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Clare, Solicitor
Category: Law
Satisfied Customers: 32995
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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Child Maintenance Tribunal Case. Dispute no. of nights. I

Customer Question

Child Maintenance Tribunal Case. Dispute no. of nights. I have a court order that details and implies over 103 over night stays. The ex is in breach of said court order and limiting my nights to less than 103 purely to receive more CM. The Judge has directed he will not consider ex refusals or breach of order, only if I have actually had over 103. Is this correct? Initial Tribunal judge considered I had a case, but in court told effectively not and advice given was to return to family court to enforce my family court order.
Submitted: 2 months ago.
Category: Law
Expert:  Clare replied 2 months ago.

Thank you for your question

My name is Clare

I shall do my best to help you but I need some further information first

What is the actual pattern of Contact?

Customer: replied 2 months ago.
Hi ClareCourt Order for every other weekend and exactly half half terms (50% of both effectively)
Also 50% of the Holidays but when this is, is to be negotiated and agreed by both
As working maximum total I could have is 111. Asked for 109, Ex refused over 20 over nightsMany thanks
Expert:  Clare replied 2 months ago.

How long is the weekend - two night or three?

Customer: replied 2 months ago.
weekend 3 nights
half term 5 nights * 3
81 overnights available during rest of the holidays - ex restricted to 27
Expert:  Clare replied 2 months ago.

For clarity - he does not let you have them 50% of the holidays?

Customer: replied 2 months ago.
50% was verbally instructed by the court, as with weekends and half terms, but they did not want to dictate specific schedule or dates to accommodate the possibility of holidays abroad etc. The dates were to be agreed, but as in court Ex (she) produced a calender up to year end 2017 of dates she was going to allow without any prior discussion.
Expert:  Clare replied 2 months ago.

What is the exact wording of the order?

Customer: replied 2 months ago.
1. Court Summary ( not in court order) - it is hoped based on todays agreement that it is a springboard to further agreement for the school holidays
2. Judge Verbally: Mrs X, school holidays should be agreed appropriately, warning; I do not want to see you back in front of me, final chance to show you are capable
3. Court Order: "There shall be such further or other arrangements as may be agreed between the parties in writing"
Customer: replied 2 months ago.
The court order thus doesn't specify, but also doesn't say 27 out of 81 nights is acceptable.
Customer: replied 2 months ago.
I am basically asking the court to further encourage the ex to avoid further family court action, and predict based on evidence of dictation by ex that a family court would award me the 2-5 days minimum and thus CM would subsequently be based fairly on correct category. 2 extra overnights a year equates currently to £10 per week less maintenance. Further court action would cost a lot more than that.
Customer: replied 2 months ago.
Expert:  Clare replied 2 months ago.

Right I see.

I am afraid the CSA tribunal is not the place for this.

They ONLY deal with what is - not on what may be. They do not base anything on predictions - only on facts

If you wish to change what is happening you will have to go the route of Family Mediation and then the £215 for a Court application for a Child Arrangement Order setting out that you have alternate weekends and Half (not up to) but half of all school holidays

I am sorry I know that this is not the answer you were hoping for - but it reflects the actual legal position that you face.

Please ask if you need further details

Clare, Solicitor
Category: Law
Satisfied Customers: 32995
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
Clare and other Law Specialists are ready to help you
Customer: replied 2 months ago.
Thank you, ***** ***** but obviously disappointed, concluding that the system supports / condones her to reduce my contact in breach of court order, what has made it worst is where I have also found out today my Financial Order is also not worth the paper it is written on, because an indemnity from mortgage doesn't work in reality! Despite order that she is to take my name off FMH mortgage and could do this by selling her second home! I can not force this or use this should she default on the mortgage thus a. I can not get another mortgage for 14 years (end of current mortgage term) b. If I don't pay her mortgage my credit rating of 999 goes down, c. would thus force me to sell my home to pay off her second home mortgage! Any way thank you for your advice, I will still endeavour to win this case but at least I know the inevitable, thank you.
Expert:  Clare replied 2 months ago.

With regard to the mortgage - did she own the other property when the order was made?

Customer: replied 2 months ago.
she owned her second home before we met, kept it, rented it out now for 12 years without telling tax man! Overall it costs her £250 pcm more than it would do to sell and release me from joint mortgage, but somehow she has convinced the courts this is acceptable, even though her ultimate intention (as recorded conversation confirms!) is to make me homeless!
Customer: replied 2 months ago.
If you wondering why, it is because my estranged father, with whom has not contacted me in 25 years, she found out he was supposedly at deaths door 2 years ago, so took it on herself to become friends with him behind my back with the only intention of steeling any inheritance there might be from my brother and I. Knowing that he himself had never paid any child maintenance or any money for either of our upbringing due to the fact there was no child maintenance service then!
Expert:  Clare replied 2 months ago.

