SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS
AT ABERDEEN
F14/02
JUDGEMENT
of
SHERIFF
PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
in the cause
SYLVIA MACKAY or MUNRO
Pursuer and Respondent
against
COLIN WILLIAM MUNRO
Defender and Appellant
|
Act:
Miss Rosemary O'Neill, solicitor, A C Morrison & Richards, Aberdeen
Alt:
Mr Ewan M Campbell, solicitor, Burnett & Reid, Aberdeen
Aberdeen: 21st March 2006
The
sheriff principal, having resumed consideration of the cause, refuses the
appeal and adheres to the interlocutor of the sheriff dated 7 June 2005; finds no expenses due to or by
either party in respect of the appeal; quoad
ultra remits the cause to the sheriff to proceed as accords.
Note
[1] In this case the pursuer and respondent
sought decree of divorce against the defender and appellant in terms of crave 1
of the initial writ. In terms of crave 2
she sought a residence order in respect of their daughter Kimberley
who was born on 10 April
1990. (They also have an older son Adrian who was born on 27
February 1985 and was thus over 16 when the action was raised). In terms of
crave 3 she sought decree against the defender for payment to her of a capital
sum of £45,000.
[2] The action has had a somewhat unusual
history. For present purposes it is
necessary to notice only part of this.
By interlocutor dated 31 May 2002 the sheriff on joint motion closed the
record, allowed the merits of divorce to proceed as undefended with proof by
way of affidavit evidence, allowed parties four weeks from that date to lodge a
joint minute of admissions and assigned 9 August 2002 as a non-evidential
hearing (I am not sure exactly what this meant).
[3] At the hearing on 9 August 2002 a joint minute of admissions was
tendered at the bar (now no. 12 of process).
It appears that evidence was in fact led that day from the defender
alone. The interlocutor records that, on
the defender's motion, the sheriff dispensed with the requirement of a
shorthand writer, that evidence was led and concluded and that the sheriff
discharged a continued child welfare hearing which had previously been assigned
for 4 October 2002 and assigned 29 August 2002 as a child welfare hearing for
the sheriff to see Kimberley.
[4] The interlocutor dated 29 August 2002 records that the sheriff
directed the parties to attend the Family Mediation Service, found it
unnecessary to make any formal orders meantime and continued the child welfare
hearing until 25 October 2002.
[5] On 10
September 2002 a different sheriff pronounced an interlocutor in
terms of which he found it established that the marriage had broken down
irretrievably and divorced the defender from the pursuer. He made no order
under section 12(1)(b) of the Family Law (Scotland)
Act 1985, but no point has been taken in light of this. I am unable to say
whether he gave consideration to the terms of section 12(2) of the Children (Scotland)
Act or to the fact that, as appeared from the interlocutors of 9 and 29 August 2002, another sheriff was
already dealing with the case.
[6] There ensued various hearings, the chief
purpose of which appears to have been to determine the arrangements for Kimberley's
care and upbringing. Eventually, on 11
September 2003, the original sheriff pronounced an interlocutor in terms of
which he made a residence order whereby the child should reside with the
pursuer and, having heard parties' procurators on the financial craves (sic - I
presume this meant crave 3), made avizandum.
[7] On 3 December 2003 the sheriff pronounced
an interlocutor in terms of which he recorded that he had been informed of a
significant change of circumstances which might affect the fair distribution of
resources and appointed parties to be heard further on 11 December 2003.
[8] The interlocutor dated 11 December 2003 records that the sheriff,
having heard parties' solicitors on the change of circumstances, continued the
cause to a date to be afterwards fixed to enable the sheriff to interview the
child.
[9] The next interlocutor in the process is the
interlocutor dated 7 June 2005
which is the subject of this appeal. It
is not clear whether the sheriff ever did interview Kimberley
following the hearing on 11 December
2003. But, although there is
no record of it among the interlocutors, it appears not to be in dispute that
there was a brief hearing before the sheriff on 12 May 2005.
Neither the note which the sheriff appended to his interlocutor dated 7 June 2005 nor the supplementary note
which he wrote following the lodging of the note of appeal make any mention of
this hearing.
[10] In terms of his interlocutor dated 7 June 2005 the sheriff made nineteen
findings in fact. At the hearing of the
appeal the defender's solicitor challenged only finding in fact 17, and I will
return to this shortly. In summary, the
remaining findings in fact reveal that in 1994 the defender suffered an
accident at work. In May 2000 he
received payment of the sum of £120,000 in compensation for his injuries, and
of this sum £48,000 was agreed to be attributable to past wage loss and fell to
be included in the calculation of matrimonial property. The parties were agreed that the total value
of the matrimonial property at the material date was £52,000 and that the
pursuer had received furniture and cash to the value of £7,100. In light of this she sought the sum of
£18,900 being the balance of a one half share of £52,000 under deduction of the
sum of £7,100.
