Hems v Clemans

Judgment

Lord Justice Wall:

This is an application which came before us by reason of an order made by Ward LJ on 7 April 2009. The applicant, Mrs Clemans, seeks permission to appeal against an order made by HHJ Tyzack QC, sitting in Exeter on 4 July 2008.

In order to explain how the matter came before HHJ Tyzack, however, it is, I think, necessary to go back in time. The applicant, Mrs Clemans, was Mrs Hems and was married to Dr Hems, and they have three daughters, L, S and R; now aged respectively 18, 15 and 12. The eldest daughter, we are told, is now doing her A levels and, subject to grades, has a place at university; the second child will be taking her GCSEs, and the third child is in her first year at secondary school.

Before the district judge, on 4 January 2007, the parties were able to compromise their respective financial claims. In essence, Mrs Clemans remained in the matrimonial home; she paid Dr Hems out for his interest in that property and transferred various policies to him. As a consequence, as between the two of them, it was a clean break. However, there was a very clear and substantial agreement in relation to their three daughters. Dr Hems agreed to continue paying pocket money for the children on the current basis with various top up costs, and he also agreed that he would pay a sum towards the outstanding school fees for the eldest child on the basis that Mrs Clemans paid a similar amount. He agreed also to pay for various photographs and there was a deduction permitted from the lump sum which Mrs Clemans was due to pay to her former husband.

Importantly for our purposes, Dr Hems also gave five undertakings to the court on that occasion. He was to pay 50% of the cost of music lessons for each child, to include exam and accompaniment fees (receipts to be provided by Mrs Clemans); he was to pay 50% of the costs of any school, guide and ranger trips for each child of the family (receipts to be provided by Mrs Clemans); and he was to pay 50% of the reasonable costs of providing school uniforms and equipment as required by the three children each year (receipts to be provided by Mrs Clemans). He was also to pay 50% of any tuition costs for R in relation to her sitting the 11 plus exam (receipts to be provided by Mrs Clemans), and he was also to take out life cover with a suitable insurance company agreed by Mrs Clemans and to include critical illness and redundancy cover sufficient to cover the total cost of his obligations to the chi