Gunn J
```markdown # IN THE GRAND COURT OF THE CAYMAN ISLANDS ## FAMILY DIVISION ### IN CHAMBERS CAUSE NO. FAM 39/2015 BETWEEN | AK | Petitioner | | --- | --- | | TK | Respondent | Before: Hon. Gunn J (Actg) Appearances: Mr A. Walters of Campbell's for the Husband<br>Mr D McGrath of McGrath Tonner for the Wife Heard: 11th October 2018 Ex-tempore judgment: 11th October 2018 Perfected judgment released: 15th October 2018 ## Preamble This Judgment is distributed with the strict understanding that, in any report of it, no person, other than the attorneys (and any other person identified by name in the judgment itself) may be identified by name or location and in particular the anonymity of the children and adult members of the family must be strictly preserved. ## Judgment The parties are husband (the petitioner) and wife (the respondent). Their marriage was dissolved by order of Williams J on 16th May 2017. They have two school age children, K and M. ```
Background
On 9th May 2017 Williams J made final ancillary orders with regards to the financial affairs of the parties, which included an order for AK to make lump sum payments as well as periodic payments ("the Order") to TK. These proceedings concern the child and spousal maintenance element of that order. AK was ordered to pay US$3,000 per child per month as child maintenance and spousal maintenance for 3 years on a diminishing basis: US$3,000 per month for the 1st year, US$2,500 per month for the second year, and US$2,000 per month for the final year.
On 14th November 2017 the Court of Appeal dismissed AK's appeal of William J's order (CICA 3/2017). AK complied with the financial orders, until his employment was terminated with effect from 28th March 2018. AK made the last maintenance payment on 1st April 2018.
On 23rd April 2018 AK filed a summons seeking a downward variation of the maintenance payments pursuant to section 23 of the Matrimonial Causes Law (2005 Revision) ("the Law") on the grounds that he is no longer able to meet the terms of the Order. That summons came before me on 11th May 2018. After extensive discussions, both in and out of court, the parties agreed a consent order adjourning AK's summons pending the disclosure of further financial information. Additionally the parties agreed that although arrears would continue to accrue, (i) AK was not required to make any payments\footnote{Paragraph 3 "The amounts payable pursuant to paragraph 5 and 6 of the order of Williams J dated 9th May 2017 shall continue to accrue, save that the Petitioner is not obliged to make any payments to meet the order until the hearing of his summons and a determination is made of arrears, if any, for the period of the 1st May 2018 to the date of the hearing."}; (ii) TK could not seek enforcement of arrears without leave of the court\footnote{Paragraph 4 "The Respondent shall not be permitted to enforce any arrears without leave of the court."}.
until AK's summons was heard. These two clauses have been referred to as the "moratoriums". It was clear in May that the intention of the parties was that, given the uncertainty of how long AK would be unemployed, payments would stop until the summons was heard.
5. AK's summons was subsequently set down for hearing on 11th October 2018. Fortunately, AK secured new employment in August. AK's new employment contract provides that AK's salary is CI$200,000 per annum ("the basic salary") in addition to other discretionary payments. AK's new basic salary represents an approximate US$100,000 decrease in basic salary.
6. AK received his first salary on 20th September, totalling US$18,596.01 following all deductions. Despite securing new employment, AK did not voluntarily resume making maintenance payments, even partial payments. It is important to note that although a shared residence order made by McMillan J on 15th December 2015 requires the parties' two children to reside with each parent on a weekly alternating rotation, K is residing with AK full-time and has no contact with TK. This was the position when the matter was before the Court of Appeal. Their Lordships concluded that despite the existing circumstances, given the terms and intention of the shared residence order, it was proper for AK to pay child maintenance for K to TK (at paragraph 44). There is no application before the court to vary the residence order.