[11] In terms of findings in fact 9 and 10 the
sheriff found that, before he received payment of the sum of £120,000, the defender
was aware of his potential liability to make a payment to the pursuer in
respect of the sharing of matrimonial property and that he had subsequently
spent the entire sum of £120,000 on various matters including the purchase of a
house for himself. In finding in fact 17
the sheriff found that the share of the matrimonial property claimed by the
pursuer was agreed as fair at a figure of £18,900 and that the defender did not
have liquid funds to make any payment of this sum to the pursuer.
[12] In light of these findings the sheriff found
that the pursuer was entitled to payment of £18,900 as her share of the
matrimonial property and ordained the defender to make payment of this
sum. At the same time he postponed
payment until 10 April 2007
and found the pursuer entitled to interest on this sum at 5% per annum from the
date of citation until payment.
[13] In the note which he appended to this
interlocutor the sheriff wrote, inter
alia:
The principal complaint narrated on behalf of the Pursuer
was that the Defender had deliberately dissipated this large compensation
payment so that he would not have to pay anything to the Pursuer. Having had the benefit of receiving the
Defender's evidence from the witness box I see the force of that argument. The financial aspects of this action could
have been resolved at a very much earlier stage. I have accordingly found it entirely
appropriate to allow the Defender interest from date of citation until payment. However, the Defender is now looking after
both children insofar that he is providing a home for them. Adrian will be able to contribute to the cost
of maintaining that home. By April 2007,
Kimberley will be able to contribute to the cost of maintaining that home and
the intensive physiotherapy which the Defender has continued to receive might
well have enabled him obtain some kind of employment by (then). In any event the obligation of payment upon
him is quite small relative to the value of the house (maybe 20%) and he may
well be able to use the house as security for obtaining cash from which to make
the payment. Interest of course will
continue to run.
[14] It will be noted that in this passage the
sheriff referred to the fact that the defender was now providing a home for
both the parties' children. It appears that an early stage in the proceedings
Kimberley was spending half the week with one parent and the other half of the
week with the other parent. Subsequently
it was arranged that she should have her main residence with the pursuer and
that the defender should have contact with her at weekends. At some point the pursuer appears to have
moved to Northern Ireland and Kimberley went to live with her there. This is reflected in the sheriff's
interlocutor dated 11 September 2003 in terms of which, as noted, he made a
residence order to the effect that the child should reside with the pursuer.
[15] Up until this point it does not appear to
have been in dispute that the pursuer should receive a one half share of the
sum of £52,000 under deduction of the sum of £7,100 in respect of the furniture
and cash which she had received. The
thrust of the submission for the defender in relation to the payment of a
capital sum to her had been that he did not have the resources out of which to
pay such a sum. This submission appears
to have been advanced both at the hearing on 9 August 2002 and again at the
hearing on 11 September 2003. It may be
asked why the sheriff did not proceed to issue a judgement without further ado
on the pursuer's claim for payment of a capital sum. It seems that the explanation for the delay
is that he preferred, and the parties accepted, that the arrangements for the
care of the child should be finally settled before he made any decision on the
pursuer's financial claim.
[16] In November 2003 Kimberley evidently left the
pursuer in Northern Ireland and returned to live with the defender in
Scotland. She has resided with him since
then. It was this move on her part that
prompted the defender's solicitor to invite the sheriff to hear further
submissions on the pursuer's financial claim.
This led to the hearing that took place on 11 December 2003 at which,
according to the sheriff's supplementary note, "The defender argued that there
should either be a reduced award in respect that Kim was now living with her
father or payment should be deferred until Kim became either 16 or 18 or return
to her mother's care".
[17] There is no reference by the sheriff in his
supplementary note to what happened at the hearing on 12 May 2005. According to the defender's solicitor (and
the pursuer's solicitor did not dispute this) the hearing took place in
chambers and lasted approximately twenty minutes. In the course of it the sheriff was advised
that Kimberley continued to reside with the defender and it was submitted by
his solicitor that account should be taken of the fact that he (the defender)
would have the economic burden of looking after Kimberley without financial
support from the pursuer. The defender's
solicitor accepted that this was the extent of what had been said on this
particular matter at the hearing.
