O v P

This is the substantive hearing of an application for financial provision for a child under Schedule I to the Children Act 1989 started as long ago as 29^th February 2000 – Leap Year Day in Millenium Year. It has already been the subject of a number of interlocutory hearings, notably a hearing as to jurisdiction which resulted in the judgment on 5^th August 2011 reported under neutral citation number [2011] EWHC 2425 (Fam). The historical background set out below is substantially the same as recited in the 2011 judgment. For convenience, however, I shall set it out again, with minor modifications.

The father was born in 1951 and is now aged 63. The mother was born in 1960 and is therefore now aged 53. The parties met in 1984 at a time when both were married to other people. The father was then living in Kent, and the mother in Glasgow. The father suggested a relationship with the mother, but she apparently declined. The following year the mother separated from her husband and moved to live in Andorra for three years. Then in 1988 she travelled to Australia where she stayed for nine months, during which time she met another man, hereafter referred to as X. In 1989 she returned to Scotland and her marriage was dissolved.

Later that year the parties met again in Scotland and shortly afterwards started a relationship. At that stage the father was the owner of a company, a substantial property in Kent, Z House, and an island in Scotland. He had recently separated from his wife by whom he had two daughters. At first the parties lived at Z House and spent every other weekend on the Scottish island. The mother worked for the father’s company. In January 1992 the father experienced financial difficulties, the company went into liquidation and the island was sold. Thereafter the parties continued to live together at Z House in Kent, with the mother continuing to work for the father. In oral evidence before me, the mother said that, although their lifestyle was not quite as it had been before the island was sold, it was still “very privileged”. In 1994, with the father’s support, the mother embarked on a course training as a nutritionist. Meanwhile the mother had used monies received following the sale of her former matrimonial home to purchase a flat in Glasgow. She and the father stayed there occasionally until 1996 and thereafter the flat was let.

On 18th April 1997, the mother gave birth to a daughter, hereafter referred to as “S”, in Kent. Shortly afterwards the relationship between the parties began to break down. The mother alleged that the father was violent towards her. In August 1999, she told the father that she was taking S to her parents in Aberdeen. According to the mother, the father threatened to destroy her and her family, and told her that he had put things in place with a hit man. Believing herself to be in danger, the mother took S away from Z House with the assistance of the police and flew to Scotland where they stayed with the maternal grandparents.

It is the mother’s case that, fearing that she was still not safe, she then decided to take S to Australia and flew there on 13^th August on return tickets. On the same day the father issued an application in the Tunbridge Wells County Court under the Children Act 1989 seeking orders for parental responsibility, residence and contact. On 27th August that court made an order for the disclosure of information as to the whereabouts of the child and the delivery of S for staying contact with the father. Meanwhile, the mother had engaged solicitors in Australia who made an application for a child protection order in the court in Townsville, Queensland. She had earlier made contact with X and on her arrival in Australia they resumed their relationship.

On 3rd September 1999, the father applied to the High Court under the Hague Child Abduction Convention. The proceedings in the Tunbridge Wells County Court were subsequently transferred to the Principal Registry of the High Court. On 6th September, the father made an application in the Queensland Court for the equivalent of prohibited steps and residence orders pending the return of the child to the United Kingdom. The mother filed affidavits in the Australian proceedings expressing a wish to remain in Australia. In reply, the father filed an affidavit stating that he would support S on her return to the United Kingdom and would assist the mother financially. On 16th September, the judge in the Queensland Court ruled that the best place for "the complicated issues" to be determined was in the English court. The mother undertook to return S to the United Kingdom within two weeks and, on the basis of that undertaking, was granted residence of S pending their return. Thereafter, orders were made in the English court prohibiting the mother from removing S from England and Wales upon return to the jurisdiction, and directing her to hand over her passport to her solicitor on arrival at Heathrow.

On 1st October 1999, the mother and S arrived back from Australia. By a further interim order in the High Court dated 4th October, the mother was permitted to take S to Scotland until the final hearing of the father's applications on the basis that she and the child lived at the maternal grandparents’ home. The order further provided, however, that there should be regular contact between the father and S for periods of ten days every three weeks. Subsequently, the parties filed affidavits in the English proceedings - the father seeking a residence order whereunder he and S would live together in Z House in Kent, the mother expressing a wish that she and S should remain in Scotland with the maternal grandparents.

In November 1999, unbeknownst to the mother, the father applied for and received new passports for himself and S using a false name, On 1st December, pursuant to the order of 4th October, the mother flew with S from Aberdeen to Gatwick to deliver the child to the father for the purposes of a ten-day period of staying contact. Seven days later, however, the father and S left England under the false passports on the Eurostar bound for Paris and from there flew to Australia later that day. Thus, when the mother arrived at Gatwick a few days later to collect S in accordance with the agreement between the parties, there was no sign of S or the father. The police were alerted and ex parte location and freezing orders were made in the High Court. On 17th December, S was made a ward of court and a direction was made that the father should return her to the care of the mother forthwith.

The police established that the father and S had travelled to Australia under the false passports. On 23rd December, the mother applied to the England and Wales Central Authority to invoke the Hague Convention to secure the return of S to this country. On 30th December, the mother's passport was released by the court to enable her to travel to Australia to assist in the location and recovery of the child and she duly flew to Australia on 1st January 2000. It is her case in these proceedings that she received substantial financial assistance from her own mother to enable her to travel to Australia.

On 4th January, the Family Court in Australia made seek and find orders, and a further order preventing the removal of S from Australia. Six weeks later, on 16th February, S was recovered by the Australian police in Melbourne and reunited with the mother. The father was arrested and detained as an illegal immigrant into the country. On the following day, he made an application claiming refugee status in Australia.

On 29th February 2000, the mother's solicitor filed an application under Schedule 1 to the Children Act 1989 in the proceedings that had been started in Tunbridge Wells and transferred to the Principal Registry. It is that application which, fourteen years later, this court is finally determining.

On 21st March 2000 the Family Court of Australia ordered that S be returned to the United Kingdom. The father had maintained in those proceedings that, if S's habitual residence was Scotland, the Australian court had no jurisdiction to return her on the application of the Central Authority for England and Wales. The judge rejected this argument holding that "it would be a clear violation of the spirit of the Convention if what I see as a technical argument were to succeed and thereby to prevent the court from returning the child to the United Kingdom if the circumstances for doing so are otherwise established." The father duly filed a notice of appeal against the order for return, and pending determination of the appeal the mother and S remained in Australia.

By a letter from Australia dated 31st March 2000, the father served notice of acting in person in relation to both the Children Act proceedings and the wardship proceedings and indicated in correspondence that he had been informed of the Schedule 1 application by his former solicitors, although he did not file any formal acknowledgement of service of that application.

On 9th May 2000 the father was arrested and charged with two counts of inciting to solicit the murder of the mother and her friend, X. On 26th May, the father's appeal against the order for the return of S to the United Kingdom was dismissed with costs. On 3rd June, the father's appeal to the Australian Refugee Review Tribunal to allow his application for refugee status and a visa for S in Australia was dismissed. He remained in custody. On 12th June, the mother and S left Australia for Heathrow. On the following day the mother attended before Black J. (as she then was) in the High Court where an order was made that S should remain a ward of court. It was further ordered that S should remain in the care and control of the mother. Non-molestation orders were made against the father and further orders were made relating to his dealings with and communications with S and the mother.

The mother was called as a witness in the Australian criminal proceedings against the father. On 16th May 2001, she was therefore granted permission to remove S from the jurisdiction of England and Wales for the duration of the father's criminal trial in Australia. On 16th October 2001, the father was convicted on both counts of incitement to solicit the murder of the mother and X in Australia and on 7th May 2002 was sentenced to terms of 6 years and 18 month imprisonment in respect of those charges. Further police investigations in Australia led his being charged with another offence of incitement to solicit the mother's murder. Meanwhile, on 15th February 2002, Mr. Justice Kirkwood had granted the mother permission to remove S from the jurisdiction "temporarily for at least 18 months". The destination of the mother and S was not disclosed either to the court or to the father at that stage and remained undisclosed for ten years. In fact, as is now known, they moved to Australia and have lived there ever since.

On 27th August 2004, on the hearing of the father's appeal against his conviction and sentence in 2002, the term of imprisonment was increased by a further two years. Subsequently, the father was convicted in respect of the second and separate offence of soliciting the mother's murder and received a further term of imprisonment of 12 years, with a minimum term of seven and a half years. The father remains in custody in Australia. His estimated date of release is March 2018. He continues to deny the offences in respect of which he has been convicted.

Meanwhile, on 12th March 2004 Z House had been sold realising net proceeds in excess of £1,000,000 which were held by the mother's solicitors to the order of the court pursuant to the freezing order made in December 1999. On 5th May 2006, a district judge in ancillary proceedings between the father and his former wife directed that the sum of £302,619 should be paid to the ex-wife and the balance to the father. By a subsequent order of Singer J, the father's share was held by the mother’s solicitor pursuant to the 1999 freezing order.

Thereafter the mother's solicitors sought to revive the application under Schedule 1. On 21st January 2008 that application was adjourned by Singer J. to a date to be fixed "... on the provisional basis that the court has jurisdiction to proceed with the mother's application ... since the child's habitual residence at the time of the application was England and Wales." Subsequently there were further hearings at which the application was adjourned further for various reasons. On 22nd June 2009 Singer J. gave further directions in the proceedings, together with an order for interim periodical payments in respect of S in the sum of £1,500 per month, such sums to be paid out of the frozen funds. On 23rd March 2010 Singer J. directed there should be a trial of the issue as to whether the court had or continues to have jurisdiction to entertain the Schedule 1 application and gave further directions as to the filing of affidavit evidence as to jurisdiction. The sum payable under the interim order was varied to £1000 per month. Shortly afterwards the father applied to the Australian Child Support Agency seeking an assessment of his liability to pay child support for S, thereby setting in train a process in Australia that ultimately included extensive court proceedings running in parallel to this case. In the interests of clarity, I shall set out details of the Australian processes in a separate section of this judgment.

Meanwhile, the father had attempted to appeal the ancillary relief order made in 2006 by the district judge in the divorce proceedings with his ex-wife. On 29^th July 2010, Singer J had granted the father permission to appeal but had struck the appeal out “for want of prosecution and, in the alternative, for having no prospect of success”. On 26^th November 2010, Thorpe LJ in the Court of Appeal refused the father permission to appeal against Singer J’s order.

After further directions hearings, the issue as to whether this court had jurisdiction to entertain the mother’s Schedule 1 application was listed for determination by Singer J. on 1st November, but in the event it was adjourned. At that point, Singer J. having retired, the application was listed before me for a case management conference in March 2011 at which I gave further directions, including a direction that during the hearing there should be an audio and video-link with the father in the Australian prison.

The hearing as to jurisdiction took place before me over three days in May 2011. At the conclusion of that hearing, I reserved judgment which was eventually delivered on 5^th August of that year. The judgment has been published under neutral citation number [2011] EWHC 2425 (Fam). I concluded that this court did have jurisdiction to entertain the mother’s application under Schedule 1. I made it clear, however, that the fact that the court had jurisdiction did not necessarily mean that the application would be heard because, as I recorded in the judgment, the father wished to argue that the proceedings should be stayed on the grounds of forum non conveniens.

At a case management hearing on 7^th October 2011, I extended the time for the father to appeal against the judgment to 4^th November 2011. I gave further directions for the filing of evidence in the substantive Schedule 1 application which was listed, as it turned out optimistically, for three days on 23^rd April 2012.

At a further case management hearing on 20^th January 2012, the father’s counsel indicated that they wished to raise two further issues as to jurisdiction. First, they asserted that, as both parents and the child had been habitually resident in England and Wales at the date of the mother’s application under Schedule I on 29^th February 2000, the court’s jurisdiction to make a periodical payments order (as opposed to a lump sum order) under Schedule I was proscribed by s.8 of the Child Support Act 1991 with the result that, if the mother wished to apply for a periodical payments order, she must file a fresh application. Secondly, that, as the Australian Child Support Agency had (as described below) carried out an assessment of the father’s liability to pay child support for S, (assessing that liability at nil) this court was estopped from making a periodical payments order. Initially, I directed that these two further preliminary issues should be considered at a further preliminary hearing on 17^th February. In the event, however, that proposed preliminary hearing could not proceed due to non-compliance with directions. I therefore directed that the preliminary issues should be determined at the outset of the substantive hearing then listed for 23^rd April. The order further recorded that the court invited the governor of the prison in Australia in which the father was incarcerated to make all necessary arrangements to enable him to participate by video link at that hearing.

