P v M (Appeal: Unfair Hearing: Variation of Periodical Payments: Global Orders) [2026] EWHC 1330 (Fam)

[2026] EWHC 1330 (Fam)Case No FA-2025-000398
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
ON APPEAL FROM THE CENTRAL FAMILY COURT
(HHJ WRIGHT)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 2 June 2026
Before
THE HONOURABLE MR JUSTICE HARRISON
Between
PAppellantM (Appeal: Unfair Hearing: Variation of Periodical Payments: Global Orders)Respondent
P v M (Appeal: Unfair Hearing: Variation of Periodical Payments: Global Orders)
Hearing Hearing dates:15 April 2026
Ms Lydia Newman-Saville (instructed by Irwin Mitchell LLP) for the Appellant
The respondent appeared in person
APPROVED JUDGMENTThis judgment was handed down remotely at 10.30am on 3 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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This judgment was delivered in public but a reporting restrictions order is in force. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the parties, the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Introduction

[1]This is an appeal against an order made by HHJ Wright (‘the judge’) on 5 November 2025 and sealed on 19 January 2026.[2]The judge varied a previous order for periodical payments made by DDJ Butler on 2 January 2020 (‘the original order’) by reducing the sum payable by the respondent (‘the husband’) to the appellant (‘the wife’).[3]The wife has been represented by Ms Lydia Newman-Saville. I am grateful to her for the assistance with which I have been provided. The husband acted in person. Although, as he acknowledged, he found the experience difficult and became emotional, he represented himself with courtesy and skill.[4]The wife’s primary contention is that the judge’s conduct ‘infected’ the hearing and made the process unfair. She further submits that the judge erred in her evaluation of the husband’s income, failed to have proper regard to the needs of the child and incorrectly determined that she had no jurisdiction to increase the periodical payments and make a global order.[5]The husband resists the appeal, submitting that the judge well understood that in his changed circumstances he could not afford to continue paying at the original rate. He emphasises the judge’s core finding that the amount payable under the original order was ‘unaffordable’. He submits that the wife’s appeal does not demonstrate an error of law or procedural irregularity; rather it invites the court to reconsider the judge’s factual findings, which is not the function of an appellate court.

The law on appeals

[6]The law in relation to appeals was helpfully summarised by Poole J in Re A Mother (Appeal: Alienating Behaviours: Fair Procedure) [2026] EWHC 783 Fam at paras 21 to 24. I gratefully adopt that summary. For ease of reference I replicate it at paras 7 to 10 below.[7]FPR 30.12(3) provides that an appeal may be allowed where either the decision was wrong or it was unjust for serious procedural or other irregularity. The court may conclude a decision is wrong because of an error of law, because a conclusion was reached on the facts which was not open to the judge on the evidence, because the judge clearly failed to give due weight to some significant matter or clearly gave undue weight to some other matter, or because the judge exercised a discretion which "exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong": G v G (Minors: Custody Appeal) [1985] FLR 894.[8]The appellate court must consider the judgment under appeal as a whole. In Re F (Children) [2016] EWCA Civ 546 Munby P summarised the approach as follows:
"22. Like any judgment, the judgment of the Deputy Judge has to be read as a whole and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law… 23. The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360. I confine myself to one short passage (at 1372): "
The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself." It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann's phrase, the court must be wary of becoming embroiled in "narrow textual analysis".[9]The appellate court should be slow to interfere with findings of fact. As Lewison LJ said in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5, at paras 114 to 115:
"Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them….The reasons for this approach are many. They include, i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. ii) The trial is not a dress rehearsal. It is the first and last night of the show. iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done. 115. It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted."
[10]More recently Lewison LJ set out the principles to be applied again in Volpi and ors v Volpi [2022] EWCA Civ 464 at [2], principles cited by Baker LJ in T (Fact-Finding: Second Appeal) [2023] EWCA Civ 475:
"i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong. ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him. v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable. vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract."
[11]Those authorities do not address the approach to be taken in appeals based upon an assertion that the proceedings below were unfair. I consider this issue below.