Was this a Consent Order or one imposed by the court?

Customer: replied 2 months ago.
Sorry was out, it is a consent order
Thank you very much for your help
Expert:  Clare replied 2 months ago.

Why did you agree - did she declare her other property?

Customer: replied 2 months ago.
Her other property was declared, they made up a personal loan to her father so advice from barrister was he can demand that back first, therefore had to accept 11% overall of all assets, otherwise would have gone on to final stage at a cost half the settlement figure. she has 2 houses worth 600k mortgage of £200k, 400k. Not relevant but i raised the £100k on my current house to pay the deposit on FMH. So I have 200k house less 100k mortgage, 100k + 43k due May, still unpaid. All i have left is hope she doesn't pay and I can use default instructions that she sells her second home to pay me off and hope that I can force her to reduce mortgage with the balance left over on FMH thus enabling my name to come of FMH mortgage! Hopefully my court order will supersede her fathers fake loan.
Expert:  Clare replied 2 months ago.

What efforts has she actually made to release you from the mortgage?

Customer: replied 2 months ago.
She can only get £88k mortgage, current mortgage 140k, so knowing the answer would be no, asked 7 months after court order just to take my name off the unaffordable mortgage. Refused. This a court would accept.
In reality she could re-mortgage her second home to pay me off as £110 capital in second home. Or she could sell it, pay me off and reduce FMH mortgage to a level she can afford without my name on it. Thus satisfying court order. I can not force any of the above unless that is she doesn't pay the settlement figure.
They have already indicated they will not pay the 9.59 daily interest, currently accumulated to £850! due date being 16th May.
They did produce the T1, but omitted completely the indemnity! claiming I could have signed that document therefore no interest payable!
Her solicitors are bullies. To the point, although not normal, consideration is being made of making an official complaint for their behaviour. Don't help me!
Expert:  Clare replied 2 months ago.

What is the exact wording of the Order?

Customer: replied 2 months ago.
5 Lump Sum Order
The Respondent wife shall pay or cause to be paid to the Applicant Husband a lump sum of £43,750 by 4pm on 16th May 2016. In default of payment by the due date interest shall accrue at the county court judgment rate until the date of payment and the property at (second home) shall be sold forthwith.
6 To secure release from liabilities
And the Respondent Wife shall use her best reasonable endeavours to procure the release of the Applicant Husband from the covenants under the mortgage secured on the FMH in favour of ..... and shall in any event indemnify the Applicant Husband from any liability in relation to the FMH arising from the date of transfer as provided for below.
7 Transfers of property
Contemporaneously with paragraph 5 above the Applicant Husband shall transfer all his legal and beneficial interest in the property known as the Respondent wife, subject to the mortgage secured thereon in favour of ....
8 Order of sale
In the event of the FMH having to be sold in accordance with paragraph 5 above, the following conditions applyNot sure I understand no.8, because no.5 doesn't actually say anything about FMH being sold, just her second home, unless of course if the second home did not raise enough for lump sum due.Anyway, her father has financed all court processes and allegedly paid off tax man (£100k undeclared her income) so about £100k thus far. I was presuming the £44k will also come from him, but there were rumours that her father was taking possession as payment in an attempt to stop any of the above! I have access to the land registry so have been checking regularly. Will try again in a minute as web site opens at 6:30am.
I say allegedly paid off tax man because on E-Form and last week at the Tribunal she put down additional income that still omits income tax!
Expert:  Clare replied 2 months ago.

Has she actually paid the lump sum to you?

Customer: replied 2 months ago.
Not yet!
We are waiting with fingers crossed for Monday
Technically we hope they don't pay
Thus hoping for sale of her second home and all sorted
Obviously if she don't pay, i am selling up and moving in with my mum or renting until things are sorted (sorted as in she is in position to take my name off mortgage)
Unfortunately by then too old to get mortgage!
Meanwhile her fiancé sent me a text last month: "... anything I can do to help you f*** your ex over let me know, u think what she done to you was bad but she needs help, she is pregnant, we both planned it, now i find messages between her and her friend planning an abortion and going to pass it off as a miscarriage to me, will give you any info u need to s**** her over" Obviously i did not reply!!!! and not received anything since, He is still around although not as much and I don't know the latest! He has three kids of his own just starting out the divorce process!!!
I have enough material to write a book!
Expert:  Clare replied 2 months ago.

Actually things are not as grim as you think

Se ha sto use her "best reasonable endeavours" - and this could include selling the second property.

The starting point is to ask her to explain what efforts she has made to remortgage.

