Mark Austin v Christina Haynes

A general enforcement application may be treated as properly constituted despite use of the wrong form where its substance is clear and any procedural error causes no prejudice. Under the Family Procedure Rules 2010, the court has broad discretion to select an appropriate enforcement method. An interim charging order may be made without notice, with objections preserved for the final hearing, and may include arrears accruing after the application. An agreement recorded in a financial order as a recital or undertaking may be enforced as an order where the court had jurisdiction to make it. Under Schedule 1 to the Children Act 1989, money is property and a compliance date may be inserted to make an order effective. A passport order may secure attendance at a later hearing where the interests of justice require it.

The father appealed against an order made by His Honour Judge Oliver in the Central Family Court. The order imposed an interim charging order over his alleged beneficial interest in a London property for unpaid financial provision and costs, varied a consent order made under Schedule 1 to the Children Act 1989 by fixing a date for payment of a housing fund, and required him to lodge his passport pending a further hearing.

The judge had dismissed two judgment summonses, but then considered the mother’s outstanding general enforcement application. The father alleged procedural impropriety, denial of a fair hearing, lack of power to make the charging order or variation, and lack of justification for the passport order. The central issues were whether the enforcement application was procedurally valid, whether the orders were within the court’s powers, and whether the process had caused any unfairness.

The appeal was dismissed. Moylan LJ gave the judgment, with Lady Justice Nicola Davies and Lord Justice Underhill agreeing.

1. Reasons and fairness. The judge’s reasons were adequate when read in context. The orders were straightforward and the reasons for making them were obvious. The father had not sought further reasons from the judge, contrary to the guidance in English v Emery Rheimbold & Strick Ltd (Practice Note) [2002] 1 WLR 2049 and subsequent family authorities. The enforcement issues were squarely before the court and their consideration was foreseeable. The father had also had opportunities to file evidence and had failed to use them. No procedural prejudice was established.
2. Enforcement application. Rule 33.3(2)(b) of the Family Procedure Rules 2010 permits a general application for enforcement, leaving the court to select the appropriate method. The judge was entitled under rule 4.7 to remedy the minor error of using Form D11 rather than Form D50K. The statement attached to the application identified the sums said to be outstanding, and the mother verified its contents. The father’s presence at the hearing meant that no separate attendance order under rule 33.3(3) was required.
3. Charging order. Rules 40.4(1), 40.5(1) and 40.5(2) permit a charging-order application to be dealt with without notice and without an initial hearing, and permit an interim charging order. The order therefore did not deny a fair hearing because objections to the interim order and any final order remained open at the return hearing. The interim recital that the father had a beneficial interest was not binding. There was no rule preventing the court from including sums accruing after the enforcement application where they were properly due.
4. Variation and enforceability. An agreed provision or undertaking recorded in a financial order may be enforced as an order where the court had power to make an order in those terms, as illustrated by Gandolfo v Gandolfo and Another [1981] QB 359, H v H (Financial Provision) [1993] 2 FLR 35 and N v N (Jurisdiction: Pre-Nuptial Agreement) [1999] 2 FLR 745. The housing fund was within the court’s Schedule 1 powers. Money is property, and fixing a compliance date merely made the existing obligation effective and enforceable. A fresh assessment under paragraph 4 was unnecessary.
5. Passport order. In light of the history of non-compliance, including breach of an earlier passport order, the judge was entitled to require the father’s presence in the jurisdiction for the return hearing on the charging order. The order was justified by the interests of justice, notwithstanding that the earlier hearing had already taken place.

• Court of Appeal (Civil Division) — In [2021] EWCA Civ 1919, the appeal against the order of 9 July 2021 was dismissed.
• Central Family Court — His Honour Judge Oliver made an interim charging order, varied the financial provision order by fixing a date for payment of the housing fund, and made a passport order.