G v G [2009] EWHC 2080 (Fam)

IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
[2009] EWHC 2080 (Fam)Case No Claim No: FDO7P01569Venue Royal Courts of Justice
Between
GAPPLICANTGRESPONDENT
Before
Mr JUSTICE MOYLANMR JONATHAN TOD appeared on behalf of the APPLICANTMR FRANK FEEHAN appeared on behalf of the RESPONDENTDate 8 April 2009
[1]MOYLAN J.: This is an Application for an interim periodical payments order under Schedule 1 of the Children Act 1989, made in the course of an Application being pursued by a mother for financial provision under that Schedule.[2]The parties to the Application are the mother, represented at the substantive hearing which concluded last week by Mr Tod and by Ms Teacher at this hearing, and the father represented by Mr Feehan. The hearing concluded late last week at an hour when I was not able to deliver a judgment. This judgment remains essentially extempore as a result of pressure of other work and is being delivered by me orally today.[3]The relevant history, for the purposes of this hearing, is as follows. The father is aged 73 and the mother is aged 36. They met and began a relationship in or about 1996 and began living together early in 1998. They lived together at the father's house, a substantial residence in an affluent part of London. They have three children, aged 10, 9 and 7. All the children are being educated at private schools and their fees are being paid by the father.[4]The parties separated in the middle of 2004, when the mother and the children moved to a property that was rented for them by the father. In 2006 the father purchased a property not far from his home for the occupation of the mother and the children. That property cost a total of approximately £900,000. The father contends that the property was selected by him and the mother together. The mother agrees that the property was selected jointly, but contends that she felt pressured into agreeing to its purchase.[5]A shared residence Order was made on 19th December 2007. Under this Order the children spend broadly equal amounts of time with each parent.[6]In the middle of 2006 an assessment was made by the Child Support Agency of the maximum amount payable.[7]On 16th October 2008 District Judge Malik made an Order for directions, including that each party should file and serve sworn Forms E; that each party had permission to serve a questionnaire; that the replies to those questionnaires were to be provided by 26th February 2009. He also gave directions for the valuation of the respective properties occupied by the father and the mother, by a single joint expert. He gave no other direction giving the parties permission to prepare or adduce any other expert evidence.[8]The matter was listed on the first open date after 6th January, with a time estimate of one day, for the hearing of the mother's application for interim periodical payments to include provision for legal fees and for further directions.[9]The mother's substantive application for financial provision for the children under Schedule 1, which also included an application for interim periodical payments, was made on 8th July 2008. In that application the mother seeks a lump sum, in particular for the purchase of a property for the occupation of herself and her children, at a cost of between £2 and £2.5 million. She was also seeking interim periodical payments at the rate of £6,250 per month for general maintenance, and an additional amount in respect of legal costs. Her legal costs were then estimated, up to an assumed financial dispute resolution hearing, in the sum of approximately £46,000.00.[10]The mother provided with her Application a standard form Statement of Means. In that she set out that she had an interest in a property in Oxford and other resources of approximately £4,000.00. Her current position is that her interest in the property in Oxford has been realised for £19,000.00 of which £12,000.00 has been paid and used for legal fees and £7,000.00 remains due. She has net debts, excluding the £7,000.00, of approximately £12,000.00, including £10,000.00 of outstanding legal costs, having to date paid approximately £24,000.00 in respect of her costs of these proceedings.[11]The mother's income is broadly as follows. She has child benefit, working tax credit and child tax credit which total in the region of £11-12,000.00 per year; drawings from her business (she is self-employed) of approximately £7,600.00 per year; and periodical payments from the father totalling just over £19,000.00 per year. Her total annual income is, therefore, just over £38,000.00 per year.[12]The mother's budget as attached to her Form E, which then included expenditure in respect of the property in Oxford, totalled £96,000.00. If the expenditure in respect of the Oxford property is excluded it would total approximately £90,000.00 per annum.[13]In her Form E the mother provides details of what she contends was the lavish (to use her word) lifestyle she and the children enjoyed prior to her and the father separating in 2004. She seeks to contrast this with what she contends to be a significantly more modest lifestyle enjoyed by her and the children since that separation. She refers to the differences in their respective homes and what she describes as being the unsatisfactory nature of the children's current home with her.