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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> E.S -v- D.S [2012] IEHC 589 (07 December 2012)
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Cite as: [2012] IEHC 589
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Judgment Title: E.S -v- D.S Neutral Citation: [2012] IEHC 589 High Court Record Number: 2009 3 M Date of Delivery: 07/12/2012 Court: High Court Composition of Court: Judgment by: White Michael J. Status of Judgment: Approved |
Neutral Citation [2012] IEHC 589 THE HIGH COURT [2009 No. 3 M] IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989 AND IN THE MATTER OF THE FAMILY LAW ACT 1995 AS AMENDED BETWEEN E.S. APPLICANT AND
D.S. RESPONDENT JUDGMENT of Mr. Justice Michael White delivered on the 7th December, 2012 1. These proceedings were commenced by Special Summons on the 28th January 2009, and originally heard in the High Court on the 13th, 14th, 15th and 27th April, 2010 by Abbot J. who delivered judgement on the 12th July, 2010. The substantive orders were pronounced on the 3rd November, 2010. 2. The respondent appealed some of the orders to the Supreme Court, which delivered judgement on the 12th January, 2012 and remitted the issues concerning maintenance, mortgage repayment, provision and payment for a motor car to the High Court for final determination. 3. The remitted action was heard by this court on the 6th, 7th and 19th June, 2012 and Judgement reserved. 4. On the 29th June, 2012 Mr. Anthony Donaher, solicitor for the applicant was present in the Bank of Ireland, Smithfield, Dublin 7, when he witnessed the respondent conducting a transaction at the cashier desk. Mr. Donaher became concerned as the respondent had not disclosed any bank account with the Bank of Ireland. 5. A number of applications were made to this court, which revealed that the respondent had withheld material information about his financial affairs from this court when it originally heard the case, from the Supreme Court on appeal and from this court on the rehearing. 6. Because of the failure of the respondent to comply with the various maintenance orders made in the course of these proceedings, the applicant has applied, for orders beyond the parameters of those remitted to the High Court by the Supreme Court Order. 7. The applicant seeks a transfer of the family home in Castleknock, Dublin 15 subject to the mortgage in favour of National Irish Bank Limited. 8. She also seeks the transfer of three rental properties subject to the mortgages thereon at:-
(ii) Newmarket Square, Dublin 8. (iii) Castleknock, Dublin 15. 10. In addition the applicant is seeking a maintenance order in her favour and to maintain the existing order for the two children of the marriage. 11. By order of the 22nd August, 2012 this court directed rental payments on a property unit at Ballymount, Dublin 22 in the ownership of the respondent be diverted to the applicant in lieu of maintenance. The court is aware by letter of the 22nd November, 2012 that Danske Bank a mortgagee of the property has appointed Mr. Paul Grimes as a fixed charge receiver over the property. This Court has no longer jurisdiction to make orders in respect of this unit and has directed that the rental should no longer be diverted to the applicant. 12. Various ancillary orders were made as a result of the original High Court order of the 5th November, 2010, which are not to be varied. Brief History of the Marriage 14. The applicant before and following the marriage was employed as a manager of a fashion retail concern, and the respondent was involved in the motoring business in which he developed a number of successful businesses. 15. The applicant discontinued her own employment when the eldest child was two but continued to assist the respondent in the conduct of his business affairs. 16. There does not seem to have been any great marital disharmony, but in 2008 the respondent commenced an extra marital relationship and informed the applicant on the 26th September, 2008 that he was leaving the marriage. Since that date the marital relationship, and cordial communication have broken down, and the proceedings commenced on the 28th January 2009, have been difficult and complicated because of the ongoing failure of the respondent to cooperate in full disclosure of his financial affairs. 17. The respondent has behaved very badly and irresponsibly, abandoning his family in a financial morass. The Original High Court Order 5th November, 2010 19. The court further ordered that if the respondent failed to provide a vehicle to the applicant he was to discharge a further €500 per month maintenance to the applicant. 20. The family home was to remain in joint names and a sale was directed when the youngest child of the marriage finished education or attaining 23 years and the proceeds to be divided equally. An option to purchase was granted to the applicant for the sum of €150,000 within five years. If the respondent defaulted on maintenance the applicant was permitted to credit the amount due against the sum designated for the option to purchase, and also a further credit of €50,000 being her share of the funds in the joint account of the parties transferred by the respondent to a company under his control. 21. The court further directed that the parties should continue to hold jointly the commercial properties held by them and in the event of sale the net proceeds to be divided equally. Orders of the Supreme Court 23. By order of the 12th January, 2012 the Supreme Court remitted the matter to the High Court for hearing and directed that in the interim the respondent pay the sum of €2,400 per month to the applicant and the sum of €800 per month for the children and a sum up to a maximum of €2,000 in relation to school fees and dental fees. The court also made an Order for costs of €10,000 plus VAT against the respondent/appellant. 24. The respondent did continue to pay the sum of €800 per month but failed to discharge the maintenance payment to the applicant of €2,400. At present he is not paying any of the maintenance payments. 25. When the matter again came before this court for re hearing valuations were agreed on the properties.