7. Prior to AK's summons coming on for hearing, counsel for both parties were in communication. AK offered to pay TK US$1,500 per month for maintenance and spousal maintenance going forward. TK refused the offer of mediation, asserting that it had no prospect of success. AK subsequently withdrew his offer of payment, I am told, on the basis that it became apparent to him that he could not even afford US$1,500 per month. Ultimately, the parties agreed
```html <table> <tr> <td>1</td> <td>through counsel that the hearing of AK's summons should be adjourned</td> </tr> <tr> <td>2</td> <td>again and the hearing date be used for a directions hearing. Additionally, AK</td> </tr> <tr> <td>3</td> <td>was requesting an adjournment of 6 weeks so that the parties can pursue</td> </tr> <tr> <td>4</td> <td>mediation.</td> </tr> <tr> <td>5</td> <td>8.</td> </tr> <tr> <td>6</td> <td>On 5th October, six days before the hearing, TK filed her own summons</td> </tr> <tr> <td>7</td> <td>seeking orders -</td> </tr> <tr> <td>8</td> <td>(i) lifting the moratorium on payments;</td> </tr> <tr> <td>9</td> <td>(ii) giving TK leave to commence enforcement of arrears; and</td> </tr> <tr> <td>10</td> <td>(iii) arranging K's counselling;</td> </tr> <tr> <td>11</td> <td>(iv) mandating AK to participate in counselling;</td> </tr> <tr> <td>12</td> <td>(v) mandating that TK continue counselling;</td> </tr> <tr> <td>13</td> <td>(vi) the preparation of an addendum report by DCFS; and</td> </tr> <tr> <td>14</td> <td>(vii) that the matter be re-listed for mention in February 2019 for a review</td> </tr> <tr> <td>15</td> <td>of K's treatment pursuant to (iii) above.</td> </tr> <tr> <td>16</td> <td>9.</td> </tr> <tr> <td>17</td> <td>Despite TK's summons being filed so close to the hearing, I was satisfied that</td> </tr> <tr> <td>18</td> <td>the summons did not raise any new, unexpected or complicated issues that</td> </tr> <tr> <td>19</td> <td>would prevent the parties from properly arguing the point on the evidence</td> </tr> <tr> <td>20</td> <td>before me.</td> </tr> <tr> <td>21</td> <td>22</td> <td>The Applications</td> </tr> <tr> <td>23</td> <td>24</td> <td>10.</td> <td>On 11th October I heard lengthy submissions from counsel on all aspects of</td> </tr> <tr> <td>25</td> <td>their summons and I gave a brief oral judgment with limited reasons. I</td> </tr> <tr> <td>26</td> <td>undertook to provide more detailed reasons in short order as AK wishes to</td> </tr> <tr> <td>27</td> <td>seek leave my order as</td> </tr> <tr> <td>28</td> <td>My pe to</td> </tr> <tr> <td>29</td> <td>11.</td> <td>These proceedings are concerned with the child and spousal maintenance</td> </tr> <tr> <td>30</td> <td>aspect of William J's order. Currently, AK is required to pay a total of</td> </tr> <tr> <td>31</td> <td>US$8,500 per month in maintenance. Since the moratoriums were imposed</td> </tr> </table> ```
```markdown # Mediation
Mr Walters, on behalf of AK, invited me to stay the proceedings for 6 weeks in order for the parties to participate in mediation.
Paragraph 3(1) of the Mediation Information and Assessment Rules ("the Rules") provide that at any stage of the proceedings the court shall consider whether the matter is suitable for family mediation. If the court considers that it is and the parties agree to mediation, then the proceedings should be adjourned to allow mediation to commence (paragraph 4(1)).
It is widely accepted that mediation is a valuable tool in family proceedings as, if successful, it is often quicker and considerably less expensive than litigation. The Rules presume that a matter should be referred to MIAM and mediation unless an exemption applies.
Paragraph 3(2) provides that in deciding whether a matter is suitable for mediation the court should consider: (a) whether a MIAM took place; (b) whether a MIAM exception applies; and (c) whether the parties have previously attempted mediation or another form of non-court dispute resolution and the outcome.
The final factor was the focus of both pre-hearing correspondence and submissions. AK is optimistic that mediation will result in a satisfactory agreement on lower maintenance payments, or certain payments ceasing altogether. AK referred to a previous mediation session as evidence that the ```
The parties were capable of successfully mediating their issues. After further probing, Mr. Walters conceded that mediation terminated after one session without the parties reaching agreement on any of the issues and that the case proceeded to a contested hearing. Mr. Walters asserted that a consent order bringing the contested hearing to an early conclusion was as a result of matters arising from the mediation. TK and her counsel Mr. McGrath disagreed with Mr. Walters' analysis, asserting that mediation was entirely unsuccessful and that any further attempt would be futile. TK maintained that a request for mediation was AK's attempt to avoid/delay making maintenance payments rather than a genuine desire to resolve the current issues.