Given the existence of this other asset simply saying that the current mortgage company says no will not be sufficient

Customer: replied 2 months ago.
far 2 other solicitors have suggested otherwise:
Mine and a friends:
"As an Order has been made, the husband cannot refuse to transfer the property upon the payment. If he doesn’t go ahead and do that he will be in breach. To use “best endeavours” to do something is always a bit difficult to enforce as really the wife need only ask the question of the lender and if they refuse, she has tried and failed = best endeavours. Lenders are notoriously bad at releasing people from mortgages and try to hang onto both parties if they can. For the wife to get the husband released, she would have to show that she could borrow the amount outstanding on her own – if we think she can, it may be worth pushing the lender for their requirements to transfer the property into wife’s name alone."
Expert:  Clare replied 2 months ago.

I disagree.

Yes you have to complete the Transfer - that is a given

Yes if this was the only property that she owned then simply asking the Mortgage Company and consulting a Mortgage adviser each year would suffice to meet the term "Best reasonable endeavours"

However that is not the position in your case.

She has other assets that oculd be used to achieve your release - so if she has not done so within two years you have an excellent chance of taking the matter back

Customer: replied 2 months ago.
It has been 9 months since court order
But if she pays, then sells second property either on open market or to her father to pay off the £143k she will then owe him
Then it would be her only property!
Expert:  Clare replied 2 months ago.

How much is the property worth?

Customer: replied 2 months ago.
sorry my reply did not seem to work when accessed via my mobile, many apologies.
The house is valued at £200k, mortgage £89k, capital £111K less £45k she owes me = £66k
FMH mortgage £131, mortgage capability £88k, balance needed = £43k to take my name off FMH mortgage
£66k - £43k needed = Balance left over £23k to pay capital gains and sales fees (needed for this is about half this figure giving her additional £10k to spend)
Job done!
Customer: replied 2 months ago.
Please, you have been so kind already don't read this, I just had to write out my opinion on Child Maintenance based on basically you letting me know I am going to loose!Child Maintenance ConclusionIf I stood in front of a tribunal judge with a family arrangements order that specified 3 nights a week, then would I be right to presume that if I did not actually have 3 nights a week, then the appeal would have been made by Mrs F and the Directions of the court would be to prove I had not had 3 over nights a week?If I stood in front of a tribunal judge with a family arrangements order that specified 3 nights a week, then would I be right to presume that if I did not actually have 3 nights a week, would the court consider a breach of the court order or would the Directions of the Court be to return to family court to enforce the court order?If I stood in front of a tribunal judge with an enforcement order that specified 3 nights a week, then would I be right to presume that if I still did not actually have 3 nights a week, would the Tribunal then consider a breach of a court order or is the answer that the family arrangements processes are there to force 3 nights a week and only once forced would an appeal have proof of actual 3 nights a weekIf a Independent Tribunal can only consider a case if I have actually had 3 nights a week, then what is the point of a Tribunal Service. This would also mean that the child maintenance service can not be disputed or regulated and by definition unfit for purpose. Surely any appeal against CM should be referred to the family court and enforced by them, thus enabling CM to act on Family arrangements order.However, if an Independent Tribunal has the authority to support a family arrangements order and if said order specified 3 nights a week, consider any breach of said order, with appropriate proof, then can they make an independent decision based on proven breach of family arrangements order.I have proof of breach of a family arrangements order therefore if the latter above is true then I should be entitled to prove this to an independent tribunal for their consideration.My court order directs that additional overnights should be agreed between the parties. It does not say no extra nights should be agreed. It does not say any other nights should be dictated by Mrs F.I have a years worth of emails, quote “as Main carer I dictate when you can have over night stays” clear breach of my court order. At tribunal hearing Mrs F produced a calendar of dates from the court date until the end of 2017, 17 months of dictated dates into the future that have not been agreed or even discussed, therefore proving without doubt a breach of my family arrangements order as well as judges verbal directions and judges summary of directions held on file and handed to the tribunal court in evidence.As far as I am concerned the only thing left to prove is that I have attempt to agree and requested 3 nights a week. This I have proved.Funny how the Child Maintenance Service was not asked to prove who the child was, named in their objection paperwork, I have three children not 1 and none of my children's names is Alesha, so not quite sure what case they were defending.At the end of the day my children are my priority, i have no objection paying CM, in fact up until Family Court where i got overnight access I even paid CM at their rate for no access. What I disagree with is a process that encourages and rewards individuals to stop access, when it should be seen to encourage and support access as well as court orders. If a court can make a reasonable order then surely it should be the individual in breach of said order that should be addressed not the individual that has paid for the court order and paying for the breach.
Expert:  Clare replied 2 months ago.

Unfortunately your confusion arises because you see the Tribunal as part of the Family Law system rather than part of the Financial system.