(2) Tallaght, Dublin 24 €162,500. (3) Newmarket Square, Dublin 8 €121,250. (4) Apartment Castleknock, Dublin 15 €218,125. Developments since the Reservation of Judgment on the 19th June, 2012 27. Following an order of this court directed to the Bank of Ireland of the 27th July, 2012 to produce any statements held by the respondent, it was discovered that the respondent held an account in the Bank of Ireland, Blanchardstown account number xxxx, which had not been disclosed during the proceedings. 28. On the 29th June, 2012 the respondent obtained a banker’s draft in the sum of £14,279.40 sterling having made a cash deposit of €17,150. A draft sum equivalent to the sum of €34,519.39 was withdrawn on the 9th December, 2011. A further draft of €28,140.53 was withdrawn on the 7th March, 2011. 29. A number of orders were made over the vacation pursuant to s. 35 of the Family Law Act 1995, diverting certain rental monies to the applicant’s solicitors clients bank account. 30. By further order of this court on the 12th October, 2012, a discovery order was directed towards Pr,Fl.Mn Limited and in an affidavit of discovery. Fineen Kearns a director of the company disclosed that the respondent had been paid the following sums by the company:-
2. 2010 €85,820 3. 2011 €114,588.30 4. 2012 €74,701.58 32. The respondent has misrepresented sums of money he has been in receipt of over a period of time, and in his affidavit of means has sworn information which was untrue. 33. He is now living in the United States of America and on his past and current behaviour, it is unlikely, he will honour the existing orders of the High Court and Supreme Court or do so in the future. 34. At the conclusion of the hearing in the High Court on the 19th June, 2012 it was agreed that the outstanding arrears and credits due to the applicant totalled €158.694. Legal Principles 36. Can the court vary the original order of Abbot J., having regard to the order of the Supreme Court remitting the issue back to the High Court on maintenance, mortgage repayment, provision and payment for a motor car. 37. The court has been requested to make four separate orders pursuant to s. 9(1)(a) of the Family Law Act 1995. 38. That states:-
(a) the transfer by either of the spouses to the other spouse, to any dependent member of the family or to any other specified person for the benefit of such a member of specified property, being property to which the first-mentioned spouse is entitled either in possession or reversion; Pursuant to the provisions of Section 18 (1) (e) of the Act it is open to a court to vary original orders if it considers it proper to do so having regard to any change in the circumstances of the case and to any new evidence, subject to the restrictions as set out in Section 9(2) of the act which states (2) An order under paragraph (b), (c) or (d) may restrict to a specified extent or exclude the application of section 18 in relation to the order.
(ii) That the said order of the High Court be varied only for the purposes of (a) disposing of paragraph 20 of said order and (b) amending paragraph 10 at line 17 to read “she” instead of “he” and the said order of the High Court as so varied do stand affirmed accordingly. 42. While this court is bound by the parameters of the Supreme Court order, it has to take into consideration the failure of this respondent to comply with the order of the Court pending the rehearing. The respondent never complied with the order of the Supreme Court to discharge the sum of €2,400 per month to the applicant. He complied with the Order to pay €800 per month for the two dependant children up to June, 2012. He has also failed to discharge the arrears accruing which as of the 19th June, 2012 were the sum of €158,000. 43. There was an executory element to the rehearing, as by way of motion issued on the 28th February, 2012 originally returnable for the 5th March, 2012 the applicant sought an order pursuant to the provisions of s. 9 of the Family Law Act 1995 and an order pursuant to s. 10 of the Family Law (Maintenance of Spouses & Children) Act 1976 attaching the respondent’s earnings from Limited. 44. In support of the motion the applicant swore an affidavit on the 28th February, 2012 setting out the arrears due and further averring that the respondent had emigrated to live in the United States of America. 45. In the circumstances of this case I am satisfied that it is appropriate for this court on rehearing to go beyond the terms upon which the matter was remitted back to the High Court, provided that the court ensures insofar as the circumstances of the case allow, the original intent, balance and symmetry of the orders of the Supreme Court are maintained while at the same time, adopting whatever changes and adjustments and provisions are necessary to ensure fairness and justice. Conclusion 47. There is a net equity of redemption in the family home when taking the agreed valuation and subtracting the capital sum due on the mortgage. 48. A transfer of the family home to the applicant preserves a home for her and her children. The net equity can go some way to make provision for future maintenance of the family in the likely event of the respondent’s continuing failure to comply with the maintenance order. 49. In trying to maintain symmetry, the court will have to adjust the maintenance order downwards. 50. In the unlikely event of the respondent complying with the maintenance, it is open to the respondent at anytime to apply pursuant to the provisions of s. 18 of the Family Law Act 1995 for variation. 51. I am satisfied in the circumstances of this case that this court has jurisdiction to vary the original order of Abbot J. of the 5th November, 2010 in respect of the family home and the three other rental properties, notwithstanding the order of the Supreme Court of the 12th January, 2012. 52. The court has explained to the applicant the consequences of taking a transfer into her own name of the rental properties. The applicant is already a joint owner and therefore has a liability already. 53. It is appropriate in this case to transfer the family home and the three rental properties into the sole name of the applicant, subject to the existing mortgages. 54. There is no reality in the original order of Abbot J. of gross maintenance for the applicant of €50,000 a year and the sum of €800 a month for the children. I will vary the maintenance order to the total sum of €2,400 per month apportioned at €1,600 per month for the applicant and €400 per month for each of the children.
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