Mr. Walters submitted that TK's refusal to participate in mediation is unreasonable given that calculating a smaller maintenance amount is amenable to mediation at a considerably lower cost than litigation. He argued that the court should consider leaving open the option of TK paying all or part of AK's costs which will accrue from continued litigation. Mr. Walters drew my attention to the judgment of Mr. Recorder Furst QC in PGF II SA v OMFS Company 1 Limited [2013] EWCA Civ 1288 in which the learned Recorder opined –
"...a finding of unreasonable conduct constituted by a refusal to accept an invitation to participate in ADR or, which is more serious in my view, a refusal to engage in discussion about ADR, produces no automatic results in terms of a costs penalty. It is simply an aspect of the parties' conduct which goes to the balance in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect of the conduct in any or only one aspect
While in principle the court must have that power, it seems to me that a sanction that draconian should be reserved for only the most serious and flagrant failures to engage with ADR, for example where the court had taken it upon itself to encourage the parties to do so, and its encouragement had been ignored."
I was also provided with the decision in SM v DAM [2014] EWHC 537 (Fam) which confirms that, while the court cannot force the parties into mediation in family proceedings, an unreasonable refusal may well attract a costs order.
A failed attempt at mediation in the past is probably not enough on its own to constitute a reasonable ground for refusing to return to mediation? But much will depend on the circumstances of the particular case. These proceedings have a long and costly history and undoubtedly have been very acrimonious. These are relevant considerations.
Knowing the likely costs of counsel preparing for and conducting a half- to a full-day hearing, I am sure that neither party wishes to incur further legal fees at this stage. During the course of the hearing TK indicated that she would consider mediation if AK – (i) resumes payments ordered by Williams J; and (ii) makes full financial disclosure.
Given the change of circumstances, the parties will need to make full financial disclosure before commencing mediation in order for the process to have any hope of success.
```html <table> <tr> <td>1</td> <td>urge the parties to seriously consider attempting mediation. I will return to</td> </tr> <tr> <td>2</td> <td>their options later.</td> </tr> <tr> <td>3</td> <td></td> </tr> <tr> <td>4</td> <td>23. I leave it to the court that hears the substantive applications to determine</td> </tr> <tr> <td>5</td> <td>what the consequences of a refusal should be.</td> </tr> <tr> <td>6</td> <td></td> </tr> <tr> <td>7</td> <td></td> </tr> <tr> <td>8</td> <td>Lifting the moratoriums</td> </tr> <tr> <td>9</td> <td></td> </tr> <tr> <td>10</td> <td>24. This is not the hearing of AK's summons, and, therefore, it is not the time for</td> </tr> <tr> <td>11</td> <td>me to decide whether the current order should be varied. Rather, it is a</td> </tr> <tr> <td>12</td> <td>consideration of whether the moratorium on payments should be lifted and</td> </tr> <tr> <td>13</td> <td>TK be permitted to pursue the arrears. Both counsel agreed that this was an</td> </tr> <tr> <td>14</td> <td>all or nothing decision, there was no option to order partial payments</td> </tr> <tr> <td>15</td> <td>without a proper examination of the evidence.</td> </tr> <tr> <td>16</td> <td></td> </tr> <tr> <td>17</td> <td>25. AK's position is that he still cannot afford the level of maintenance set by the</td> </tr> <tr> <td>18</td> <td>Order. He provided a detailed budget of his monthly expenditure and</td> </tr> <tr> <td>19</td> <td>asserted that after meeting all of his responsibilities he is left with a surplus</td> </tr> <tr> <td>20</td> <td>of only US$330.77 (see AK's affidavit dated 8th October 2018).</td> </tr> <tr> <td>21</td> <td></td> </tr> <tr> <td>22</td> <td>26. During the course of the most recent hearing AK offered to pay US$500.00</td> </tr> <tr> <td>23</td> <td>per month, approximately 6% of the amount TK is due under the Order.