C.C.K. v S.L.K.

• Jurisdiction: Ireland
• Judge: Ms. Justice Nuala Jackson
• Judgment Date: 08 July 2024
• Neutral Citation: [2024] IEHC 492
• Docket Number: Record No.: 2023 21 CAT
• Court: High Court

Midland Circuit County of Roscommon

In the Matter of the Family Law (Divorce) Act, 1996 and In the Matter of the Family Law Act, 2019

Between/

C. C. K.

Applicant/Respondent

and

S. L. K

Respondent/Appellant

[2024] IEHC 492

Record No.: 2023 21 CAT

THE HIGH COURT

CIRCUIT APPEAL

Divorce – Proper provision – Litigation misconduct – Appellant seeking proper provision – Whether there was non-disclosure or litigation misconduct

Facts: The appellant appealed to the High Court from the Circuit Family Court. He submitted that proper provision had not been made by the court below. The parties married in 2001. Unhappy differences arose in or about 2016 and proceedings for judicial separation commenced in January 2017. The matter came before Jackson J by way of an application for divorce pursuant to a civil bill dated the 11th June 2021. Ancillary reliefs were sought in that context.

Held by Jackson J that the appellant had been discharging one half of the mortgage repayment; he would not be doing so going forward but the children would still require to be housed during their dependencies and this responsibility would, in all likelihood, fall entirely upon the respondent. Jackson J held that a 45/55 division of the equity was appropriate: €109,800 (appellant) and €134,200 (respondent). Jackson J held that, noting that a maintenance order was made by the District Court in respect of the upkeep of the children and that this was in arrears in the sum of €34,000, from his 45% share, the appellant owed his wife a sum of €34,000, reducing his equity share to €75,800. Jackson J determined that it was appropriate that a lump sum of €50,000 would be paid to the respondent by the appellant in respect of future maintenance for the children; this reduced the buy-out sum due to the appellant to €25,800. Jackson J noted that the respondent received the sum of €100,000 by way of damages in respect of a personal injuries event; it appeared that €10,000 of that award was gifted by the respondent to one of the children. Jackson J held that 50% of the remaining €90,000 should be included in the asset pot for distribution and, of this €45,000, she allocated one third to the appellant being €15,000; this meant that the respondent must pay him the sum of €40,800 to buy out his interest in the family home.

Jackson J directed that, having regard to the overall conduct of the litigation, the appellant was to be legally and beneficially entitled to whatever funds were or remained in the Permanent TSB account. She held that an education fund (the value appeared to be between €2,500 and €3,000) should be encashed forthwith and paid to the respondent who should pay 25% thereof straightaway to the eldest child and thereafter 25% of such fund should be provided to each of the three remaining children on their 18th birthday. Jackson J believed that the respondent should pay to the appellant the sum of €40,800 in respect of his interest in the family home (having regard to the maintenance arrears due and owing to her) and it should, thereafter, be transferred to her; she was to be responsible for the outstanding mortgage thereon and for any repairs or costs arising relating to the property. Jackson J held that pensions were to be equalised. She held that the respondent should have a s. 15(1)(a)(i) of the Family Law (Divorce) Act 1996 order in her favour upon payment of the sum aforementioned. Jackson J directed that the sum in question be paid to the appellant within 8 weeks of the date of the judgment.

No order for costs.

Judgment of Ms. Justice Nuala Jackson delivered on the 8 ^th July 2024

1 This matter comes before me by way of an appeal from the Circuit Family Court where the Appellant husband (‘the Appellant’) submits that proper provision has not been made by the court below.

2 This is a long marriage; the parties having married in 2001. Unhappy differences arose in or about 2016 and proceedings for judicial separation commenced in January 2017. This matter comes before me by way of an application for divorce pursuant to a civil bill dated the 11 ^th June 2021. Ancillary reliefs are sought in this context.

