Topping up child maintenance and extending Barder

The decision in De Renee v Galbraith-Marten

This was a decision handed down by Cobb J just a few weeks ago, in August. The judgment belies the heady history of the case, which began in Australia in 2009 between a glamorous portrait artist and a working-class boy made good, and ends with a dramatic development of the law relating to the setting aside of orders.

The parties

The wife, Catherine de Renée, is an Australian artist. She is reliant on state benefits and child support. She lives in rented accommodation in London with the parties’ only child, A.

By contrast, the husband, Jason Galbraith-Marten, started life on an Essex council estate, but later qualified as a barrister. He took silk in 2014 and is described as one of the foremost names at the employment bar. He has since remarried and has two further children.

Catherine and Jason were married to each other briefly back in the noughties, but separated in 2009, when A was a baby.

The history

The litigation history between Catherine and Jason is both lengthy and furious. It culminated in a hearing in October 2022 before Mostyn J who, notwithstanding an extended civil restraint order, granted permission to Catherine to proceed with an application for child maintenance pursuant to Schedule 1 of the Children Act 1989, agreeing with her that on the face of it the current maintenance award (£1,350 per month) was likely to be too low.

It was assumed by Mostyn J during that hearing that as a leading silk Jason must be earning at least £350,000 pa. The maximum assessable income for the purposes of the statutory child support formula is of course £156,000 pa. Jason was therefore firmly in top-up territory.

Mostyn J commended to them the use of the statutory child support formula as the accepted guideline for calculating child maintenance above the CMS level. He indicated that by applying the statutory formula Jason’s maintenance liability would be £2,361 per month.

With that endorsement ringing in his ears, Jason found himself agreeing with Catherine for the first time since their divorce 14 years earlier and an order was made by consent in the sum of £2,684 per month.

Judicial guidance (or law?)

Twenty years previously, in GW v RW , Mostyn J had first posited the idea that where the paying parent’s income does not exceed £650,000 per annum, the statutory child support formula was the appropriate “guideline” to be applied when calculating the appropriate level of child maintenance above the CMS level.

That guidance was subsequently embraced and applied – notably by Mostyn J himself – and it wasn’t until 2022 that anyone apparently questioned it.

The questions

Only two weeks after the momentous agreement between Catherine and Jason in December 2022, in CMX v EJX (French Marriage Contract), Moor J delicately raised a judicial eyebrow when he was asked to award maintenance of £63,804 for one child, based on the statutory formula. Whilst accepting the “beauty” of the decision in CB v KB, Moor J pointed out that there were four children in that case, meaning that the total maintenance award was equivalent to £12,600 per annum – far more proportionate to the usual sort of level than the award which he was currently being asked to consider for one child.

Two weeks after CMX, Mostyn J himself was dealing with the elegantly named case of Collardeau-Fuchs v Collardeau. Accepting Moor J’s reservations, he suggested that the formulaic approach would “obviously” not be suited to claims brought under Schedule 1, but where a claim for child support was subsidiary to a wider claim for financial provision, it remained “pragmatic and useful” guidance.

Next, in March 2023, Cobb J delivered judgment in Re Z, which was a Schedule 1 case. He declared that the statutory formula was unlikely in such cases to be of relevance and indeed was irrelevant in that case. He interpreted the decision in CB v KB as offering nothing more than guidance in a marital case as to the starting point. The end result would be subject to an overall discretionary review.

The final straw was the decision in James v Seymour. Re-enter Mostyn J, who was by now persuaded that his formulaic approach should only be used where the application does not seek a household expenditure child support award (HECSA) and is not an application to vary an existing order. In practice, in accordance with his dicta in Collardeau, this meant that his formulaic approach should probably not be applied in Schedule 1 cases.

This would not be Mostyn J, however, if he did not enthusiastically grasp the opportunity to assist future judges. Helpfully, he devised a formula of his own, which he called the “Adjusted Formula Methodology (or AFM)”, and which he set out in an appendix to his judgment, by which practitioners and judges may calculate a CSSP.

Watching all this in real time is Jason. He sees that the judge who decided on the formulaic approach 20 years ago, who assured Catherine and himself that this was the accepted law in cases such as theirs, now not only accepts that the approach is limited in its application, but states categorically that the approach does not apply to cases such as theirs.

No wonder Jason applied to have the order set aside.

The set aside

Cobb J dealt with the application on paper, handing down his judgment on 22 August 2023. He set aside the order and determined that it should be listed for a summary hearing to determine the correct level of maintenance.