</td> </tr> <tr> <td>24</td> <td></td> </tr> <tr> <td>25</td> <td>27. TK asserted that, even with his reduced salary, AK is able to meet his</td> </tr> <tr> <td>26</td> <td>obligations under the Order. Mr McGrath argues that TK should not be deprived</td> </tr> <tr> <td>27</td> <td>of the</td> </tr> <tr> <td>28</td> <td>cloth" for 6 months. TK has had to meet his obligations under the Order for the past in order to cut off maintenance payments. She should not cope with the sums any longer. He argues that even if there is a recalculation, the sums are</td> </tr> <tr> <td>29</td> <td>unlikely to all be reduced to zero.</td> </tr> <tr> <td>30</td> <td></td> </tr> <tr> <td>31</td> <td></td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>28.</td> <td>The Listings Officer has advised that the next available date for the hearing of the two summonses is 20th November 2018. A hearing fixed on or close to that date would limit any payments, or lack of payments, to an 8-week period, i.e. 1 or possibly 2 payments.</td> </tr> <tr> <td>2</td> <td>29.</td> <td>I was therefore considering TK’s application in the context of a short period. I had section 19 of the Matrimonial Causes law in mind which provides that -</td> </tr> <tr> <td>9</td> <td>“In dealing with all ancillary matters arising under this Law, the Court shall have regard first of all to the best interests of any children of a marriage and thereafter to the responsibilities, needs, financial and other resources, actual and potential earning power and the deserts of the parties.”</td> </tr> <tr> <td>15</td> <td>30.</td> <td>Williams J has previously determined these issues in the circumstances as they were in 2017. The change in AK’s income may warrant a reduction in the level of maintenance payable by him. As yet, AK and TK’s evidence is untested. TK’s financial circumstances will also be a factor when AK’s application is determined. Further financial disclosure by both parties is therefore necessary.</td> </tr> <tr> <td>21</td> <td>31.</td> <td>As I have already stated, this is an “all or nothing” decision: I have to decide on the untested evidence whether it is more likely than not that AK can meet the Order now until the hearing of his summons.</td> </tr> <tr> <td>25</td> <td>32.</td> <td>My considerations are not dissimilar to the court considering an application for maintenance pending suit. In T v T (Financial Provision) [1990] ECR 169 [1990] Fam Lacourt co</td> </tr> <tr> <td>27</td> <td>28.</td> <td>which will give a spouse certainly sufficient money to discharge the day-to-day outgoings and to feed, clothe and keep a roof over the head of that spouse until the final adjustments and orders are made in relation to the matrimonial assets and the finances after decree</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>nisi...where there are sufficient assets revealed by the parties the</td> </tr> <tr> <td>2</td> <td>usual exercise for the court is to balance needs against resources</td> </tr> <tr> <td>3</td> <td>and thus come to a temporary figure until the whole question for the</td> </tr> <tr> <td>4</td> <td>division of the matrimonial property can be decided."</td> </tr> <tr> <td>5</td> <td>33.</td> </tr> <tr> <td>6</td> <td>It is helpful to also consider the frequently referred to guidelines of Mostyn J</td> </tr> <tr> <td>7</td> <td>in TL v ML [2005] EWHC 2860 (Fam)</td> </tr> <tr> <td>8</td> </tr> <tr> <td>9</td> <td>(i) the sole criterion to be applied is ‘reasonableness’ which is</td> </tr> <tr> <td>10</td> <td>synonymous with fairness</td> </tr> <tr> <td>11</td> <td>(ii) the marital standards of living is an important factor,</td> </tr> <tr> <td>12</td> <td>although the exercise is not to replicate that standard</td> </tr> <tr> <td>13</td> <td>(iii) there should be a specific budget for that application which</td> </tr> <tr> <td>14</td> <td>excludes capital or long-term expenditure. The budget</td> </tr> <tr> <td>15</td> <td>should be examined critically in every case so as to exclude</td> </tr> <tr> <td>16</td> <td>frenzied exaggeration.