[14]In addition, in her Form E, the mother makes a number of, what I would describe as being, pejorative comments about the father. These have led the father to the father feeling the need to file a statement in response. I make it clear that although I have read what each party has said about the other's behaviour, my decision has not in any way been influenced by such evidence or such comments. In my view none of this evidence was necessary and it should not have been included. It is not evidence which is probative of any fact relevant to the Court's determination in this case and at best probably served to increase and perhaps even inflame the parties' respective emotional responses to these proceedings and to each other in a way which is, in my view, not to the benefit of their children.[15]I have been provided, for the purposes of this hearing, with an updated schedule of costs on behalf of the mother. The amount has increased from that set out in the original estimate. The original estimate was in the total sum of £46,000.00, of which it was estimated that the interim hearing would cost in the region of £10,000.00. The updated schedule estimates the total likely costs for the mother of the proceedings, up to the conclusion of the financial dispute resolution hearing, as being approximately £72,000.00. That amount includes the proposed instruction of a Queen's Counsel to advise in conference and also to attend at the financial dispute resolution hearing. As I have indicated, the mother has already paid £24,000.00 towards those costs, so that if the total was £72,000.00, the shortfall would be of the order of £48,000.00.[16]The father, in his Form E, sets out what he contends he is paying to or for the benefit of the children. He agrees with the mother that he is paying directly to her for the children something in the region of £19,300.00 per year. He also refers to additional expenditure he says he incurs in respect of the property occupied by the mother, namely interest on the monies that he borrowed to purchase that property and also maintenance costs.[17]In addition, the father pays the children's school fees (as I have indicated), and for extracurricular activities, the total of those two items being approximately £53,000.00. He pays medical and dental bills for the children which total approximately £4,000.00 per year. He pays for the cost of a nanny who, as I understand it, moves between the children's respective homes, and that nanny costs approximately £22,500.00 per year. He also identifies specific expenditure for the children of clothing, of approximately £3,000.00 per year, and no doubt there are other additional expenses that he has in order to provide for the children when they are in his home.[18]Excluding the monies he pays to the mother, the total of the items that I have just described is approximately £83,000.00 per year. Including the payments to the mother limited to direct maintenance and not including the additional expenditure in respect of the property, the total is just over £100,000.00 per annum.[19]In his Form E the father puts his total wealth at between £7-8 million, made up principally of his home (at just over £4 million); business interests of approximately £3 million and other assets of £1.2 million. He seeks to deduct a potential liability of just under £1 million in respect of an interest rate hedging swap which expires in July 2011, the amount being the sum that he says he would have to pay if he were to break that contract.[20]The father puts his total net income at approximately £220,000.00. He is essentially in the property business. He refers in his Form E to his anticipating the coming year being a challenging trading year in which it will be difficult to maintain profits. He says specifically in respect of two of his business interests that: "Due to the economic downturn, there is no scope for further equity withdrawals", and he refers to a letter from his accountant attached to his Form E.[21]This letter, which is dated 25th November 2008, states:
"For the years ended 31st March 2004 to 31st March 2008, your total net taxable income, taking into account losses from all of your non-corporate businesses and personal interests, did not generate sufficient profits to fund the drawings which you have taken from your businesses. Whilst we have not undertaken a full analysis of your drawings for each year that we have prepared accounts, we understand that a significant proportion of the amount which was classed as drawings has been spent on funding your children's educational and personal needs. In account terms, the excess of your drawings against your profits has been attributed to an undrawn capital account which was created upon the profitable sale of a property during the year ended 31st March 2003. In cash terms you have been able to draw upon some minimal cash facilities, but mostly against undrawn loan facilities from the bank which holds security over your business assets. These loan facilities were available in part because when the property was sold during the year ended 31st March 2003, a large proportion of the proceeds were used to repay bank borrowings, far in excess of the original cost of that particular property. You therefore had opportunity to repay those temporarily until you acquired the cash, however by 31st March the loan facilities had virtually exhausted and you took the decision, together with your Finance Director, that it would no longer be prudent or in the interest of your business to further draw against undrawn capital accounts, as any undrawn facilities could be required for businesses working capital. Your only alternative, therefore, was to start drawing a salary from AHL which I understand has been set at a level of £250,000.00 per year."
