O’C. v O’C

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 14 May 2009
• Neutral Citation: [2009] IEHC 248
• Docket Number: [No. 37 M./2007]
• Date: 14 May 2009
• Court: High Court

[2009] IEHC 248

THE HIGH COURT

[No. 37 M./2007]

O'C (C) v O'C (D)

FAMILY LAW

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989 AND THE FAMILY LAW ACT 1995

BETWEEN

C. O'C.

APPLICANT

AND

D. O'C.

RESPONDENT

FAMILY LAW ACT 1995 S9(1)

FAMILY LAW ACT 1995 S18

FAMILY LAW ACT 1995 S9

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15(1)

FAMILY LAW (DIVORCE) ACT 1996

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S15(2)

FAMILY LAW ACT 1995 S16

FAMILY LAW ACT 1995 S16(2)

FAMILY LAW ACT 1995 S18(1)

FAMILY LAW ACT 1995 S18(1)(E)

FAMILY LAW ACT 1995 S9(1)(A)

BENSON v BENSON (DECEASED) 1996 1 FLR 692

BARDER v CALUORI 1988 AC 20 1987 2 WLR 1350 1987 2 AER 440

DIXON v MARCHANT 2008 1 FLR 655 2008 EWCA CIV 11

B (V) v P (J) 2008 1 FLR 742 2008 EWHC 112 (FAM)

FAMILY LAW ACT 1995 S16(5)

FAMILY LAW

Judicial separation

Property adjustment orders - Settlement previously made - Motion to enforce terms of consent order - Opposing motion to vary or discharge order - Change in financial position of respondent husband - Assertion that consent orders made in contemplation of assurances from bank - Bank no longer offering assistance - Whether appropriate to enforce or vary original orders - Whether hearing should take place on affidavit or by way of oral evidence - Whether open for spouse to make more than one application for property adjustment order - Whether change in financial situation a new development or continuation of trend evident at time of original orders - Benson v Benson (deceased) [1996] 1 FLR 692, Barder v Caluori [1988] 1 AC 20, Dixon v Marchant [2008] EWCA Civ 11 and VB v JP [2008] EWHC 112 (Fam) approved - Family Law Act 1995 (No 26), ss 9, 16 and 18 - Judicial Separation and Family Law Reform Act 1989 (No 6), s 15 - Property adjustment order in favour of applicant made (2007/37M - Dunne J - 14/5/2009) [2009] IEHC 248

O'C (C) v O'C (D)

Facts: the parties had been granted an order of judicial separation by the High Court pursuant to a written agreement settled between them. Ancillary orders under section 9 of the Act of 1995 included as terms of that agreement included an order directing the respondent to transfer his legal and beneficial interest in a property to the applicant and that the respondent transfer her legal and beneficial interest in the family home to the respondent, free from encumbrances. Various other orders had been made, including in relation to the payment of maintenance by the respondent. The parties had failed to transfer their respective interests in some of the properties. An application was made by the respondent to vary the terms of the original consent orders on the basis that his circumstances had changed to such an extent that he could not comply with the terms originally agreed. A further application was made by the applicant pursuant to section 9 of the Act of 1995 directing the respondent to transfer his entire interest in the family home to her.

Held by Dunne J in making a new property adjustment order in favour of the applicant transferring the respondent’s entire interest in the family home that a property adjustment order made under section 9 of the Act of 1995 could not be varied but it was open to a court to make a further property adjustment order in relation to the same property on more than one occasion.

That the general rule was that courts would uphold agreements freely entered into at arms length by parties who had been properly advised. However, in certain circumstances, applications to vary or set aside the terms would be entertained. The criteria to be applied in applications to set aside consent orders were: (a) that new events had occurred since the making of the order that invalidated the basis on which the order had been made so that an appeal would be certain or very likely to succeed; (b) that the new events should have occurred within a relatively short time after the making of the order; (c) that the application for leave to appeal out of time should have been made reasonably promptly and; (d) that the grant of leave should not prejudice third parties who had acquired in good faith and for valuable consideration interests in property the subject of the order.

Reporter: P.C.

