Mark Austin v Christina Haynes

Lord Justice Moylan:

The father appeals from the order made by His Honour Judge Oliver, sitting as a Deputy High Court Judge, (“the Judge”) on 9 July 2021.

The relevant provisions of that order are:

(a) an interim charging order made against the father’s interest in a property in London in respect of sums due: (i) under a financial provision order, made under Schedule 1 of the Children Act 1989 on 11 December 2018 (“the 2018 order”); and (ii) under orders for costs made in proceedings between the parties, together totalling £203,136.43;

(b) the variation of the 2018 order so as to require the father to make “the housing fund” referred to in that order available to the mother by 9 October 2021; and

(c) a passport order requiring the father to lodge his passport with the mother’s solicitors or the Tipstaff by 6.00 pm on 9 July 2021 and to be held by them until 6.00 pm on 13 August 2021, being the day after the date of the hearing fixed to determine whether a final charging order should be made.

The father is represented by Mr Ibrar, who appeared below with Ms Julyan SC. The mother is represented by Mr Calway, who did not appear below, the mother then being represented by Mr Day. Mr Devlin appeared on behalf of the legal owner of the London property, Hamersley Invest Anstalt, which was not represented at the hearing below.

At the outset of the hearing of the appeal, the court raised with Mr Ibrar the issue of whether the father was in breach of the passport order which had been made by the Judge. This was for the purposes of deciding whether, if he was, what the appropriate response might be, including as to whether the father should be permitted to proceed with his appeal. It soon became apparent that, at the conclusion of the hearing below before the Judge, at which the father was present in person, the father did not give his passport either to the mother’s solicitors or the Tipstaff as required by the Judge’s order but immediately left England and returned to Switzerland where he lives.

Mr Ibrar sought to explain the father’s conduct by saying that, although the father had heard the Judge make the passport order, he had not been served with the order and the Judge had said that he was making the order without notice. Despite the unconvincing nature of this explanation, rather than engage further with this issue, we decided to allow the appeal to proceed to be determined on its merits.

I set out the grounds of appeal in more detail below but, in s