[22]There are then produced, or attached to that letter, schedules setting out what is described as capital drawings analysis in respect of the father's non-corporate businesses.[26]The mother served a very extensive questionnaire, dated 13th February 2009, to which was attached a valuation from 1999, for some of the father's possessions, in particular pictures.[27]The father replied to the questionnaire in part by supplying an expert accountant's report and also by supplying a further valuation in respect of those pictures. Whilst I understand the reasons that led to the expert's report being supplied, parties should not adduce expert opinion evidence other than pursuant to the permission of the Court. To seek to adduce such evidence unilaterally is to seek to avoid the provisions of the Rules and the Court's control of the process. I do not therefore propose to place any significant weight on the opinion evidence contained within the report prepared on behalf of the husband. I do, however, take into account the factual evidence or information that was supplied through the medium of the report as such information could, simply, have been given in the body of the replies to questionnaire.[28]This information includes schedules which helpfully break down the constituent elements of the father's expenditure for the years 2006 to 31st January 2009. This shows the total for 2006 was approximately £460,000.00; for 2007, excluding the cost of the mother's property, was approximately £490,000.00 and for 2008 was approximately £410,000.00, and the much-reduced figure for 2009 of £66,000.00 after, as I understand the schedules, deducting the father's salary from AHL, of £133,000.00, and his state pension.[29]Substantial issues have been raised about the current state of the father's business affairs and his financial position generally. Mr Tod relies on the historical level of the father's drawings, to which I have just referred, and on the figures contained in the most recent business accounts being those for the year ended 31st March 2008. The net assets for the company which I shall describe as SBG are shown as being just under £5.2 million. The accounts were approved on 29th January 2009 which, as Mr Tod points out, is after the receipt of updating valuations. The net assets for the company I will describe as AHL are shown as being just under £7.9 million and, again, the accounts were approved on 30th January 2009. The accounts for the hotel show net assets of approximately £1.8 million.[30]The profit and loss accounts for the same period show a profit of £4,000.00 for SBG, of £13,000.00 for AHL and a loss of £290,000.00 for the hotel. These figures appear to support the father's contention, and as set out in the letter from his accountant, that the businesses have not been generating sufficient profits to fund his expenditure and that this expenditure has been funded by capital withdrawals - as described in the letter - from the sale of a property and from borrowings.[31]I was also told during the course of the hearing that the father has borrowed an additional sum of £1 million secured, I believe, against the property which is adjacent to his home and that the bulk of this sum has already been utilised or earmarked for specific business expenditure.[32]Turning now to the submissions of Mr Tod and Mr Feehan; they have each prepared extensive written submissions and they also made substantial oral submissions during the course of the hearing. I propose only, very briefly, to summarise their submissions in this judgment but I have, of course, taken into account all the matters raised during the course of those submissions.[33]The wife's annual budget as refined for this interim hearing totals approximately £53,000.00. As her income, including the amount currently paid to her by the father, totals approximately £38,000.00, she seeks an increase of approximately £15,000.00 per year. The additional costs, taking into account what has already been paid, sought by the mother to the FDR are, as I have described, in the order of £48,000.00. Accordingly, the total amount that the mother seeks to the conclusion of the FDR is approximately £55,000.00, being half the amount she seeks on an annual basis for general maintenance, and the amount she seeks in respect of her legal costs. I calculate those figures on the basis that the Financial Dispute Resolution hearing will take place within approximately six months from today's date.[34]Mr Tod submits that the Court has jurisdiction to include an allowance for legal costs as part of an interim maintenance award under Schedule 1. He has referred me to a number of authorities which I will deal with later in this judgment. In respect of general maintenance, Mr Tod has referred me to the decision of the Court of Appeal, reported as Re: P (Child: Financial Provision) [2003] 2 FLR 865 and Mr Justice Singer's decision in FvG (Child: Financial Provision) [2005] 1 FLR 261 .[35]It is now well established that a parent's claims under Schedule 1 are assessed broadly and can include a substantial element in respect of a parent's own expenditure. As Lord Justice Thorpe said in Re P , quoting from Mrs Justice Hale, as she then was, from JvC (1999) 1 FLR 152 :
"Fourthly, Mrs Justice Hale stated that the child in question was entitled to be brought up in circumstances which bore some sort of relationship with the father's current resources and the father's present standard of living. That proposition was preceded by an acknowledgment that the Court must guard against unreasonable claims made on the child's behalf, with the disguised element of providing for the mother's benefit rather than for the child."