In the event, the substantive hearing in April 2012 was unable to proceed because of a series of further procedural problems. I was, however, able to deal with the two preliminary issues raised by the father (rejecting his application for an adjournment of those issues) and duly declared, contrary to his application, that (1) the court had jurisdiction to entertain the mother’s application for periodical payments on behalf of S filed on 29^th February 2000 (notwithstanding the fact that, at the date of the application, the court’s powers to exercise that jurisdiction were proscribed by the provisions of s. 8 of the Child Support Act 1991) and (2) the court was not estopped from hearing the Schedule 1 application by reason of the fact that there had been a child support assessment carried out in Australia which had assessed the father’s liability to support S at nil. The reasons for my rulings on these issues are set out in a further supplemental judgment under neutral citation number [2012] EWHC 4291 (Fam). In addition, I made a series of other directions, including the discharge of the Official Solicitor as advocate to the court, adjourning the mother’s substantive application to January 2013 with a time estimate of five days, and giving further directions for the filing of further evidence. Further documents were duly filed by the parties in accordance with the directions.

Meanwhile, the father was still attempting to appeal my decision as to jurisdiction. On 2^nd July 2012, the Court of Appeal adjourned an application by the father for permission to appeal out of time, and further adjournments were granted on 8^th August and 12^th September 2012. On 5^th October, the substantive hearing before me was adjourned again from January 2013 to June 2013 and further directions were given. On 8^th December, the Court of Appeal for the fourth time adjourned the father’s application for permission to appeal against the order and judgment of 5^th August 2011.

On 28^th February 2013, the father filed a statement in support of an application to strike out the mother’s application herein under Schedule 1. In support of this application, he disclosed that he had discovered that the mother and S were living in Australia and had been so for a number of years.

On 24^th April 2013, the English Court of Appeal for the fifth time adjourned the father’s application for permission to appeal against the order and judgment made by me on 5^th August 2011.

At what was intended to be the final directions hearing on 23^rd May, the father’s counsel indicated that they were proposing to revive their submission, previously abandoned, for a stay of the English proceedings on the ground of forum non conveniens, whereupon the mother applied to adjourn the substantive hearing. At that point, I refused that application and gave directions to facilitate that final hearing taking place as listed and refused an application, on this occasion by the mother, for an adjournment of the substantive hearing listed for June. In the event, however, the hearing in June was again adjourned. I was concerned that the disclosure that the mother and S were living in Australia had materially affected the issue as to the appropriate forum for determining the application, particularly given the ongoing difficulties of making arrangements to enable the father to participate in hearings in this country. At paragraph 14 of the judgment delivered on this occasion, I said:

“My prima facie view, subject of course to hearing further detailed submissions from counsel on behalf of mother, is that Australia would – as a matter of practicalities and common sense – be the appropriate forum to determine this dispute between the parties, if an appropriate remedy exists in Australia.”

On the other hand, I noted that there were potential legal difficulties in granting a stay on grounds of forum non conveniens arising out of the decision of the European Court of Justice in Owusu v Jackson [2005] QB 801. Furthermore, the court had become aware that the question whether the decision in Owusu was applicable in family proceedings was going to be considered by the Court of Appeal in the Autumn in the case of Mittal v Mittal. Given these uncertainties, I concluded that there was no alternative to adjourning the substantive hearing again to December 2013.

On 24^th July, the Court of Appeal finally refused the father’s application for permission to appeal against my decision as to jurisdiction delivered on 5^th August 2011.

On 18^th October 2013, the Court of Appeal handed down judgment in the case of Mittal v Mittal.

On 9^th December, the substantive hearing of the mother’s claim in these proceedings, was, regrettably, adjourned yet again for want of judicial time. It was re-listed for April 2014. On 4^th March 2014, at a further case management hearing, I gave permission to the parties jointly to instruct Mr Ian Kennedy AM, the well-known Australian family lawyer, to prepare a report concerning the availability of powers in Australian courts to make orders for the payment of maintenance and/or lump sums by the father for the benefit of the child. I confirmed that the five-day hearing listed on 7^th April would continue, with the first three days to determine the issue of forum and, if reached, days four and five to be used to determine the substantive Schedule 1 application. I directed that, if possible, the father should attend the final hearing by video link or alternatively by audio link and requested that the prison governor in Australia make him available to participate in the hearing.

On 28^th March, Mr Kennedy duly filed a report answering questions posed following my order of 4^th March, and subsequently sent two further letters answering supplemental questions posed by the parties’ lawyers. These reports provide general advice as to the processes in Australia for the award of child support, and shed light on the ways in which those processes have been utilised by the father in this case. Before turning to the issues to be determined by this court, it is convenient to consider those Australian processes.

Over the past four years, the father has taken various steps in Australia in an attempt to persuade agencies and courts in that country to make decisions about his parental responsibility (including his financial responsibility) for S. Those steps are relevant to these English proceedings for a number of reasons, in particular because they are relied on (1) by the father in support of his application for a stay of these proceedings and (2) by the mother as evidence of the father’s alleged evasion of his financial responsibilities.

Before considering the history of the relevant steps taken in Australia, it is convenient to summarise the opinion as to relevant Australian law provided by the expert witness, Mr. Kennedy, set out in his report dated 28^th March and his two supplemental letters.

Mr Kennedy advises that child support obligations in Australia are determined by administrative assessment under the Child Support (Assessment) Act 1989 and administered by an agency now called Child Support. As in this country, an administrative assessment of child support liability may be generated on the application of either parent pursuant to a legislative formula. The scheme imposes a minimum liability on all parents regardless of their individual or comparative financial circumstances, although there is a discretion to reduce the assessment to nil in certain cases. Mr Kennedy quotes an observation in one text book (“Australian Family Law Handbook, Volume 3 – Child Support, para 1.5) that: “It is difficult to see that anyone could pass this test except perhaps the person confined to an institution where no money is ever given to them”.

As the application of the formula does not always lead to a just result, the scheme also provides for departure from administrative assessment in a range of specified special circumstances. Either party may seek a departure from the rate of support assessed administratively by Child Support by way of application to the family court. If such an application is made, and the court is satisfied it has jurisdiction, it must follow a three step process to satisfy itself that it is appropriate to make a particular departure order. First, it must be satisfied that, in the special circumstances of the case, one of the grounds for departure is listed in the statute exists. Mr Kennedy advises that, in this case, a court might be satisfied that an administrative assessment would result in an unjust and inequitable determination. He cites one authority in which a court ruled that, where a father was incarcerated and the mother was deceased as a result of his unlawful actions, the court found special circumstances justifying interference with the ordinary application of the child support formula: Wade v Kaplan [2007] FMCAfam 1100. Secondly, the court must then satisfy itself that the departure from administrative assessment would be just and equitable having regard to matters specifically listed in the statute. Thirdly, the court must be satisfied that a departure order would be “otherwise proper”. The orders that a court may make by way of a departure are specified in section 118 of the Act and include an order varying the annual rate of child support. Mr Kennedy advised that the parties can apply for a departure order from the administrative assessment of child support for a retrospective period of 18 months (or longer with the leave of the court) but, importantly, not for any period before the date on which the child support assessment was made: Teal v Teal[2010] FamCAFC 120.

There are two other ways in which the court may ameliorate the restrictions of the assessment process. First, whereas the administrative assessment process provides only for periodic payments up to the age of 18. the court has the power to order maintenance of a child who is over 18 if satisfied that maintenance is necessary to enable the child to complete their education. Secondly, whereas the administrative assessment process does not provide for lump sum payments or other payments such as school fees, such sums can be ordered by a court in a range of circumstances.

Where an assessment of child support is in place, either parent may apply to the court under s.123 of the Child Support (Assessment) Act for an order that a parent provide child support otherwise than in the form of periodic payments or in the form of a lump sum payment to be credited against the amount payable under the relevant administrative assessment. If an application is made for a lump sum order, the court will make an order if satisfied it will be just and equitable and will otherwise be proper, having regarding inter alia to the administrative assessment and any departure order. Mr Kennedy advises that, generally speaking, while the circumstances in which lump sum orders can be made are not limited, such orders are usually only considered in two situations, namely (a) where there are difficulties in enforcement of child support and/or (b) where the paying parent is “asset rich” and “income poor”. Mr Kennedy advises that the full court of the Family Court of Australia has observed that the provision of lump sum child support is not normally to be regarded as the preferred option: see Pripic v Pripic (1995) FLC 92-574. Mr Kennedy advises that there remains a debate in Australia as a result of conflicting judicial opinion about whether section 123 of the Act provides an independent source of power to order child support otherwise than in the form of periodical payments, or whether an order may only be made in substitution for a periodic amount. He advises that, if an application were to be made for lump sum child support, it should be accompanied by an application for a departure from the administrative assessment. In answer to a request for further clarification Mr Kennedy confirmed by letter dated 8^th April that it was his view that the court does not have the power to make a lump sum order predating a child support assessment, even if the court resolved the conflicting judicial opinion as to the interpretation of the relevant statutory provisions by preferring the view that the statutory power to award a lump sum provided an independent source of power to order child support in the form of a lump sum.

With Mr. Kennedy’s legal opinion in mind, I turn to summarise the history of the processes in Australia in this case. It should be noted that in addition to those cited below there have been a large number of other applications brought by the father in other courts in Australia which are not relevant to this case.

In 2010, the father applied to Child Support seeking an assessment of his liability to pay child support for S. In July 2010, that agency initially assessed his liability at 30 Australian dollars per month, but later reduced the assessment to nil. By a letter dated 3^rd September 2010, the father asked the agency to consider amounts that may be owing for the period prior to July 2010 stating “I take my responsibilities seriously, should the child be mine”. By letter dated 6^th October, Child Support replied pointing out that the legislation did not allow arrears to be accrued retrospectively and that, as this was the first application received by Child Support, there were no official arrears due.

Subsequently, the father filed a series of applications in the Family Court of Australia seeking parenting orders, roughly equivalent to what are now called child arrangement orders in this country. On 3^rd March 2011, all these applications were dismissed by Barry J. The judge declined to entertain the applications on the grounds, in summary, that (i) he was not satisfied that the mother and S were within the jurisdiction of Australia and it was pointless to make any order in the terms sought when the court had no ability to enforce the orders; (ii) the courts of England and Wales were seised of jurisdiction in proceedings in which the father was a party and had participated; (iii) S was a ward of court in the UK regardless of where she resides and these courts were vested with jurisdiction and (iv) notwithstanding that the order sought by the father in Australia were “relatively modest in form”, there was no reason why he could not instruct a solicitor in the UK to seek such orders in the English proceedings. The father filed notice of appeal against Barry J’s order.

In December 2012, Child Support in Australia again assessed the level of child support payable by the father to S at nil and on 21^st December 2012, the father issued a further application for parenting orders in Australia. On 26^th March 2013, the appeal court of the Family Court of Australia allowed the father’s appeal against Barry J’s refusal to entertain his applications for parenting orders. The court declined to remit the applications for re-hearing, concluding that it was best placed to exercise jurisdiction. Having considered the matter, the court concluded on the merits that it was not in S’s best interests for orders to be made.

On 21^st May 2013, the father’s further application in Australia for parenting orders was dismissed. On 28^th June 2013, the father filed an application for an extension of time to appeal against that decision. On the same date, he filed an application in the Family Court of Australia for a financial order in respect of S, specifically seeking child support and lump sum orders be made against him and assessed at nil.

On 5^th November 2013, Aldridge J, sitting in the Family Court of Australia, stayed the father’s application for a nil lump sum order. At paragraphs 17-18 of his judgment he said,

“17.

It is not suggested that there are any assets in Australia. It is not suggested by [the father] that he has an income. Indeed, the order he seeks is a lump sum payment of zero. I do not know what, if any, impact such a final order as sought [the father] would have on the English proceedings. There is no evidence before me to indicate what that might be. However, given that the English proceedings are in an advanced state of preparation, are fixed for hearing in December and that there are significant assets under the control of that court to be dealt with as a consequence of those proceedings, the High Court in the United Kingdom is the convenient place in which those issues should be litigated.

18.

That is to say, Australia is an inconvenient forum for the hearing of those issues. In coming to that view, I also take into account the nature of these proceedings which seem to be that there is simply sought a conversion of an order for a nil weekly payment into a lump sum nil payment.”