The court’s power to set aside an order where no error of the court is alleged derives from section 31F(6) of the 1984 Act. The supporting Practice Direction (PD9A FPR 2010) provides that the grounds on which a financial remedy order may be set aside are and will remain a matter for decisions by judges. Those grounds include:

1. fraud;
2. material non-disclosure;
3. certain limited types of mistake;
4. a subsequent event, unforeseen and unforeseeable at the time the order was made, which invalidates the basis on which the order was made (often referred to as a Barder event).

Cobb J examined whether these so-called “traditional grounds” for setting aside an order are capable of expansion. Having considered the authorities, he decided that:

• the traditional grounds are capable of expansion through judicial interpretation;
• that expansion is capable of including a change in “judicial guidance” as a subsequent event; and
• the change in the courts’ approach to determining child maintenance in high income cases was in this case a subsequent event which was both unforeseeable and unforeseen and which invalidated the basis on which the order in this case was made.

He also determined that if he was wrong about that, and had “stretched the ‘traditional grounds’ beyond comfort”, then he fell back on the language of the Practice Direction which appeared to him to contemplate grounds for setting aside other than the ‘traditional grounds’: “The grounds on which a financial remedy order may be set aside are and will remain a matter for decisions by judges”.

Change in law as a supervening event

I suspect we have all been called upon at one time or another to consider whether this event or that event was a Barder event; weren’t we all asked that question when Covid landed? There is a raft of decisions determining such questions. But has a change in law ever been found to be a Barder event?

Attempts have been made, but so far none had succeeded.

In Crozier v Crozier a husband had relinquished his interest in the former matrimonial home in return for the wife not seeking child maintenance. Along came the Child Support Act 1991, and the wife was obliged to seek child maintenance. The husband wanted the house back. Booth J said no. The introduction of the 1991 Act did not apparently frustrate the order.

In Greig Middleton & Co Ltd v Dendritic however the Court of Appeal appeared to contemplate the possibility that a change in the law may be capable of being a Barder event but characterised its decision as clarifying rather than changing the existing law.

In Arnold & Ors v National Westminster Bank plc, it was likewise considered that a change in law could constitute a Barder event but did not do so in that case.

In S v S (Ancillary Relief: consent order), Bracewell LJ considered whether the change in law brought about by the decision in White v White was a Barder event. She concluded that a change in law could constitute a Barder event, and that the decision in White was capable of being a Barder event, but that in this case it was not a Barder event because it was foreseeable.

And finally, in Mekarska v Ruiz and Boyden, it was held that a change in the law relating to bankruptcy did not on the facts of this case invalidate the basis on which the order was made.

And so somewhat like unicorns, Mostyn’s own white leopard and Brexit benefits, it appeared that the existence of a change in law Barder event was possible but no-one had yet seen one.

Until now.

Cobb J has clarified that a change in law is not only capable of being a Barder event, but in this case it was a Barder event.

There is a discussion to be had about whether the partial abandonment of the formulaic approach is a change in law or, as Cobb J himself put it, “judicial guidance”, and about whether judges’ decisions are ever “changes” in law or are merely declarations or interpretations which reveal earlier decisions to have been wrong.

For example, the decision in White itself was a judicial re-interpretation of the section 25 factors, and a removal of the “judicial gloss” which had until then been used to limit wives’ claims. To that extent White was nothing more than a change in judicial guidance but was nonetheless held to be capable of being a Barder event. Even in this judgment, Cobb J describes the guidance as both “guidance” and “the law as it then stood”.

The difference may be important in that whilst both a change in law and change in judicial guidance may be capable of being Barder events, so far, only a change judicial guidance has actually been found to be a Barder event. If however judges only ever clarify rather than change the law, if they only provide guidance rather than change, then this may be a distinction without a practical difference.

Conclusion

Mostyn J sat for the last time on 28 July 2023 and like the rest of us he will have to watch and wait from the sidelines to see if his new AFM, CSSP and HECSAs will be folded into the already rich mixture of Mostynisms which pack modern family jurisprudence and practice and which form part of his already significant judicial legacy, or whether they will slink quietly away to join the white leopard in its lair.

Meanwhile, next time the law changes shortly after a decision is made which doesn’t go our way, we can in principle at least argue that a Barder event has taken place (subject of course to all the other Barder requirements).

Jason and Catherine will have to wait until after 2 October this year to find out whether Cobb J will apply the AFM, or whether he will dispense with any kind of formulaic approach and return to a purely discretionary exercise of his judgment.

As practitioners, we will await that decision with interest, because it may signal the end of a formulaic approach to big money child maintenance cases which was, after all, a gloss on the statutory requirements of financial remedy legislation.

And finally, in light of the extraordinary history of this case and these two people, there still remains the question of what Katie will do next.

This article first appeared on the Resolution website.