Later in his judgment Thorpe LJ said:
"I believe that a more generous approach to the calculation of the mother's allowance is not only permissible but also realistic"
. Then, at paragraph 47,

Lord Justice Thorpe says:

"What is required is a broad common sense assessment. What the Court first ordains may have a comparatively brief life before a review is claimed by one party or another"
. This last point obviously applies with even greater force to an application for interim periodical payments.[36]Mr Tod submits that the father is able to pay the amount that he seeks, either from his businesses or by the sale of an asset such as a picture. He also submits that the imbalance between the standard of living achievable by the mother for the children on her present income and that enjoyed by the father requires the Court's immediate intervention on an interim basis.[37]In respect of the application for costs, Mr Tod submits that the mother cannot obtain legal assistance at a level of expertise appropriate to these proceedings in the absence of an award in her favour. She has no resources herself and would not be able to procure the appropriate level of representation through public funding.[38]Mr Feehan, on behalf of the father has also, as I have indicated, made extensive written and oral submissions and, as I have also indicated, I propose only to summarise these very briefly.[39]Mr Feehan submits that the Court has no jurisdiction to make an order for maintenance in respect of legal costs. He also submits, in his written submissions under the heading "Litigation Conduct", that the mother has adopted an approach, generally, which has led to significant and unnecessary litigation. He accordingly submits for this and other reasons that, even if I have jurisdiction to make an award in respect of costs, I should not do so. He summarises his position as follows. The father opposes the mother's claim. It is his case is that there is no merit in her overall claim for financial provision; that he cannot afford the provision that she seeks; and that the provision of maintenance for legal expenses is subject to competing legal authorities and should not be awarded in this case(a) on principle or(b) as a matter of practical ability to pay. Mr Feehan relies on the fact that the parties have agreed the level of financial provision which the father has been paying since they separated in 2004 and submits that the quantum of that provision, at least on an interim basis, is at an appropriate level. He also submits, as I have indicated, that the father is not able to pay any additional sums.[40]As I have already indicated, the mother seeks maintenance for her legal costs of these proceedings. This is opposed by the father on jurisdictional grounds as well as on its merits. Mr Feehan submits that the Court, as a matter of principle, has no jurisdiction to make an award of maintenance for such a purpose. I propose to address this legal argument first.[41]It is clearly established that a costs allowance, as a matter of jurisdiction, can be included in an award of periodical payments under the Matrimonial Causes Act 1973. It is clear, therefore, that the words maintenance or periodical payments can include an allowance in respect of costs.[42]The Court's approach to the exercise of this jurisdiction under the Matrimonial Causes Act is set out by Lord Justice Wilson in the case of Currey v. Currey (No.2) [2007] 1 FLR 946 . In the course of his judgment, at paragraph 20, he says: "In my view the initial overarching enquiry is into whether the applicant for a costs allowance can demonstrate that she cannot reasonably procure legal advice and representation by any other means. Thus, to the extent that she has assets, the applicant has to demonstrate that they cannot reasonably be deployed, whether directly or as the means of raising a loan, in funding legal services. Furthermore, not to forget the third of Lord Justice Thorpe's three features, she also has to demonstrate that she cannot reasonably procure legal services by the offer of a charge upon ultimate capital recovery. I would add, fourthly, that the Court needs also to be satisfied that there is no such public funding available to the applicant as would furnish her with legal advice and representation at a level of expertise apt to the proceedings, i.e. that the applicant does indeed in that regard fall within the unserved constituency referred to by Lord Justice Thorpe" (in the decision of Moses Taiga-v-Taiga which is referred to Lord Justice Wilson earlier in his judgment).

