High Court of Justice in Northern Ireland Family Division Decisions

[2015] NIFam 16	Ref:	OHA9782
Judgment: approved by the Court for handing down	Delivered:	04/11/2015
(subject to editorial corrections)*


 


IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND _______ FAMILY DIVISION _______

2006/015821-03

BETWEEN:

GLADYS ELIZABETH CAROLINE WHITESIDE

Petitioner;

-and- RICHARD ALEXANDER WHITESIDE

Respondent.

________

O'HARA J

[1] On 11 June 2010 an agreement between these parties was made a rule of court by consent. The agreement related to the division of their assets following their divorce. The respondent had already paid £65,000 to the petitioner who had transferred the former matrimonial home into his sole name. He was to pay her a further lump sum of £105,000 upon the sale of either or both of that home or the public house which they owned together. Both were to be sold forthwith. In addition the respondent was to pay child maintenance of £80 per week in respect of each of their two children. Furthermore, until the lump sum of £105,000 was paid the respondent was to pay £610 per month to his ex-wife by way of spousal maintenance in addition to the child maintenance. The payment of the £105,000 would bring an end to the monthly maintenance to the petitioner.

[2] Since 2010 neither the home nor the public house has been sold. The respondent has not paid the petitioner the £105,000 provided for in the agreement. To make matters worse, considerably worse, he has fallen into arrears on both spousal and child maintenance. On his evidence he has also accrued other debts and liabilities.

[3] As a result of these developments the petitioner issued a judgment summons in July 2014 for unpaid spousal maintenance of £10,980, seeking his committal to prison. In her supporting affidavit she averred that:

(i) Spousal maintenance has not been paid since December 2012.

(ii) Despite the fact that she is in full-time employment she has lost the home which she bought after their separation because she has not received either the £610 per month or the £105,000 lump sum.

(iii) She believes that the respondent is hiding cash takings from the public house.

(iv) She believes that the respondent had no intention of selling the house.

(v) In December 2012 the respondent held an auction in the former family home from which she was to receive the proceeds. In fact she received nothing and his claim to have paid tax debts and for stock purchases for the public house was false as a scrutiny of the documents he produced showed.

[4] The respondent has countered with an application to vary the spousal maintenance downwards. In his supporting affidavit he averred that:

(i) He has been unable to raise the money "to buy out the petitioner's claims" because there are no offers on either the home or the public house.

(ii) He has managed to reduce liability secured against the public house from approximately £103,000 to approximately £47,000.

(iii) His tax return for 2013 showed an income of £14,362.

(iv) Despite doing the best he can, he has outstanding liabilities on other fronts.

[5] Both the petitioner and the respondent gave oral evidence. Having listened to them and considered the documentation produced to me I am satisfied that the respondent has done little or nothing to try to achieve the sale of the home or the public house. It is not enough for him to say, as he did, that the properties have been on the market since 2010. The photographs which I saw of the home and the description of it inside illustrated property which nobody is really trying to sell. Far from being smartened up and presented at its best, it is cluttered, untidy and most unattractive. The respondent says it is now in negative equity so that a sale would be pointless and would not achieve any positive outcome for the petitioner. I accept that it is in fact in negative equity but that is at least partly, if not significantly, due to his neglect of it and his half-hearted efforts to sell it.

[6] I am also satisfied that the public house has not been sold because the respondent has contrived to prevent its sale. In the agreement of June 2010 he accepted an obligation to sell it in order to fulfil his financial obligations to the petitioner, obligations which had a direct effect on their two children. The public house had already been on the market for some time. It was being sold by Mr Samuel Thomas Magee, estate agent, who gave evidence before me. That evidence was to the effect that the asking price was set at £435,000 at the insistence of the respondent whereas Mr Magee believed that a realistic asking price was in or about £350,000. Only in March 2013 was the asking price reduced to £300,000. This disregard of professional advice is simply not consistent with the respondent's obligations under the agreement.

[7] Most damning of all however is the irrefutable evidence that the respondent has lied about his income. He has done so in at least two ways which have been proved beyond any doubt. The first involves an auction which was held in the home in December 2012. It involved the sale of items which had been collected over many years. The respondent has asserted at different times that he had to pay commission to Scarva Auctions and that this amounted to a figure in the region of £2,500. The petitioner doubted that evidence and investigated the matter. The result was a letter sent in March 2013 by Mr K Baird of Scarva Auctions in which he stated:

"Mr Whiteside organised the lots, the viewing, cataloguing, advertising and all accounts on the day of the auction. We had agreed a flat fee of £1,000, rather than a commission based fee, which has been partially paid with the balance outstanding."

