J.D.F. v C.F.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Abbott,Mr. Justice Henry Abbott |
| Judgment Date | 28 October 2011 |
| Neutral Citation | [2011] IEHC 559 |
| Docket Number | [No. 32 M/2009] |
| Court | High Court |
| Date | 28 October 2011 |
[2011] IEHC 559
THE HIGH COURT
BETWEEN
AND
Family – The Family Law Act 1995 – The Family Law Divorce Act 1996 – The Domestic Violence Act 1996 – The Guardianship of Infants Act 1964 – Distribution of financial assets – Issac Wunder order
Facts: The present divorce proceedings were concerned with the resolution of a dispute regarding financial assets of the parties, specifically the pension fund of the husband, in order to bring an end to the litigation between the parties that had been fought extensively for many years.
Mr. Justice Henry Abbott granted a decree of divorce to the parties. The Court granted a stay on the order of the Court for paying maintenance on certain conditions. The Court held that the respondent/wife would be entitled to exclusive right of residence in the home which she would rent and the applicant would be responsible for the school fees of the children. The Court held that the parties would be jointly responsible for the children's dental and other activities. The Court set aside the order of the Circuit Court and the order of the High Court on appeal concerning the respondent's entitlement to the applicant's S. pension fund and made a pension adjustment order. The Court granted an Issac Wunder order prohibiting both parties from pursuing further proceedings pursuant to the Family Law Acts unless required for the children's necessities.
The applicant J.D.F. (the husband) was born on the 30th January, 1953. The respondent C.F. (the wife) was born on the 1st December, 1957. The parties were married in a civil ceremony on the 15th November, 1989, having previously married in a Catholic ceremony on the 19th October, 1988. There are two children of the marriage, both daughters, M. born 13th November, 1992, and E. born 20th January, 1995. The wife had been previously married on the 8th August, 1980. This marriage did not last long and a church annulment was granted after some eighteen months. The parties obtained a decree absolute of divorce in England on the 27th March, 1989; this was accepted as being valid in this jurisdiction by the Registrar of Births, Marriages and Deaths.
The husband and wife were involved in a relationship from 1985. The husband worked in a business in Dublin. The wife had a business. This business operated mainly in a provincial city but had two branches in Dublin.
At the beginning of the relationship the wife owned a house in the city where she had her business. She sold this house in 1985, which, after payment of the mortgage, yielded IR£26,000. She divided the proceeds between investment in her business and a contribution towards the acquisition of the family home in Dublin. The husband also contributed to the acquisition and the refurbishment of this property, in part by means of a bank loan. In 1989 the husband bought a farmhouse from a relation. This farmhouse was closely situated to a sizeable farm owned by the husband's father. The farmhouse was situated on half an acre, but had no other land attached to it. It was held in the husband's sole name. In 1992 the husband and wife moved to reside in this property, and their two children were subsequently born there. The wife's businesses were sold - at some small loss or at least with no profit - between 1992 and 1994. The family home was sold in 1996 for the sum of IR£160,000.
In 1998 the husband's employment was terminated and he received a settlement from his employers. He decided to establish a stud farm business at the family home. He invested money in developing stables and other facilities for this business. After the number of years the farm managed to build a good quality of stock and a reputation and the business started to make a profit.
Since there was no land attached to the parties' family home, the husband operated the stud farm on 22 acres of land adjacent to the family home which was part of the farm owned by his father, Mr. J.F. senior. Although the husband used this land for the purposes of his stud farm, the land remained in the ownership of his father. The husband sometimes assisted his father on his farm, and the father also sometimes assisted his son. The wife, no longer working, looked after the children and the home, with the aid of a housekeeper.
Unhappy differences arose between the parties in 1995. The wife issued proceedings in April 2000, leaving the family home in October, 2000. The wife sought a decree of judicial separation as well as certain ancillary orders. She then lived in rented accommodation, the children residing mainly with her.
