Zhaolong Li (known as Nathan Li) v Oliver Benjamin Simons

On a variation application under Matrimonial Causes Act 1973, the court need not reconsider the matter entirely afresh. The review must be proportionate, ranging from a complete review to a light-touch review, depending on the case. Final factual findings cannot ordinarily be challenged indirectly through a later variation application. A party may not use a variation application to fill evidential gaps which should have been addressed at the final hearing. Where the court declines to strike out the application and hears the evidence, however, it must determine the present evidence fairly and cannot preserve an earlier income finding where the current documentary evidence makes that conclusion unsafe. Procedural unfairness in refusing relevant evidence may itself justify allowing an appeal.

The appellant appealed from Recorder Chandler KC’s dismissal of his application to vary financial provision for the parties’ child and the respondent. The application followed an earlier variation application determined by HHJ Gibbons, whose findings about the appellant’s income had not been appealed. The appellant relied on a further reduction in income, the birth of another child and fresh employment evidence. The Recorder treated the application as an abuse of process, relied on the earlier income finding and refused to admit a late statement from the appellant’s employer’s human resources director. Permission to appeal was granted on four grounds, including the treatment of income evidence, the refusal to admit the statement and the validity of nominal spousal periodical payments.

1. Appeal allowed in part. The appeal succeeded on Grounds 1 and 3. The Recorder was entitled to adopt a light-touch review and to rely on earlier findings where appropriate, but, having heard the present evidence and not found that the payslips, contracts and employer evidence were fraudulent, he could not safely maintain the earlier finding that the appellant earned £9,866 net per month. The current income was approximately £4,300 net per month.
2. The court could not hold the appellant to the recital that the sole ground for variation was the birth of his second child. The court had to consider all the circumstances under section 31, although the appellant’s conduct remained highly relevant to costs and the assessment of his credibility.
3. Ground 2 failed. G v G concerned interim maintenance and litigation funding. Its dicta did not permit a party to reopen a final order merely to fill evidential gaps. Finality in litigation required those gaps to be addressed, at the latest, at the final hearing.
4. Ground 6 failed. The nominal spousal periodical payments order was not void. The agreed structure contained a substantial ingredient of spousal support because the respondent’s earning capacity was constrained by his role as the child’s primary carer. The order was therefore distinguishable from the impermissible structure considered in Dorney-Kingdom.
5. The fresh statement from Ms Zhou should have been admitted unless the claim was to be struck out. Any unfairness to the respondent could have been addressed by an adjournment or costs order.
6. The court substituted a maintenance figure based on an assumed net income of £7,500 per month, reflecting full-time work and rental of the appellant’s property. Maintenance was set at £1,650 per month, reducing to £1,550 per month at the end of the child’s Year 2 and continuing until further order. Existing arrears and costs orders stood, with all sums payable at £1,500 per month. Costs were reserved.

• High Court (Family Division): appeal from the order of Recorder Chandler KC dated 6 September 2022. Appeal allowed on Grounds 1 and 3 and dismissed on Grounds 2 and 6.
• High Court: HHJ Gibbons’ earlier variation decision was not appealed in time; permission to appeal out of time was refused by Morgan J on 30 September 2022.
• High Court: Morgan J granted permission to appeal on Grounds 1, 2, 3 and 6 on 3 March 2023.