E (L) v F (U)

• Jurisdiction: Ireland
• Judge: Mr. Justice Henry Abbott
• Judgment Date: 15 April 2011
• Neutral Citation: [2011] IEHC 229
• Court: High Court
• Date: 15 April 2011

[2011] IEHC 229

THE HIGH COURT

[No. 58 M/1997]

[No. 168 M/2001]

E (L) v F (U)

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW ACT 1989, AND

IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN

L.E.

APPLICANT

AND

U.F.

RESPONDENT

FAMILY LAW (DIVORCE) ACT 1996 S22

MUBARAK v MUBARAK 2004 2 FLR 932 2004 EWHC 1158 (FAM)

ARAB MONETARY FUND v HASHIM & ORS UNREP 21.3.1997 1997 EWCA CIV 1298

HADKINSON v HADKINSON 1952 P 285 1952 2 AER 567

C v C 1994 2 FLR 272 1995 1 FCR 75

B v B 1988 2 FLR 490 1988 FAM LAW 435

P v P 1994 2 FLR 381 1994 1 FCR 293

Y (M) v Y (A) 1997 3 FAM LJ 86

BAKER v BAKER 1995 2 FLR 829 1996 1 FCR 567

RSC O.19 r28

RIORDAN v AN TAOISEACH & ORS (NO 5) 2001 4 IR 463 2001/21/5691

K (D) v KING & ORS 1994 1 IR 166 1993 ILRM 710 1992/12/3761

K (A) v K (J) 2009 1 IR 814 2008/31/6726 2008 IEHC 341

FAMILY LAW

Maintenance

Variation - Failure to comply with maintenance order - Dismissal of application for lack of full disclosure and abuse of court process - Court having inherent power to dismiss application by reason of behaviour possibly constituting contempt of court - New circumstances arising - Deterioration in economic situation - Allegation by respondent that his financial circumstances considerably worsened - Whether appropriate to dismiss in limine respondent's application for variation - Riordan v Ireland (No 5) [2001] 4 IR 463; DK v AK [1993] ILRM 710; AK v JK [2008] IEHC 341, [2009] 1 IR 814 considered - Family Law (Divorce) Act 1996 (No 33), s 22 - Application to dismiss variation application adjourned generally with liberty to re-enter, disclosure by respondent ordered (1997/58M, 2001/168M - Abbott J - 15/4/2011) [2011] IEHC 229

E(L) v F(U)

1 JUDGMENT of Mr. Justice Henry Abbott delivered on the 15th day of April, 2011.

Factual Background

2 The applicant and respondent married each other on 1 ^st December, 1979. Following the institution of legal proceedings, the parties were granted a decree of divorce by the High Court on 20 ^th December, 2001. The parties entered into a financial settlement. This settlement was approved by the Court and its terms were deemed to provide proper provision for the parties and their dependents at the time it granted the decree of divorce. In December 2006 the applicant brought an application seeking to set aside all or part of the settlement and sought that the order made be set aside on the basis of fraud and non-disclosure on the part of the respondent. On the 10 ^th June 2009 Irvine J. delivered judgment, holding that the respondent had concealed his ownership of or interest in properties and directed a further lump sum of €2,500,000 to be paid by the respondent to the applicant. Prior to the perfection of the Order of Irvine J., the respondent applied to the Court for an order to permit him to adduce further evidence. Irvine J., in refusing the application, imposed terms on a stay pending appeal, including a term that the respondent was to discharge arrears of maintenance and to discharge the maintenance as it fell due. The Court granted the applicant a mareva injunction. The respondent ceased paying maintenance in accordance with the order of the Court in December 2009 and brought an application to vary the order, having already appealed against the making of the order. On the 19 ^th December 2010, the applicant issued a motion for contempt which was returnable in front of Irvine J. The applicant and the respondent entered into an agreement and an order was made in respect of the variation application that the respondent would be allowed pursue his maintenance application only if he made proper disclosure and complied with his maintenance obligations.

Submissions of the Parties

3 The respondent in this case seeks an order pursuant to section 22 of the Family Law (Divorce) Act 1996, varying or discharging a periodical payments order made on the 21 ^st December 2001. The applicant seeks an order dismissing the respondent's application for a variation on the basis that he has not made full disclosure and that he has been in contempt of court orders and has abused the court process, including his breach of the Mareva injunction to include his purported transfer of assets in course of the proceedings; his disposal of €338,000 on deposit; his purported alienation of monies received from N partnership and his attempt to alter the ownership of O. property.

4 The applicant relies on case law to show authority that to allow a person in contempt of court to pursue relief would be an abuse of process. The applicant points to such cases as Mubarak v Mubarak [2004] 2 FLR 932, Arab Monetary Fund v Hashim 21 ^st March 1997, and Hadkinson v Hadkinson [1952] FLR 287, where Denning L.J. stated:-

"I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may, in its discretion, refuse to hear him until the impediment is removed or good reason is shown by why it should not be removed."

5 The applicant submits that the contempt of the respondent arises in respect of two orders. The applicant contends that the failure of the respondent to pay maintenance means that the applicant cannot properly defend the application for a variation. Secondly, the applicant submits that the respondent's on-going litigation misconduct and breach of directions as to disclosure means that he is in contempt. In relation to non-disclosure the applicant relies on the cases C v C [1994] 2 FLR 272, B v B [1988] 2 FLR 491, P v P [1994] 2 flr 381 and Y v Y [1997] 3 FAM.L.J 86 to argue that the Court should have regard to the respondent's inadequate disclosure and to draw adverse inferences from this. In Baker v Baker [1995] 2 FLR 827, Ward J. stated:-

"I am compelled to draw the adverse inference that he does not wish me to know the truth. That compels me to draw the further inference that there must be more monies available."

6 The orders made in that case were that the husband pay a lump sum of €160,000 and periodical payments of €17,500 despite the husband's assertions that he had no assets and was living on an income of €33,000 per year. On appeal, Butler Sloss L.J. reaffirmed the principle that in cases where a party deliberately conceals his/her true financial position from the court, that the court was entitled to draw adverse inferences against that party. The Court of Appeal expressly rejected the husband's argument that unless the assets can be shown positively to be available, an order cannot be made.

7 The applicant submits that Irvine J, in her judgment in this case, at paragraph 4.12, found that there is duty of disclosure owed by each party to the other and to the Court in divorce proceedings which arose from the statutory and constitutional provisions. The learned judge accepted at paragraph 10.6 that "if there has been a history of evasion and equivocation on the part of the spouse in respect of their financial affairs in family law proceedings that the courts are not prepared to permit the spouse to benefit from that conduct." The applicant submits that to allow the respondent continue his application to discharge his maintenance obligations would be to allow him benefit from the most gross and obvious misconduct in the conduct of litigation.

8 The respondent submits that the applicant is in breach of the agreement of the 14 ^th May 2010, and in clear breach of its terms, in particular the agreement of the applicant not to bring an application to stay or postpone or object to the making or hearing of the section 22 application. The respondent submits that the applicant relies very largely on allegations of non-disclosure that pre-date the 14 ^th May 2010 and that have been the subject matter of previous applications, including the very application that was settled on the 14 ^th May 2010. The respondent submits that the approach described in Hadkinson is objectionable in principle as the respondent applies pursuant to section 22 because he contends that he does not have sufficient resources to meet the periodical...