</td> </tr> <tr> <td>17</td> <td>(iv) Where the disclosure by the paying party is deficient, the</td> </tr> <tr> <td>18</td> <td>court should not hesitate to make any robust assumptions</td> </tr> <tr> <td>19</td> <td>about the ability to pay. The court is not confined to the mere</td> </tr> <tr> <td>20</td> <td>say-so of the payer as to the extent of any income or</td> </tr> <tr> <td>21</td> <td>resources. In such circumstances, the court should err in</td> </tr> <tr> <td>22</td> <td>favour of the payee.</td> </tr> <tr> <td>23</td> </tr> <tr> <td>24</td> <td>34.</td> </tr> <tr> <td>25</td> <td>Williams J considered the evidence and made findings applying the section</td> </tr> <tr> <td>26</td> <td>19 factors before making his Order. The Court of Appeal affirmed the Order.</td> </tr> <tr> <td>27</td> <td>To date.0J has not received US$51000ens significant sum that she</td> </tr> <tr> <td>28</td> <td>legitimated and builicant s</td> </tr> <tr> <td>29</td> <td>make adto account no</td> </tr> <tr> <td>30</td> <td>35.</td> </tr> <tr> <td>31</td> <td>In January 2018 AK committed to purchasing a property for CI$938，000.00.</td> </tr> <tr> <td>32</td> <td>AK’s termination payment totalled US$194，882.57，which was almost</td> </tr> <tr> <td>33</td> <td>entirely used as a deposit on the new property. When the matter came</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>before me in May, the fact that these funds were already committed to the</td> </tr> <tr> <td>2</td> <td>purchase was a key reason AK asserted he did not have the necessary funds</td> </tr> <tr> <td>3</td> <td>to meet the Order until he secured new employment.</td> </tr> <tr> <td>4</td> <td>36.</td> </tr> <tr> <td>5</td> <td>It is apparent from AK’s budget that a number of expenditures were included</td> </tr> <tr> <td>6</td> <td>in his monthly budget when, in fact, they are annual payments. He has</td> </tr> <tr> <td>7</td> <td>spread the annual cost over the year, similar to what one may do to save up</td> </tr> <tr> <td>8</td> <td>for the event. By way of example, AK budgeted US$100 per child per month</td> </tr> <tr> <td>9</td> <td>and a further US$110 per month for himself for vacations. AK and the</td> </tr> <tr> <td>10</td> <td>children will obviously not be going on holiday every month at a cost of</td> </tr> <tr> <td>11</td> <td>US$310, rather this is a paper accounting of the anticipated costs of a future,</td> </tr> <tr> <td>12</td> <td>unspecified holiday. Similarly, AK has budgeted US$101.63 per month</td> </tr> <tr> <td>13</td> <td>for the permanent residency fee for each child, although this fee is in fact</td> </tr> <tr> <td>14</td> <td>payable in one lump sum on an annual basis. I identified numerous annual</td> </tr> <tr> <td>15</td> <td>and/or infrequent expenses which have been budgeted in this manner:</td> </tr> <tr> <td>16</td> <td>School uniforms</td> </tr> <tr> <td>17</td> <td>School supplies</td> </tr> <tr> <td>18</td> <td>Sports and musician camps</td> </tr> <tr> <td>19</td> <td>Permanent residency fee</td> </tr> <tr> <td>20</td> <td>Birthday presents</td> </tr> <tr> <td>21</td> <td>Vacations</td> </tr> <tr> <td>22</td> <td>Car registration</td> </tr> <tr> <td>23</td> <td>Car insurance</td> </tr> <tr> <td>24</td> <td>Car maintenance</td> </tr> <tr> <td>25</td> </tr> <tr> <td>26</td> <td>28</td> <td>29</td> <td>30</td> <td>31</td> </tr> <tr> <td>37</td> <td>In total over USpenes that</td> <td>28</td> <td>ss current lation urde</td> <td>he short</td> <td>uld be</td> </tr> <tr> <td>27</td> <td>expenses that budget are not</td> <td>28</td> <td>expened that budget</td> <td>te to AK it</td> <td>funds sl</td> </tr> <tr> <td>28</td> <td>identifies$1,100 in truly mont</td> <td>28</td> <td>be availan</td> <td>hilegal oblig</td> <td>Thonou</td> <td>rm to</td> </tr> <tr> <td>29</td> <td>es. Much get should</td> <td>28</td> <td>et should</td> <td>the Ose</td> <td>he short</td> </tr> <tr> <td>30</td> <td>available from September’s salary and the upcoming October salary. I find</td> </tr> <tr> <td>31</td> <td>that it is more likely than not that AK can adjust his expenditure in the short-</td> </tr> <tr> <td>term to free up those funds and that it is reasonable to require him to do so.</td> </tr> </table> ```