THE CHILDREN

3 There are four children of the marriage, three of whom remain dependent. The dependent children are all teenagers, attending secondary school. It is a sad aspect of this case that relationships between the children and the Appellant have entirely broken down. There has been no contact between them for a considerable period of time. This is most unfortunate. The parties are very much at odds as to why these relationships have broken down and it is greatly to be regretted that these fractures were not addressed at an earlier stage. There was a previous access order made by the District Court which provided for supervised access between the Appellant and the children, supervised by the Respondent wife (‘the Respondent’). Assertions of blame for this breakdown are made by both parties against the other with the Respondent asserting misconduct by the father against her and the children and the Appellant asserting that the relationship was not supported and, indeed, was actively hindered by the Respondent. There is no doubt that it would have been most advisable that this matter would have been brought before some court at a much earlier stage in order to address these matters. It would also have been greatly to be recommended that there would be an expert report in circumstances in which there is clearly a complex dynamic arising in relation to the children's relationship with their father. However, none of these steps has been taken. Access has not occurred at this point since 2017 and the Appellant's Senior Counsel indicated that orders were not being sought in respect of arrangements for the children having regard to their ages and the lapse of time. Of course, in the context of divorce and my obligation to make proper provision, the well-being and welfare of the children cannot be disregarded. There are some points which require to be highlighted:

• A. There would appear to have been very considerable inaction on the part of the Appellant in relation to sustaining the relationship between himself and the children. His evidence that he had corresponded in this regard through his solicitor but had not made any direct contact with the children lacked parental enthusiasm. The suggestion that he had many years of gifts for significant occasions in the children's lives over many years stored in his now accommodation was, likewise, unimpressive. Additionally, while child financial support and child relationship support are not inter-dependent, neither are they entirely distinct matters and the failure to comply with court orders in respect of the maintenance of the children was unimpressive. I will consider this further below.

• B. Clearly there are historical relationship issues arising between the children and their father. The evidence before me in this regard was somewhat sporadic in nature such that I am not in a position to make definitive findings relating to it but it is most unfortunate that neither expert assessment or interventions nor court application in this regard was made over a prolonged period. It is difficult to resist the conclusion on the evidence before me that the promotion of a relationship with his children was not the priority of the Appellant.

• C. The Appellant remains a guardian of the children and it is clear from the evidence that the Appellant's input has not been sought to any degree in relation to guardianship issues. It would appear that he has not been consulted or informed in relation to educational or medical issues, resulting in a high degree of exclusion. However, guardianship is a responsibility as well as a right and it cannot be denied that the Appellant has abdicated this responsibility to the Respondent all the while accusing her of denying him his guardianship recognition. Certain of the children have additional medical and educational needs and the Respondent has been left to manage these alone and she has done so with considerable commitment. However, the fact remains that the Appellant should, at the very least, have been kept informed so that he might take appropriate steps in the event of disagreement.

• D. There have been failures on the part of both parents in this regard and it is regrettable that the passage of time has likely created a situation which is unlikely retrievable in the short term, if at all. However, I did form the view that there had been substantial inaction on the part of the Appellant, demonstrating perhaps a lack of interest on his part as regards these issues. He should be kept informed of major milestones in the children's lives and the Appellant should receive regular updates from the Respondent in respect of the lives, health, education and the general life development of the parties' children but it is not my intention to make any orders in this regard as the evidence which I have heard indicates that these children are doing well and are progressing most positively along their lives' journeys and I do not believe that it would be in their welfare to upset this at this time.

• E. There is, of course, always liberty to apply in this regard during the minorities of the children should either parent believe that welfare issues arise which are not being adequately addressed. Such future applications should be made to the Circuit Family Court.

PREVIOUS ORDERS

4 There have been a number of previous Orders in this matter. I believe that the most pertinent of these are:

• Protection Order (2016)

• Barring Order (2017)

• Undertaking to remain away (2018)

• Maintenance Order (2017)

• Access Order (2017)

5 The Orders and undertakings relating to domestic violence would appear to have been complied with. It is a matter of some considerable concern that there would not appear to have been compliance...