Background

[12]The husband is a French national who is now aged 47. The wife is a UK national who is 43.[13]The parties met in 2013 and started living together later that year. They married in 2016 and separated in 2018. Including cohabitation, the marital relationship endured for just five years. The parties divorced in 2019.[14]The parties have a child (‘C’) who is now aged 9. C lives with the wife and spends time with the husband on alternate weekends and during the holidays pursuant to a child arrangements order made in 2025.[15]The husband also has a daughter from a previous relationship (‘S’) who is now aged 17. S lives with her mother in Paris. The husband pays child maintenance for her.[16]The husband works on a freelance basis in the film and TV industry. He has been successful in his particular field and is clearly very well-regarded.[17]The wife also works in the film and TV industry, albeit in a different less well-remunerated field. She too operates on a freelance basis. Her ability to work has been restricted by her commitments to C.[18]When the parties first started living together they were based in Paris. In 2014 they moved to New York where they remained living until their separation in 2018. Following the breakdown of the marriage the wife and C came to live in London. The husband left New York and once again based himself in Paris.[19]After their separation the parties became engaged in financial remedy proceedings. These were eventually listed for a final hearing before DDJ Butler in May 2019. He delivered a reserved judgment on 12 July 2019 which was the foundation for the order made in early January of the following year.[20]In his judgment DDJ Butler made the following findings:(a) Neither party had any assets of any significance.(b) The wife’s liabilities on credit cards and to her bank exceeded her bank account balances by some £7,000 to £8,000. In addition, she owed some £25,000 to members of her family and £27,000 to her previous and current solicitors. Overall, it was likely that she was ‘underwater’ to the extent of £60,000 to £65,000 taking into account a likely increase in her liabilities between the hearing and the date of judgment.(c) The husband had credit card liabilities and owed money to his solicitors. He was probably ‘underwater’ by approximately £7,000.(d) The husband’s business had no value as ‘[he] is basically the business’.(e) The wife was intelligent, well-educated and capable of working. She could earn £2,000 per month net in two to three years, building up her earnings before then. Her need for childcare would be reduced by her ability to work partly from home and by the support of her mother who was able to look after C for up to 24 hours a week.(f) In 2017 and 2018 the husband had earned an average of £14,000 per month net. His earning capacity going forwards was ‘not less than’ £13,000 per month net. This net figure did not include some of his day-to-day expenses which he was able to offset against tax and expenses he was paid as part of certain contracts. In coming to this figure, the judge adopted ‘very roughly’ an estimate of 35% for French tax. He noted that tax relief was available to the husband in France in relation to spousal and child maintenance payable pursuant to a court order.(g) The husband worked hard and his ability to earn was dependent upon performance.(h) The wife’s housing needs could be met by a two-bedroom rental property in the Shepherd’s Bush area costing £2,000 per month.(i) The wife’s overall budget was inflated. An appropriate budget for herself and C was £50,000 per annum plus rent, i.e. £74,000 per annum.(j) The husband’s housing needs could be met by a two-bedroom rental flat in Paris costing around €2,000 per month.(k) His overall expenditure could be met for £7,000 per month including rent (as above), child maintenance for S (£1,200 per month), life assurance for the wife (£100 per month), life assurance for S (£60 per month), health insurance and travel to London to see S.(l) Each party was ‘largely truthful’ but their evidence was tainted by ‘bitterness’ and their prejudices against each other.(m) The parties had enjoyed a good standard of living but had lived up to and beyond their actual and expected income.[21]The judge’s ultimate conclusion was to make an award in favour of the wife as follows:(a) Two lump sums totalling £8,000;(b) Periodical payments for the wife on a decreasing basis: (i) £4,000 per month from 1 October 2018 until December 2021 (when C would be 5); then (ii) £3,000 per month until December 2027 (when C would be 11); then (iii) £2,000 per month until December 2034 (when C would be 18); then (iv) A nominal order until the completion of C’s tertiary education, limited to his first degree and including a gap year. As a consequence of the commencement date for the periodical payments there were arrears of £22,392 which were to be discharged monthly over a period of 12 months commencing 1 August 2019 in addition to the other sums payable.(c) Upon the expiry of the term for periodical payments there was to be a clean break, but there was no bar against the wife applying to extend the term.(d) Periodical payments for C in the sum of £1,500 per month.(e) The figures for periodical payments were all to be inflated annually by reference to the retail price index.(f) The husband gave an undertaking to meet the cost of life insurance.[22]On 20 December 2023 the husband applied to vary the order.[23]On 5 February 2024 the wife made an application for enforcement in relation to child maintenance, although this was not pursued as by the time the matter came before the court issues of child maintenance were being dealt with by the Child Maintenance Service (‘CMS’).[24]For reasons which are unclear to me, the husband’s application proceeded through the courts at a slow pace. It was listed for a Financial Dispute Resolution hearing on 15 May 2025 when the parties, both acting in person, failed to come to an agreement. Accordingly, HHJ Ashby listed the matter for a final hearing and gave directions for the filing of statements, questionnaires and replies to questionnaire.[25]Neither party complied with the direction for the filing of questionnaires, at least not by the deadline set out in the order. One important consequence of this omission was that when the matter eventually came before the court for a final hearing, there was an absence of relevant up-to-date evidence about the husband’s income.[26]The final hearing was listed before HHJ Wright between 3 and 5 November 2025. Her decision was that the order of DDJ Butler should be varied such that the periodical payments payable between 1 December 2025 and 31 December 2027 were to be in the sum of £2,500 per month. The indexation clause was discharged.[27]The immediate effect of the order was that the wife’s spousal maintenance was reduced from £3,922 per month (being the RPI inflated payment of £3,000 per month for which the original order provided) to £2,500 per month for a period of two years. Assuming the RPI increases by, say, 3% per annum the total difference between the amounts payable under the original and new orders over the next two years and one month can be calculated as follows (all figures in pounds sterling): Year 2025 (1 month) 2026 (12 months) 2027 (12 months) Original 3,922 48,476 49,930 New 2,500 30,000 30,000 Difference 1,422 18,476 19,930 TOTAL 39,828[28]Thereafter the removal of the indexation clause may have the following effect, again assuming 3% increases in RPI: Year 2028 2029 2030 2031 2032 2033 2034 Original 34,285 35,313 36,373 37,465 38,589 39,746 40,939 New 24,000 24,000 24,000 24,000 24,000 24,000 24,000 Difference 10,285 11,313 12,373 13,465 14,589 15,746 16,939 TOTAL 94,710[29]It can thus be seen that, on the basis of my crude assumption as to RPI, the variation order would, over the lifetime of the order, result in the wife receiving a total of £134,538 less than DDJ Butler estimated that she would need when he made the original order.[30]In addition, pursuant to the original order the wife should now be receiving approximately £24,000 per annum in child maintenance (£18,000 pa inflated by RPI). She is in fact receiving a substantially lower sum of £9,479.40. This is the amount which the CMS has assessed as being due to her on the basis of the information with which it has been provided. The wife has appealed this assessment and her appeal is pending before the Child Support Appeals Tribunal. Given that the husband accepts that his gross income exceeds £156,000 per annum, I do not understand why the CMS has not produced a so-called ‘maximum assessment’ which would enable the court to ‘top up’ that liability pursuant to its jurisdiction under section 8(6) of the Child Support Act 1991.[31]For now, the cumulative effect of the judge’s variation order and the CMS decision is that the wife is receiving approximately £2,750 per month less than was provided for in the original order. On any view, this entails a substantial reduction to her household income.[32]The wife’s income at the time of the hearing below was £1,800 per month. Her budget for herself and C, as set out in her written evidence, amounted to approximately £8,400 per month, a shortfall of £6,600 per month. Had DDJ Butler’s order remained unaltered she would have been receiving a total of approximately £6,000 per month in combined spousal and child periodical payments, close to the amount of the shortfall.[33]The essence of the judge’s decision to reduce the amount payable under the original order was that there had been a change in the husband’s circumstances which justified a reduction. She concluded that the husband’s net income was lower than DDJ Butler had anticipated it would be, finding that it was now approximately £11,500 per month.[34]The judge also identified that the husband had significant financial commitments which DDJ Butler had not foreseen. The original order did not require the husband to pay school fees, but the parties had nevertheless decided to enrol C at a private French-speaking school in London on the basis that the husband would meet the fees (plus the cost of certain activities). These amounted to £1,250 per month (£15,000 per annum). The amount he was required to pay for his daughter, S, had increased slightly from £1,215 per month to £1,320 per month (£15,840 per annum). Most significantly, he had large tax arrears owing to HMRC in the sum of £70,000. At the time of the hearing, he was obliged to reduce these by paying £3,000 per month. The husband told me at the hearing of the appeal that this debt has reduced to £60,000 and he is now paying £2,500 per month. The wife does not challenge the existence of this large tax liability which, on the husband’s explanation, has arisen as a result of his inability to afford to pay tax because he has had to discharge very substantial expenses from his gross income. The husband also told me that he has other tax liabilities: £8,000 income tax in France and £30,000 tax in relation to a company.[35]The judge referred to the fact that the wife had debts – £85,000 at the date of the hearing – but described these as ‘soft not commercial’. She was sceptical about the wife’s decision to embark upon a law course at a cost of £10,000 given that she did not intend to practise law.[36]The judge was critical of the wife’s budget noting that she had ‘continued to include’ items such as a handyman, a nanny, gym membership, hobbies and weekend breaks. This appears to have been a reference to the fact that DDJ Butler had previously held that the amounts claimed for such items ‘could be trimmed’. The judge also referred to other items on the wife’s budget which she said were being met by the husband. She held that the wife’s budget was ‘unrealistic and inappropriate bearing in mind her circumstances’. She noted that were she to reduce the spousal maintenance to £2,500 per month, the wife would have a monthly income of £5,045 including her own earnings and the child support from the CMS. She would also have child benefit, which does not appear to have been included in this calculation.[37]The judge calculated that the husband would be left with £5,685 per month after making the following deductions from figure of £11,500 upon which she had alighted for his net income: child support via the CMS (£745), school fees (£1,250), maintenance for S (£1,320) and rent (£2,000). Accordingly, were he to pay £2,500 per month in spousal periodical payments he would be left with a monthly sum of £3,185. The judge acknowledged that his requirement to discharge a debt to HMRC of £3,000 would mean that at present he would have ‘no money to live on’ but took into account that he would be able to renegotiate the terms of repayment after February 2026.[38]The judge declined to backdate her variation order as to do so would place the wife in yet further debt.

The wife’s case on appeal

[39]The wife filed an Appellant’s Notice on 28 November 2025 accompanied by Grounds of Appeal which set out five grounds upon which she asserts that the judge’s decision was wrong and/or procedurally irregular. These grounds of appeal were slightly amended on 21 January 2026.[40]The grounds of appeal can be summarised as follows:(1) The court’s decision was manifestly unjust as it was ‘infected’ by serious procedural irregularities: (a) The wife was ‘not permitted’ to give oral evidence; (b) The court made findings against the wife despite the fact that her evidence had not been challenged; (c) The court answered questions put to the husband in cross-examination, those answers being inconsistent with his own evidence; (d) The court repeatedly interrupted the wife’s cross-examination of the husband; (e) The court expressed the view that the original order was ‘wrong’ despite it not having been appealed; (f) Prior to closing submissions, the judge’s decision was ‘all but made’: she expressed a view and counsel had to request an opportunity to make submissions thereafter.(2) The court erred in its evaluation of the husband’s income: (a) By stating that it had ‘no choice’ but to accept his evidence, despite (i) it being inconsistent with certain documents, and (ii) the husband’s concessions that his written evidence was probably wrong. (b) By applying a notional tax liability to the husband’s foreign income despite the husband accepting that relevant figure was net of tax; (c) By making initial findings about the husband’s income before amending these when giving judgment and stating that it did not know the true position regarding the husband’s income.(3) The court was wrong to determine that the parties have the same needs given that the wife is the primary carer for the child, the husband lives in his home for only a few months of the year and the husband can largely live on expenses claimed through his work.(4) The court failed to have any regard to C’s welfare and the impact of the decision on his accommodation.(5) The court was wrong to conclude that it had no jurisdiction to vary upwards the spousal maintenance order and/or make a ‘global order’ combining both spousal and child maintenance.