On 27^th November, the father’s application for an extension of time to appeal against the dismissal of his second application for parenting orders in Australia was itself dismissed. On 20^th February 2014, the father filed a notice of appeal against the order of Aldridge J dated 15^th November 2013.

On 25^th February 2014, the Supreme Court of New South Wales, Common Law Division, made a vexatious proceedings order against the father. The judgment delivered by the Supreme Court, running to 223 paragraphs and 64 pages, describes the history of over 30 legal proceedings in Australia in which the father had been the unsuccessful plaintiff or applicant, falling broadly into three categories – immigration proceedings, applications relating to criminal proceedings against him and administrative decisions tribunals proceedings. These proceedings are, of course, in addition to the various proceedings brought by the father in the Family Court of Australia. The order made by the Supreme Court prohibited the father from issuing proceedings in New South Wales, save for an ongoing interlocutory application in connection with a criminal appeal.In his opinion, Mr Kennedy confirmed that the vexatious proceedings order of the New South Wales Supreme Court only applies to proceedings sought to be brought by the father under New South Wales legislation and in courts or tribunals exercising New South Wales state jurisdiction. It does not apply to proceedings initiated or sought to be initiated by the father in federal courts or tribunals, including the family law courts, or under Commonwealth legislation, which includes the Australian Family Law Act and the Australian Child Support Act. He added, however, the Commonwealth Family Law Courts do also have proceedings for dealing with vexatious litigants very similar to those exercised against the father in New South Wales.

On 1^st March 2014, Child Support wrote to the father informing him that the agency had calculated a new assessment for the period 15^th April 2014 to 17^th April 2015 at a rate of A$446 per month. This assessment was based on what the agency described as “provisional” taxable incomes for both parents of A$47,046 each. On 12^th March, the father replied stating that he remained in prison receiving only a “jail stipend” and suggesting that the agency obtain copies of the mother’s tax returns.

On 25^th March, the appeal court in the Family Court of Australia dismissed an application by the father for an adjournment of his application for permission to appeal against Aldridge J’s order pending review of his application for legal aid, and further dismissed his application for permission to appeal. The father’s grounds for appeal had included assertions that Aldridge J had been biased. In dismissing his application on appeal, Ainslie-Wallace J said (at paragraph 55):

“The assertions of bias are scandalous. But, more potently, the underlying thesis is frankly wrong. His Honour’s decision was entirely correct. I am of the view that the father’s appeal is devoid of merit and thus to grant an extension of time would be futile. To grant leave would be tantamount to permitting an abuse of process.”

The judgment by Ainslie-Wallace J setting out her reasons for dismissing the father’s various applications was not delivered until the hearing before me had started. Meanwhile, on 28^th March, the father had attempted to apply again to the appeal court in the Family Court of Australia asking for reconsideration of his applications. By letter dated 2^nd April, the Appeal Registry of the Family Court of Australia informed the father that this application had not been accepted.

Before leaving this summary of the Australian procedures, I note that, in, in answer to the supplemental questions, Mr Kennedy advised that the father’s application for a departure order and application to fix a lump sum for child support remains “pending” having only been stayed “pending further order of the court” pursuant to the orders of Justice Aldridge on 15^th November 2013.

The final hearing before me finally started on 7^th April 2014, fourteen years and six weeks after the mother’s original application. Strenuous efforts were made by the father’s solicitor, assisted by the office of the Head of International Family Justice and the international network judge in Australia, to facilitate the father’s direct participation at the hearing before me. Unfortunately, all these attempts came to nought. The hearing started with consideration of the preliminary issue of the father’s application for a stay. At the conclusion of the argument, I refused the application, indicating that I would give reasons for my decision at a later date. Those reasons are set out in the next section of this judgment. I then proceeded to hear the substantive application. The only witnesses who gave oral evidence were the mother and the maternal grandmother’s former accountant, AM. At the conclusion of the mother’s cross-examination, I adjourned the hearing to allow a note of her evidence to be agreed and sent to the father in Australia so that he could give further instructions to his lawyers. At the resumed hearing, the mother was recalled for further cross-examination on the basis of those instructions. After receiving final submissions, I reserved judgment. At the hearing, both parties were represented by leading counsel and junior counsel for the preliminary issue of the father’s application for a stay, although only junior counsel were retained for the substantive application. At this point I express my thanks to all the lawyers instructed in these proceedings – Mr Henry Setright QC, Mr. Stephen Lyon and their instructing solicitor Mrs. Sarah Judd on behalf of the mother, and Miss Susan Jacklin QC and Miss Caroline Willbourne and their instructing solicitor Mr. Alan Green.

Subject to European instruments and case law discussed below, the courts of England and Wales have the power to order a stay of proceedings on the basis that those courts are an inappropriate forum if (a) the defendant shows that there is another court with competent jurisdiction which is clearly or distinctly more appropriate that England for the determination of the issue and (b) it is not unjust that the claimant be deprived of the right to trial in this jurisdiction: Spiliada Maritime Corp v Consulex Ltd [1987] AC 460.

At the outset of the hearing, I was invited by the father to stay the proceedings on the grounds that the Family Court of Australia was the more convenient forum. As described above, proceedings for a departure order and a lump sum order have been started in Australia and, although they have been stayed, they are, as a matter of Australian law, still “pending” explained by Mr. Kennedy in his legal opinion.

This application for a stay involved consideration of two issues: (1) whether as a matter of law the court has power to order a stay, having regard in particular to European regulations and case law, in particular the decision of the European Court of Justice in Owusu v Jackson (Case C-281/02) [2005] QB 801; (2) if so, whether the court should in the circumstances of this case grant such a stay.

As will become clear shortly, notwithstanding my earlier comments at the hearing in May 2013, I have reached the clear conclusion that, if there is the power to grant a stay, that power should not be exercised in this case. In those circumstances, I do not propose to embark upon a lengthy exegesis and analysis of the various arguments about the decision in Owusu. What follows is intended to be only a summary of my reasons for concluding that this court does have the power to order a stay, albeit a power which I do not propose to exercise in this case.

As explained in my judgment dated 5^th August 2011, save for one specific provision in paragraph 14(1) of Schedule 1 which is irrelevant to the present case, the Children Act is silent as to when the jurisdiction arises to make orders under Schedule 1. As further explained in the 2011 judgment, the rules as to jurisdiction are now governed by instruments of the EU. At the date on which these proceedings were started – 29^th February 2000 – the relevant instrument was the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (“the 1968 Convention”) which was concluded before the accession of the UK to the European Economic Community and subsequently incorporated into English law by the Civil Jurisdiction and Judgments Act 1982 ("the CJJA 1982"). The Convention has long been superseded by other European instruments but because of the longevity of these proceedings it remains the relevant instrument here.

The provisions in the Convention relevant to this judgment are as follows.

Under Section 1, headed "General Provisions", Article 2 provided:

Under Section 2, headed "Special jurisdiction", Article 5 provided, in so far as relevant to these proceedings:

Section 8 made provision for lis pendens and related actions. Within that section, Article 21 provided:

“Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Contracting States, a court other than the court first seised shall of its own motion decline jurisdiction in favour of that court. A court which would be required to decline jurisdiction may stay its proceedings if the jurisdiction of the other court is contested.”

Article 22 further provided:

“Where related actions are brought in the courts of different Contracting States, a court other than the court first seised may, while the actions are pending at first instance, stay its proceedings. A court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the law of that court permits the consolidation of related actions and the court first seised has jurisdiction over both actions. For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.”

Article 23 provided:

“Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seised shall decline jurisdiction in favour of that court.”

In 2002 the Brussels Convention was re-enacted and replaced by Council Regulation (EC) 44/2001 of 22 December 2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, usually known as the “Brussels I” Regulation. The text of Brussels I was substantially the same as that of the 1968 Convention. In particular, the terms of Article 5(2) of Brussels I are substantially the same as those of Article 5(2) of the 1968 Convention. The recitals to Brussels I, however, were greatly expanded in comparison to those in the Convention. Of particular note is recital (11):

“The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor.”

At the time when the 1968 Convention was passed, all the countries of what was then the EEC applied systems of civil law. As one judge has observed (Miss Lucy Theis QC, as she then was, in JKN v JCN (Divorce: Forum) [2010] EWHC 843 (Fam), [2011] 1 FLR 826 at paragraph 64), the Convention was an instrument “designed and drafted by civil lawyers for civil lawyers”. With the accession of the common law countries – the United Kingdom (or more particularly England and Wales and Northern Ireland) and Ireland – there was in this respect (and others) a tension between what Miss Theis in JKN v JCN (at paragraph 65) characterised as “the common law preference (in many areas) for discretion and the civil law preference for certainty”. Neither the 1968 Convention nor its successor Brussels I contained an express provision incorporating the principle of forum non conveniens.

S.49 of the CJJA provided inter alia that

“Nothing in this Act shall prevent any court in the UK from staying … striking out or dismissing any proceedings before it on the grounds of forum non conveniens or otherwise where to do so is not inconsistent with the 1968 Convention ….”

It followed that the power to stay proceedings on the grounds of forum non conveniens was precluded where it was inconsistent with the Convention. Thus, where the defendant to the English proceedings was domiciled in England and the jurisdictional conflict was between the English court and a court of another Contracting State, there was no power to order a stay on that ground since such a power would be inconsistent with the Convention. The question arose as to whether there was a power to order a stay where the defendant to the English proceedings was domiciled in England and the jurisdictional conflict was between the English court and a court of a state that was not a Contracting State under the Convention.

In Re Harrods (Buenos Aires) Ltd [1992] Ch 72, the Court of Appeal held that there was a power to order a stay in such circumstances. Bingham LJ (as he then was) adopted the view expressed by Mr. Lawrence Collins (as he then was) in an academic article (at (1990) 106 LQR 535) that

“the Convention was intended to regulate jurisdiction as between the Contracting States …. [T]he States which were parties to the Convention had no interest in requiring a Contracting State to exercise a jurisdiction where the competing jurisdiction was in a non-Contracting State. The Contracting States were setting up an intra-convention mandatory system of jurisdiction. They were not regulating relations with non-Contracting States”.

When a reference to the European Court of Justice on the point was subsequently made in Owusu v Jackson (Case C-281/02) [2005] QB 801, however, that Court reached the opposite conclusion. The reference contained two questions:

“(1)

Is it inconsistent with the [1968] Convention, where a claimant contends that jurisdiction is founded on Article 2, for a court of a Contracting State to exercise a discretionary power, available under its national law, to decline to hear proceedings brought against a person domiciled in that state in favour of the courts of a non-Contracting State (a) if the jurisdiction of no other Contracting State under the 1968 Convention is in issue, (b) if the proceedings have no connecting features to any other Contracting State?

(2)

If the answer to question (1) (a) or (b) is yes, is it inconsistent in all the circumstances or only in some and if so which?”

The ECJ answered the first question in the affirmative, holding that Article 2 of the 1968 Convention applied in circumstances involving relationships between the courts of a Contracting State and a non-Contracting State and that the Convention precluded a court of a Contracting State from declining jurisdiction conferred on it by Article 2 on the ground that a court of a non-Contracting State would be a more appropriate forum for the trial of the action even if the jurisdiction of no other Contracting State was in issue or the proceedings had no connecting factors to any other Contracting State. The decisive argument for the Court was that

“respect for the principle of legal certainty, which is one of the objectives of the [1968] Convention … would not be fully guaranteed if the court having jurisdiction under the Convention had to be allowed to apply the forum non conveniens doctrine” (paragraph 38).

Importantly, however, the ECJ confined its decision to the specific issue raised in the proceedings and declined to answer the second question included in the reference, namely whether a stay on the basis of forum non conveniens was ruled out in all circumstances or only in certain circumstances, on the grounds that the justification for a reference for a preliminary ruling was not to answer hypothetical questions but rather that it was necessary for the effective resolution of a dispute (paragraph 50). Furthermore, in giving its answer to the first question, the ECJ followed the opinion of the Advocate-General who said (at paragraph 69) that

“in order to delimit the scope of the questions, it is important to emphasise … that the main proceedings do not constitute a case of lis pendens or of connection with proceedings pending before the court of a non-contracting state commenced before the matter came before a court of a Contracting state, nor of a case of a jurisdiction clause in favour of the courts of a non-contracting state.”

