N (Sj) v O'D (Pc)

• Jurisdiction: Ireland
• Judge: Mr. Justice Henry Abbott
• Judgment Date: 29 November 2006
• Neutral Citation: [2006] IEHC 452
• Court: High Court
• Date: 29 November 2006

[2006] IEHC 452

THE HIGH COURT

12M/2006

N (SJ) v O'D (PC)

FAMILY LAW

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW

REFORM ACT 1989

AND IN THE MATTER OF THE FAMILY LAW ACT 1995

AND IN THE MATTER OF THE FAMILY LAW DIVORCE ACT 1996

BETWEEN

S.J.N.

APPLICANT

AND

P C. O'D

RESPONDENT

GUARDIANSHIP OF INFANTS ACT 1964

FAMILY LAW (DIVORCE) ACT 1996 S22(1)

FAMILY LAW ACT 1995

K (M) v K (S) 2003 1 IR 326

FAMILY LAW (DIVORCE) ACT 1996 S22

FAMILY LAW (DIVORCE) ACT 1996 S2(2)(a)

T (D) v T (C) 2002 3 IR 334

FAMILY LAW (DIVORCE) ACT 1996 S22(b)

FAMILY LAW (DIVORCE) ACT 1996 S22(c)

FAMILY LAW (DIVORCE) ACT 1996 S22(e)

FAMILY LAW (DIVORCE) ACT 1996 S22(f)

FAMILY LAW (DIVORCE) ACT 1996 S22(g)

FAMILY LAW (DIVORCE) ACT 1996 S22(h)

FAMILY LAW (DIVORCE) ACT 1996 S22(i)

FAMILY LAW (DIVORCE) ACT 1996 S22(j)

FAMILY LAW (DIVORCE) ACT 1996 S22(k)

FAMILY LAW (DIVORCE) ACT 1996 S22(l)

K (M) v P (J) (OTHERWISE K (S) 2001 3 IR 371

FAMILY LAW (DIVORCE) ACT 1996 S20(3)

A (W) v A (M) 2005 1 IR 1

D (B) v D (J) UNREP MCKECHNIE 4.5.2005 2005 IEHC 154

G (R) v G (C) 2005 2 IR 418

EDGAR v EDGAR 1981 2 FLR 19

JENKINS v LIVESEY 1985 AC 424

MATRIMONIAL CAUSES ACT 1973 S25(1) (UK)

FAMILY LAW ACT 1995 S16

DE LASALA v DE LASALA 1980 1 AC 546

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S 2(1)(a)

FAMILY LAW (DIVORCE) ACT 1996 S2O

FAMILY LAW (DIVORCE) ACT 1996 S2O(4)

FAMILY LAW (DIVORCE) ACT 1996 S2O(5)

1 Mr. Justice Henry Abbott delivered on the 29th day of November, 2006.

2 The applicant and the respondent (to whom I shall refer as the wife and the husband respectively) were lawfully married to one another on 14 ^th May, 1994. The wife is 37 and the husband is 51. There are two children G. a daughter who was born on 2 ^nd March, 1995, and P., who was born on 8 ^th August, 1996, who are aged 11 and 10 years respectively. The wife is of English nationality and domicile and the husband is of Irish nationality and domicile, both parties have resided in Ireland since 1994.

3 At the date of their marriage, the husband was a wholesaler in the food business and the wife was a tour operator in England. After their marriage the parties moved into the family home in Ireland which was the home of the husband. The husband continued in his business which he carried on through a company "C Ltd." and the wife set up a new business in the tourist industry. The wife's business prospered and was ultimately carried on through a series of companies referred to in the proceedings as "the Group". The businesses of the husband and wife and their companies were carried on in the same premises provided by the husband but these operations were at an arms length basis on payment of rent and sharing of costs. The husband, (as would be expected) introduced the wife to many people in Ireland some of whom proved to be very valuable business contacts for the wife in relation to her activities in the tourist industry. In England, she had been working with the retail sale of tourist facilities which were purchased by her employers from wholesalers of these facilities. The wife continued to operate this model on her arrival in Ireland after her marriage but this time not as an employee, but in her own right through the Group.

4 Differences arose between the parties centring around difficulty in combining the parties busy schedule of commitments to their businesses, and the care of their children to the satisfaction of both parties. The differences were eventually the cause of the wife to leave the family home in or about August, 1999. The wife initially took up rented accommodation for herself and the two children outside the family home, and ultimately purchased a second home for herself and the children having raised a mortgage for that purpose.