Ground 1: the decision was ‘infected’ by serious procedural irregularities

[41]Put simply, the wife’s case under this head is that the judge conducted the hearing in a manner which was unfair to her. She makes various points which I address under the different sub-headings below.

Wife not permitted to give oral evidence

[42]The first point the wife makes is that she was ‘not permitted’ to give oral evidence despite a specific request that she be allowed to do so. The wife’s evidence was set out in written form. At the hearing, the husband made clear to the judge that he did not have any questions to put to her. Accordingly, it appeared that her evidence stood unchallenged. I accept the substance of the husband’s submission that in such a situation is usually unnecessary for a witness formally to step into the witness box for the sole purpose of confirming the truth of their written evidence.[43]The husband was acting in person and is unlikely to have appreciated the purpose of putting questions in cross-examination. I consider that, in those circumstances, the judge was perhaps unwise to take at face value his statement that he had no questions for the wife. During the course of the hearing, it became apparent that an important aspect of his case was his challenge to the wife’s budget, a budget which the judge herself clearly considered was unrealistic and inappropriate. In essence, the wife submits that in those circumstances fairness required the judge at least to consider whether aspects of that challenge should be put to the wife in cross-examination so as to give her the opportunity to respond to the challenges in oral evidence rather than on submissions.[44]In a case involving an unrepresented litigant it may be difficult for a judge to discern a need for a challenge to be put by that litigant to the other party in the face of their own averment that they do not seek to raise questions. The amendments to the Matrimonial and Family Proceedings Act 1984 (‘the 1984 Act’), brought about by section 61 of the Domestic Abuse Act 2021, prevent litigants from conducting cross-examination in person in cases involving domestic abuse. Such cases may create additional difficulty.[45]As was explained by Sir Andrew McFarlane, P in Re Z (Prohibition of Cross-Examination: No QLR) [2024] EWFC 22, where a person is prevented from cross-examining a witness in person, section 31W(2) of the 1984 Act requires the court to consider first whether there exists a satisfactory alternative means by which the witness can be cross-examined, or for otherwise obtaining evidence that might have been given under cross-examination. Family Procedure Rules 2010, PD3AB, para 5.3 makes clear that a satisfactory alternative does not include the court undertaking the cross-examination. Where no satisfactory alternative exists, the court must invite the relevant party to arrange for a Qualified Legal Representative or ‘QLR’ to undertake the cross-examination. If this does not occur, but the court considers that it is in the interests of justice for the witness to be cross-examined, the court itself must take steps appoint a QLR.[46]If, as is commonly the case, no QLR can be found, Sir Andrew McFarlane suggested that after 28 days the case should then be relisted for directions to consider other options. At para 28 of Re Z the former President identified some the ‘principal options’ at this stage of the process, setting them out a list which was not intended to be exhaustive. Some involve an adjournment. Another involves reviewing the need for cross-examination. A further alternative involves the judge undertaking the cross-examination; for reasons explained at paras 28 onwards of the President’s judgment this can be ‘burdensome, unnatural and tricky’ for the judge; the lodestar for a judge who takes on the task must be ‘fairness’.[47]It is easy to see that in low-value financial remedy cases going through the process of attempting to find a QLR, with the adjournments that this may necessitate and the consequential increase in costs, may be wholly disproportionate to the amounts at stake. In an application to vary a periodical payments order, issues of proportionality are likely to loom large. Perhaps for this reason, it has become relatively common for judges to address the prohibition on in-person cross-examination by requiring the prohibited party to send to the court a list of questions which can be read out by the judge. This course seeks to tread a fine line between the prohibition and the difficulties inherent in the judge undertaking the task.[48]In every case, even when a litigant in person has said they do not wish to question a witness, it remains the responsibility of the judge to ensure that the process is fair to both sides. This is an ongoing responsibility. Accordingly, if it becomes apparent that an aspect of a party’s case involves a challenge to the evidence of the other party, the judge should consider whether that challenge is one which can fairly be made through oral submissions or whether the party whose evidence is being challenged should have the opportunity to respond through oral evidence. If, having regard to questions of proportionality, fairness requires the latter course, the judge should ensure that this occurs. This would not necessarily entail extensive cross-examination or indeed any cross-examination at all if this is prohibited under the 1984 Act. A judge could simply invite the witness to comment on the proposition that an aspect of their evidence is being challenged or allow their counsel to invite such a comment through questions in chief.[49]Having given the matter careful consideration, I am not persuaded by the wife’s submission that the decision in this case to proceed without oral evidence from the wife can be said per se to have been wrong. The husband had been directed to send the court a list of written questions in advance of the hearing but had not complied with that direction. He was not in a position to undertake in person cross-examination because of the provisions of the 1984 Act. He was telling the judge in clear terms that he had no questions to put. The judge was not told that there were any specific issues which the wife needed to address through oral evidence. The judge said that she did not think that the wife needed to give evidence ‘because there is not really any issue about this’ (‘this’ meaning her evidence); no issue was suggested to her. When the question arose again after the husband had finished his evidence, the judge said that ‘[The wife] has given her evidence’ and enquired:
‘What does she want to say which is not in her statement’
. No suggestion was made in response to that enquiry.[50]Ms Newman-Saville makes a submission that instead of allowing the wife to give evidence formally the judge ‘put a question to [her] over [counsel’s] head’. I do not consider this to be a fair representation of what in fact occurred. The transcript makes clear that the judge was troubled by the wife’s decision to spend money on a law course when she did not intend to practise in that field and suggested that counsel ‘may want to take instructions on this’. Instead of providing instructions to her counsel, the wife chose to respond directly to the judge’s question from the back of the courtroom. The judge clearly (and, in my view, understandably) did not consider the explanation to be a good one, but I do not think she can fairly be criticised for having allowed the wife to offer it to her directly as opposed to through her counsel as she had first requested.[51]Whether the judge was entitled to make adverse findings about the wife’s budget in circumstances where she had not been cross-examined is a separate issue which I consider below.