In short, as Lewison LJ observed in Mittal v Mittal [2013] EWCA Civ 1255 at paragraph 19, “the first question was narrowly defined and the second was inadmissible.”

In this country, the Owusu decision has been the subject of much judicial comment in many cases, a number of which were cited before me – in chronological order Gomez v Gomez-Monche Vives [2008] EWHC 259 (Ch), [2008] 3 WLR 309, Cook v Plummer [2008] EWCA Civ 484, [2008] 2 FLR 989, Catalyst Investment Group Ltd v Lewinsohn [2009] EWHC 1964 (Ch), [2010] 2 WLR 839, Re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10, [2010] 1 FLR 361, Lucasfilm Ltd and Ors v Ainsworth and Anor [2009] EWCA Civ 1328, [2010] 3 WLR 333, JKN v JCN (Divorce: Forum) [2010] EWHC 843 (Fam), [2011] 1 FLR 826, Ferrexpo AG v Glison Investments Ltd [2012] EWHC 721 (Comm), Mittal v Mittal [2013] EWCA Civ 1255, and Re A (Jurisdiction: Return of Child) [2013] UKSC 60, [2014] 1 FLR 111. In some cases the courts have followed and applied the Owusu decision (for example, Catalyst Investment Group v Lewinsohn), whereas in others the courts have found ways of distinguishing it (Lucasfilm; Ferraxpo) or avoiding it (for example, Cook v Plummer, Re I). None of these decisions has led to a further reference to the ECJ. There has been sharp judicial criticism of the decision (for example, the dicta of Thorpe LJ in Cook v Plummer, supra, at paragraph 10 “… the decision in Owusu is deeply unpopular in this jurisdiction….”) and also uncertainty as to the extent to which it applies beyond the specific circumstances that arose in Owusu. Amongst the questions left unanswered was whether the decision excluding a stay on grounds of forum non conveniens applied to cases where jurisdiction was conferred by the permissive provisions of sections 2 to 6 of the Convention, including Article 5, rather than the mandatory provisions of Article 2, and whether proceedings brought in a Contracting State against a person domiciled in that State could be stayed where there were identical or related proceedings pending before a non-Contracting State.

In Gomez v Gomez-Monche Vives, supra, Morgan J rejected an argument that Owusu should be distinguished where jurisdiction was based on the permissive provisions of Article 5 of the 1968 Convention (in fact, Article 5(6) relating to trusts) rather than the mandatory provisions of Article 2. Although his comments were strictly obiter, and his decision reversed on other grounds in the Court of Appeal (where no comment was made on this issue), they are endorsed by the editors of Dicey, Morris and Collins “The Conflict of Laws” 15^th edition (at para 12-020), who express the view that there is “no doubt” that the ECJ would have given the same answer if the English court’s jurisdiction had been based on Article 5.

In Catalyst Investment Group Ltd v Lewinsohn, supra, Barling J held that the ECJ’s reasoning in Owusu applied equally to the situation where a party applied for a stay to allow pending proceedings to continue in a jurisdiction outside the EC (in that case, Utah) and therefore not covered by Brussels I (which had by then superseded the 1968 Convention). He rejected the argument that, because of the existence of the prior Utah proceedings, the lis pendens provisions contained in Article 27 of Brussels I (which are in terms identical to those of Article 21 of the 1968 Convention) should be applied “reflexively”, (i.e. as though non-Member states were Member states under the Regulation, or in the language of the Convention, as though non-Contracting states were Contracting states under the Convention), thereby requiring the court second seised to decline jurisdiction. At paragraph 99, Barling J said:

“Such an interpretation would introduce the wide forum non conveniens discretion by the back door, contrary to the ruling of the ECJ in Owusu’s case. In my view, the submission fails whether this court is the first or second seised.”

In his judgment in the Court of Appeal in Lucasfilm Ltd and Ors v Ainsworth, supra, however, Jacobs LJ disagreed. Commenting on Barling J’s decision in the Catalyst case, he observed (at paragraph 134):

“The question there was whether the court could stay proceedings in a case where the same point was being litigated between the same parties in the courts of a third country. He held that Owusu prevented that, essentially because the lis pendens rule is to some extent a facet of forum non conveniens. We do not have [to] decide whether that was correct, though we note that, if he is right, there is this oddity: that there is a clear lis pendens rule, with [an] associated first seised rule, for parallel cases` within the EU but none for parallel cases where one is running within an EU Member State and one without.”

The Lucasfilm case concerned proceedings against a defendant domiciled in this country in respect of alleged breaches of US copyright in respect of drawings and models of helmets created for the first “Star Wars” film. It was accepted that the court had “personal” jurisdiction but an issue arose as to whether it also had “subject-matter” jurisdiction in respect of the US copyrights. At paragraph 127-8, Jacobs LJ (giving the judgment of the court) stated:

“[127] … Owusu establishes where Article 2 confers personal jurisdiction in a court of a Member State by reason of the defendant’s domicile in that State, the court cannot refuse to hear the case because there is an appropriate forum abroad. It does not begin to address a quite different question, namely, given personal jurisdiction, is the subject-matter jurisdiction of the court also displaced by Article 2?

[128] [Counsel] submitted that because Article 2 does confer subject-matter jurisdiction on the courts of a Member State in respect of acts done elsewhere in the EU, it must also have the same effect as regards acts done outside the EU. We do not see why ….

[129] … The regulation is not setting up the courts of the Member States as some kind of non-exclusive world tribunals for wrongs done outside the EU by persons who happen to be domiciled within the EU. That is the sort of thing that is done reciprocally and by an international convention – it goes well beyond the remit of judges whose job it is to interpret the law, not to legislate.”

In JKN v JCN, supra, Miss Lucy Theis QC (as she then was) was asked to stay English divorce proceedings issued two months before proceedings in New York. After a lengthy analysis, Miss Theis concluded (“not without some hesitation”) that it is neither necessary nor desirable to extend the Owusu principle in cases where there are parallel proceedings in a non-Member State. Her principal reasons for this conclusion (as set out at paragraph 149(i)) were:

“(a)

The risk of irreconcilable judgments which undermine two important objectives of the Brussels scheme namely: avoiding irreconcilable judgments between Member States and ensuring recognition of judgments between Member States.

(b)

It would lead to an undesirable lacuna, as there will be no mechanism in place for resolving this situation with the consequence of both proceedings continuing with the consequent increased uncertainty and cost.

(c)

The supporting rationale by Jacob LJ in Lucasfilm [cited above] ….

(d)

The reasoning that underpins Owusu is not incompatible with retaining the discretionary power where there are parallel proceedings in a non-Member State. It does not undermine certainty for the defendant (as he will be bringing the proceedings in the non-Member State); the claimant (although not mentioned in Article ) will have knowledge of the proceedings in the non-Member State and it is likely to be in his interests to have one set of proceedings rather than two (the latter would happen if the Owusu doctrine was extended) ,,,”

Furthermore, she derived further support from an earlier decision of the ECJ in Coreck Maritime GmbH v Handelsveem BV [2000] ECR I-9337 in which the court held that Article 17 of the Convention (governing the prorogation of jurisdiction, and limiting in some respects the power of parties to agreements to designate the forum in which disputes should be determined) does not apply to clauses designating a court in a third country, and a court in a Contracting State must, if seised notwithstanding such a jurisdiction clause, assess the validity of the clause according to the applicable law, including conflicts of law rules, where it exists. Article 17 did not prevent the courts of a contracting state from giving effect to what the parties had agreed as to jurisdiction. As Miss Theis observed, this decision (not cited in Owusu) permits judicial discretion to be exercised in circumstances where there was no provision for it in the Convention or Brussels I.

It is important to note that Miss Theis had an alternative ground for finding that she had power to grant a stay. By the time of the decision in JKN v JCN, the EC had introduced another regulation, Council Regulation (EC) 2201/2003 of 27 November 2003 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility (“Brussels II Revised”). It is notable that Brussels II Revised contains, in Article 15, a power akin to the principle of forum non conveniens whereunder the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, will be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child, stay the proceedings and take steps to request the other Member State to assume jurisdiction. Brussels II Revised was relevant to Miss Theis’s decision in JKC v JCN because of the terms of the statutory provisions governing jurisdiction in divorce cases in section 5(2) of and paragraph 9 of Schedule I to the Domicile and Matrimonial Proceedings Act 1973. Paragraph 9 provided a statutory power to stay proceedings in favour of parallel proceedings in another jurisdiction save where the proceedings were “governed by the Council Regulation”. Miss Theis held, (at paragraph 149(ii)), that it was neither necessary nor desirable for the Owusu doctrine to be extended to Brussels II Revised. She further held (at paragraph 149(iii)) that the natural and preferable construction of “proceedings governed by the Council Regulation” in Schedule I paragraph 9 of the 1973 Act refers to the position where there are competing proceedings in another Member State and that the court's discretion to stay under paragraph 9 remains in place where the competing proceedings are in a non-Member State.

Miss Theis’s decision that it was neither necessary nor desirable for the Owusu doctrine to be extended to Brussels II Revised was approved in October 2013 by the Court of Appeal in Mittal. In that case, a husband started divorce proceedings in India in 2009. Over two years later, the wife filed her own petition for divorce in England. The English court had jurisdiction to entertain the petition under Article 3 of Brussels II Revised. However, Bodey J at first instance stayed the wife’s petition on the grounds that India was the more appropriate forum. His decision was upheld by the Court of Appeal. At paragraph 37, Lewison LJ concluded that Owusu had little to do with the case. It was concerned with a different convention regulating jurisdiction in a different field of activity. However, whilst endorsing Miss Theis’s interpretation of Brussels II Revised, the Court of Appeal in Mittal found it unnecessary to be drawn into the wider debate considered in JKN v JCN on the extent to which Owusu applies to Brussels I (and thus to the 1968 Convention). When I adjourned this case in May 2013, knowing that an appeal in Mittal was due to be heard later in the year, I had anticipated that the Court of Appeal would consider that question. In the event, it did not arise.

It should be noted that, in 2011, the Regulation (EU) of 18 December 2009 on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and Cooperation in Matters Relating to Maintenance Obligations (“the Maintenance Regulation”) replaced Brussels I in respect of the jurisdictional rules in maintenance cases. Furthermore, in January 2015, Brussels I will be replaced by Regulation (EU) 1215/2012 of the European Parliament and the Council of 12December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (provisionally known as “Brussels I Recast”). These new instruments are couched in somewhat different terms from the earlier instruments. As Lewison LJ has pointed out in Mittal (at paragraph 38), “flexibility is now part of the policy”. As jurisdiction in cases under Schedule I of the 1989 Act is now governed by the Maintenance Regulation, the question as to the extent to which Owusu applies to Brussels I (and thus to the 1968 Convention) is largely a matter of historical interest, but because of the age of these proceedings it is a question which this court has to consider. The jurisdiction for this court to entertain the mother’s application is derived from that Convention. Does Owusu apply to preclude any stay?

On behalf of the mother, Mr. Setright and Mr. Lyon invite the court to take a firm line. They submit that the decision in Owusu applies to preclude a stay. Article 2 of the Convention governs all areas of litigation. It is mandatory in its wording and binding on this court. It applies even in a case where another state may have a stronger connection with the parties than the country of domicile. They rely on the decision of Morgan J at first instance in Gomez and the dicta of the editors of the editors of Dicey, Morris and Collins “The Conflict of Laws” cited above to the effect that there is “no doubt” that the ECJ would have given the same answer if the English court’s jurisdiction had been based on Article 5.

In reply, Miss Jacklin and Miss Willbourne submit that Owusu does not apply. They deploy several arguments in support of this position.

First, they point out that the jurisdictional rules in the Convention applicable to maintenance cases are found in Article 5(2) as well as Article 2. Thus, in matters relating to maintenance, a person may be sued either under Article 2 in the courts of the country in which he or she is domiciled or under Article 5(2) (a) in the courts for the place where the maintenance creditor is domiciled or habitually resident or (b) if the matter is ancillary to proceedings concerning the status of a person, in the court which, according to its own law, has jurisdiction to entertain those proceedings, (unless that jurisdiction is based solely on the nationality of one of the parties). Miss Jacklin and Miss Willbourne submit that Article 5(2) therefore gives the court the discretion to refuse jurisdiction where the maintenance creditor is domiciled or habitually resident in another contracting state. Further, Article 5(2) gives the court the scope to apply its national law to determine jurisdiction, including, they submit, the power stay proceedings in favour of a more convenient forum. Although Australia is a non-Contracting State, they invite the court to apply Article 5(2) “reflexively”.

