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 37 of 38 1 127. Despite his position in respect of the wife, he maintained throughout these proceedings, that if he has 2 to pay the school fees, he will lose his home and be “homeless”. He was adamant that this would be 3 the effect despite various alternative scenarios for reducing expenses which were put to him in cross- 4 examination. He was forceful in his responses that this must be avoided at all costs. The inconsistency 5 in his approach to his home as distinct from the home of the wife is questionable. The unfortunate 6 impression with which the Court was left is that he is now singularly unwilling to meet or make any 7 effort to meet any part of the obligation which he undertook to meet in 2019 at the time he agreed to 8 the FACO. 9 10 128. He was cross-examined about the fact that in September 2021 he paid $500.00 to the Department of 11 Commerce and Investment. This he says was towards the possible establishment of a new business. 12 While he justifies this as seeking another source of income, it does illustrate that despite the heavy 13 expenses which he says he has, he was able to find $500.00 when he had the will to do so. It also 14 suggests that plans can be made for alternative sources of income. In August and September 2021 his 15 mortgage was waived, due to the need for house repairs, a saving of $9,396.00. He made no payments 16 towards school fees, not even in a minimal amount. 17 18 129. The above analysis shows that with reasonable savings in respect of outgoings, the school fees are 19 affordable in tandem with his other fixed obligations. This is not a case where he is likely to be homeless 20 if he has to pay the fees. 21 22 130. At various points, the husband said that the income of R is variable as she works in the service sector. 23 I have also considered the position if the husband received no contribution towards the household 24 expenses from R. He committed to the payment a short two years ago. Nothing that has happened since 25 on the expense side was outside his own control. On the income side he is better off than he was. In 26 my view it would be for him to reduce his level of expenses such as to be able to use the equity in his 27 home to qualify for a short-term loan if he receives no contribution towards household expenses from 28 R. 29 30 CONCLUSIONS 31 32 131. I have considered all the evidence before the Court and all the submissions made. I conclude that on 33 the evidence it is in the best interests of the children of the marriage, L and C that they remain at the 211213 - FAM 165 of 2018: TW v. MW. Coram: Richards J. Date: 13th December 2021 - Judgment. Page 38 of 38 1 private school in which they are presently enrolled. I have reviewed the relevant factors to the extent 2 necessary given the nature of this case. I conclude that the children remaining at the private school is 3 feasible in light of the cost, the income and expenses of the husband and the proportion of his income 4 which would be required to make payment of the fees. There is no significant change in the husband’s 5 circumstances such as to justify a variation of the FACO which requires that he pays the said fees. I 6 have reviewed the income and expenses of the wife. There is no significant change in her circumstances 7 which was not contemplated by the FACO. The fees are not affordable on her income and there do not 8 appear to be any expense items in her budget which can be reduced such as to allow her to make a 9 contribution. To require her to sell the apartments in order to meet the payments would deprive the 10 children of a stable home and deprive her of rental income. This would not be fair or reasonable in the 11 circumstances of this case. 12 13 132. The application of the husband to vary the FACO so that he pays no school fees for the private school 14 attendance of the children is refused. The application of the husband for the children to be moved from 15 the private school to a government school is refused. 16 17 133. The husband is to commence the monthly payment of the said school fees on or before the 20th 18 December 2021. These payments are to continue until the children complete their education at the said 19 school. On the said date, 20th December 2021, he is also to commence partial payments of $500.00 per 20 month towards reducing the arrears of school fees incurred since 30th August 2021. These partial 21 payment are to continue until the arrears are paid off in full. 22 23 134. The wife has indicated that there may be a possible application for costs. Should she wish to make such 24 an application, this may be made within 14 days of the date of this judgment. 25 26 Dated this 13th day of December 2021 27 28 Honourable Justice Cheryll Richards Q.C. 29 Judge of the Grand Court