The court made adverse findings against the wife despite her evidence being unchallenged

[52]The wife’s second point, closely linked to the first, is that the court was wrong to make findings contrary to the wife’s written evidence in circumstances where she had not been cross-examined. Ms Newman-Saville submits in particular that the judge was critical of the wife’s budget when she had not been given the opportunity to answer questions about any challenge which might be made.[53]In Phipson on Evidence 21st ed (2026) at paragraph 12-12 the editors explain that:
“In general a party is required to challenge in cross-examination the evidence of any (factual or expert) witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point… This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.”
This is commonly referred to as the rule in Browne v Dunn, a reference to the nineteenth century case reported at (1894) 6 R. 67 HL.[54]In Browne v Dunn the court was concerned with a claim for libel brought against a solicitor. Counsel invited the jury to disbelieve evidence given by the solicitor’s clients without having challenged them in cross-examination. Lord Herschell LC said the following:
“I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”
[55]More recently, in Griffiths v Tui UK Ltd [2023] UKSC 48 the Supreme Court was concerned with a case in which the trial judge rejected the opinion of an expert witness who had not been cross-examined by the opposing party. Lord Hodge, after citing the proposition identified above from Phipson, said the following at para 43:
“I am satisfied that the statement in Phipson is correct and, as explained below, it summarises a longstanding rule of general application. It is not simply a matter of extensive legal precedents in the case law. It is a matter of the fairness of the legal proceedings as a whole. While many of the cases may have been concerned with challenges to the honesty of a witness, I see no rational basis for confining the rule to such cases or those analogous categories, such as allegations of bad faith or aspersions against a witness’s character, as Mr Stevens suggests.”
[56]After an extensive survey of the caselaw in which this topic has been considered, Lord Hodge summarised the position as follows at para 70:
“In conclusion, the status and application of the rule in Browne v Dunn and the other cases which I have discussed can be summarised in the following propositions: (i) The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses. (ii) In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair. (iii) The rationale of the rule, ie preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness. (iv) Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy or inadequacy as well as from a challenge to the expert’s honesty. (v) Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself. (vi) Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty. (vii) The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule, as the current edition of Phipson recognises in para 12.12 in sub-paragraphs which follow those which I have quoted in para 42 above. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where, as in Chen v Ng, the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court’s decision on the application of the rule. (viii) There are also circumstances in which the rule may not apply: see paras 61-68 above for examples of such circumstances.”
[57]The other circumstances in which the rule may not apply which were identified at paras 61 to 68 of the judgment related mainly to expert witnesses, but also included the following:(a) Where the challenge is directed to a collateral or insignificant matter and fairness to the witness does not require there to be an opportunity to answer or explain; and(b) Where evidence of fact is manifestly incredible and an opportunity to explain under cross-examination would make no difference.[58]In Re S (Care and Placement: Schedule of Findings of Fact) [2026] EWCA Civ 85 the Court of Appeal was concerned with a finding made in care proceedings against an aunt of the subject-children about a matter which had been inadequately put to her in cross-examination. Cobb LJ (as he then was) said at para 68: “Thirdly, this allegation was not particularised by the mother (i.e., how or when the aunt is said to have inserted the tablet), nor was it put to the aunt in cross-examination that she had done so, save in the most general and non-accusatory of terms. As the Supreme Court observed in Griffiths v Tui (UK) Ltd. [2023] UKSC 48; [2023] 3 WLR 1204 at [70] it is a general rule in civil cases – in order to safeguard fairness of the process – that a party is "required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted". The Court added: (v) Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause . The rule is directed to the integrity of the court process itself. (vi) Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty. … These points apply equally in family cases. Thus, in this case, if the Judge were minded to include the aunt in a 'pool' of perpetrators responsible for the act of procuring an unlawful abortion, she should have given the aunt the chance to give full answers to a particularised charge, and/or to refute any accusation of dishonesty in this respect. The aunt was deprived of that chance, and the Judge was correspondingly denied the opportunity to make "a proper assessment" of this assertion "to achieve justice in the cause".” (v) Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause . The rule is directed to the integrity of the court process itself. (vi) Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty. …[59]In the context of those authorities, I need to consider whether the fairness of the hearing was compromised by the judge’s adverse findings about the wife’s budget in circumstances where she was not challenged about it in evidence. This situation is obviously very different from the factual scenario considered by the Court of Appeal in Re S.[60]Apart from in rare cases where the compensation principle is engaged, a claim for ongoing periodical payments can only be justified on the basis of ‘need’: Waggott v Waggott [2018] EWCA Civ 727. The evidential foundation for such a claim almost always comprises the claiming party’s detailed schedule of asserted income needs. Such a budget will typically entail a mixture of expenses which the party in question actually incurs (rent, mortgage instalments, utilities and school fees being obvious examples) and those which they aspire to incur (examples of the latter include holidays, entertainment and other items of discretionary expenditure).[61]It is commonly the case that the budget of one or both parties is subject to challenge. On a number of occasions, it has been said by different courts that there is a need for budgets to be examined critically (see, for example, the observations of Nicholas Mostyn QC (as he then was) in TL v ML and others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263). Famously, in F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45, in the context of a wife’s claim for maintenance pending suit, Thorpe J (as he then was) said:
“…even in the case of a family of unusual riches it would surely be wrong for the court not to look carefully and indeed critically as the suggested budget. Mr Pointer has said that the all-important particularisations in the bundle are the product of a team effort, the team members being the wife, her solicitor and her counsel. Well, it would be naïve to ignore the psychology of the team members. Inevitably it is a litigation exercise. It is in part an advocacy exercise. There is every incentive to put figures as high as they reasonably can be put and perhaps even to gild the lily.So I find that Mr Blair's most powerful submission is in his detailed exposure of certain elements within the wife's budget which are unjustifiable even in a 'super rich' case and which must result from excess of zeal on the part of the compilers of the budget.”
