P v M (Appeal: Unfair Hearing: Variation of Periodical Payments: Global Orders)

On an appeal from a variation order, fairness requires the judge to ensure that a party has a proper opportunity to answer significant challenges to their evidence. Challenges to a periodical-payments budget do not invariably require cross-examination. Submissions may suffice for broad questions of affordability, but oral evidence will generally be required where dishonesty, gross exaggeration or significant budgetary items are challenged.

An appellate court should assess the judgment and hearing as a whole. Excessive intervention during evidence may compromise fairness, even where robust case management is permissible. A judge determining income must consider the evidence relevant to earning capacity, including income generated through companies, dividends and the pattern of earnings over several years.

A global maintenance order may be made after a Child Maintenance Service assessment where it remains substantively a spousal-maintenance order containing a substantial overlapping child-maintenance element.

The wife appealed against an order of HHJ Wright varying an earlier periodical-payments order. The order reduced the husband’s spousal-maintenance payments and discharged indexation. The wife alleged an unfair hearing, errors in assessing the husband’s income, inadequate consideration of needs and the child’s welfare, and an erroneous conclusion that the court lacked jurisdiction to increase spousal maintenance or make a global order.

The husband resisted the appeal, relying on the judge’s finding that the original level of maintenance had become unaffordable. The High Court considered whether the hearing had been procedurally unfair, whether the income assessment was sustainable, and whether the court had jurisdiction to make the proposed maintenance arrangements.

1. Appeal allowed. The hearing below was unfair because the judge’s interventions prevented adequate exploration of the husband’s income and earning capacity. The judge also suggested an answer during cross-examination concerning the husband’s representations to the Child Maintenance Service, which prevented that issue from being properly examined.
2. The judge’s use of an online UK tax calculator, and assumption that the husband would be taxed in France as a UK PAYE taxpayer, was fundamentally flawed. The assessment failed to address evidence about French tax treatment, maintenance-related tax credit, income received as dividends, company-funded expenditure and the fluctuating pattern of earnings. Earning capacity should ordinarily be assessed by examining income over at least the preceding two or three years.
3. The rule in Browne v Dunn, as explained in Griffiths v Tui UK Ltd, protects the fairness and integrity of the trial. It is flexible and fact-sensitive. A line-by-line cross-examination of a budget is usually disproportionate. Submissions may address broad affordability issues, but oral evidence will generally be appropriate where a budget is said to involve dishonesty, gross exaggeration or significant items such as housing, childcare, schooling or a car.
4. The judge was entitled, in principle, to address affordability through submissions. However, her critical description of the wife’s budget as unrealistic and inappropriate was unjustified. The safer course would have been to confine the conclusion to unaffordability, particularly concerning the proposed move and live-in childcare.
5. The judge’s remarks that the earlier order was wrong were properly understood as meaning that its predictions about future income had not materialised, rather than that the order was appealably wrong. Her provisional observations before closing submissions did not establish a closed mind, since the transcript showed that she was testing the parties’ cases and inviting further submissions.
6. The court had jurisdiction to make a global order after a Child Maintenance Service assessment. Such an order is, in substance, primarily an order for spousal maintenance containing a substantial element overlapping with child maintenance. It must not be a device to oust or circumvent the statutory scheme. A self-adjusting order can deduct child-maintenance payments required under a court order or CMS assessment.
7. The court also had jurisdiction to increase the spousal periodical payments. The matter was remitted to the Central Family Court for a two-day rehearing before a Circuit Judge, with directions for extensive financial disclosure by both parties.

• High Court (Family Division): The appeal from HHJ Wright’s order was allowed. The matter was remitted to the Central Family Court for a two-day rehearing before a Circuit Judge.
• Central Family Court: HHJ Wright varied the earlier order by reducing spousal periodical payments and discharging indexation. The High Court held that the hearing was unfair and that the income assessment and jurisdictional conclusion concerning global orders were flawed.