A v B and C - Reasons for Judgment

¶ 181120 Reasons for Judgment - FAM 110 of 2018 (RMJ) Page 1 of 5 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 FAMILY DIVISION 2 Cause No.: FAM 110 of 2018 (RMJ) 3 4 5 BETWEEN: A PETITIONER 6 AND: B RESPONDENT 7 AND: C CO-RESPONDENT 8 CHAMBERS 9 Appearances: Ms. Cherry Bridges of Ritch & Conolly for the Petitioner 10 Mr. David McGrath of McGrath Tonner for the Respondent 11 The Co-Respondent neither represented nor attending 12 13 14 Before: The Honourable Justice Robin McMillan 15 16 Heard: 15 November 2018 17 18 19 Reasons for 20 Judgment 21 Delivered: 20 November 2018 22 23 24 25 26 HEADNOTE 27 28 29 Interim Maintenance pending suit – Applicable principles of law – Circumstances where party’s 30 assets have been placed beyond her control – Reasonableness and fairness considered. 31 32 33 34 35 36 37 38 181120 Reasons for Judgment - FAM 110 of 2018 (RMJ) Page 2 of 5 REASONS FOR JUDGMENT 1 2 3

¶ [1] These brief Reasons for Judgment follow a decision which this Court made on 15 4 November 2018. 5

¶ [2] The Petitioner had applied for periodic maintenance payments pending suit pursuant to 6 Section 20 of the Matrimonal Causes Law (2005 Revision) (“the governing Law”) in a sum 7 which after an initial exchange of learned Counsels’ submissions was ultimately posited in 8 the sum C.I $11,000 per month. This claim was in relation to a number of items set out in 9 the form of what is described as a Scott Schedule. 10

¶ [3] The outstanding items are described in Part B headed “Other Living Expenses for Wife,” 11 and Part C headed “Expenses Specifically Related to the Children.” The items in contention 12 primarily relate to the Petitioner’s expenses, but are not exclusively so. 13

¶ [4] Compendious Court Binders have been provided along with detailed Written Submissions, 14 for which the Court expresses its gratitude. 15

¶ [5] The parties have enjoyed a high standard of living in the past, and have been able to ensure 16 that their two children have also been amply cared for. 17

¶ [6] Without in any way delving into the facts beyond what is absolutely necessary for present 18 purposes, the Court notes that the Respondent without consulting his wife or seeking her 19 agreement has purchased from what is accepted to be jointly owned matrimonial property 20 both a house in Scotland and a Ferrari motor car. This unilateral expenditure extends to 21 many hundreds of thousands of dollars and in the view of the Court it has a practical and a 22 legal bearing on the issue of whether an order of interim maintenance in favour of the 23 Petitioner is appropriate. 24

¶ [7] The Court considers that the governing Law permits it to award interim maintenance taking 25 into account the princples set out by Mr. Nicholas Mostyn Q.C (as he then was) in TL v. 26 181120 Reasons for Judgment - FAM 110 of 2018 (RMJ) Page 3 of 5 ML and others [2005] EWCA 2860 (FAM) and further adopted by Williams J. in B v B 1 2012 (2) CILR 124. 2

¶ [8] Mr. Mostyn states at paragraph 124: 3 “i) The sole criterion to be applied in determining the application is “reasonableness” 4 (s22 Matrimonial Causes Act 1973), which, to mind, is synonymous with “fairness”. 5 ii) A very important factor in determining fairness is the marital standard of living (F v F). 6 This is not to say that the exercise is merely to replicate that standard (M v M). 7 iii) In every maintenance pending suit application there should be a specific maintenance 8 pending suit budget which excludes capital or long term expenditure more aptly to be 9 considered on a final hearing (F v F). That budget should be examined critically in every 10 case to exclude forensic exaggeration (F v F). 11 iv) Where the affidavit or Form E disclosure by the payer is obviously deficient the court 12 should not hesitate to make robust assumptions about his ability to pay. The Court is not 13 confined to the mere say-so of the payer as to the extent of his income or resources. (G v 14 G, M v M). In such a situation the court should err in favour of the payee. 15 v) Where the paying party has historically been supported through the bounty of an 16 outsider, and where the prayer is asserting that the bounty had been curtailed but where 17 the position of the outsider is ambiguous or unclear, then the court is justified in assuming 18 that the third party will continue to supply the bounty, at least until final trial (M v M).” 19

