Family law

By David Burrows, David Burrows, Bristol

Spousal maintenance and child supportDorney-Kingdom v Dorney-Kingdom (2000) The Times,25 July, CA

This is an important case on the inter-relationship of child support maintenance and spousal maintenance (see [2000] Gazette, 27 July, 39).

The reports, so far available, seem to suggest that 'Segal' orders - allowing a higher rate for spousal periodical payments pending assessment of child support maintenance - are only possible (a) where there is a high degree of spousal maintenance; or (b) where there is genuine consent from both parents to the making of a consent order for children (Child Support Act 1991 s.8(5)).

Failing that, the order would be in breach of s.8(3) of the 1991 Act.

Hearsay evidenceSociety of Lloyds v Jaffrey (2000) The Times, 3 August, Cresswell J

This is a timely reminder of the hearsay rule and of the fact that the court has no power to dictate to a party what evidence he or she should tender (Tay Bok Choon v Tahansan [1987] 1 WLR 413), subject to relevance, proportionality and, perhaps, any direction as to time for serving such evidence.

A statement or affidavit filed and served is capable of being hearsay evidence if the witness is not called, subject to cogency of the evidence (Civil Evidence Act 1995 s 4).

Legal aid and the family lawyerNews from the legal aid - or should I say 'public funding'? - front is mixed:

l The appeal against R v Legal Aid Board ex parte W to be reported (see [2000] Gazette, 7 January, 20) was successful: in assessing eligibility for representation, the Legal Services Commission (LSC) is not entitled to take into account payments from a local authority to the guardian ad litem.

l The claim against the Legal Aid Board for costs of a faxed emergency certificate (see [2000] Gazette, 13 January, 28) has been settled by a payment in full by the Board and following adjournment of the case part-heard before the judge.

l And the bad news: Stanley Burnton J in the divisional court has held that the Board is entitled to impose costs limitations on certificates (see [2000] Gazette, 20 April, 38).

Judgment was on 31 July and consideration is being given to an appeal.

General family helpFinally, concerning general family help (GFH) (see [2000] Gazette, 27 July, 38): first an apology - I was wrong to say that payment rates are different for representation and GFH.

Both are the same (Funding Order 2000 article 5(5)).

It was said in the LSC's newsletter, FOCUS 31, that the scope of GFH was to be amended so that its 'cover extends to all steps up to and including the financial dispute resolution (FDR) hearing and any interim financial applications dealt with at or before that hearing'.

Legal representation plainly authorises representation at a contested hearing which - save for interim hearings - general family help does not.

Apart from this, what is the difference between the two? Essentially, the difference, says an LSC spokeswoman, is one of perception: general family help is intended to help with negotiation and settlement of the case, albeit against the background of ancillary relief court proceedings - hence its availability up to FDR; representation is for contested proceedings (the LSC does not seem to take account of the possibility of a settlement at, or approaching, the door of the court).

For the legal representative, the net result is the same provided:

l Costs limitations (1,500 on GFH) are watched, and;

l An amendment of GFH to a representation certificate - in the normal way for certificates - is obtained promptly after the FDR.