Secondly, they invite the court to follow the decision of Miss Theis and conclude that Owusu does not preclude the existence of a discretionary power to stay proceedings where there are parallel proceedings. In this case, there are parallel proceedings in Australia which, although stayed by order of Aldridge J, are, according to Mr. Kennedy, still “pending”.

Thirdly, they submit, more broadly, that Owusu should not be applied at all in maintenance cases. There is no reported maintenance case where it has been held to apply and, as acknowledged in Mittal, European law has increasingly recognised the distinction between commercial and maintenance cases. The rigid application of Owusu here would lead to injustice, and would amount to a breach of the father’s rights under Article 6 of ECHR.

As to their first submission, the second of the two alternative bases for jurisdiction under Article 5(2) does not arise in this case. The application of national law only arises where the claim for maintenance is “ancillary to proceedings concerning the status of a person” and not a freestanding claim for maintenance such are made in this case under Schedule I. There is therefore no issue as to the “reflexive” application of the second limb of Article 5(2).

Does the existence of alternative bases for jurisdiction in Article 2 and the first limb of Article 5(2) allow the court a discretionary power to determine the jurisdiction or merely invest the maintenance creditor with the right to select the court in which to start proceedings? In this context, it should be noted that that in some jurisdictions maintenance proceedings may be started by the debtor as well as the creditor. Indeed in this case it is the father that has started proceedings in Australia (where both parties are now habitually resident) for an order against himself. There is thus a prospect, as in this case, that each parent may start separate maintenance proceedings in different jurisdictions. Where such proceedings have been started, an application of the decision in Owusu is little guarantee of the certainty which propelled the ECJ to its decision. The prospect of two sets of proceedings continuing, doubling the costs and leading potentially to two irreconcilable judgments, is hardly consistent with certainty, nor, it might be thought, with other fundamental principles such as expedition, economy, proportionality and fairness. I therefore agree with Miss Theis’s insightful observation in JKN v JCN that the reasoning that underpins Owusu is not incompatible with retaining the discretionary power to stay proceedings where there are parallel proceedings in a non-Member State, particularly where those proceedings have been brought by the defendant. Where parallel proceedings are ongoing in a non-Member State, certainty may often only be achieved if the court stays its own proceedings.

The prospect of two ongoing sets of proceedings, creating a risk of irreconcilable judgments with the consequent increased cost and uncertainty, are to my mind powerful arguments against applying Owusu so as to preclude any application for a stay of child maintenance proceedings where there are parallel proceedings in a non-Member State. A contrary interpretation would potentially lead to the absurd and unfair outcome that the proceedings could not be stayed no matter how far advanced the foreign proceedings.

The submission made by Mr Setright and Mr Lyon, that Owusu should be applied to this case, notwithstanding that there are alternative bases for jurisdiction under Article 2 and Article 5(2) and parallel proceedings in a non-Contracting State, would significantly extend the reach of that decision. As the Court of Appeal has recently emphasised in Mittal, the decision in Owusu was restricted to a narrow refinement of only one of two questions referred by the English court. It was plainly not the intention of the ECJ, advised by the Advocate-General, to expound upon the law beyond what was strictly required to resolve the issues arising in that case. Given the narrow ambit of the decision, coupled with the manifest advantages the doctrine of forum non conveniens as a case management tool, as increasingly recognised by subsequent European instruments, there seems to me to be little merit in extending the Owusu decision to the circumstances arising in this case.

I therefore agree with and adopt Miss Theis’s conclusion in JKN v JCN, for the reasons set out in paragraph 149(i) of her judgment, that it is neither necessary nor desirable to extend the Owusu principle to cases where there are parallel proceedings in a non-Member State (or, in the language applicable to the 1968 Convention, a non-Contracting State). In JKN v JCN, Miss Theis reached her conclusion (“not without hesitation”) after an exhaustive analysis of the case law. I accept her analysis and hold that the decision in Owusu does not apply in proceedings for financial provision for a child where there are parallel proceedings in a non-Contracting State.

It is unnecessary to address the broader submission made by Miss Jacklin, that the principle in Owusu should not be applied to maintenance cases even where there are no parallel proceedings. The fact is that, in this case, there are parallel proceedings in Australia. Although they have been stayed, they remain “pending”. I therefore conclude that the father is entitled to apply for a stay of the mother’s application under Schedule I.

In deciding whether to grant a stay, I apply the test set out in the Spiliada case, supra, in the speech of Lord Goff of Chieveley at pages 476-8.

On behalf of the father, it was submitted by Miss Jacklin and Miss Willbourne that that the entire landscape of the case changed in 2013 when the mother admitted for the first time that she and S had been living in Australia for over a decade. It is therefore indisputably the case that both parents and the child who is the subject of the application are and have been living in Australia for over at least twelve years. The father contended that in those circumstances Australia was manifestly the more appropriate forum. The fact that this point was being considered at a late stage in the proceedings was attributable to the actions of the mother in not pursuing her application for several years and not revealing her true location until 2013.

Secondly, it was argued that a claimant seeking financial provision for a child has a remedy in Australia very similar to that which exists in this country, incorporating a quasi-administrative process supplemented by the right to apply to the court for supplementary provision, including a lump sum.

Thirdly, the father relied on the fact that the Australian child support agency and courts have been seised of this case for several years. He has applied for and obtained a child support assessment and has made applications for parenting orders and the Australian court has accepted that it has jurisdiction. The fact that the Australian court has at present itself stayed proceedings should not be relied on by this court because the decision of Aldridge J was made on an incomplete knowledge of the facts.

Fourthly, it was submitted that an Australian court would be better placed to obtain and evaluate the evidence as to income, earning capacity and expenditure which are central to the court’s determination of the appropriate level of financial provision for S. It was said that an Australian court would be better able to obtain detailed evidence of the mother’s past earnings, assess her earning capacity and unpick the history of the mother’s property dealings in that country. It was pointed out that the mother’s evidence on those issues in these proceedings was incomplete. It was further contended that an Australian court would be better able to assess the mother’s argument that the standard of state school education was such that it was reasonable for her to select fee-paying school for S. It was also argued that an Australian court would be better equipped to assess the costs of university education in that country. It was submitted that it would be wrong in principle for this court to award any provision for university education at a point where it is uncertain as to whether S will go to university and the costs involved.

Fifth, it was said that the father would be hampered in taking part in these proceedings. He is incarcerated in Australia and, despite extensive efforts by his lawyers and others, it has not been possible to arrange a video or audio link to enable him to participate directly in the hearing. The distances involved and differences in time zones have compounded the difficulties for his English lawyers in obtaining his instructions. They have never been able to sit down together to discuss the evidence. An important aspect of a fair trial is that a party should have access to legal advisers to discuss the evidence as it develops during the course of the hearing. These difficulties would not exist if the proceedings took place in Australia.

In the alternative, it was argued that, if the court concluded that the current and historic claims should be determined in these proceedings, the claim in respect of S’s future years at university should be left to be considered by a court in Australia.

It is accepted on behalf of the father that the fund against which the claim is made is based in this country, and that Mr. Kennedy has advised that the Australian court does not have the power to attach funds held outside the country to satisfy its orders. It was argued, however, that this court using its wardship powers could continue the freezing order on that fund pending the outcome of any Australian proceedings.

In reply, Mr Setright and Mr Lyon submitted, first, that the advice given by Mr. Kennedy clearly establishes that an Australian court may not make a departure order or a lump sum order going back before 15^th July 2010 being the first date of a child support assessment for S. The mother’s claim stretches back for many years before that, to 2000. Accordingly, the Australian court is not a forum in which the mother’s claim for financial provision for S between 2000 and 2010 can be determined.

Secondly they submitted that there is no reason why the disclosure of relevant financial information concerning the parties’ means and circumstances should not be carried out within these proceedings. Any failure in this regard has arisen from the way in which the father has conducted the litigation. Either there has been a high level of incompetence or inadvertence in the way he has conducted the litigation, or he has been entirely tactical. It was the mother’s submission that the father had adopted what her counsel described as a “scorched earth” policy, demonstrated for example by the great efforts he has made to achieve assessments and orders from the Australian agency and court in the sum of nil with a view, it is said, to confounding the mother’s legitimate claim in this country. Australia could not therefore be characterised as the more convenient forum if being proposed for purely tactical reasons.

In any event, there are, submitted Mr. Setright and Mr. Lyon, innumerable cases where there is less than full disclosure, and the court has to make decisions on the evidence that is available, drawing inferences where necessary.

Third, it was pointed out that the father has also asserted that he has had difficulty litigating in Australia. It could not therefore be assumed that the process would be any easier in that country than it has here. Furthermore, given the father’s approach to the litigation in both jurisdictions, Mr. Setright and Mr. Lyon submitted that there was a high likelihood that he would be resistant and obstructive at every stage.

Fourthly, they pointed out that the case was listed for a substantive hearing, and in their phrase “ready to go”. However quick the Australian court could move to determine the issue, it could not conclude the matter as quickly as this court which was about to start the substantive hearing. Any application for a stay on grounds of forum non conveniens should have been made at a much earlier stage. The fact that it was being taken so late in the proceedings, at the start of the substantive hearing, was another example of the father’s tactical approach to this litigation.

Fifth, they relied on the fact that the Australian court has itself considered the question of forum and stayed its own proceedings in favour of those in this country. The Australian proceedings have come about purely as a result of the father’s actions, which the mother asserts are merely tactical. Nonetheless, the fact is that those proceedings have been stayed by Aldridge J and his decision has been upheld on appeal. Mr. Setright and Mr. Lyon therefore submitted that a stay in the English proceedings would perpetuate a litigation impasse.

Finally, they submitted that the physical absence of the father from the proceedings was not an insuperable impediment. The focus of the inquiry to be conducted by this court was not on the father’s means and circumstances, which were well-established, but on the mother’s. She was available for cross-examination. The father’s representatives were equipped to conduct that cross-examination. In so far as his absence impeded this process, the court could adjourn it to allow further instructions to be obtained from Australia.

Having considered these rival submissions, I concluded that the application for a stay should be refused for the following reasons.

First, I accepted the submission that a substantial aspect of the mother’s claim – that part dating back prior to 15^th July 2010 – could not be litigated in Australia. That country does not have jurisdiction to entertain a claim for financial provision for the period 2000 to 2010. It was suggested by Miss Jacklin and Miss Willbourne that the court should disregard this because the mother was responsible for the delay in bringing forward her claim during this period. That argument may be relevant to quantum of any provision awarded. It does not negate the argument that the mother has a claim for provision covering that period in this country which she cannot pursue in Australia.

Secondly, the application for a stay was made at a very late stage. As a general rule, applications for a stay on grounds of forum non conveniens should be made at an early stage of the proceedings, to avoid unnecessary cost and delay. Part 11 of the Civil Procedure Rules requires an application for a stay to be made within 14 days of the acknowledgement of service (Texan Management Ltd v Pacific Electric Wire and Cable Co Ltd [2009] UKPC 46) although that time may be extended in appropriate circumstances (CNA Insurance Co v OD Inc [2005] EWHC 456 (Comm)). In this case, the issue was not finally considered by the court until 14 years after the proceedings were commenced, at the start of the final hearing of the substantive application. The application for a stay was made prior to the hearing before me in 2011 but not argued at that hearing. At that stage, it would have been difficult for the court to rule on the question because the mother’s whereabouts were unknown to the court and the father. It was not until the concession made in May 2013, that the mother and S were living in Australia, that it became common knowledge that all parties were living in that country and had been so for over ten years. It could therefore be argued that the delay in pursuing the application for a stay should not be laid at the father’s door. Nonetheless, the fact that the application was only being considered at start of the substantive hearing was manifestly relevant. Evidence had been filed. Considerable costs had been incurred. As Mr. Setright submitted, the case was “ready to go”. A stay at this very late stage would have added to what has already been an extraordinary delay. S.1(2) of the Children Act 1989 requires the court, in any proceedings in which any question with respect to the upbringing of a child arises, to have regard to the general principle that any delay in determining the application is likely to prejudice S’s welfare. Strictly speaking, s.1(2) does not apply in this case because, under s.105(1), “upbringing” does not include the maintenance of the child. But even though the court is not “required” to have regard to the principle set out in s.1(2), the court is entitled to have regard to that principle when considering an application for proceedings about the maintenance of a child. The overriding objective under the Family Procedure Rules 2010 is that the court should be enabled to deal with cases justly, and this includes, inter alia, ensuring that it is dealt with expeditiously and fairly.