The Tribunal is not interested or involved in the Family law system in any way shape or form - the issue is money and figures and nothing more (sorry for the bitter tinge)

I am still confused as to how or why your team let you agree that Order and leave you on the mortgage when there was a second property around.

Has she got a new partner?

Customer: replied 2 months ago.
Hi there ClarePartner, apparently this has cooled off so to speak, i presume after this message he sent me: "... anything I can do to help you f*** your ex over let me know, u think what she done to you was bad but she needs help, she is pregnant, we both planned it, now i find messages between her and her friend planning an abortion and going to pass it off as a miscarriage to me, will give you any info u need to s**** her over" Obviously i did not reply!My solicitor is a positive thinking optimist, and the barrister seemed to be out of date claiming I could loose my home in the financial settlement to pay for her two homes! The whole ordeal was based around attempting to convince me not to go on to the final stage because it would cost me £20k that I didn't have. Good bit: the Judge took some time attempt to explain to the ex she could loose the FMH, Bad Bit: their solicitors and the fact that the ex lied about everything and no one seemed interested, she de-valued her two houses by £120k! I had to get a second home valued appropriately and then her barrister said in court, "finally mr F has bothered to value her second home took long enough"!Anyways: Finances; absolutely nothing i can do, due May, still no payment as at today, so hopefully I can force sale of her second home combined with name off mortgage
Child Maintenance, yes I am frustrated, i have no money to go back to family court despite her breaches of my court order.
I have given up.
My conclusion I am sorry to say is that everyone is only after money, courts, solicitors, CM and ex. They say that it should be all about the children, but none of it has been, all the results are effectively detrimental to them. The only time anyone in authority will get involved and consider them is if one of them dies!If CM is all about money, why are they not considering that I am due to pay her £5 a day, yet she is due to pay me £10 in interest for none payment of Financial order? I know the answer! everything is totally separate, but in reality they are all connected, the criteria used by CM is based on Family arrangements order!
So tell me "(sorry for the bitter tinge)" i read from this you have had / have issues with them? I hope not too badMy father never paid any CM ordered by them. He only gave my mum £50k settlement, half the value of the FMH. That FMH is now worth £1.5 million! and it was this figure the my ex wanted to steel when she found out he was supposedly on deaths door! Rather than me, she chose the money, the system effectively supports this and I have to pay for it.They say it is supposed to be about the children. My employment contract ends next month and I find myself considering not working or say studying for a while, as an objection to their system. If the system encourages these thoughts and actions, then the system is not working and the only people to suffer truly, The Children!
Customer: replied 2 months ago.
Your turn on scale 1 - 10 is my story average? obviously not as bad as recent headline!
Expert:  Clare replied 2 months ago.

You don't need money to go back on the Children - or at least you only need £215.

You are articulate and capable - go back and get an Order which sets out the time so that you get the time the children deserve.

And sadly - average to bad

Customer: replied 2 months ago.
It is sad to hear the stories of other fathers who have given up everything, spent thousands loosing all their assets, not working, concentrating more on how to beat the system, purely and simply because the system is corrupt and unfair.
Before starting I associated the work "Justice" with Courts. Told "Children" are the priority. Yet reality is everyone involved is actually only interested in "Money". How to steel it and how to avoid paying it. I rang every Child welfare body and not one would/could or was basically interested unless one of my children died. Too late.
My ex, and her father, are "Narcissistic Sociopath" there are 16 traits to establish this condition and both of them tick all sixteen boxes. My story will never end!
Anyway, thank you for advice, if I do become more financially secure, I will endeavour to go back to court, especially if something bad happens. Meanwhile, as things in the near future will obviously change as the children get older all I can do is make the little time with them precious. (I made the decision at 9 years old never to see my father again, and I never have, just my ex wife!). I fortunately don't give a dam about money and hopefully this may rub off on them.Many Thanks Again
Best wishes
Expert:  Clare replied 2 months ago.

Go for it sooner not later - £215 can be saved up!

Customer: replied 2 months ago.
Okay will think hard / collect all evidence together
I downloaded the enforcement procedure, is this the right way I go?
I have the application form for copy of the recording and/or script of the hearing (in which the 3 judges verbally attempted to explain to ex this was her last chance to prove she could "negotiate" and that they did not want to see her in court again)
I have a copy of the notes made by judges that the clerk of the court sent me. quote: "It is hoped the agreement reached will be the springboard for dialogue for the future"
Expert:  Clare replied 2 months ago.

I am afraid that you cannot enforce the order as it is not specific enough

You have to apply for anew Child Arrangement Order which specifies the actual dates - which can then be enforced.

Do not bother paying for a transcript it will not be of any great use - the Court will be well aware that she is being pigheaded and the statements that were made are made in many cases

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