Lord Justice Wilson continues, at paragraph 21:

[43]"Although in making a costs allowance the court has a discretion, I cannot imagine that it would be reasonable to exercise it unless the applicant had thus duly demonstrated that she could not reasonably procure legal advice and representation by any other means. That, I venture to suggest, is, in effect and as a matter of common sense, a necessary condition of making an allowance. But I certainly do not consider that it will always be a sufficient condition; and, insofar as in the passage in TL v ML which I have quoted at para [17], above, Mr Mostyn implied otherwise, I respectfully disagree with him. No doubt the applicant's due demonstration will incline, often very strongly, towards the making of an allowance. But at this stage other factors may well come into play which will no doubt on occasions lead the court to decline to make it notwithstanding the demonstration. The subject-matter of the proceedings will surely always be relevant; and, insofar as it can safely be assessed at so early a juncture, the reasonableness of the applicant's stance in the proceedings will also be relevant. So also will a variety of other features …".[44]The same issue has been considered in the context of an application under Schedule 1 of the Children Act. The first reported decision to which I have been referred is a decision of Mr Justice Bennett of W-v-J [2004] 2 FLR 300 . He decided that the Court in that case had no jurisdiction to award the mother interim maintenance to enable her to pay her legal fees. He considered that she was, in reality, seeking a benefit for herself and not for the child.[45]The next case to which I was referred is the Court of Appeal's decision of Re S [2005] 2 FLR 94 . In that case Mrs Justice Bracewell had decided that she had no jurisdiction to make an order in favour of the mother under Schedule 1. The mother was seeking an award to enable her to travel to Sudan to see her child and to engage in legal proceedings in order to seek to procure the return of the child to England and the enforcement of a judgment of the Sudanese Court in her favour. Mrs Justice Bracewell decided that there was no jurisdiction to make an order for these purposes.[46]During the course of the hearing the father's Counsel relied on the decision of Mr Justice Bennett in support of her submission that the Court did not have jurisdiction to make an award in the mother's favour for the purposes for which she sought financial provision being, as I have indicated, to enable her to travel to Sudan to see her child and to engage in litigation in that country.[47]Lord Justice Thorpe, who gave the leading judgment in the Court of Appeal, rejected the father's submission. He said: "My conclusions on these two points of construction are as follows. I side with Mr Scott in holding that the term 'for the benefit of the child' in paragraphs 1 and 2 of Schedule 1 is to be given a wide construction. Here the child has suffered a great disbenefit in the loss of the company and support of his mother since September 2001. Part of the mother's objectives in seeking a discretionary award is to travel to the Sudan in order to see her child and at the same time to pursue the rights derived from the Order of the Supreme Court. It seems to me that a discretionary appraisal might well conclude that those objectives were for the benefit of the child as well as for the benefit of the appellant. I would not have held, as did Mrs Justice Bracewell, that the language of paragraphs 1 and 2 of the Schedule were so clear as to entitle the father to succeed on the preliminary point and, in so concluding, I am not persuaded that the decision of Mr Justice Bennett in W-v-J has, or was intended to have, the wider application that Miss Wood claims".

Lord Justice Thorpe then quotes a passage from Mr Justice Bennett's judgment:

"In my judgment counsel … is correct in her submission that a parent seeking the upfront payment of his or her legal fees against the other parent is seeking a benefit for him/herself and not for the child. … The money is spent on the mother's lawyers, who advance her case as to what she perceives to be in T's best interests. Lord Justice Thorpe describes these statements as being "unimpeachable in such an extreme case"
. He then, after referring to some of the details of that case, says:
"No wonder that such an application attracted Mr Justice Bennett's conclusion that it was all designed to benefit the mother's case for litigation and was not for the benefit of her child. I do not read his observations … as going much, if any, beyond the facts of the case then before him."
