Neutral Citation:  IEHC 648
THE HIGH COURT
RECORD NO: 47M/2014
IN THE MATTER OF THE FAMILY LAW DIVORCE ACT 1996
Judgment of Ms. Justice Bronagh O'Hanlon delivered on the 28th day of November 2014.
1. This application comes before the court on behalf of the applicant seeking the attachment and committal of the respondent pursuant to O.44 of the Rules of the Superior Courts 1986 arsing from the respondent’s failure to comply with an order of this court dated the 16th of July 2014, which, inter alia, directed the respondent to recommence paying the sum of €1,200 per week to the applicant for her support and the support of the dependent children of the family with effect from the 21st of July 2014 and every Monday thereafter pursuant to s. 12(1) of the Family Law (Divorce) Act 1996.
2. This motion arises from ancillary divorce proceedings between the parties and is grounded on affidavit evidence. On the 16th of July 2014, the applicant filed a motion for an interim maintenance order to this Court. The applicant outlined that she had been in receipt of maintenance in the sum of €1,200 per week from the respondent, but that the respondent had failed to pay the aforementioned maintenance payment in its entirety in the seven weeks prior to this hearing. Along with the expenses of managing the household, the applicant provided an account of the educational expenses of the parties' children to the Court.
3. The respondent attributed his failure to pay the aforesaid maintenance payment to a separate ongoing legal dispute with a third party. In this motion hearing, the respondent was acting as a lay litigant. This Court acknowledged the respondent's right to self-representation, but due to the complexities and nuances of the subject matter of the proceedings and the serious nature of attachment and committal proceedings, this Court advised the respondent to avail of professional legal representation.
4. On the 16th of July 2014, the Court granted the following orders: (i) an order directing the respondent to recommence the payment of the sum of €1,200 per week to the applicant for her support and for the support of the dependent children of the family with effect from the 21stof July 2014, (ii) an order entitling the applicant to withdraw the sum of €25,000 from the parties' joint bank account for the normal household expenses of the family home, (iii) an order entitling the respondent to withdraw the sum of €25,000 from the parties' joint bank account to be used to obtain appropriate accommodation and (iv) an order providing liberty to the applicant to withdraw a further lump sum, up to maximum of €30,000, from the parties' joint bank account to discharge specific educational costs and the upkeep of the dependent children as they fell due, given that the three children were all in university at this time and were studying in college away from the family home.
5. On the 17th of October 2014, the applicant filed a motion for the attachment and committal of the respondent for failure to comply with the Court's maintenance order dated the 16th of July 2014, in particular, the Court's order directing the respondent to recommence payment of maintenance in sum of €1,200 per week to the applicant. The applicant also sought judgment against the respondent for the outstanding maintenance in the sum of €13,200 which has now increased to the sum of €19,200 as of the 28th of November, 2014. The respondent submitted that his failure to comply with the aforementioned Court order was attributable to an alleged mistake in the said order, namely that the applicant should not have received a lump sum of €25,000 along with weekly maintenance payments of €1,200. The respondent outlined that he could not comply with the said maintenance order as he required all necessary financial resources for pending legal proceedings. During this hearing, the Court enquired as to whether the respondent applied for legal aid. The respondent outlined that he did not want to avail of legal aid but that he would pay for legal representation or self-represent.
6. The Court adjourned the motion for the attachment and committal of the respondent to the 7th of November 2014, by which time the respondent was to have discharged the outstanding maintenance due by him to the applicant under the order of the Court dated the 16th of July, 2014.
7. On the 7th of November 2014, the applicant's motion to attach and commit the respondent was adjourned until the 11th of November 2014.
8. On the 11th of November 2014, the parties appeared before the court on the issue of the respondent's request to appoint a "McKenzie friend". The Court did not appoint the respondent's nominee as a "McKenzie friend" as that person was not available to the Court at that time. At this hearing, the Court offered the services of a solicitor who was willing to volunteer legal advice on a pro-bono basis regarding the legal consequences of the attachment and committal proceedings. The respondent refused this facility.
9. On the 14th of November 2014, the Court appointed “SC” as the respondent's "McKenzie friend" and accepted a number of undertakings from that person regarding his appointment as a “McKenzie friend”. This Court notes that having appointed the said “McKenzie friend”, the respondent refused to accept him to act and indicated to the Court that he intended appealing the said decision. The applicant’s counsel informed the Court that he would be proceeding to attach and commit the respondent on the 28th of November, 2014.
10. To date, the respondent has not complied with paragraph one of the order of this Court dated the 16th of July, 2014.
Submissions of the Applicant
12. The applicant further submits that this explanation is contradicted by the respondent's testimony in that he needs all incoming financial resources to pay for "behind the scenes legal and accountancy advice". The applicant proffers that such an assertion imports an ability on the part of the respondent to meet the financial requirements of the order dated the 16th of July 2014, but that the respondent refuses to comply with said order.