[18] Following the issue of the sheriff's
judgement dated 7 June 2005 the defender's note of appeal was lodged on 21 June
2005. The grounds of appeal were stated
as follows:
The Sheriff has found the Pursuer entitled to a payment
of £18,900 in respect of her share of the matrimonial property with interest
thereon at 5% per annum from the date of citation until payment. Payment of the capital sum has been postponed
until 10 April 2007. In reaching such a
decision it is respectfully submitted that the Sheriff failed to take proper
account of the fact that the Defender has, since the date of separation, had
the economic burden of caring for the parties' son Adrian and further that he
has and is likely to continue having the economic burden of caring for the
parties' daughter Kimberley. Whilst the
Sheriff in finding in fact 16 notes that "Kimberley is now in the full-time
care of her father. The Pursuer has no
financial burden in the caring arrangements for Kimberley.", he has not sought
to reduce the capital sum due to the Pursuer to reflect the economic burden on
the Defender in having to provide for the children without the support from the
Pursuer.
[19] In his supplementary note (written in
response to the note of appeal) the sheriff pointed out that no reference had
been made in the record to a division of the matrimonial property other than in
terms of section 9(1)(a) of the Family Law (Scotland) Act 1985. He records, as is not disputed, that at least
until the hearing on 11 September 2003 it was accepted that the pursuer should
be entitled to a one half share of the matrimonial property and that the
principal thrust of the defender's argument was that he could not afford to make
payment from his limited resources, his only asset being his house which was
required for the residence of the children.
After narrating the argument which was presented to him at the hearing
on 11 December 2003 (which I have recorded in paragraph [16] above), the
sheriff continued:
At that stage the provision for Kim was not clear. Kim was obviously in emotional turmoil having
left her mother in Northern Ireland and having returned to Scotland. The case was simply continued to allow some
stability to emerge and for Kim to express her view on future
arrangements. There, the matter rested
until the court drew to the attention of parties that further procedure was
required.
Had I been faced with the argument that there was an
unfair distribution of assets in respect that the Defender was entitled to
compensation for an economic burden because Kimberley had returned to live with
him I would have invited a detailed argument on that matter taking into account
the fact that Kimberley's older brother, Adrian, was of working age and would
have been contributing to the maintenance of the household. Such invitation may well have been opposed
(and properly opposed) by the pursuer in the absence of any pleadings to introduce
the submission. However, I was not addressed
in any detail on the matter, the principal focus of the Defender's submissions
being that his assets were so illiquid that it was not practicable to make an
order for payment against him. That is
the issue that I dealt with.
[20] Opening the appeal, the defender's solicitor
outlined the procedural history of the case which I have summarised above and
referred to the grounds of appeal. He
acknowledged that at the hearing on 9 August 2002 no submission had been made
to the sheriff about the economic burden upon the defender of looking after
Kimberley and he indicated that this was because at that stage this had not
been an issue in the case.
[21] Referring to the sheriff's findings in fact,
the defender's solicitor challenged only finding in fact 17 which reads:
The share of the matrimonial property claimed by the
pursuer is agreed as fair at a figure of £18,900. The defender does not have liquid funds to
make immediate payment of said sum to the pursuer.
The
defender's solicitor accepted that the first sentence in this finding had been
true as at 9 August 2002, but he proposed that the finding should now be
deleted and the following substituted therefor:
As at the date of proof the parties agreed that a fair
share of matrimonial property claimed by the pursuer would be a figure of
£18,900. In December 2003 following the
return of Kimberley to her father's care, the defender argued that this amount
should be reduced or deferred.
[22] The defender's solicitor submitted that this
revised finding more accurately reflected what had happened and he drew
attention here to the passage in the sheriff's supplementary note where he had
narrated the argument that had then been put to him on 11 December 2003 to the
effect that payment to the pursuer should be reduced or deferred. It was submitted that there was a
contradiction in the sheriff's supplementary note since, having recorded that
this argument had been made to him, the sheriff had gone on in the next paragraph
to say that:
Had I been faced with the argument that there was an
unfair distribution of assets in respect that the Defender was entitled to
compensation for an economic burden because Kimberley had returned to live with
him I would have invited a detailed argument on that matter .......
The
defender's solicitor submitted that this argument had indeed been put to the
sheriff, albeit not in any detail, both at the hearing on 11 December 2003 and
again at the hearing on 12 May 2005.
[23] At this point in his submissions the
defender's solicitor produced a minute which narrates that the defender craves
the court "To reduce any capital sum due to the pursuer to nil or such other
sum as the court deems appropriate".