Ms. Justice Dunne

1 The applicant herein brought proceedings seeking a judicial separation commenced by special summons issued on the 23^rd May, 2007. The proceedings were listed for Thursday 7^th February, 2008, and on that date a settlement was announced to the court and orders were made on foot of the terms of that settlement. I will refer to the terms of that settlement shortly.

2 The parties herein were married on the 22^nd July, 1988, and there were six children of the marriage. The eldest of those children was born on the 20^th July, 1989 and the youngest was born on the 26^th June, 1998. Of the children the four youngest children reside with the applicant and the two older children reside principally with the respondent.

3 At the time of entering into the settlement, the parties had a number of properties and the settlement contemplated a transfer of various properties from one party to the other. The family home is a property known as Cluain Ard. There is also a property known as The Rivers. In addition to those properties, the parties were the joint owners of a commercial premises which was held subject to a loan in favour of Anglo Irish Bank Plc. That property was registered solely in the name of the respondent, but it was acknowledged by him that the parties were joint beneficial owners of that property. The parties had a holiday home, known as The Billows. There was also an apartment owned by the parties at No. 8, The Dell. There was a computer company in which the applicant had an interest as did her parents.

4 The settlement made provision for the transfer of the various properties I have referred to above. There were also arrangements made in relation to the payment of maintenance and also the payment of a lump sum, I will deal with those matters subsequently.

5 The principle issues in the hearing before me relate to property adjustment orders made pursuant to s. 9 (1) of the Family Law Act1995. The settlement required the respondent to transfer to the applicant his legal and beneficial interest in the property known as The Rivers to the applicant free of encumbrance. The respondent was to discharge the existing mortgage on that property and to vacate the property by no later than the 1^st October, 2008. The applicant was ordered by means of a property adjustment order pursuant to s. 9 (1) of the Family Law Act 1995, to transfer to the respondent her legal and beneficial interest in the family home, Cluain Ard. The order provided that the applicant was to have the right to reside in the family home to the exclusion of the respondent until the 1^st October, 2008. She was to vacate those premises not later than that date. In addition to those orders, orders were also made directing the applicant to transfer her legal and beneficial interest in the property known as The Billows; the commercial premises; her shareholding in the computer company and she further agreed to procure the transfer of her parents' shares in that company. A declaration was also made that the respondent was the sole legal and beneficial owner of two other properties including No. 8, The Dell. One of the other provisions of the settlement noted that the applicant was to facilitate the respondent in preparing the family home for sale and she agreed to provide access to the premises and gardens and agreed to the placing of that property on the market. It was also agreed that in the event of a sale, the applicant was to vacate the premises to facilitate the closing of the sale of that property.

6 As can be seen from the above, it was contemplated that the terms of the settlement would be complete on or before the 1^st October, 2008. A key element was the removal of the applicant from the family home to the property known as The Rivers, which property was to be mortgage free.

7 The applicant has complied with her obligations under the terms of the settlement save for the transfer of the family home. She has transferred her interest in The Billows to the respondent, her shares in the company and she procured the transfer of her parent's shares in the company. The respondent has also had the benefit of the declarations as to his beneficial interest in a number of properties made pursuant to the settlement.

8 There are some issues in relation to the maintenance required to be paid by the respondent to the applicant and it is also the case that the respondent has not discharged a sum of €20,000 which was to be paid to the applicant by the respondent by way of lump sum payment.

9 One of the issues that arose at the outset of the hearing before me was whether or not the hearing should take place by way of hearing on affidavit or by way of oral evidence. I indicated at the outset that I would reserve my position in relation to that aspect of the matter in circumstances where neither party had given any indication to the court that the matter ought to be heard on oral evidence and neither party had served notice of intention to cross examine the other party on the affidavits sworn herein. In the event, as the hearing progressed, it became clear that there were less issues of conflict between the parties than might have been anticipated and it seemed to me to be unnecessary to hear oral evidence in respect of the applications before the court save in respect of one issue which I deal with later.

10 I should briefly refer to the various applications before the court. Three notices of motion were before the court. The first of those was a motion seeking the attachment and/or committal of the...