W & Ors (Children), Re

Factual and Procedural Background

The opinion concerns an appeal by the Appellant against a family court judge's orders relating to the joint residence and time division of two children, as well as ancillary financial and costs orders. The judge had made a joint residence order for the children and imposed a discretionary division of time, which the Appellant challenged without seeking to overturn the joint residence order itself. The background includes significant acrimony between the parents, resulting in one child becoming estranged from the mother and expressing a strong preference to live with the father. The judge's orders included a financial provision for the mother and a costs allocation. The appeal followed a procedural direction by Wall LJ to consider permission applications and to seek the trial judge’s comments on alleged procedural irregularities and financial order criticisms.

Legal Issues Presented

1. Whether the judge committed serious procedural errors or irregularities in handling the CAFCASS officer’s evidence and in his conduct towards the father during the hearing.
2. Whether the judge erred in his discretionary division of the children's time under the joint residence order.
3. Whether the financial order, including periodical payments to the mother, was properly made taking into account both parties’ earning capacities and household outgoings.
4. Whether the judge improperly relied on a district judge’s Financial Dispute Resolution (FDR) order that recorded the husband’s obstruction.
5. Whether the costs order made by the judge was unprincipled or unsustainable.

Arguments of the Parties

Appellant's Arguments

• The judge made serious procedural errors by mishandling the CAFCASS officer’s input and interrupting the father’s evidence, including making a prejudicial comment calling the father a "stupid man".
• The judge erred in imposing a division of children’s time that was not proposed by the parties or the welfare officer and failed to consult them on this independent approach.
• The financial order was flawed because it failed to properly consider both parents’ earning capacities and the inequality of household outgoings, resulting in an unfair order.
• The judge improperly took into account a district judge’s FDR order which criticized the husband for obstructing the resolution process.
• The costs award was excessive and unprincipled, particularly in relation to the timing of costs incurred and the application of Calderbank offers.

Respondent's Arguments

The opinion does not contain a detailed account of the Respondent’s legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court carefully considered the procedural criticisms and found the judge’s independent approach to dividing the children’s time under the joint residence order to be an unusual but understandable exercise of discretion. The court noted that the judge’s solution was a late development in his reasoning and that parties had since reached a sensible agreement varying the order by consent, reflecting practical realities and promoting family therapy. The court emphasized the importance of the parents cooperating post-litigation for the children’s welfare.

Regarding the financial order, the court upheld the judge’s findings that the mother had a dormant but realistic earning capacity and that it was in the child’s interest for her to remain at home for the time being. The judge’s consideration of household incomes and outgoings was found to be clear and unassailable. The court rejected the suggestion that the judge had improperly relied on the district judge’s FDR order, recognizing that such records are unusual but not necessarily improper, and that no undue weight appeared to have been placed on it.

On the issue of the judge’s conduct, the court accepted the judge’s acknowledgment that calling the father a "stupid man" was unjudicial but did not find it indicative of prejudice or prejudgment. The court also found no merit in complaints about the judge’s reactions after judgment.

The costs order was supported by the court, which found the judge’s discretion wide and his allocation reasonable given the trial circumstances and the parties’ Calderbank offers and counter-proposals.

Holding and Implications

The appeal was DISMISSED. The Appellant was ordered to pay the Respondent’s costs, to be assessed.

The decision affirms the trial judge’s discretionary orders concerning the children’s time allocation, financial maintenance, and costs. It underscores the court’s reluctance to interfere with discretionary family law decisions absent clear error, especially where parties have reached post-judgment agreements. The opinion highlights the importance of parental cooperation and mediation in family disputes and confirms that judicial comments, while regrettable, do not necessarily amount to bias or grounds for appeal. No new precedent was established.