13. The applicant submits further that the respondent's refusal, as opposed to his inability, to comply with the order is corroborated by the second schedule of the respondent's affidavit of means sworn on the 6th of October 2014, where the respondent avers at paragraph one of said schedule;
15. O.44 of the Rules of the Superior Courts 1986 outlines the procedures and protocols to be adopted before the Court is to grant an order of attachment and committal. The applicant submits that they have fully complied with the requirements of O. 44 and that all of the necessary pre-requisite proofs have been adduced, these being (i) there has been a failure by the respondent to comply with this Court’s order dated the 16th of July 2014, directing the respondent to pay the sum of €1200 per week to the applicant for her support and for the support of the dependent children of the family with effect from the 21st of July 2014, (ii) that the Court must be satisfied that his non-compliance with the aforesaid order lies with his refusal as opposed to his inability to pay the aforementioned maintenance to the applicant and (iii) this Court is satisfied that the applicant has satisfied the aforementioned proofs beyond a reasonable doubt.
16. The applicant refers to the decision of Hardiman J in Dublin City Council v. McFeely & Ors  IESC 45 where he held (at para. 9):
18. In supporting the proposition that this Court should invoke its power to attach and commit the respondent for non-compliance with this Court's order dated the 16th of July 2014, the applicant cites Dublin City Council v Mc Feeley where Hardiman J outlines(at para.7):
21. The applicant also draws the Court's attention to O. 44 rule 9 of the Rules of the Superior Courts 1986, which addresses motions for attachment and committal in respect of contracted debts under s.6 of the Debtors Act, (Ireland) 1872. S. 6 of the Debtors Act outlines that a Court may commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any competent court. The applicant submits that the Order dated 16th of July 2014 cannot be construed as "a debt contracted after the passing of this Act", but is rather an obligation imposed by the Court upon the respondent in the exercise of its statutory power pursuant to s.12 of the Family Law (Divorce Act) 1996. Therefore, the applicant proffers that this Court is not confined to imposing a six week term of imprisonment on the respondent.
Submissions of the Respondent
23. The respondent has attributed his failure to comply with the order dated the 16th of July 2014 to a number of factors. The respondent outlined that his failure to pay the prescribed sum of maintenance to the applicant was attributable to a financial decline in his commercial ventures. However, the respondent did allude to the fact that he needed to keep all his incoming financial resources for “behind the scenes legal and accountancy advice” and other ancillary legal proceedings. The respondent submitted further that the Court’s order dated the 16th of July 2014 directing the respondent to recommence payment of the sum of €1,200 per week to the applicant along with granting the applicant liberty to withdraw €25,000 from the parties’ joint bank account was erroneous.
24. The respondent submits that the applicant has received sufficient income over the last two years and does not require the sum of maintenance prescribed in the order dated the 16th of July, 2014.
26. The respondent is a lay litigant and has exercised his right to self-representation. Throughout these proceedings, the Court has implored the respondent to avail of legal representation by private means or by applying for legal aid, so that he can understand the gravity of the consequences of failing to comply with the Court order dated the 16th of July, 2014. On the 11th of November 2014, the Court offered the services of a solicitor who was willing to volunteer legal advice on a pro-bono basis to the respondent so that he could attain an understanding of the consequences of the forthcoming attachment and committal proceedings. The respondent refused this opportunity to obtain legal advice.
27. To date, the respondent has failed to comply with paragraph one of the order of this Court dated the 16th of July 2014. This Court is of the opinion that the aforesaid order was of absolute clarity and precision, and that the respondent understood his obligations under the said order at all material times.
28. Order 44 rule 4 of the Rules of the Superior Courts 1986 states;
31. This Court finds beyond a reasonable doubt that the applicant has established the necessary proofs to warrant an order for the attachment and committal of the respondent, these being (i) there has been a failure by the respondent to comply with this Court’s order dated the 16th of July 2014, directing the respondent to pay the sum of €1200 per week to the applicant for her support and for the support of the dependent children of the family with effect from the 21stof July 2014 and (ii) that the respondent’s non-compliance with the aforesaid order lies with his refusal as opposed to his inability to pay the aforementioned maintenance to the applicant.
32. On this basis, the Court finds the respondent in contempt of the aforementioned Court order and seeks to attach the respondent and commit him to prison until he purges such contempt pursuant to O.40 of the Rules of the Superior Courts 1986.
33. The Court directs that the respondent be attached and committed to prison for a 28 day period but places a stay on the said order from Friday the 28th of November 2014 to Tuesday the 2nd of December 2014, to allow the respondent consider his position and purge his contempt by paying the outstanding debt, now in the sum of €19,200 as of the 28th of November 2014, to the applicant in respect of maintenance.
34. Costs to the applicant, costs to be taxed in default of agreement.