```html <table> <tr> <td>1</td> </tr> <tr> <td>2</td> <td>38.</td> <td>Furthermore, AK's contract provides at paragraph 10.1 that his employer</td> </tr> <tr> <td>3</td> </tr> <tr> <td>4</td> <td>“... shall, by way of a discretionary payment as a gesture of goodwill</td> </tr> <tr> <td>5</td> <td>.... pay an aggregate quarterly amount of CI$12， 500 to a separate</td> </tr> <tr> <td>6</td> <td>account set up for this purpose, which monies shall be used for the</td> </tr> <tr> <td>7</td> <td>sole purpose of defraying the educational and living costs of the</td> </tr> <tr> <td>8</td> <td>employee's two children...”.</td> </tr> <tr> <td>9</td> </tr> <tr> <td>10</td> <td>39.</td> <td>AK asserted that he has not yet received this payment. Despite being</td> </tr> <tr> <td>11</td> <td>referred to as a discretionary payment, the contract mandates this payment,</td> </tr> <tr> <td>12</td> <td>totalling approximately US$5， 081.30 per month. The onus is upon AK to</td> </tr> <tr> <td>13</td> <td>ensure he receives those funds, and I consider those funds to be available to</td> </tr> <tr> <td>14</td> <td>him to help meet his obligations. Additionally, TK's evidence was that AK has</td> </tr> <tr> <td>15</td> <td>recently spent US$30， 000 purchasing furniture for his new property</td> </tr> <tr> <td>16</td> <td>(paragraph 15 of TK's affidavit dated 5th October 2018). AK omitted this</td> </tr> <tr> <td>17</td> <td>purchase from his disclosure to the court. This purchase strongly suggests</td> </tr> <tr> <td>18</td> <td>that AK has access to significant cash or credit, which he has not disclosed, to</td> </tr> <tr> <td>19</td> </tr> <tr> <td>20</td> <td>40.</td> <td>All the forgoing lead me to conclude that AK has access to funds, whether</td> </tr> <tr> <td>21</td> <td>cash and/or credit, which he can use in the short-term to meet the Order</td> </tr> <tr> <td>22</td> <td>until his application is finally determined, without adversely affecting his</td> </tr> <tr> <td>23</td> <td>ability to meet his other financial responsibilities and needs. Consequently, I</td> </tr> <tr> <td>24</td> <td>find that it is just to discharge paragraph 3 of the 11th May 2018 consent</td> </tr> <tr> <td>25</td> <td>order. AK is prered to resume maintenance payments as per the order</td> </tr> <tr> <td>26</td> <td>made by Williamsg Monda</td> </tr> <tr> <td>27</td> <td>28</td> <td>41.</td> <td>Given AK's failure to even make a "goodwill payment" of a reasonable</td> </tr> <tr> <td>29</td> <td>amount (even US$1， 500 is inadequate in these circumstances) when he has</td> </tr> <tr> <td>30</td> <td>the funds to do so, I find that it is appropriate to give TK leave to commence</td> </tr> <tr> <td>31</td> <td>enforcement proceedings should she wish to do so. The determination of</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>what, if any, arrears there are will be determined as part of AK's application</td> </tr> <tr> <td>2</td> <td>in any event. On a very cursory review of the evidence, it seems unlikely that</td> </tr> <tr> <td>3</td> <td>the court would find that no payments at all should be due between May</td> </tr> <tr> <td>4</td> <td>2018 and the date of final hearing, i.e. zero arrears. Discharging paragraph 4</td> </tr> <tr> <td>5</td> <td>of the 11th May 2018 consent order simply clears the way for TK to seek</td> </tr> <tr> <td>6</td> <td>enforcement for any arrears after any recalculations are done (if so ordered).</td> </tr> <tr> <td>7</td> <td></td> </tr> <tr> <td>8</td> <td>42. My decision to lift the moratorium and to give TK leave to enforce arrears</td> </tr> <tr> <td>9</td> <td>in no way an indication of what the court may decide at the final hearing.</td> </tr> <tr> <td>10</td> <td>The parties should be mindful that if AK's application is successful there may</td> </tr> <tr> <td>11</td> <td>be a recalculation of the payments from the date of his summons, including</td> </tr> <tr> <td>12</td> <td>the payments made going forward from today.