Accordingly his claim before Master Redpath to have paid commission was false. In addition he has given different and conflicting estimates of the amount of money which was actually received. The only thing which I am quite certain about is that he has not admitted to the amount of money which he actually raised through auction. The second issue which has been proved beyond doubt is in respect of his claim that he had used proceeds from the auction to pay VAT and tax bills. This claim was advanced at an earlier hearing but when called upon to provide proof of that he was unable to do so. Instead he then contended that he had used some of the money raised to pay suppliers to the public house who were no longer willing to sell to him unless he paid in cash. Receipts were produced by him for these purchases. Unfortunately for the respondent, the petitioner followed up on these receipts and has proved conclusively that a number of them were fraudulently altered in a crude way. For instance one receipt for £362 was altered to £1,362. Another receipt for £381 was altered to £1,381. The best estimate which can be made of the extent of this deceit is that he falsified the records to the extent of approximately £7,000. That is money which he claimed to have spent on supplies but was in fact spent elsewhere or hidden from the petitioner.

[8] The petitioner has had difficulty in proving all of her suspicions about the respondent's avoidance of his financial obligations to her. For instance she was very sceptical about his claim that sales through the off-licence attached to the public house had fallen as badly as the respondent contended. I accept however on the evidence that the town has changed so that instead of there being little or no competition there are now two more off-licences than there were before. It is inevitable that that will have a detrimental effect on the respondent's sales. I also accept that whereas one particular Friday night in June when there was a major Orange band parade in the town had traditionally been the busiest night of the year, that has fallen away in recent years because the "field" has been moved well outside the town and because there has been a crackdown by the police on opening hours.

[9] Having said that however I do not doubt that the fact that the bar trade is largely a cash based business has made it easier for the respondent to disguise and misrepresent his true financial position. On the evidence before me I am unable to say what his income has been from the public house. The petitioner herself says it is now in a poor state with little or no effort having been made to maintain a thriving business. That may be so but in light of what she has proved about the respondent's lies about Scarva Auctions and payments to suppliers I do not accept that his true income is disclosed by the accounts which he has produced to the court. He is a dishonest man, a fact which the petitioner also proved by producing evidence that he had been convicted in the Republic of Ireland for having given a false name to the Guards in connection with motoring offences. On the evidence before me I doubt very much whether he ever intended to honour his obligations under the 2010 agreement. As a result he has caused his ex-wife and their children to lose their home while he has continued to occupy the former family home and run a business.

[10] In her helpful submission on behalf of the respondent Ms Paula Ranaghan submitted that I should consider his application to vary spousal maintenance before I consider the application for his committal. I agree with that approach.

[11] On the face of it the respondent presents as a man with significant debts to HMRC and to his bank, not just to the petitioner. His problem is that in view of his dishonesty I cannot and do not accept his account of his affairs as he has presented them. This leaves me having to estimate what his true position is when I decide on spousal maintenance. Doing the best I can I accept that the spousal maintenance should be reduced with effect from 24 September 2014 when the application to vary downward was made. From that date I will reduce it to £250 per month instead of £610 per month. This leaves him owing arrears up to 24 September 2014 at £610 per month and £250 per month from then until he satisfies his obligation to pay the petitioner the lump sum of £105,000.

[12] What then of the committal summons? Mrs Whiteside represented herself in these proceedings because she is employed and not entitled to legal aid. (I note with some concern that Mr Whiteside obtained legal aid to defend her application and to advance his own). She realistically recognised her own predicament that imprisoning her ex-husband would not achieve the payment or settlement of his debts. In addition she accepted that it would be very hard for their two daughters, to have their father in jail. This recognition by her is far more generous than any act on his part towards the petitioner.

[13] It is not however just or acceptable for the respondent to escape his dishonesty. I am entirely satisfied that there have been times, especially after the auction in December 2012 when the respondent had the means to pay spousal maintenance on a continuous basis but did not do so. That being the case I find that he has been deliberately in breach of the agreement of June 2010 which was made a rule of court. In all the circumstances I impose on him a sentence of six weeks imprisonment which I suspend for three months. If within that time he commits any further offences he will find himself facing the punishment for those offences in addition to which the court will have to decide whether to activate the suspended sentence. I also emphasise that his obligation to pay the petitioner the lump sum of £105,000 remains and that he remains liable to pay her arrears of spousal maintenance and on-going spousal maintenance though at the reduced rate which I have indicated above. Mr Whiteside has behaved inexcusably badly towards his wife and, as a result, towards his children. It is long past time that he stopped avoiding the obligations which are part and parcel of the agreement of June 2010.