Hems v Clemans

Release from undertakings securing child-support payments does not release the underlying obligation to support the children or to pay sums due under the relevant order. Where an ambiguous later order creates disputes requiring evidence and calculations, the Court of Appeal should not determine those factual issues itself. It should set aside the defective order and remit enforcement or variation applications to the appropriate district judge.

The parties compromised their financial claims in January 2007. A consent order required Dr Hems to make periodical payments for the children and to meet specified shares of educational and other costs, supported by undertakings. Mrs Clemans later sought enforcement. HHJ Wildblood dismissed Dr Hems’s application to be released from the undertakings and adjourned the enforcement application.

HHJ Tyzack QC subsequently made an order purporting to replace the undertakings with agreements. Its wording led to disagreement about whether Dr Hems remained liable for payments, including in the light of Child Support Agency payments. The transcript of the judge’s decision was unavailable and factual issues remained unresolved. Mrs Clemans sought permission to appeal against the order of 4 July 2008.

1. Disposition. Permission to appeal was granted and the appeal was allowed. HHJ Tyzack’s order of 4 July 2008 was set aside.
2. Continuing obligations. The release of Dr Hems from the undertakings did not release him from his substantive obligations to support his daughters or from the obligation to pay. The later order was to be read as requiring payment of 50 per cent of the relevant costs upon production of receipts. Setting aside the later order did not create any interval in the father’s financial responsibility under the original order.
3. Appropriate forum. The Court of Appeal could not determine what payments had been made, whether Child Support Agency payments satisfied the obligations, or what sums were due. Those matters required consideration of evidence, papers, figures and, if necessary, cross-examination. Any application by Mrs Clemans to enforce the district judge’s order, and any application by Dr Hems to vary it, was therefore directed to be made to the district judge sitting in the Torquay and Newton Abbott County Court, who could return to the original order and determine the proper figure.
4. Drafting observation. Lord Justice Thorpe added that, where an order requires precise and detailed wording, the judge making it should approve its final form before it is prepared. Lord Justice Elias and Lord Justice Thorpe agreed with Lord Justice Wall’s judgment.

1. Court of Appeal (Civil Division): On 19 May 2009, granted permission to appeal, allowed the appeal, set aside HHJ Tyzack QC’s order and remitted any enforcement or variation applications to the district judge.
2. Torquay and Newton Abbott County Court: HHJ Tyzack QC made the order under appeal on 4 July 2008. Its ambiguity generated a dispute about the continuing payment obligations.
3. Torquay and Newton Abbott County Court: A district judge made the original consent order on 4 January 2007, including periodical payments and financial undertakings concerning the children.