</td> </tr> <tr> <td>13</td> <td></td> </tr> <tr> <td>14</td> <td>43. I order that the substantive hearing of both AK and TK's summonses shall be</td> </tr> <tr> <td>15</td> <td>fixed to be heard on the first convenient date on or after 20th November</td> </tr> <tr> <td>16</td> <td>2018.</td> </tr> <tr> <td>17</td> <td></td> </tr> <tr> <td>19</td> <td><strong>Opportunity for Mediation</strong></td> </tr> <tr> <td>20</td> <td></td> </tr> <tr> <td>21</td> <td>44. I return to the issue of mediation. I am advised that the court can offer AK</td> </tr> <tr> <td>22</td> <td>and TK mediation appointments every Friday, commencing 2nd November. I</td> </tr> <tr> <td>23</td> <td>urge both parties to carefully consider their positions in light of the orders I</td> </tr> <tr> <td>24</td> <td>have made. The resumption of payments, the anticipated exchange of</td> </tr> <tr> <td>25</td> <td>disclosure in the next 14 days and the availability of mediation appointments</td> </tr> <tr> <td>26</td> <td>provides a good opportunity for both parties to consider their positions</td> </tr> <tr> <td>27</td> <td>and to commence mediation. If mediation is pursued, the parties may be</td> </tr> <tr> <td>28</td> <td>adjudged to have engaged in a good faith attempt to resolve their differences</td> </tr> <tr> <td>29</td> <td>and to unreasonably refuse to engage in mediation in these favourable</td> </tr> <tr> <td>30</td> <td>circumstances, then the court might find that material when considering the</td> </tr> <tr> <td>31</td> <td>issue of costs.</td> </tr> <tr> <td>32</td> <td></td> </tr> </table> ```
```markdown # Counselling
TK sought a number of orders addressing K and each other to attend counselling. By order of Carter J (Actg) on 8th March 2018 K is to receive such treatment as recommended by Dr Lockhart (paragraph 2(b)). During the course of the hearing it became apparent that TK had not been informed that K had in fact commenced counselling. Such a lack of communication is a sign of poor co-parenting, and, ultimately, contrary to the best interests of the child. AK is not in breach of Carter J's order and I find there is no need to make any further orders as to counselling at this time. I am pleased that I need not make an order mandating communication, as I am advised that the parties have undertaken to keep each other informed as to K's appointments and his attendance at counselling.
I also find that there is no benefit to setting the matter down for review in February and will only increase legal costs. As a consequence I do not order an addendum welfare report either. The parties should keep K's counselling under review themselves. If necessary the parties should return to this issue when the matter is next before the court and carefully consider whether court supervision is absolutely necessary. # Directions
I turn to the direction to take the matter to hearing - variation of an enforceable order. The direction is as follows: (i) mons for variation of TK's to AK sum. variation of arrears are to be heard together on the first convenient date on or after 20th November 2018. 1-day time estimate. Any judge (except Williams J) can deal. ```
```html <table> <tr> <td>1</td> <td>(ii)</td> <td>The parties are to exchange disclosure in accordance with</td> </tr> <tr> <td>2</td> <td>schedule 1 and 2 of TK's summons by 26th October 2018.</td> </tr> <tr> <td>3</td> <td>(iii)</td> <td>Final affidavits are to be filed and served not less than 14</td> </tr> <tr> <td>4</td> <td>days before the date of final hearing. No further evidence</td> </tr> <tr> <td>5</td> <td>after that date without leave of the court.</td> </tr> <tr> <td>6</td> <td>(iv)</td> <td>The parties are to comply with Practice Direction 11/2014</td> </tr> <tr> <td>9</td> <td>Costs</td> </tr> <tr> <td>11</td> <td>48.</td> <td>The issue of costs of preparation and for attendance at today's hearing is</td> </tr> <tr> <td>12</td> <td>reserved until the final determination of both summonses.</td> </tr> <tr> <td>16</td> <td>Dated this 15th day of October 2018</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> </tr> <tr> <td>19</td> <td>Hon Kirsty-Ann Gunn</td> </tr> <tr> <td>20</td> <td>Acting Judge of the Grand Court</td> </tr> </table>