Thirdly, although there were undoubted gaps in the documentary evidence, they were not so serious as to lead me to think that the mother’s claim could not be determined fairly to both sides. It is probably true that an Australian court might have been better equipped to obtain and evaluate some aspects of the evidence. But I did not consider that this court was incapable of reaching a fair conclusion on the evidence available. Whilst an Australian court might be better able to assess the minutiae of the parties’ financial position, I did not consider that this court would be so handicapped by a paucity of evidence to prevent justice being done. This court had sufficient evidence to enable it to determine the Schedule I application, applying the approach laid down by English case law discussed below. The fact that the Australian court may have some advantages in this respect did not, in my judgment, outweigh the enormous disadvantages that would arise were this court to stay the proceedings and require the mother to engage the Australian court, where the proceedings started by the father have of course been stayed on the grounds that the English court is the better forum.

Finally, while I accepted that conducting the trial on behalf of the father presented considerable challenges for those representing him, I did not consider that they were insuperable. He was able to give instructions, and to file such evidence as he wished. I concluded that a fair cross-examination could be effected by adjourning the hearing after the mother had given evidence to enable an agreed note of that evidence to be prepared and sent to the father in Australia so that he could comment and then permitting the mother to be recalled for further questioning at the adjourned hearing. Furthermore, it seemed to me that the conduct of a trial in Australia would also present difficulties, not only for those representing the father but also for the mother, given the very great concerns about her security. I also considered there was force in the submission made on her behalf that, given the father’s approach to the litigation in both jurisdictions, there was a high likelihood that he would continue to be resistant and obstructive at every stage.

Applying the Spiliada principles, I therefore refused the father’s application for a stay on the grounds of forum non conveniens.

Having refused the application for a stay, I nonetheless continued to keep the issue of the fairness of the trial under review throughout the hearing. As indicated, I adjourned the hearing after the mother had given evidence to enable an agreed note of that evidence to be prepared and sent to the father in Australia for comment. At the adjourned hearing, the mother was recalled and further questions put to her by Miss Willbourne on the father’s further instructions. I am satisfied that the process was fair to both parties.

The relevant provisions of Schedule 1 for the purposes of this application are as follows:

“1 – Orders for financial relief against parents

(1)

On an application made by a parent…of a child … the court may –

(a)

in the case of an application to the High Court or a county court, make one or more of the orders mentioned in sub-paragraph (2)

….

(2)

The orders referred to in sub-paragraph (1) are

(a)

an order requiring either or both parents of a child –

(i)

to make to the applicant for the benefit of the child; or

(ii)

to make to the child himself.

such periodical payments, for such term, as may be specified in the order;

(b)

an order requiring either or both parents of a child –

(i)

to secure to the applicant for the benefit of the child; or

(ii)

to secure to the child himself,

such periodical payments, for such term, as may be so specified;

(c)

an order requiring either or both parents of a child –

i)

to pay to the applicant for the benefit of the child; or

ii)

to pay to the child himself

such lump sum as may be so specified

….

(3)

The powers conferred by this paragraph may be exercised at any time.

….

3 – Duration of orders for financial relief

(1)

The term to be specified in an order for periodical payments made under paragraph 1(2) (a) or (b) in favour of a child may begin with the date of the making of an application for the order in question … but –

(a)

shall not in the first instance extend beyond the child’s seventeenth birthday unless the courts thinks it right in the circumstances of the case to specify a later date; and

(b)

shall not in any event extend beyond the child’s eighteenth birthday

(2)

Paragraph (b) of sub-paragraph (1) shall not apply in the case of a child if it appears to the court that –

(a)

the child is, or will be or (if an order were made without complying with that paragraph) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment; or

(b)

there are special circumstances which justify the making of an order without complying with that paragraph

4 - Matters to which court is to have regard in making orders for financial relief

(1)

In deciding whether to exercise its powers under paragraph 1 or 2, and if so in what manner, the court shall have regard to all the circumstances including –

(a)

the income, earning capacity, property and other financial resources which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future;

(b)

the financial needs, obligations and responsibilities which each person mentioned in sub-paragraph (4) has or is likely to have in the foreseeable future

(c)

the financial needs of the child;

(d)

the income, earning capacity (if any), property and other financial resources of the child;

(e)

any physical or mental disability of the child;

(f)

the manner in which the child was being, or was expected to be, educated or trained

….

(3)

The persons mentioned in sub-paragraph (1) are

(a)

in relation to a decision whether to exercise its powers under paragraph 1, any parent of the child;

(b)

….

(c)

the applicant for the order;

(d)

any other person in whose favour the court proposes to make the order.

5 – Provisions relating to lump sums

(1)

Without prejudice to the generality of paragraph 1, an order under that paragraph for the payment of a lump sum may be made for the purpose of enabling any liabilities or expenses–

(a)

incurred in connection with the birth of the child or in maintaining the child; and

(b)

reasonably incurred before the making of the order to be met.”

The leading reported case on Schedule 1 remains Re P (Child: Financial Provision) [2003] EWCA Civ 837 [2003] 2 FLR 865. At paragraph 76 of that judgment, Bodey J put forward the following summary of the considerations applicable for claims under schedule 1 derived from earlier authorities:

“ (1) the welfare of the child while a minor, although not paramount, is a very relevant consideration as one of all the circumstances of the case;

(2)

considerations as to the length and nature of the parents' relationship and whether or not the child was planned are generally of little if any relevance, since the child's needs and dependency are the same regardless;

(3)

one of the financial needs of the child is for him to be cared for by a mother who is in a position, both financially and generally, to provide that caring. So it is well-established that a child's needs for a carer enables account to be taken of the caring parent's needs;

(4)

the respective incomes, earning capacities, property and other financial resources of each of the parents must be taken into account, together with their respective financial needs, obligations and responsibilities. So the child is entitled to be brought up in circumstances which bear some sort of relationship with the father's current resources and the father's present standard of living;

(5)

the latter concept lends itself to demands going potentially far wider than those reasonably necessary to enable the mother properly to support the child and it is necessary to guard against unreasonable claims made on the child's behalf but with the disguised element of providing for the mother's benefit rather than for the child;

(6)

in cases where the father's resources permit and the mother lacks significant resources of her own, she will generally need suitable accommodation for herself and the child, settled for the duration of the child's minority with reversion to the father; a capital allowance for setting up a home and for a car; and income provision (with the expense of the child's education being taken care of, generally, by the father direct with the school);

(7)

such income provision is reviewable from time to time, according to the changing circumstances of the parties and of the child;

(8)

the overall result achieved by orders under Schedule 1 should be fair, just and reasonable taking into account all the circumstances.”

In addition, at paragraph 77 Bodey J added some further observations of which the following is of relevance in this case:

“In considering the mother’s budget, at least in bigger money cases, the court should paint with broad brush, not getting bogged down in detailed analysis and categorisations of specific items making up opposing budgetary presentations. Rather, the court should do its best to achieve a fair and realistic outcome by the application of broad common sense to the overall circumstances of the particular case.”

With that in mind, I turn to the issues in the present case.

The mother’s case is that the overwhelming influence over her life for the past fourteen years has been the threat to her safety posed by the father. That threat has profoundly affected her life and that of her child.

For the past twelve years she and S have been living in Australia with occasional visits to the UK. For several years she cohabited with X, and with financial assistance from her mother invested in a succession of properties with X. About two years ago, however, she and X ceased cohabiting, and X paid out her interest in their jointly owned property which she utilised to buy a mortgage-free property in her own name where she and S now live. She remains on good terms with X, but says that she does not plan to live with him again, and is not receiving any financial support from him. Apart from some contribution from X during their period of cohabitation, the mother says that her sources of financial support during the past 12 years have been, first, loans from her mother, secondly, rental income from the Glasgow flat, thirdly, since 2010, the payments made under Singer J’s orders and, latterly, a small earned income from part time work amounting to no more than about £5000 or £6000 per annum. The mother says she has been unable to work as a nutritionist because of the fear that this would lead to the father discovering her whereabouts which remains an abiding fear for the mother, as she described vividly in her evidence to which I will return below. It was a matter of very considerable concern for the mother, and for the court, when it emerged that the father’s lawyers are in possession of information as to her location, including photographs.

On behalf of the mother, Mr Lyon categorised the claim as follows.

On behalf of the father, Miss Willbourne responds as follows. First, she submits that the claim is grossly exaggerated with a view to achieving for the mother as large a capital sum as she can. She contends that the mother has calculated the claim by simply attributing to the father the entire claim costs of bringing S up to date and beyond, to the end of tertiary education. Miss Willbourne submits that there is no indication to the extent at which the mother considers she is able to contribute to S’s costs herself.

Secondly, Miss Willbourne makes two submissions directed at procedural fairness. She accuses the mother of inordinate delay in prosecuting her claim, in particular between 2003 and 2008. In addition, Miss Willbourne contends that the mother has failed to give adequate disclosure of her own financial position both in terms of evidence as to past income and expenditure and also as to her capital. Miss Willbourne submits that this lack of documentary evidence is inexcusable and should lead the court to be circumspect about the financial claims now made.

Thirdly, Miss Willbourne says that the father does not accept that the maternal grandmother has ever had sufficient funds to pay the money claimed in the schedule. Even if she did have such funds, the father does not accept that the monies paid to the mother have been “loans” but, rather, contends that the sums were paid by way of gift, or alternatively advanced inheritance. Miss Willbourne submits that the father is in difficulty in challenging the mother’s case by the fact that the grandmother has not given direct evidence at this hearing. The grandmother’s accountant, AM, has given evidence, but Miss Willbourne submits that his testimony is an inadequate substitute. She submits that this compounds the unfairness of the way in which the mother has pursued her application. Miss Willbourne makes further submissions as to the genuineness of the mother’s case concerning the alleged “loans” which I shall consider below.

Fourth, Miss Willbourne submits that the mother has not been frank as to other resources available to her, in particular the financial support provided by X. The father contends that the mother has been living with X for over ten years and has been financially supported by him. As set out above, it is contended that the mother has been less than frank about her capital position, in particular concerning the acquisition of properties. Again, I shall consider this aspect of the case in more detail below.

Fifth, Miss Willbourne contends that the mother has either been less than frank as to her true earnings and/or failed to fulfil her true earning capacity, given her qualifications.

Sixth, Miss Willbourne submits that the mother has failed to give any accurate or reliable picture as to her real outgoings in Australia.

Finally, Miss Willbourne objects to the claims in respect of S’s education. She submits that it is unreasonable for the father to be expected to pay for private school fees. In addition, it is submitted that it is premature for any order to be made as to university costs, given the uncertainty as to S’s future plans. It is contended that the better course would be to adjourn this aspect of the case to be dealt with by the courts in Australia.

I shall now consider the various issues raised by the parties. In setting out the financial calculations, I apply the exchange rate at the date of judgment – the pound sterling (£) is worth approximately 1.81 Australian dollars, so the Australian dollar (A$) is worth approximately 55 pence.

Hanging over this whole case is the fact that the father has been convicted on two occasions of inciting the mother’s murder. I accept those convictions as evidence that the father did indeed incite her murder on two occasions. I further accept the mother’s evidence that he has threatened her on previous occasions, and that she has lived in constant fear of what he might do.

In contrast to the list in section 25 of the Matrimonial Causes Act 1973 to which a court must have regard in deciding how to exercise its powers to make orders for financial relief in divorce proceedings, the list in Schedule 1 to the Children Act of matters to which the court is to have regard in making orders for financial relief under the Schedule does not expressly include the conduct of the parties. Paragraph 4 of Schedule 1 does, however, require the court to have regard “to all the circumstances”. In my judgment, the father’s conduct in this case, in particular his convictions for two offences of inciting the mother’s murder, is plainly relevant. It would be not merely inequitable but also impossible to disregard it.

It is the mother’s case that she remains in fear of the father and that as a result her life, including her employment and earning capacity, has been very severely restricted. Having read her statement and listened to her in the witness box, I fully accept the mother’s evidence on this point. I have no doubt that she is genuinely fearful of the father and that this fear has circumscribed her life, and that of her daughter, for the last fourteen years. Her anxiety was evident throughout the hearing, and in particular on two occasions – when describing to me in outline what the father had done by way of incitement to murder her on the second occasion and, secondly, when it became apparent in the course of Miss Willbourne cross examination, through the production of recent photographs obtained by or on behalf of the father, that he is, or may well be, aware of her current location.