¶ [9] In addition to those broad guiding principles, the Court also reminds itself that it must 20 enquire into and as appropriate satisfy itself as to the needs of the claiming party. 21

¶ [10] In the instant case the Court considers that the needs of the Petitioner have been both 22 expanded and indeed exacerbated by the unfortunate purchasing actions of the Respondent 23 which in summary form have been above described. In other words, the Petitioner no 24 longer has access to funds and resources which she could otherwise call upon both for her 25 own use and for the general benefit of the children of the marriage as she might deem fit. 26 181120 Reasons for Judgment - FAM 110 of 2018 (RMJ) Page 4 of 5

¶ [11] This application involves a consideration as to what is reasonable, which I understand is 1 synonymous with fairness. For the reasons identified in the previous paragraph, the Court 2 considers an award to be permissible in law as well as desirable in practice. In fact the way 3 in which the Respondent has chosen to live his life, and to make those large expenditures, 4 has created relationship needs in this regard. The Petitioner’s own liquid assets have been 5 placed beyond her immediate grasp. 6

¶ [12] The Court also bears in mind that while it is not able to replicate the former standard of 7 living enjoyed by the parties it should not at the same time seek to be overly precise in the 8 award that it makes. 9

¶ [13] One problematic issue which has arisen is that at this stage, beyond the professional 10 accounts of the Respondent for 2017 alone, the Court is not more fully informed as to the 11 Respondent’s personal financial circumstances, but that does not deter the Court from 12 making the best estimate that it can. The Court is prepared to accept for that purpose that 13 the Petitioner’s total monthly income is in the region of C.I $10,000-$12,000 and the 14 Respondent’s total monthly income is the region of C.I $54,000. There are numerous 15 ongoing expenses such as mortgage payments to which entirely properly both of them have 16 committed a portion of their respective earnings. 17

¶ [14] The Petitioner puts forward a figure of CI $11,000 for interim maintenance which I 18 consider not to be extravagant. In fact it is relatively modest when compared to the standard 19 of living previously enjoyed by the parties. The Court is not however as has been indicated 20 able to set interim maintenance which represents the standard of living previously enjoyed. 21 This is unfortunately the consequence of the very sad state of affairs which has arisen. 22

¶ [15] The Court bears fully in mind that the welfare of the children is paramount, and the Court 23 seeks to avoid the creation of circumstances under which by mischance the children may 24 develop a perception of disparity between the circumstances of each parent. In reaching a 25 decision this is an important factor for the Court to bear in mind where there was previously 26 a high standard of living enjoyed by the whole family. 27 181120 Reasons for Judgment - FAM 110 of 2018 (RMJ) Page 5 of 5

¶ [16] In the circumstances which have arisen, and where the Court deems an interim award 1 appropriate in principle and desirable in fact, the Court must further take note that the 2 purpose of any award pending suit is to put in place a relatively short-term measure on a 3 needs basis as those needs are suitably identified so as to preserve the situation until the 4 Court may make whatever final ancillary orders that the interests of justice require. 5

¶ [17] The Court is of the view that a composite order for both the Petitioner and the children is 6 expedient rather than making separate provision. It is also recognised that at present the 7 Respondent is meeting the childrens’ expenses and that in any 30-day period approximately 8 15 days are spent by the children with each parent. 9

¶ [18] As the Court has indicated, it has reviewed carefully the outstanding items in the Scott 10 Schedule and it adopts a generous approach as to the validity of the claims been made. In 11 other words, the sum of C.I $11,000 per month is reasonable and fair and by no means 12 excessive. 13

¶ [19] However, there is one additional matter to which this Court must allude .That consideration 14 is that in considering the welfare of the children both parents should contribute and should 15 be seen to contribute to the home environment. I have therefore come to a final figure for 16 interim maintenance of less than C.I $ 11,000 per month. In order to reflect this 17 consideration and in fairness to both parents the Court shall make a notional deduction per 18 month of C.I $ 2,500, bringing the figure for maintenance down to C.I$ 8,500 per month. 19

¶ [20] Finally, it is emphasised that this is an interim arrangement only. 20 21 22 23 ________________________________ 24 THE HON. JUSTICE McMILLAN 25 JUDGE OF THE GRAND COURT 26 27