[62]As Moylan LJ later observed in Rattan v Kuwud [2021] EWCA Civ 1, however, the nature of the budget being considered in F v F was very far removed from the list of income needs provided in the majority of cases. Amongst other things, he went on to make the point that ‘not all budgets require critical analysis’.[63]In cases where a budget is subject to challenge, the nature of the challenge may vary. In some instances, the existence of an asserted liability may be said to be untrue or erroneous. In other cases, it may be said that a party’s actual or proposed expenditure is unduly profligate and/or that it bears little relation to the level of expenditure incurred during the parties’ relationship and/or that whatever may have happened previously it can no longer be afforded.[64]There is no hard and fast rule as to how such challenges are to be mounted. At an interim hearing, a budget will almost invariably be considered on the basis of submissions. Even at a final hearing, there is certainly no requirement, in my judgment, for every challenge to a budget to be put in cross-examination; to require such a course would usually be wholly disproportionate. Questions along the lines of ‘Do you agree that you could spend less than [£X] per month on shoes?’ are unlikely to produce answers of much forensic utility. A line-by-line cross-examination on a budget takes time and often adds to the costs on both sides to little benefit; a few targeted questions will usually be sufficient to mount an assertion of general forensic exaggeration.[65]In many cases, it may be evident from the size of the budgets that the parties have failed to appreciate the new reality in which going forward they will need to stretch a limited income across two households; in these cases, whatever expenditure may have been incurred previously can no longer be afforded. Points of this nature can usually fairly be made in submissions without the need for cross-examination. At the other end of the spectrum are cases in which it is suggested at a final hearing that a budget is tainted by dishonesty or gross exaggeration; here, fairness will generally require that the person against whom such assertions are made should have the opportunity to respond in evidence. Similarly, where a challenge is made to budgetary items of particular significance, the person claiming those items should usually be given the opportunity to respond to a challenge in evidence. Examples in this category might include a suggestion that a person could save money by moving home, removing a child from school, dispensing with a nanny or giving up the running of a car, but this is certainly not intended to be an exhaustive list.[66]Ultimately, the method by which a budget may be challenged is an intensely fact-specific issue in relation to which the trial judge has a very wide discretion; in considering the issue he or she will of course have regard to the overriding objective.[67]In this case, the judge made adverse comments about the wife’s budget which viewed in isolation appear unfair. The budget had not been challenged in cross-examination. In total, the amount of the wife’s actual and anticipated expenditure was just £600 more per month than she would have been receiving had the terms of the original order continued to apply without variation. The comparatively modest excess could perhaps be explained by an element of double-counting in that the wife, when acting in person, appears to have included in the budget certain expenses which were met separately by the husband. It is difficult to see how the wife could be said to be unreasonable in aspiring to maintain a lifestyle which a different judge had determined was appropriate for her. In commenting that the wife had ‘continued to include’ certain items, the judge appears to have formed the view that DDJ Butler had determined that such items should be excluded, when in fact he had merely stated that the amount claimed under those heads were too high.[68]The husband submits that faced with the reality of the husband’s financial circumstances, it was open to the judge to conclude that the wife was ‘over-housed’ and that overall her budget was excessive. He makes the justified point that ‘a court is not required to maintain a standard of living that has become unaffordable’.[69]In considering this aspect of the appeal, I have reminded myself of the need to avoid descending into a narrow textual analysis of the judgment below. The judge’s essential conclusion about the budget was that it could no longer be afforded in the light of the husband’s changed circumstances. Save possibly in two respects, I consider that if the judge was correct in her conclusions about the husband’s current circumstances (a point I address below), she was entitled to take a broad approach to the budget notwithstanding the absence of cross-examination. She did not, however, confine herself to saying that the budget was unaffordable. She was critical of the wife, making a finding that her budget was ‘unrealistic and inappropriate’.[70]The wife was spending £3,000 per month renting a flat in London near C’s school, having relatively recently moved from a more expensive property after a reduction in her child maintenance was imposed on her following the husband’s claim to the CMS. She made the valid point that a further move would create instability for C, whose interests were the court’s first consideration. The judge clearly thought that the wife’s present level of rent was unaffordable, a view which is understandable given her conclusions about the husband’s current level of income. In my view, however, the consequences for the wife and for C of having to move home again were so potentially significant that it would have been strongly desirable for the wife to have been afforded the opportunity to comment on what was proposed in cross-examination. Moreover, the wife’s case was that she needed a three-bedroom property in order to accommodate a live-in au pair to enable her to work. The need for this form of support was, in my view, another issue of significance; it would again have been much better for the wife to have been given the opportunity of answering any challenge before the judge came to the broad conclusion that she was ‘over-housed’.[71]Although I have identified what I consider to have been the better course for the judge to have taken in relation to these aspects of the budget, on the assumption that she was correct about the husband’s income (an issue considered below), I cannot say that she was ‘wrong’ to deal with even these issues on the basis of submissions, given her wide discretion and the circumstances with which she was confronted. Having dealt with the budget on the basis of submissions, I consider that the judge should have confined herself to saying that she considered the budget unaffordable. Her critical remarks of the wife were unjustified and will have added to the wife’s sense that the hearing was unfair. I would not have allowed the appeal for this reason alone, but it is a part of the overall picture.[72]Apart from the wife’s budget, the judge was critical of the wife’s decision to embark upon a law course. I share her view that this appears a surprising decision, although I am not convinced that it has much relevance to the issues in the case. The judge said that she bore it in mind as part of her assessment, although it is unclear from the judgment how she did so and I do not think this point is sufficiently significant so as to undermine the judgment by itself. The judge repeatedly intervened in the cross-examination of the husband and the submissions of the wife’s counsel[73]As Ms Newman-Saville submits, the danger of judges compromising their ability to exercise objective judgment by becoming too actively involved in a hearing was identified by Lord Greene in his judgment in Yuill v Yuill [1945] P 15, where he said at 20:
“A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation.”
[74]More recently, in Serafin v Malkiewicz and other [2020] UKSC 23 considered the principles by which a trial should be judged as unfair as a consequence of judicial interruptions. Lord Wilson set out the following at para 40 onwards: “40. The leading authority on inquiry into the unfairness of a trial remains the judgment of the Court of Appeal, delivered on its behalf by Denning LJ, in Jones v National Coal Board [1957] 2 QB 55. There, unusually, both sides complained that the extent of the judge's interventions had prevented them from properly putting their cases. The court upheld their complaints. At p 65 it stressed in particular that "interventions should be as infrequent as possible when the witness is under cross-examination" because "the very gist of cross-examination lies in the unbroken sequence of question and answer" and because the cross-examiner is "at a grave disadvantage if he is prevented from following a preconceived line of inquiry".41. In London Borough of Southwark v Kofi-Adu [2006] EWCA Civ 281, Jonathan Parker LJ, giving the judgment of the Court of Appeal, suggested at paras 145 and 146 that trial judges nowadays tended to be much more proactive and interventionist than when the Jones case was decided and that the observations of Denning LJ should be read in that context; but that their interventions during oral evidence (as opposed to during final submissions) continued to generate a risk of their descent into the arena, which should be assessed not by whether it gave rise to an appearance of bias in the eyes of the fair-minded observer but by whether it rendered the trial unfair.”42. In Michel v The Queen [2009] UKPC 41, [2010] 1 WLR 879, it was a criminal conviction which had to be set aside because, by his numerous interventions, a commissioner in Jersey had himself cross-examined the witnesses and made obvious his profound disbelief in the validity of the defence case. Lord Brown of Eaton-under-Heywood, delivering the judgment of the Privy Council, observed at para 31: "The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials." "The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials."[75]Ms Newman-Saville draws my attention to the judgment of Baker LJ in Re K and L (Children: Fairness of Hearing) [2023] EWCA Civ 686, where he said:
“There remains, however, a danger, both at first instance and on appeal, that excessive intervention may prevent counsel advancing their client’s case. While closing submissions offer the judge the opportunity to test the case being put forward, this should not descend into an argument. The purpose of submissions is for counsel to persuade the judge that her client’s case should prevail, not for the judge to persuade counsel that it should not.”
[76]There is often a temptation for hard-pressed judges, in the interests of expediency, to cut short a meandering cross-examination or to deal abruptly with submissions which appear to be advancing an argument of little or no merit. Indeed, it is part of the judicial role to ensure that a case does not veer off track and that it is dealt with proportionately and concluded within a proper time estimate; application of the overriding objective requires this.[77]As the Court of Appeal observed in Re AZ (A Child) (Recusal) [2022] EWCA Civ 911:
"Judges sitting in the family court have extensive case management powers which they are expected to exercise firmly. It follows that a judge in the modern era is permitted and indeed expected to intervene in proceedings to a far greater extent than in earlier times … This is particularly so when the family court is deciding a question relating to the upbringing of a child."
[78]Similarly, in K v L (Children: Fairness of Hearing) [2023] EWCA Civ 686, Baker LJ commented on the passage from Yuill cited above in the following terms:
“Lord Greene's observation was made nearly eighty years ago. In all parts of our modern legal system, judges take a more interventionist approach, not least in children's proceedings which are, for the most part, quasi-inquisitorial rather than adversarial. Nonetheless, excessive judicial intervention, particularly during the evidence, may undermine the fairness of the process. As Jonathan Parker LJ observed in The Mayor and Burgesses of the London Borough of Southwark v Maamefowaa Kofi-Adu [2006] EWCA Civ 281 at paragraph 146: ‘145. Nowadays, of course, first instance judges rightly tend to be very much more proactive and interventionist than their predecessors… That said, however, it remains the case that interventions by the judge in the course of oral evidence (as opposed to interventions during counsel's submissions) must inevitably carry the risk so graphically described by Lord Greene MR. The greater the frequency of the interventions, the greater the risk; and where the interventions take the form of lengthy interrogation of the witnesses, the risk becomes a serious one. 146…. the risk identified by Lord Greene MR in Yuill v. Yuill does not depend on appearances, or on what an objective observer of the process might think of it. Rather, the risk is that the judge's descent into the arena (to adopt Lord Greene MR's description) may so hamper his ability properly to evaluate and weigh the evidence before him as to impair his judgment, and may for that reason render the trial unfair.’” ‘145. Nowadays, of course, first instance judges rightly tend to be very much more proactive and interventionist than their predecessors… That said, however, it remains the case that interventions by the judge in the course of oral evidence (as opposed to interventions during counsel's submissions) must inevitably carry the risk so graphically described by Lord Greene MR. The greater the frequency of the interventions, the greater the risk; and where the interventions take the form of lengthy interrogation of the witnesses, the risk becomes a serious one. 146…. the risk identified by Lord Greene MR in Yuill v. Yuill does not depend on appearances, or on what an objective observer of the process might think of it. Rather, the risk is that the judge's descent into the arena (to adopt Lord Greene MR's description) may so hamper his ability properly to evaluate and weigh the evidence before him as to impair his judgment, and may for that reason render the trial unfair.’”
[79]There can often be a fine line between robust but fair trial management and judicial conduct which crosses the line and compromises the fairness of the proceedings. Ms Newman-Saville submits that in this instance the conduct of the judge fell on the wrong side of the line. She makes the following points in particular:(a) She estimates that she was interrupted 45 times by the judge during the course of her submissions;(b) There were 16 occasions during the hearing when the judge interjected by saying ‘it does not matter’ or ‘it really does not matter’ in response to a point which Ms Newman-Saville was attempting to put either in cross-examination or in argument;(c) On occasion, the judge herself gave answers to questions put to the husband in cross-examination, enabling the husband then to adopt those answers even though they differed from his written evidence.[80]By way of example of the third of these points, Ms Newman-Saville points out that at one stage she attempted to put to the husband that he had misrepresented to the CMS his true level of income. This, in my view, was an entirely fair line of cross-examination, especially since the husband had initially claimed to that agency that his income was just £12,000 per annum which had resulted in an assessment of £86 per month. Instead of allowing counsel to proceed with her cross-examination, the judge interjected that ‘the child maintenance was clearly a mistake. That is a mistake’, a point which the husband then readily adopted.[81]The point of most significance under this head relates to the manner in which the judge interrupted the cross examination about the husband’s income, the most critical issue in the case. The husband had produced UK tax returns which disclosed that he had foreign income. Despite repeated requests, he had not produced his French tax returns relying instead on a letter from his accountant which stated that he had a French tax liability for slightly less than €8,000.[82]Ms Newman-Saville submits that it was entirely justified for counsel to cross-examine the husband about this aspect of the case, but that the transcript reveals that she was prevented properly from doing so by an interruption from the judge. It appears that the judge had decided to input the figures provided by the husband for his income (assumed by the judge to be his gross income) into an online UK tax calculator, making the assumption that tax in France would be calculated in the same way as in this jurisdiction. This online resource translated a gross figure of £214,000 into £120,000 net. Having undertaken this calculation the judge put the figure to the husband who immediately adopted it, even though it featured nowhere in his written evidence and was inconsistent with the letter he had produced from his own accountant. The judge was undeterred by counsel’s attempts to deflect her from this approach as is illustrated by the following exchange:
“HER HONOUR JUDGE WRIGHT: Plus 7. So that is 214. (Inaudible) to work it out, it is going to be roughly whatever it is in England, I do not know what the tax liability would be. I expect it is about -- I expect the net is about 120 or something, I expect that is what it is. A. That's the figure. HER HONOUR JUDGE WRIGHT: It sounds about right.. well, I do not know what the tax rate is….So I expect the net is about 120. MS NEWMAN-SAVILLE: The problem we have, and I am concerned if I am not being clear, is we cannot cross-check against the different tax returns -- HER HONOUR JUDGE WRIGHT: No, I appreciate you cannot, but that is just where we are. This is meant to be a light touch. MS NEWMAN-SAVILLE: Absolutely. So on that basis, we say we are looking at 214 gross -- HER HONOUR JUDGE WRIGHT: Okay. So it is about 120 net, do you say? Is that roughly what you say? MS NEWMAN-SAVILLE: That would mean he was paying ... that means he was paying £55,000 in French tax. HER HONOUR JUDGE WRIGHT: Maybe he is, I do not know.”
England, I do not know what the tax liability would be. I expect it is MS NEWMAN-SAVILLE: The problem we have, and I am concerned if I am not being clear, is we cannot cross-check against the different tax returns -- MS NEWMAN-SAVILLE: Absolutely. So on that basis, we say we are looking at 214 gross -- say? Is that roughly what you say?