This crave is followed by a brief article of condescendence in which the
defender makes various averments in support of his concluding averment that he
will have the economic burden of looking after Kimberley for the foreseeable
future. Finally there is a plea-in-law
in the following terms:
Having regard to the principles set out in section
9(1)(b) and 9(1)(c) of the Family Law (Scotland) Act 1985 and it being
reasonable having regard to the resources of the parties, the capital sum which
the pursuer might otherwise have been entitled should be reduced as craved
(sic).
[24] The defender's solicitor submitted that I
should allow this minute to be received and the pursuer to lodge answers
thereto and that I should thereafter refer the cause back to the sheriff so
that he could hear evidence and submissions on the matters referred to in the
minute and any answers thereto. Upon
prompting from myself, he submitted that I should recall that part of the
sheriff's interlocutor of 7 June 2005 in terms of which he found that the
pursuer was entitled to payment of £18,900 as her share of the matrimonial
property and ordained the defender to make payment of this sum, postponing
payment until 10 April 2007 and finding the pursuer entitled to interest from
the date of citation until payment.
[25] In response, the pursuer's solicitor
submitted that the appeal should be refused.
She pointed out that there was no reference in the record, nor had any
submissions been made at the time of the proof on 9 August 2002, that the
division of the matrimonial property should be other than in terms of section
9(1)(a) of the 1985 Act. She referred
briefly to the history of the case as it had been outlined by the defender's
solicitor and, after addressing various factual matters, submitted that,
following the return of Kimberley to the defender from Northern Ireland, the
argument about the economic burden of caring for the children might have been
in the contemplation of the defender's solicitor but had never been
developed. At that time the defender had
simply been trying to minimise the amount of the capital payment for which he
would be liable to the pursuer. There
had been a suggestion that the argument based upon the economic burden upon the
defender would be presented following the child's return from Northern Ireland,
but in the event this had not materialised.
In his supplementary note, the sheriff had recorded that, had he been
faced with such an argument, he would have invited detailed argument on the
matter. Notwithstanding the terms of the
defender's note of appeal in which he appeared to seek a reduction of the
capital sum awarded to the pursuer to reflect the economic burden on him of
having to provide for the children without support from the pursuer, it
appeared (so the pursuer's solicitor maintained) that there would be no
economic burden on the defender in relation to the parties' son Adrian and the
economic burden in relation to Kimberley was very recent.
[26] The pursuer's solicitor also pointed out that
for the purposes of section 9(1)(c) of the 1985 Act the court was required to
have regard to the factors specified in section 11(3) of the Act. She proceeded to address these factors and
submitted that the sheriff had taken full account of the circumstances
generally and these factors in particular in applying the principle of fair
sharing of the economic burden of childcare.
It was submitted that the statement in finding in fact 17 to the effect
that the defender did not have liquid funds to make immediate payment of the
sum of £18,900 to the pursuer reflected the argument which had been presented
to the sheriff to the effect that there should either be a reduced award in
respect that Kimberley was now living with her father or that payment should be
deferred until she became either 16 or 18 or returned to her mother's care. It was further submitted that the sheriff, in
deciding to defer payment of the capital sum until 2007, had taken account of
the fact that the defender was unable immediately to lay his hands on the
capital sum, that the sheriff had thus ordered that payment should be postponed
until Kimberly was of an age when she would be financially independent and in
so doing the sheriff had taken account of the economic burden of caring for the
child, had reflected on the facts and submissions which had been before him,
including the evidence of the defender himself, and had made a reasonable
decision in light of them. It was
further submitted that, if the matter were to be referred back to the sheriff
now, he would reach precisely the same conclusion as he had already reached.
[27] In my opinion the obvious answer to this
appeal is that what the defender ought to have done, following Kimberley's
return to his care in November 2003, was to have sought to amend his pleadings
to focus properly the issues raised by sections 9(1)(c) and 11(3) of the Act
and thereafter to persuade the sheriff to hear detailed submissions on these
issues in light of such additional facts as had been admitted, agreed in a
second joint minute of admissions or proved after further evidence had been
led. It was not enough in my view merely to present what appears to have been
at best a passing submission under reference to section 9(1)(c) at the hearing
on 11 December 2003 and again at the hearing on 12 May 2005. And, not having taken the course which I think
he should have taken, the defender cannot in my opinion be heard to complain
now that the sheriff decided as he did to order payment to the pursuer of a
capital sum in terms of his interlocutor dated 7 June 2005. In any event, to
the extent that the submission to the sheriff on 11 December 2003 was that
payment of the capital sum should be deferred until Kimberley was 16 or 18,
this of course was more or less exactly what the sheriff ordered (10 April 2007
being Kimberley's 17th birthday). I have refused the appeal
accordingly.
[28] It was agreed that there should be no award
of expenses either way whatever the outcome of the appeal.