The judicial separation proceedings were heard before O'Sullivan J., in the High Court. The learned judge delivered a judgment and order on the 16th May, 2002, and made a subsequent order on the 14th November, 2002. The trial lasted some nine days. Much of the evidence turned on the financial resources of the husband, both in this jurisdiction and in the Isle of Man, on the ownership of the farm lands and on the working of the stud farm. It was established that the 22 acres on which the stud farm operated remained in the legal ownership of Mr. J. F. senior. The wife maintained that the 22 acres on which the stud farm operated formed part of the family home or at least part of the matrimonial assets.
The learned trial judge gave judgment on the 16th May, 2002. In his order he granted a decree of judicial separation. By way of ancillary relief he further ordered:
"That the husband do have the right to occupy for life the family home situate at S. Stud, G., in the County of to the exclusion of the wife;
That the said family home do include the 22 acre site immediately adjoining the residence upon which site the husband has developed the stables, yard, lunge ring and enclosed fenced area;
That the husband do pay to the wife a lump sum of €489,000 being the sum of €461,000 representing a fair evaluation of the wife's interest in the assets (with the exception of the furniture of the house) of the family home and the sum of €28,000 to balance the notional sum available to the husband in the context of extra costs caused by his lack of co-operation with the requirements of discovery;
That the wife do continue to have the benefit of the children's allowances;
That the husband do until he has paid the aforesaid lump sum continue the existing maintenance and thereafter that he pay to the wife for maintenance the sum of €2,100 per month being the sum of €500 in respect of the wife and the sum of €800 in respect of the each of their two children;"
The order went on to provide for the maintenance of two life policies for the benefit of the wife and the children and for a pension adjustment order. It also provided that the husband should continue to pay VHI premium for the two children and also pay for their medical and dental bills. The learned judge also ordered that the mutual rights of the parties under the Succession Act be extinguished. The parties were granted joint custody of the two children and the matter of residence and access was set out in a detailed schedule to the order in accordance with a scheme advised by Dr. Gerard Byrne, Consultant Child Psychiatrist.
In September 2002, the wife decided unilaterally to move her children from the school they were attending near the family home to a school in K., where the wife was residing. The wife did not inform her husband of this and two days before the start of the new school term in September she informed her children of the change. She told her husband on the same day.
On 7th October, 2002, the husband brought a motion seeking orders of attachment and committal against his wife for breach of the custody order. This motion was heard by O'Sullivan J. on the 14th November, 2002. The learned judge found the wife to be in contempt and ordered that in lieu of imposing a fine on the wife the lump sum ordered to be paid by the husband to the wife pursuant to the order made on the 16th May, 2002, be reduced by €25,000 to the sum of €464,000. The learned judge also remitted the matter of the schooling of the children and any questions regarding access to the District Court. This order was appealed by the wife by notice of appeal dated the 17th December, 2002.
Up to that point the husband had not appealed the order of judicial separation of the 16th May 2002; however, by a motion dated the 1st July 2003 he sought from the Supreme Court an enlargement of time within which to serve a notice of appeal. This motion was heard on the 11th July, 2003. An extension of time was granted on the following terms:-
"1. That the husband do pay to the wife the sum of €250,000 within six weeks of the date hereof on account of the lump sum payment of €464,000 due by him to the wife - execution for the balance of the said sum to be stayed pending the determination of the appeal herein or until further order.
That the husband shall be at liberty to further mortgage the family home at Stud, up to a sum of €250,000.
The undertaking to the court by the husband which the court doth note that he will not dispose of the said property without the consent of the wife pending the determination of the appeal herein or until further order."
The Supreme Court was informed that the said sum of €250,000 had in fact been paid to the wife. The husband filed a notice of appeal dated the 31st July, 2003. The wife made an appeal against the order of O'Sullivan J. on the 14th November, 2002.
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F v M
...hearing. The general factual history of the marriage was set out in a judgment by Abbott J. delivered on the 13th December, 2011 ( [2011] IEHC 559). The parties separated in the year 2000. It is an unfortunate fact that the subsequent lengthy hearings in this case, go back at least to the ......