MS NEWMAN-SAVILLE: That would mean he was paying ... that

[83]The husband submits that there was nothing unfair in the robust manner in which the judge dealt with the case. He contends that the judge reached conclusions about his income which were open to her after hearing his evidence and examining the documents he produced. His case is that in mounting her challenge, the wife is inviting the appeal court to substitute its own conclusions for the reasoned decision of the judge.[84]I have borne in mind the advantages which the judge has in hearing the evidence and the limited function of the appellate court in reviewing her findings and discretionary conclusions. Nevertheless, I have come to the conclusion that the judge’s assumption that the husband would be taxed in France as though he were a UK PAYE tax-payer was fundamentally flawed, as:(a) The assumption was contradicted by the evidence from the husband’s own accountant.(b) As described by DDJ Butler in the original judgment, under the French tax system the husband was entitled to claim credit for the spousal and child maintenance he was paying the wife and the mother of S.(c) The husband received only a limited amount of his income as an employee. The large majority was drawn from his companies as dividends which, even in this jurisdiction, are subject to a different tax regime.[85]Moreover, in a case where the husband was generating his income through companies and choosing the level of dividend paid to him by the companies, it was entirely legitimate for the wife’s counsel to explore with the husband in cross-examination the level of gross income he was able to generate as well as the expenses he was able to meet through the companies. Additionally, given that, as was common ground, the husband’s income varied from year to year, I do not consider that the husband’s earning capacity could properly be evaluated by reference to a single tax year. In a case such as this, it was necessary to examine the pattern of his income over the previous two to three years at least in order to arrive at a fair determination.[86]Having considered the transcript as a whole, I regret to say that the nature and extent of the judge’s interruptions prevented the crucial issue as to the husband’s income and earning capacity from being adequately addressed. The fairness of the hearing of was thus compromised. I consider that the appeal must be allowed on this basis alone.[87]I also accept Ms Newman-Saville’s submission that the judge’s intervention during her cross-examination about the husband’s representations to the CMS, in which she suggested an answer which the husband then adopted, prevented this issue from being properly explored. This too compromised the fairness of the hearing and is an additional reason the appeal must be allowed. Even though the issue was less central than the husband’s income and earning capacity, it was nevertheless relevant. The judge throughout the hearing indicated her view that the original order made by DDJ Butler was wrong, despite that order not having been appealed[88]Having considered the transcript as a whole I do not think there is anything in this point.[89]In making his original decision, DDJ Butler had to undertake an assessment in relation to the husband’s likely future income, bearing in mind that the nature of his work meant that it fluctuated from year to year.[90]In my judgment, in stating that DDJ Butler had been ‘wrong’, the judge was essentially saying that his predictions about the husband’s had not come to pass. She was not saying that the judgment and order were wrong in the sense that they were appealable. Prior to closing submissions, the judge’s decision was ‘all but made’: she expressed a view and counsel had to request an opportunity to make submissions.[91]Ms Newman-Saville submits that before she had made her submissions the judge had effectively announced her decision. She draws attention to two passages from the transcript. (1) An exchange with Ms Newman-Saville in which the following was said:
“HER HONOUR JUDGE WRIGHT: No, it is not, actually. What I am looking at is an income of £111,000 rather than £13,000. I am looking at child support of £745, rent of £2,500, school £1,250, Leonie £1,320, maintenance £2,500, and he has left £2,685. So far as she is concerned, she has £1,800 coming in from her own resources, £745 child support, £2,500 in relation to maintenance, less her rent, and she has almost the same. That is where they are. Anyway, what do you want to do? What I will probably do is give a judgment on Wednesday partly because I think I need to do this in writing because my voice is so bad. So if you want to send anything into me tomorrow, then do, that is fine. MS NEWMAN-SAVILLE: Written submissions?” (2) Remarks addressed to the husband: “HER HONOUR JUDGE WRIGHT: All right. What that would mean is I would change the order so that the order would be from next month, you would pay £2,500 a month until December 2027, so for two years. Then after that, you pay £2,000 a month. Okay, right, that is (inaudible). And that is on the basis you continue paying the school fees.”
[92]In this context, Ms Newman-Saville draws attention to certain observations of Baker LJ in Re K and L:
“63. As noted above, the reported cases on unfairness draw a distinction between judicial interventions during the evidence and in closing submissions. The distinction is that interventions during submissions are less likely to hamper the judge's ability to evaluate and weigh the evidence before him and impair his judgment. For my part, I would not agree with Hildyard J's suggestion in the M&P Enterprises (London) Ltd case that by closing submissions the trial has entered the adjudication stage. Adjudication comes after evidence and argument. It is certainly correct, however, that submissions offer the court the chance to test each party's case, that intervention and close questioning of counsel may well be both appropriate and necessary so that the court understands and tests the argument, and that in doing so the court may fairly divulge a preliminary view as to its merits. That is how legal argument works in all courts, both at first instance and on appeal.”
It is relevant also to set out the paragraphs of Baker LJ’s judgment which follow:
“64. Oral advocacy lies at the heart of our justice system, and often makes a difference to the outcome of a case, particularly one in which the issues are finely balanced. No advocate enjoys addressing a judicial Sphinx. Stony silence can be hard going. A degree of judicial intervention in closing submissions is to be expected. Indeed it should be welcomed, as it is generally helpful to the advocate to be told what aspects of their client's case are causing the judge difficulty or concern, and to be given a fair opportunity to address them. Their answers may help to persuade the judge to take a different view from the one that he or she has provisionally expressed. Even if it becomes apparent in the course of exchanges with the judge that the advocate's submissions are not finding favour, that does not signify that the judge has a closed mind, but, rather, that he or she has not been persuaded. In general terms that would not be a legitimate ground of complaint. 65. There remains, however, a danger, both at first instance and on appeal, that excessive intervention may prevent counsel advancing their client's case. While closing submissions offer the judge the opportunity to test the case being put forward, this should not descend into an argument. The purpose of submissions is for counsel to persuade the judge that her client's case should prevail, not for the judge to persuade counsel that it should not.”
[93]The essence of Ms Newman-Saville’s submission is that, as the judge had already made it plain what she intended to do, the ability for wife to make written submissions was something of an illusion as the judge’s mind was already closed to any representations which might be made.[94]Considered in isolation, I can see that the passages cited by Ms Newman-Saville might be interpreted as suggesting that the judge had come to a firm conclusion prior to the conclusion of the parties’ submissions. Read as a whole, however, the transcript reveals that the judge’s remarks formed part of a much longer series of exchanges between the judge and counsel and between the judge and the husband in which the judge was exploring what the net effect for both parties would be if she were to make certain orders and if she was correct in the view she had formed as to the husband’s income. She also made it clear that she had not come to a firm decision and that accordingly the parties had the opportunity to make further submissions in writing. Although I can understand the basis of Ms Newman-Saville’s complaint, I am unable to find that this ground of appeal is made out. On balance, and taken as a whole, I consider that the judge’s remarks can properly be described as her ‘testing the case being put forward’.