[49]Lord Justice Wall also dealt with the question of jurisdiction at paragraph 28. "The first point is one of construction. Can payments pursuant to an order under Schedule 1 of the Children Act 1989, in a case such as the present, properly be said to be for the benefit of the child? Taking as an example a case where a father has either abducted a child to or retained a child in a foreign jurisdiction … (not a member of the 1980 Hague Convention) … it seems to me that in principle it should be open to a mother who is not married to the child's father and who has no other jurisdictional basis upon which to make an application in her own right, to make an application for financial provision designed to enable her to recover the child. Such an order, in my judgment, could properly be said in broad terms and appropriate facts, to be for the child's benefit. Whether the jurisdiction would or should be exercised in a given case will, of course, be a matter for the Court's discretion on the facts of that individual case."[50]To my mind, the Court of Appeal's decision clearly establishes that there is jurisdiction to include a legal costs allowance in an order for periodical payments under Schedule 1. I cannot see any justification for seeking to distinguish between legal proceedings in a foreign jurisdiction and legal proceedings in this jurisdiction if those proceedings are for the benefit of a child. Accordingly in my view, as a matter of jurisdiction the Court of Appeal's decision clearly establishes that there is power to include a costs allowance in an appropriate case. In my view, also, the Court of Appeal has made it clear that Mr Justice Bennett's decision was confined to the facts of that case.[51]This also appears to be the view of the editors of Rayden (para. 22.198 note 3) which I looked at after the hearing concluded. It refers to the Court of Appeal's decision: "Where there is no spousal claim, recent authority indicates that the Court may consider financial provision for a child to deal with litigation costs relating to the children".[52]The issue has, however, further been considered by Mr Justice Charles in the case of M-TvT [2007] 2 FLR 925 . He decided the issue without initially having been referred to all the relevant authorities. Having been referred to all the relevant authorities, he concluded that the proper construction of Schedule 1 gives the Court power to order, by way of interim provision, a payment towards legal costs. "To my mind it certainly can be for the benefit of the children in cases under Schedule 1 to ensure that they are properly represented and have an appropriate equality of arms to the respondent to those proceedings. Therefore, if Mr Justice Bennett was deciding that the Court did not have such jurisdiction in W-v-J , for the reasons I have given, I respectfully do not agree and I do not propose to follow that decision. I find that I do have such jurisdiction." Earlier in his judgment, Mr Justice Charles had referred to the position of an applicant under Schedule 1 as being in a representative capacity; not using that expression in a technical sense, but by application of an overview of the structure of Schedule 1.[53]I am entirely satisfied that I have jurisdiction to make an award of interim maintenance, directed towards providing the mother with funds to enable her to meet her legal costs of these proceedings, if I consider it appropriate to do so for the benefit of the children in this case.[54]Turning now to my conclusions which I propose to deal with shortly. Interim hearings are an expensive exercise and in my view they should be pursued only when, on a broad assessment, the Court's intervention is manifestly required. The jurisdiction to make an interim award is a very broad jurisdiction. The terms of paragraph 9 of Schedule 1 state simply that "the court may, at any time before it disposes of the application, make an interim order … requiring either or both parents to make such periodical payments at such times and for such term as the Court thinks fit".[55]It is a very broad jurisdiction but it is one which, as I have said, should be exercised when, on a broad assessment, the Court's intervention is manifestly justified. Otherwise parties will be encouraged to engage in what can often be an expensive exercise in the course of the substantive proceedings, when the proper forum for the determination of those proceedings, if they cannot be resolved earlier by agreement or otherwise, is the final hearing when the evidence can be properly analysed and the parties' respective submissions can be more critically assessed.[56]Before turning to the merits in this case, I propose to comment on some of the language used during the course of the hearing. Mr Tod described the rate of payments being made by the father as being derisory. Mr Feehan described the mother's claims as unrealistic to the point of fanciful. I deprecate the use of such language which, in my view, is not helpful and indeed I would describe as emotive and unhelpful.[57]Turning to the merits, I have been referred to a number of authorities dealing with the broad nature of the Court's discretion when determining the quantum of an award to be made in favour of a parent under Schedule 1. These cases were addressing the approach which the Court should adopt at a substantive hearing. However, they clearly also provide guidance on the manner in which the Court's jurisdiction should be exercised at an interim hearing.