In oral evidence, the mother gave a vivid account of her current circumstances: -

“There is nothing normal about my life. One comes to accept it as normal but it is not normal. I have for as long as possible tried to avoid being found by [the father]. I need to be around to raise my child. Nothing is normal. I may not be the same person as I was then. Work becomes incredibly difficult. In terms of living arrangements you have to change as many things as you can. You are not open with people when you make friends. On a day to day basis you live in fear. When a car stops outside that you don’t expect, the instant reaction is – “is it a bad person?” “do I need to run?” you learn to live with that, but it is always there. I don’t feel any less frightened than I did fourteen years ago.”

The situation has plainly had an impact on S which the mother also described in oral evidence in answer to questions from me:

“Judge: What has been the impact on her of knowing he has these convictions?

Mother: There is a big fear; and big, big fear factor. She gets worried that something may happen to mum, and to her mum is everybody.

Judge: Presumably you can’t keep secret the fact that there are measures to guard against the risk.

Mother: That’s right. I have had to start including her as to the knowledge of those things. She is a bright young girl and understands they need to be there.”

These quotations from the evidence illustrate just how much the father’s conduct is a relevant factor in this case, not because the conduct by itself justifies a higher sum being paid in respect of S, but because it has had a profound impact on the life and lifestyle of S and her mother. If the father had not incited others to kill the mother, and not been sent to prison for most of S’s childhood, he would in all probability have been able to pursue a career which would have enabled him to support S in enjoying the sort of comfortable lifestyle which the father and mother enjoyed in earlier times. Furthermore, the mother would have been able to pursue her career as a nutritionist and make some substantial contribution to S’s support. Instead, he has been incarcerated for the past fourteen years, and she has been living the life of a fugitive, unable (as I find) to work in her chosen career and forced to rely on her parents, and for a period X, for financial support.

The father’s conduct is relevant in other respects, as will become clear as I proceed to consider other issues in the case.

It is the father’s case that there has been an inordinate delay in these proceedings due in part to the mother’s failure to pursue her claim in a timely manner.

It is correct that the mother has delayed pursuing her application for several years, but in my judgment no real criticism attaches to her in respect of this. In this respect, the father’s conduct is, as in so many respects in this case, the overriding factor. The criminal offences, and his pursuit of the mother, put her in an impossible position. Furthermore, his incarceration from 2000 onwards removed any prospect of his being able to pay anything towards S’s upkeep out of earned income. It was only when the ancillary relief issues in his own divorce proceedings had been resolved that a fund crystallized against which the mother could direct her claim. The delays since 2006 are attributable to the father’s delaying tactics and to regrettable delays within the court process itself, rather than any significant fault on the mother’s part.

Miss Willbourne on behalf of the father asserts that there is a marked lack of documentary evidence to support the mother’s past income and expenditure which makes it difficult for the father to deal with the case effectively. It is asserted that the mother is in reality leading a life different to that which she makes out. The mother’s principal argument in response to this assertion once again relates to the father’s conduct. Because of the perceived danger that he will discover her precise whereabouts, and make a third attempt to kill her, the mother has had to be extremely circumspect about disclosure. It is suggested that she has used this as pretext for concealing her true financial position. Having heard her give evidence, however, I reject the suggestion. I find the mother to be a plausible, honest and compelling witness. Her fear of the father is palpable. Furthermore, I accept her evidence as to her financial position. I do not believe that she has only disclosed limited material simply at of a desire to conceal a more advantageous financial position than she admits to. Accordingly, I reject any suggestion that the mother has conducted this litigation in an unfair fashion.

In fact, it seems to me that it is the father, by his various ploys and manoeuvres, both here and in Australia, who has conducted this litigation unfairly – in fact, with cynicism and deviousness. One glaring example of this is his assertion in the course of correspondence with the Australian Child Support Agency in which he asked that the assessment made by the agency be extended retrospectively “as I take my responsibilities seriously”. The real reason for his seeking a backdated assessment was that he assumed it would be assessed at nil, and that he would be able to use his assessment in some way to defeat the mother’s claim in this court.

A further example of his devious approach to the mother’s claim is his astounding, and wholly implausible contention concerning the proceeds of sale of Z House (hereafter “the Z House fund”) to which I now turn.

The fund is now worth in the region of £720,000, following the various payments made to the mother pursuant to Singer J’s order. It is, so far as the court is aware, the only asset available to the father. It is impossible to predict his earning capacity on his eventual release from prison, but I assume that it is unlikely to be substantial.

By paragraph 9 of my order of 25^th April 2012, the father was ordered to file a statement in respect of (a) his legal and/or beneficial interest of the Z House fund (b) each and every head of the mother’s Schedule 1 claim and (c ) any other argument he may wish to raise in these proceedings. He has repeatedly maintained his lawyers are instructed in respect of the mother’s Schedule 1 claim alone and are not instructed in any aspect of the Z House fund. Accordingly, whereas a statement in respect of (b) and (c) has been filed by his solicitors, a statement in respect of the Z House fund has been filed by the father (acting in person). In respect of paragraph 9 (a) of the order of 25^th April 2012, the father asserts:

“Insofar as it refers to myself, it is not in dispute that I am outside the court’s jurisdiction…I did not retain any advisors in the court’s jurisdiction so I am not bound by the said order…I am however prepared to fully assist this court by providing a without prejudice statement.”

The lengthy statement sets out his version of the history of the dealings with Z House and the process of sale. In short, his position is that he has no entitlement to any of the proceeds of sale as the sale of the property (which was held in the joint names of himself and his ex-wife) was unlawful because at the time of sale the property was subject to a “life tenancy” in his name. He alleges that the property was sold without his knowledge by his ex-wife who purported to convey vacant possession despite having full knowledge of his “life tenancy”. He adds:

“Putting aside the consequences of the criminal acts [by which he means the fraud allegedly perpetrated by his ex-wife] the [Z House fund] if my life tenancy be valid, is the property of my ex wife. However, as the present owners can no longer occupy the property, they would have a valid claim against my ex-wife for false conveyance.”

The father further asserts that the ancillary relief order made in the divorce proceedings involving his ex-wife, under which the Z House fund was paid to him, was made without reference to his “life tenancy”. In short, the father asserts that he is not entitled to any part of the proceeds of sale of Z House because the sale itself was unlawful as it was effected without reference to his alleged “life tenancy” in the property to which he says he is still entitled (and which, he adds, he intends to reclaim when he is released from prison).

In the statement, the father gives further detail about his dealings with Z House and the process of sale. I do not find it necessary to set out that account in any further detail. Suffice to say that I reject his account as wholly implausible and concocted in an attempt to put the fund beyond the reach of the mother in these proceedings. This is yet another ruse designed to avoid his responsibilities for S, similar to his attempts to persuade the Australian court to order a nil lump sum payment against himself.

The mother’s case in her statement is that, from 2002 – 2012, she did not work and had no income apart from the financial support she received from her family, her rental income from the Glasgow flat and latterly under the orders made by Singer J. She is now working four hours per week employed as casual labour for an individual who suffers from a physical disability, for which she is paid A$100 per week, which is the equivalent of about £55. Previously, she received child benefit for S but at the moment she is in dispute with the benefits system. Her income for the year ending June 2013 was about A$9,500, and in oral evidence she said that it would be about the same in the current year.

The father’s case is that the mother has been less than frank about her real income. This submission is based in part on the evidence of her tax assessment for the year ending June 2012 indicating taxable income in excess of A$29,000. The father submits that this is inconsistent with her claimed case about her low level employment. It is the mother’s case, however, that the sum of A$29,000 that appears in the earlier tax assessment included the tax payable in respect of the capital gain from the sale of the property (discussed below). Having heard the mother’s evidence, I completely accept her account as to her current income which I find to be in the region of A$10,000.

As stated above, before the breakdown of the relationship, the mother trained as a nutritionist. It is her case, however, that she has been unable to practise in this profession in Australia for the reasons set out above. She says that professional rules prevent her taking a job as a nutritionist under an assumed name. On behalf of the father, Miss Willbourne sought to argue that the mother could find employment in some other way as a nutritionist, or alternatively in a better paid role. But I fully accept that the mother’s evidence as to the restrictions on her earning capacity arising out of her current predicament. Miss Willbourne suggested in the course of cross-examination that, if the mother’s case was correct, it was “a pretty bleak prospect”. The mother agreed. So do I.

The father’s case is that he believes that the mother has been living with X throughout her stay in Australia. He does not accept the mother’s case that she has now finished this relationship.

In oral evidence, the mother confirmed that when she first returned to Australia in 1999 she did so on the basis that resuming her relationship with X “was an option”. In oral evidence, she gave more detail about her current relationship with X. She confirmed that the relationship had been ongoing from 2000 until about 2012, two and a half years ago when they had stopped living together. The current arrangement is that they live in separate homes and have separate financial arrangements. She remains on intimate terms with him but said that they ceased cohabiting because “we had difficulties when living together”. The mother said that X had never paid anything for S “she is mine and not his responsibility. I paid towards household bills as best I could.” They had a joint bank account but that has been closed.

Once again, I accept the mother’s evidence. I find that X is not currently providing the mother with any financial support which would, directly or indirectly, contribute towards S’s upkeep.

The mother asserts that her only assets are her flat in Scotland, providing a small rental income, and her property in Australia. The history of her property dealings in Australia is set out in her statement in these proceedings at paragraph 29. In 2002, she purchased her first property jointly with another person, who she did not directly name but whom I assume to be X. Her contribution to this purchase was £19,000 provided by her mother (as to which, see below). In 2006, another house was purchased jointly by the mother with X. She made direct financial contribution towards the purchase, although she carried out work on the property. In 2007, a third property was purchased jointly with X to which she again made no financial contribution. At that stage, the first property purchased in 2002 was sold and all of the mother’s interest in the process of sale was invested in the third property. In 2011, the second property purchased in 2006, was sold and the mother’s share of the proceeds of sale was again invested in the third property. In 2011, X bought out the mother’s interest in the third property for A$170,000. Using this sum, the mother was able to purchase a property owned solely by her and occupied solely by herself and S. The current value of the property is worth approximately A$200,000. The mother therefore asserts that she has no other interest in another property in Australia. In oral evidence, she said that she thought it likely that her name was still on the legal title of the third property, although on her account she has no beneficial interest therein.

I accept the mother’s evidence. The position therefore is that she has a property in Scotland, used to provide rental income, and the single property in Australia valued at A$200,000. The fact that she has this asset is attributable to her relationship with X, with whom she was able to invest in earlier properties, and to her mother, who loaned her the initial sum of £19,000 to fund the original purchase.

I now turn to consider the issue of the support provided by the maternal grandmother. The grandmother provided a written statement in these proceedings but did not attend to give oral evidence, on grounds of ill health. Instead, the mother called as a witness the grandmother’s longstanding accountant, AM, to supplement the grandmother’s written evidence. On behalf of the father, Miss Wilborne queried whether the grandmother really was unfit to give evidence, and pointed out that in his oral evidence, AM said that when he last saw the grandmother a year ago, “she looked good for her years” (she is aged 81). The medical report described the grandmother as having pneumoconiosis and high blood pressure. In her evidence, the mother said that the grandmother had been ill for quite some time but had got significantly worse in the last couple of years so that, at Christmas last year, “we thought we were going to lose her.” I accept the mother’s evidence as to the grandmother’s health.

In her statement, the grandmother said that, as a result of an inheritance from her own parents, and savings made by her husband and herself during their marriage, she has been in a position to help all of her three children. She added:

“In particular, and following S’s disappearance in December 1999 and from that date, I have helped [the mother] meet the costs of looking after S, travelling to and from Australia to find her. My husband and I have paid [the mother’s] initial legal fees and from my investments and from my investments and from the income from my investments I have been in a position to help [the mother] not only with her personal expenses and to provide her with a loan to be able to purchase accommodation for herself and S but also to assist her in running and caring for the flat that she owns in Glasgow. The payments I have made are not a gift as the amounts are very substantially greater than any assistance I have given to either [of my other daughters], thus for [the mother] to have this amount for herself would be totally unfair to her sisters. ”

The mother confirmed this account in her written and oral evidence. The reason why the payments were a loan as oppose to a gift was to avoid any disparity in the grandmother’s treatment of her three daughters and six grandchildren. She described in oral evidence how she and her mother had each kept a list of the sums provided in “a proper log”. She said that they would work out what the interest was each year and add it on to the overall sum. The interest rate had been agreed them and was based on Scottish bank rates. She said in oral evidence that initially she did not discuss with her sisters the fact that she was borrowing money from the grandmother but only did so when the sums increased. The schedule drawn up by the mother for the purpose of these proceedings has been drawn from the notes that she and the grandmother have kept.