5 On 8 ^th August, 2000, the wife initiated proceedings claiming judicial separation and relief under the Guardianship of Infants Act, 1964, in respect of the children. These proceedings were settled after a short hearing in the High Court after which the High Court made an order granting a decree of judicial separation to the parties on the terms of the settlement. The date of the settlement was 16 ^th November, 2001. The settlement followed the normal types of provisions used in the settlement of these cases and it suffices at this stage to mention the most salient points, in regard to the consideration of the issues between the parties in this case, as follows.

6 1. The custodial and residential arrangements with regard to the children of the marriage were to be exercised in accordance with the recommendation of Dr. Byrne's latest reports which was on a more or less 50:50 shared basis. While custody and day to day care arrangements in regard to the children have been subject to approximately 21 court applications and further doctor's reports, present arrangements continue on a more or less 50:50 shared basis and happily, disputes between the parties have not occurred in relation to these aspects of the case since matters were settled by medical report of Dr. Byrne dated 22 ^nd November, 2005.

7 2. The husband was to pay the wife a lump sum of £300,000 on or before the 31 ^st January, 2002. The wife was to release any interest in the family home and a premises known as BV to the husband.

8 3. The husband agreed to pay €10,000 per annum to the wife and increased in accordance with the CPI Index or 4% whichever was the lesser from the date of 1 ^st January, 2002, and the wife was to be responsible for the school fees and other expenses of the children.

9 4. The husband released all his interest in the company's comprising the Group to the wife.

10 The settlement further provided that in Clause 17 thereof as follows:

"The parties mutually agree and intend that the within provisions are in full and final settlement of all issues and claims between them and they are intended to be relied upon as constituting proper provision for the purpose of any divorce proceedings instituted by either party pursuant to the Family Law (Divorce) Act 1996, subject to the approval of the court Further each party agrees not to institute any proceedings for ancillary relief under the Family Law Act 1995 or the Family Law (Divorce) Act 1996 and any amending legislation, save for periodical payments."

11 These proceedings were issued on the 11 ^th September, 2003, and the wife did not claim any ancillary relief save in accordance with the provisions made between the parties in the settlement of 16 ^th November, 2001. Counsel for the wife in opening the case, summarised the wife's position in the case on the basis that the husband had taken two thirds of the bricks and mortar assets of the family together with his shares in his company and such other chattels and investments and that the wife took £300,000 and her shares in the Group. I hold as a matter of fact that the structure of the settlement was such that the husband took most of the liquid or less risky assets of the family, and the wife took most of the speculative or more risky assets of the family, however these assets were to be valued or apportioned.

12 Apart from the happy resolution of many of the difficulties regarding custody and care of the children of the marriage there were three main developments since the date of the settlement affecting the issues in this case as follows:

13 1. Audited accounts which were finalised for the Group after the settlement showed that within a number of months of the settlement that the wife restructured the companies in the Group, by the purchase by one of the companies called . com Ltd. of the wife's and other shareholders interests in the companies in the Group on the payment to the wife and these other shareholders' of a substantial sum.

14 2. The substantial increase in the wife's salary and

15 3. The re-stating of expenses within the Group so as to show the Group generating a far greater level of profit than was apparent from the figures available at the settlement.

16 It should be noted that at the time of the settlement there were only available to the husband's advisors the management accounts of the Group which were furnished by the wife's solicitors on 12 ^th November, 2001, which without going into the detail thereof showed total sales at approximately €10.5 million in the 12 months to August, 2001, with net profits of €98,825.00.

17 Although the case was not made that there was a deliberate concealment of the financial developments which were mirrored in the three main developments highlighted by the audited accounts for the period which emerged in 2002 subsequent to the settlement, the enquiry in relation to the origins of these developments led to particular stress and agitation between the parties and their counsel during the course of the hearing.

18 I hold as a fact (as I did on an interim basis during the course of the hearing), that the developments and background and some of the information which led to these important developments in relation to financial results constituted information which in hindsight could and should have been disclosed by the wife to the husband in the course of the judicial separation hearings and prior to the settlement of the 16 ^th November, 2001. I also hold that the non-disclosure was not due to any mala fides or concealment on the part of the wife, rather it is due to the fact that this information was incomplete and not readily apparent to the wife, insofar as the information was dependent on developments which were in the minds of other officers of the Group, particularly persons with far greater financial know-how than the wife - namely Ms. K and Mr. A.C., both of whom were experts, who ultimately became beneficial shareholders on a minority basis in the Group. They had been recruited by the wife some time earlier with...