[58]As I have already indicated, the jurisdiction under paragraph 9 is very broad, as the only determining factor is that the periodical payments must be such as the Court thinks fit. At an interim hearing a Court will often, perhaps even usually, only be able to gain a very broad impression of the circumstances of the case. In the present case a great deal of evidence has been adduced as to the true extent of the father's resources and directed towards his ability to meet an award at the level sought by the mother.[59]It is not possible for me at this hearing to come to any firm conclusions. However, as I pointed out during the course of the hearing, the total amount sought by the mother to the conclusion of the Financial Dispute Resolution hearing, on the assumption that it takes place within approximately six months, is something of the order of £55,000.00. I am satisfied that the husband could afford to pay this sum, if I thought it appropriate for him to do so. The overall level of his resources and the constituent elements (including his chattels) make this a reasonable conclusion. The issue, therefore, which I must address directly, is whether in fairness he should be ordered to do so.[60]I will first consider this issue in respect of general maintenance. I have to decide whether it is appropriate for me to increase this on an interim basis, having regard to the background history which I have described and in particular the level of maintenance which the father has, by agreement, been paying (and which has increased) since 2004 and the level of his other expenditure made for the benefit of the children. On a broad assessment of the circumstances, I have come to the clear conclusion that it is not appropriate for me, on an interim basis, to increase the level of general maintenance paid by the father to the mother for the benefit of the children.[61]I do not see that there is any manifest need for the Court to exercise its jurisdiction in that regard at this stage. The mother's interim budget, and I appreciate that is a reduction from her more substantive budget, is only some £15,000.00 above the income she currently receives and I do not consider that this is an amount which in this case justifies an interim variation. The mother's claims for general maintenance can be dealt with as part of her substantive claim and if the Court decides that the level should be increased it can, of course, be backdated to the date of her application, as I have indicated, if the Court considers that it is appropriate to do so.[62]Separately, I have to consider whether I should make an award in respect of legal costs. The question I must answer, or the approach I propose to adopt, is that provided by Lord Justice Wilson in Currey. The initial, overarching enquiry that I have to conduct is whether the mother in this case can demonstrate that she cannot reasonably procure legal advice and representation by any other means. The legal advice and representation which she must be able to procure is legal advice and representation at a level of expertise apt to these proceedings. If I am so satisfied, I must then have regard to all other relevant circumstances, including the matters relied upon by Mr Feehan which include the reasonableness of the mother's stance in the proceedings and the merits of her claims.[63]I am entirely satisfied that the mother, without an award in her favour, would not be able to procure legal advice and representation at a level of expertise apt to these proceedings. She has no resources of her own to enable her to do so and she cannot procure legal services by the offer of a charge upon any ultimate capital recovery. She also, in my view, would not be able to obtain such legal advice and representation through public funding.[64]Are there, accordingly, any factors which militate against my making an award in the mother's favour to enable her to meet her legal costs? I have already come to the conclusion that the father has the resources which would enable him to pay the sum sought by the mother. I am also satisfied that her stance in the proceedings, having regard to the merits of the claims, can be fairly described, at this stage, as sufficiently reasonable to justify my making an award in respect of costs. Or, to put it another way, her stance is not such that the proceedings cannot be said to be for the benefit of the children. None of the matters relied upon by Mr Feehan persuade me that I should not make an award in respect of the mother's legal costs. In my view, it is clearly to the benefit of the children for the mother to be properly represented in these proceedings. The only way of achieving this is by my making an interim periodical payments order.[65]The initial estimate in respect of the mother's costs was, as I have indicated, £46,000.00. This has now increased to £72,000.00. I do not consider it necessary for the mother in these proceedings to procure the assistance of leading counsel and, if that were to be excluded from the Schedule that has been prepared on her behalf, it would reduce the amount of her anticipated costs to something in the region of £65,000.00. As she has paid £24,000.00, the shortfall between what she has paid and what it is anticipated she would need to pay is something of the order of £40,000.00. I propose to make an order in this amount. I will deal with the rate at which it is to be paid when I have dealt with directions, so I can identify the period that will elapse between now and the Financial Dispute Resolution hearing. - - - oOo - - ­

Cited in 10 later judgments

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