In his evidence, AM confirmed, from his knowledge of the grandmother’s financial affairs, that she had the resources to pay the sums which the mother and the grandmother assert have been paid. AM’s evidence was that he had not discussed with the grandmother the question whether she should obtain security for the loan. He said it was not his role to give financial advice.

In her skeleton argument, Miss Willbourne stated that the father did not accept that the grandmother had the funds available to pay the sums claimed in the schedule, exceeding £100,000. Even if any such funds had been available, the father does not accept that the monies paid to the mother were loans. It is suggested that any sum paid by the grandmother was more to likely to be by way of a gift or alternatively an advance on the mother’s future inheritance. It is suggested that it was only after the Z House fund became available that the mother and grandmother entered into the alleged agreement for the repayment of the sums provided. It is further said that AM’s evidence was insufficient to provide any insight as to the grandmother’s reasons or motivation for making sums available to her daughter, nor her expectations about repayment.

I accept the entirety of the mother’s evidence as to the financial support she has received from the grandmother. I accept that she has received payments in the sums alleged, and also her evidence as to the basis on which the money was paid – that is to say a loan, as oppose to a gift. I reject the father’s suggestion that the payments were intended to be a gift and only “converted” into a loan when the Z House fund became available

It does not follow, however, that the mother is now entitled to claim a lump sum from the father to cover all the sums lent by the grandmother. There is, I find, an element of double counting in the way the overall claim has been put on her behalf. The mother seeks a lump sum from the father to cover arrears of periodical payments for S dating back to 2002, but also claims a lump sum to facilitate the payments of the loans made by her mother to cover, in part, living expenses since that date. Furthermore, an element of living expenses covered by the loan must inevitably have been in respect of her living expenses as opposed to those of S. In addition, the mother cannot recover the sum of £19,000 lent to her by her mother in 2002 for the down payment on the first property acquired in Australia since she has retained benefits of that investment in the form of the current property owned solely by her.

On the other hand, I do consider that the mother has a strong claim against the father for a lump sum to cover those sums lent to her to cover extraordinary expenses incurred in respect of S, including the legal fees incurred in 1999 (£2000), the air fare to Australia in 1999 (£1000), the expenses incurred in Australia in 2000 when trying to recover S after the abduction (£8000), the return air fare from Australia for herself and S in 2000 (£1500), the cost of S’s orthodontic treatment in 2011 (£5700) and the legal costs incurred in Australia in respect of the father’s repeated applications to the family court in that country since 2012 (£20,000), a total of £38,200. I consider these sums to be properly recoverable under paragraph 5 of Schedule I.

The other sums covered by the grandmother loans all relate to living expenses. This aspect of the claim should, I conclude, be covered by the claim for capitalised periodical payments. To address that aspect of the claim, I turn to consider the evidence as to the expenses incurred by the mother in keeping S.

The mother’s oral evidence was that the sums incurred in respect of outgoings on behalf of S amounted to approximately A$1500 per month, equivalent at the date of judgment to about £825. In November 2011, the mother had estimated the outgoings on S (excluding school fees) amounted to about £11,000 per annum (at a point when the exchange rate was higher). The mother has been reluctant to give detailed disclosure because of concerns about her security.

At an earlier stage in these proceedings, at a point where the mother’s location was not disclosed to the father or the court, I had invited the Official Solicitor, who was then still acting as advocate to the court, and to whom the mother’s location had been disclosed, to provide a comparison of the cost of living index between the host country and England and Wales. He concluded that the cost of living in the host country could probably be best compared to the cost of living in the South East of England. On behalf of the mother, Mr Lyon therefore proposes that the fairest way of compensating for her expenditure since 2002 (the earliest date on which payments can be ordered by this court, having regard to the terms of section 8 of the Child Support Act 1991) is by reference to the published child care costs in London reproduced in “At a Glance”. This is, undoubtedly, a broad brush approach, but I observe that the figure for the current year (£11,390) tallies approximately with the mother’s estimate for the cost of keeping S. Using those figures, Mr. Lyon has carefully prepared a table setting out an annual breakdown in two periods (1) from 15^th February 2002 to 31^st July 2008, totalling £37,535.98, and (2) from the 1^st August 2008 until S’s 18^th birthday on 18^th April 2015, totalling £59,940.15. I accept that this is an approximate but sufficiently accurate estimate of the costs of S’s upkeep during those periods, although the comparison is complicated by the fluctuation in the exchange rate.

Ordinarily these costs should be borne by both parents. In deciding on the quantum of provision to be made by the father, I have regard to the factors in paragraph 4 of Schedule 1 to the income, earning capacity, capital resources and needs of both parents. In this case, the father is not working but has a substantial capital fund from which he can make a sizable contribution. The mother has skills and qualifications, but her earning capacity and income have been severely restricted, I find, by the circumstances in which she lives as a result of the father’s conduct. Furthermore, she has no capital save for her home in Australia and the flat in Glasgow which gives her a small rental income. In the circumstances, I conclude that it is only right that the father should bear the principal responsibility for meeting the costs of looking after S during the whole of the period from 2002.

In all the circumstances, I conclude that the appropriate lump sum for periodical payments would be £35,000 in the period 15^th February 2002 to 31^st July 2008 and £56,000 from the 1^st August 2008 until S’s 18^th birthday on 18^th April 2015. In view of the mother’s evidence, which I accept, that the expenses of looking after S have been met by loans from the grandmother, I anticipate that the bulk of the sums recovered under these headings will be repaid to the grandmother.

The mother says that she has incurred school fees for S to date which, including extras, amount to A$57,666, which at the exchange rate as at the date of this judgment is equivalent to £31,761. Miss Willbourne says that the father does not accept that private school fees were or are a reasonable expense and he has no information about the child’s educational progress of the alternative facilities that may have been available. The father further points out that neither parent was educated privately

This last point is accepted by the mother, but she points out the father’s children by his marriage attended fee-paying schools, and asserts that before the breakdown of the relationship it was the father’s expressed intention that S should follow suit. In her statement, she explains that S moved to a private school in her last primary year in 2008 because of concerns about the quality of education she was receiving in the state sector in Australia. She has flourished in private education and is on course to go to university. The cost of her final year, including some extras, will be in the region of A$25,000 (equivalent to approximately £13,716).

I accept the mother’s evidence. This is another example of how the father’s conduct has impinged on S’s life and lifestyle. Had he been at liberty, and able to continue in his former line of employment, I find that the father would have paid for S’s education. Given the resources available in the Z House fund, I consider it wholly reasonable that the costs should be borne by the father out of that fund. The total sum payable under this heading, covering both past and future school fees, totals £45.477.

The mother further seeks financial support from the father to cover the cost of S’s university education in Australia. She has produced evidence that shows that S is of a level of academic ability to apply for and attend university. In her statement, the mother states that she has obtained comparative costs for universities in Australia. As an illustration, exhibited to her statement is an expenses guide for the University of Queensland showing that the ongoing monthly expenses for a single student living on campus would be in the region of A$20,000 for the 36 weeks of the academic year. In addition, the student would incur living costs for the rest of the year. For a student living off campus, the costs are estimated as being in the region of A$16,500 for the 36 weeks, or about A$23,000 for the whole calendar year. In addition, there will be expenses on books and travel to and from home which the mother calculates at about A$3,000 per annum. A further exhibit shows the approximate annual fees for courses at that university, which range from just under A$6,000 to just under A$10,000, depending on the course. The length of the courses ranges from four to five and a half years. Figures for Monash University in further documents exhibited to the statement are slightly higher. The mother puts the total costs for a five-year course, including living costs, academic fees, books and other equipment, and the cost of running a car and also allowing for inflation, at slightly over A$250,000, equivalent to about £137,500. Her primary claim was for a lump sum in that amount, but in evidence she agreed to a periodical order.

In oral evidence, the mother said that there is no grant system in Australia. There is, as in England, a system of loans to cover the university fees.

At the outset of the hearing, I raised with counsel the possibility of transferring the issue of payment for university education to the Australian court. On behalf of the father, Miss Willbourne supports this idea. She submits that the mother’s claim is “top dollar”, and that it would be wrong for the court to make an order without more evidence as to then options in Australia, both for the type of tertiary education available and as to the means of meeting the costs. Miss Willbourne submits that it would be wrong in principle to award any sum for university education in the absence of more evidence as S’s intellectual ability and educational progress, or about cost. Alternatively, even if the court accepts the evidence that has been produced as to S’s educational ability and prospects, it would, submits Muss Willbourne, be wrong to make any order under this heading, several months before it might occur.

Although I was initially attracted by the idea of leaving the issue of tertiary education to the Australian court, I have concluded that the issue needs to be addressed now. With respect to Miss Willbourne, I consider that this is precisely the right point at which to make a decision. S needs to know where she stands. Applications need to be made in the next few months to ensure that S is able to start at university in February 2015, which is the beginning of the academic year in Australia. The history of this litigation shows that it is highly likely that any application in Australia would not be determined before S starts at university. I accept the mother’s assertion that, unless this court makes an order under this heading, there is a substantial risk that S will be unable to go to university.

I consider that the evidence the mother has produced is sufficient for the court to make an estimate of the cost of S attending university, and that the principal responsibility for meeting those costs should be borne by the father. The mother, with her limited resources, will only be able to make a limited contribution. It is possible that S will obtain a part-time job, but any money she earns is unlikely to be more than incidental pocket-money.

In all the circumstances, I have concluded that the father should pay financial provision for the period of S’s university in the following manner. First, there should be a lump sum of A$4,000 (£2,200) to cover initial costs. Thereafter, periodical payments should be in the sum of A$22,500 per annum, adjusted annually in line with the Australian retail price index, from S’s 18^th birthday until she completes her university education. In addition, the father should pay the university fees on presentation of the invoice at the start of each semester. I direct that a sum sufficient to meet the entirety of these future payments for maintenance and university fees be transferred from the Z House fund to the mother’s solicitor and held by her to meet the payments as they fall due, with any residual sum transferred to the father when S completes her university education.

Finally, there are two further sums claimed on behalf of S - to cover the costs of past and future podiatry, and also the costs of a car. There can be no objection to the former, estimated at £880. As to the latter, I have considered whether it is a reasonable sum to include by way of financial provision for a child. The mother has produced figures for the cost of a five-year-old car ranging from A$9,300 to A$12,000. Given that this order is designed in part to cover her university years, and bearing in mind all the other circumstances of this extraordinary case, I have concluded that it would be reasonable to order the father to contribute £5000 for the cost of a small car for S.

The total sum awarded by way of lump sum is therefore as follows: (1) £38,200 (repayment of loans to grandmother) + (1) £35,000 (periodical payments 15.2.02 to 31.7.08) + (3) £56,000 (periodical payments 1.8.08 to 18.4.15) + (4) £45,477 (school fees) + (5) £2,200 (university start-up expenses) + (6) £880 (podiatry) + (7) £5000 (car) = a total of £182,757. From this must be deducted the sums paid under Singer J’s order, £56,000, leaving a total due of £126,757. This sum is to be paid to the mother from the Z House fund (currently standing at about £720,000) within 14 days of this order.

In addition, there will be an order that the father shall pay periodical payments in the sum of A$22,500 per annum from S’s 18^th birthday until she completes her university education. The payments shall be made quarterly in advance and adjusted annually in line with the Australian retain price index. In the unlikely event that any child support payments are paid via the Australian Child Support agency, such sums should be credited against the payments made under this order. In addition, I order that that father shall pay S’s university fees on presentation of the invoice at the start of each semester. I direct that a sum sufficient to meet the entirety of these annualised sums be transferred from the Z House fund to the mother’s solicitor and held by her to meet the payments as they fall due, with any residual sum transferred to the father when S completes her university education.

I shall now hear submissions on the precise terms of the order, and any other applications that may arise as a result of this judgment.