Ground 2: The court erred in its evaluation of the husband’s income

[95]For reasons set out above (see in particular paras 84 and 85), I have concluded that the judge did indeed fall into error in the approach she adopted as a result of her use of an online tax calculator, her assumptions that the husband would pay tax in France as though he were a UK tax-payer subject to PAYE and her failure to consider the husband’s ability to generate income and meet expenditure through his companies. This ground of appeal succeeds on that basis and it is unnecessary for me to consider the additional arguments raised under this head.[96]These two grounds of appeal in effect seek to challenge the exercise of the judge’s discretion. The difficulties with pursuing this type of challenge were highlighted in some of the authorities dealing with appeals which I have cited above at para 8 onwards.[97]Given my conclusions in relation to Grounds 1 and 2 of the appeal, it is unnecessary for me to consider the arguments raised under this head.[98]Ms Newman-Saville submits that the judge was wrong ‘to refuse to hear’ the wife’s application for an upwards variation of the spousal order and/or to make ‘a global order’ on the basis that the court did not have jurisdiction to do so.[99]The transcript reveals that at the hearing Ms Newman-Saville made clear that the wife was not seeking a substantive variation from the combined level of spousal and child maintenance for which the original order provided. She sought to increase the spousal element and convert it into a global order to circumvent the fact that the CMS had assessed the husband’s liability in a sum lower than that for which the original order for child maintenance provided.[100]The CMS’s maintenance assessment was the subject of an appeal brought by the wife which had yet to be determined. In those circumstances, the judge expressed the view that the court did not have jurisdiction to deal with issues of child maintenance. The point was not thereafter pressed on behalf of the wife.[101]It is a peculiarity of English maintenance law that issues of spousal maintenance are dealt with by the courts on a discretionary basis whereas, subject to limited exceptions which include cases where the paying party has been the subject of a so-called ‘maximum assessment’ as a consequence of having a gross income in excess of £156,000 per annum, questions of child maintenance fall to be dealt with by a statutory agency according to a rigid formula.[102]It is an especially unsatisfactory position given the substantial overlap that exists between spousal and child maintenance. In ‘big money’ cases, where the court does have jurisdiction, judges have repeatedly made it clear that child maintenance is not confined to covering items of expenditure of direct benefit for a child, but can include a substantial element of support for the caring parent including the expenses of running a home: by way of example, see Collardeau-Fuchs v Fuchs [2022] EWFC 135, per Mostyn J and Y v Z [2024] EWFC 4 at para 35(ix), per Peel J.[103]The converse is also true. The provision of spousal maintenance will inevitably include a very substantial element which provides a direct benefit to the child. The most obvious example concerns that part of the maintenance intended to cover the costs of accommodation.[104]I consider it regrettable (to say the least) that family justice should be required to operate under a two-tier system in which there is literally one rule for the rich and another for everybody else. The courts have sufficient discretion to ensure that the children of rich parents have all of their needs met to a generous extent. Other children are confined to the formula. It is difficult to comprehend that when the Child Support Act 1991 was passed Parliament could have intended to create a system which discriminates between different classes of children to such a degree both in process and outcome. It is possible that politicians at the time shared what Dorney-Kingdom v Dorney-Kingdom [2000] 2 FLR 855 Thorpe LJ dryly described as the ‘extraordinary pronouncement’ of the Secretary of State of Social Security during the course of the Parliamentary debate:
“Certainly in my experience income support, like rock bands, was something that judges did not know much about.”
[105]Whether or not the creation of a two-tier system was intentional, that is the effect which the 1991 Act has had. It will be a matter for Parliament if, in future, an alternative system is to be crafted.[106]One consequence of having a system involving dual processes of adjudication is that it can create difficulties for the court when it exercises its discretionary jurisdiction to determine a level of spousal maintenance sufficient to meet the claimant’s needs. It may proceed on an assumption that a former spouse will have £X pounds per month by way of child support; that assumption may then prove to be false if the CMS assesses a different figure.[107]In this case, at the time of the original order, the court had jurisdiction over child maintenance as the husband was resident overseas and therefore not caught by the scheme in the 1991 Act. More recently that position has changed. He has sought and obtained a CMS assessment far lower than the amount which DDJ Butler ordered by way of child maintenance. As I have said, that assessment is subject to an appeal but in the meantime the wife has had to make a substantial adjustment to her economy to the detriment of both herself and C.[108]In order to address the uncertainty which situations such as this can create, the courts have developed the concept of a ‘global order’ which encompasses single figure for both spousal and child maintenance. The orders are crafted so as to be automatically variable in the event of a CMS assessment to ensure that the monthly amount coming into the claiming parent’s household remains constant.[109]Thorpe LJ, delivering the judgment of the court, approved the concept of a global order in Dorney-Kingdom provided that the order genuinely contained a substantial spousal element and was not purely a device to circumvent the statutory scheme. He held: “However, it seems to me to be just within the bounds of legitimacy, since it is no sort of ouster of or challenge to the jurisdiction of the Agency, but merely a holding until such time as the Agency can carry out its proper function.” (my emphasis)[110]The power to make a global order was addressed by Roberts J in AB v CD [2017] EWHC 3164 (Fam). After considering a decision made in another case by Child Support Commissioner Jacobs, where the Commissioner had approved the concept of a global order, she said the following at para 48: “In my judgment, the decision in CCS 316/1998 properly reflects the manner in which courts have historically operated in terms of engaging the jurisdiction conferred by s 23 of the 1973 Act to make provision for the benefit of a child or children of the family who are not yet the subject of a maintenance support assessment. Some two years later, that jurisdiction was confirmed by the Court of Appeal in Dorney-Kingdom v Dorney-Kingdom (see above). Thorpe LJ construed an order in similar terms to the one under appeal before me to be legitimate. Whilst he may have qualified such legitimacy as being "just within bounds", that expression does not dilute or neutralise his confirmation of the status of such orders as legitimate and proper orders within the court's armoury. Their legitimacy derives from the fact that they do not challenge or seek to oust the jurisdiction of any statutory agency which from time to time fulfils the function imposed on it by Parliament to assess the level of child support and the liability of the payer. Such orders must have a substantial ingredient of spousal support in order to engage the jurisdiction of s 23 of the 1973 Act. Here, it is clear from His Honour Judge Everall's judgment that this criterion was met. He dealt in clear terms with his assessment of the wife's own needs. The authority of Dorney-Kingdom continues to be cited in many of the leading text books on the subject of child support: see, for example, 'Child Support: the Legislation' (13th Edition) with commentary provided by Edward Jacobs, judge of the Upper Tribunal (and author of the judgment in CCS 316/1998) at page 32 and Child's Pay, The Complete Guide to the Child Support Law and Practice (Third Edition) at page 145. The latter publication has been endorsed by the Family Law Bar Association.” (my emphasis)[111]From the words I have highlighted it can be seen that in both of the cases referred to above, the court upheld the legitimacy of global order in circumstances where there has been no assessment by the CMS. So far as I am aware, there has yet to be a case in which a court has determined that a global order can be made after such an assessment has taken place. For obvious reasons it is desirable that such a power should exist, but self-evidently the court cannot on this basis alone create a power for itself if to do so would fly in the face of a statute.[112]For my part, I cannot see any good reason to distinguish between cases where the court is being asked to make a global order prior to or following the making of CMS assessment. In my judgment, a global order for maintenance is, in substance, primarily an order for spousal maintenance which includes a substantial element which could be classified as either spousal or child maintenance. It is designed to be self-adjusting bearing in mind the overlap which exists between spousal and child support. It serves the obvious purpose of removing the unpredictability inherent in the system of parallel adjudication which I have described above. It also avoids the need to consider how the overall support to be provided should be apportioned between spousal and child maintenance, an apportionment which is likely to be to some degree artificial given the overlap to which I have referred. Most importantly, global orders provide an important degree of certainty and stability for the claiming spouse, who is likely to be the economically weaker party, and for the children of the family who derive both a direct and indirect benefit from the spousal maintenance. The Matrimonial Causes Act 1973, after all, requires the court to have regard to the interests of the latter as its ‘first’ consideration.[113]A self-adjusting spousal order could be crafted as follows (with further insertions in accordance with the latest edition of the Standard Orders depending upon, amongst other things, whether it was to be a joint lives or term order): “The [applicant] / [respondent] shall pay to [applicant] / [respondent] maintenance pending suit until the date of [decree absolute] [the final [divorce] [dissolution] order] and afterwards periodical payments. Payments shall be at the rate of £[amount] per month annum less the amount of any annual sum which the [applicant] / [respondent] is required to pay to the [applicant] / [respondent] for the benefit of the child[ren] of the family, whether pursuant to an order of the court or an assessment of the Child Maintenance Service. The payments shall be payable [weekly] / [monthly] [in advance] / [in arrears] by standing order. Framed in this way such an order could not offend the scheme of the 1991 Act. It would ensure that there was no double-counting between the elements of spousal and child maintenance which overlap.[114]I therefore consider that the judge was wrong to say that the court did not have jurisdiction to make a global order. It is unfortunate that the judge’s remarks at an early stage of the hearing had the effect of closing down the potential for the issue to be fully ventilated.[115]In any event, the court undoubtedly had jurisdiction to increase the spousal periodical payments. The package of financial support for which the original order provided had been apportioned between spousal and child maintenance in a particular manner which was not subject to analysis in DDJ Butler’s judgment; he merely adopted the figure for child maintenance of £1,500 per month which was proposed by the husband. At that time, the CMS did not have jurisdiction and therefore issues of apportionment did not require particular focus. The position now is different.[116]I will allow the appeal on this ground also so that the wife will have the option of pursuing such arguments as she judges to be appropriate.

Conclusions

[117]For the reasons set out above, I have determined that the appeal must be allowed.[118]It is a decision to which I have come with a significant degree of regret. The husband first issued what should have been a straightforward variation application at the end of 2023. It is obvious to me that this prolonged litigation coupled with other proceedings in which the parties have been involved has taken its toll upon both of them.[119]Both parties have significant debts. I am moreover told that the husband is now a UK tax payer and so, at any rehearing, what I have found to be the judge’s flawed assumptions about his income tax liability may in fact prove to be close to the mark, although the fact that he draws his income via companies will still require consideration for the reasons set out above. That the husband owes such significant sums to HMRC may well, as he says, prove to be as a consequence of his having funded unaffordable commitments from his gross income without accounting for tax. Although I have found that the judge was wrong in the way she criticised the wife’s budget, it remains the case that if a budget at that level cannot be afforded she will have to adjust to a reduction in her maintenance, difficult though that may be. She cannot expect the husband to work hard earning money but be left with insufficient to meet his own needs to a reasonable level. The parties may also need to contemplate that school fees are a luxury which cannot be afforded.[120]None of this detracts from my conclusion that the hearing below was unfair. The wife must have a proper opportunity to put her case.[121]I will remit the matter to the Central Family Court to be listed for a two-day hearing before a Circuit Judge.[122]The most important issue will be the husband’s income. He must provide clear documentary evidence showing what this has been over the last three years so that the court can make its determination on proper foundations. This will require disclosure of company accounts for the last three years, any non-corporate personal accounts and tax returns filed in all jurisdictions worldwide. The husband must provide a clear and itemised explanation for the expenses he is able to claim through his business, whether via a company structure or otherwise. He must also disclose all personal bank statements and credit card statements for the past 12 months. Additionally, he must disclose his communications with HMRC showing how his tax liability has arisen and the agreement he has reached for repayment. He should file an up-to-date budget showing his income needs.[123]The wife must also disclose documentary evidence showing her income over the last three years plus bank statements and credit card statements for the past twelve months. She should file an up-to-date budget of her income needs.[124]If either party challenges the budget of the other party they should identify in a schedule those items that they challenge. This should include a very brief narrative and an alternative figure setting out what they say should be spent. If the husband contends that the wife should reside in cheaper accommodation he should provide property particulars. If the wife wishes to respond in oral evidence to any significant challenges then, subject to the discretion of the trial judge, she should in principle be able to do so.[125]I would finally urge both parties to attempt to settle this litigation. The costs are already disproportionate to what is in issue. Pursuing the matter to trial carries significant risk for both of them.