Family law

No credit for payments in advance of child support maintenance

Absent parents beware: do not pay child support maintenance in advance of what has to be paid.

In R v Secretary of State for Social Security ex p Newmarch Singh (2000) (unreported), Newman J refused permission to an absent parent to move for judicial review of the Child Support Agency's decision not to give any credit to the father of children who had substantially overpaid maintenance.

The father had paid the mother 200 per month against a liability of around 40 per month.

When the liability increased to around 450 per month, he asked that he be given credit for the earlier overpayments.

The Agency refused and the Secretary of State made a deduction from earnings order.

He applied to the Divisional Court for a ruling as to whether he was entitled to a credit against later arrears.

It was held that the absence of reference to credit in the Act did not mean that credit could be assumed (as, for example, when a client pays money on account for services to be rendered).

A credit could only arise where precise contractual terms had been entered into by the parents when payments were made.Ancillary relief on divorce after judicial separationThere can be no such thing as a final order for financial relief in judicial separation proceedings.

It was always open to either spouse to come back in divorce proceedings, though an order in earlier judicial separation proceedings might be an important factor to be taken into account by the court in proceedings ancillary to a later divorce.

In T v T (Consent Order: Judicial Separation) (2000) (to be reported), Judge Nasreen Pearce, sitting as a judge of the Family Division, dealt with the matter as a preliminary issue.

A husband (H) and wife (W) had settled ancillary relief in judicial separation proceedings, on terms that capital provision was dealt with, but H continued to be liable for periodical payments.

That in itself could enable the wife to seek further capital provision under the S v S amendment to the Matrimonial Causes Act 1973, ss.31(7A) and (7B) (on variation of periodical payments application, the court can award a lump sum or sums to the applicant).

So W could still reopen capital issues, but the husband could not.

That was not what the Matrimonial Causes Act 1973 intended, said Judge Pearce.Bundles: practice directions, documents and incontinencePractice Direction (Family Proceedings: Court Bundles) (2000) The Times, 22 March, [2000] LSG comes into operation on 2 May 2000, though it could usefully be adopted now.

For the practice direction the reader is referred to one of the above sources.

But it is very restrained on the question of the pruning and editing of bundles.

Relevance of evidence should ensure rejection of a number of those 'useful background' documents (see Thyssen-Bornemisza v Thyssen-Bornemisza (No 2) [1995] FLR 1069, CA).

Proportionality should weed out still more.

And spare a thought for Ward LJ in G v G (Periodical Payments: Jurisdiction) [1997] 1 FLR 368, CA at 383E (an application for variation of periodical payments) and be warned: 'We were presented with a cardboard carton of six arch-lever files containing about 1,200 pages of material totally irrelevant on this appeal, including bank statements...

such copying represented a total waste.

It would seem to be in breach of the [rules] which direct solicitors how to prepare bundles for the Court of Appeal.

It is now time that practitioners take note of...

the [costs judge's] powers to disallow costs of unnecessary copying.' Most agreed documents need not be in the bundle, unless their contents are specifically referred to; as distinct from the agreed valuation which a report contains (an agreed valuer's report need only rarely be in a bundle).

Spare a thought for the trees and curb your documentary incontinence, friends.

by David Burrows, David Burrows, Bristol