Pwy v Pc

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Garrett Sheehan
Judgment Date23 November 2007
Neutral Citation[2007] IEHC 400
Date23 November 2007
Docket Number[2005] No. 102 M]

[2007] IEHC 400

THE HIGH COURT

FAMILY LAW

[2005 / 102M]
Y (PW) v C (P)

AND

IN THE MATTER OF THE FAMILY LAW ACT 1995

AND

IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964

BETWEEN

P.W.Y
APPLICANT

AND

P.C
RESPONDENT

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989

FAMILY LAW ACT 1995 PART III

GUARDIANSHIP OF INFANTS ACT 1964

FAMILY LAW ACT 1995 29(1)(e)

FAMILY LAW ACT 1995 S23

FAMILY LAW ACT 1995 S23(3)(a)

FAMILY LAW ACT 1995 S26

FAMILY LAW ACT 1995 S27

MATRIMONIAL & FAMILY PROCEEDINGS ACT 1984 S13 (UK)

MATRIMONIAL & FAMILY PROCEEDINGS ACT 1984 S16 (UK)

FAMILY LAW ACT 1995 S23(3)

ADAM v MIN FOR JUSTICE 2001 3 IR 53

VOLUNTARY PURCHASING v INSURCO LTD 1995 2 ILRM 145

FAMILY LAW ACT 1995 S26(f)

R (M) v R (P) 2006 1 ILRM 513 2005 FLJ WINTER 26 2005/52/10836 2005 IEHC 228

FAMILY LAW ACT 1995 S27(1)(b)

MOORE v MOORE 2007 2 FLR 339 2007 EWCA CIV 361

FAMILY LAW

Relief after foreign divorce

Leave to apply - Setting aside - Jurisdiction - Leave granted ex parte - Application to set aside - Whether mala fides through non-disclosure - Whether the court has inherent jurisdiction to set aside leave granted on ex parte application - Whether jurisdiction most appropriate - Adam v Minister for Justice [2001] 3 IR 53, Voluntary Purchasing v Insurco Ltd [1995] 2 ILRM 145 and Moore v Moore [2007] EWCA Civ 361 (Unrep, CA, 20/5/2007) followed; MR v PR [2005] IEHC 228 (Unrep, Quirke J, 5/7/2005) considered - Family Law Act 1995 (No 26), ss 23, 26 & 27 - Leave to apply for relief set aside (2005/102M - Sheehan J - 23/11/2007) [2007] IEHC 400

Y(PW) v C(P)

1

JUDGMENT of Mr. Justice Garrett Sheehandelivered on the 23rd day of November 2007

2

The respondent in the motion now before this Court is seeking an order setting aside the order of the High Court made herein on the 16th day of December, 2005, granting the applicant leave to seek relief pursuant to Part III of the Family Law Act, 1995.

3

The respondent's application is grounded inter alia on the notice of motion issued on the 12th day of April, 2006, the respondent's grounding affidavit, and the affidavit of laws of the respondent's Hong Kong solicitor David Hardy Glynn, a matrimonial law specialist in that country. For ease of reference I will refer in this judgment to the applicant as the wife and the respondent as the husband notwithstanding the fact that the parties are divorced.

4

The husband and the wife met in Hong Kong in 1988 while both were working there. The wife who is now forty four years of age and comes from Hong Kong and the husband who is now forty nine years of age and was born in England were married to each other in a marriage registry office in Hong Kong on the 10th day of September,1991. There are two children of the said marriage N.J. who is now fifteen and E.C. who is thirteen.

5

The husband instituted divorce proceedings in Hong Kong in January, 2002 and a decree absolute was granted on the 23rd July, 2002.

6

The wife who is a university graduate ceased working when she became engaged to the husband and apart from an eighteen month period in or about 1996 when she set up a business from her home, she did not work during the course of the marriage. The husband and the wife spent the entire of their married life in Hong Kong. The husband subsequently became director and head of corporate finance for the company at which he had worked and retired in May, 2000.

7

Following the divorce the husband and the wife travelled to Ireland with their children. The court in Hong Kong had granted custody of the children to the husband with generous access to the wife. According to the wife the husband wished to preserve the appearance of a normal family unit for the children and she deposes in her affidavit that he has at all times forbidden and prevented her from advising the children of the breakdown of their marriage.

8

When they arrived in Ireland the husband and the wife resided together with their children in the South of Ireland for a number of months until the wife moved to Dublin and commenced a full time masters course at a third level institution spending weekends and some holidays with the children. The husband signed the lease for the apartment the wife first lived in and paid the rent for eighteen months.

9

The wife successfully completed her masters course in 2004 and in November, 2005 obtained a temporary contract of employment with an Irish bank. On the 16th day of December, 2005, she applied ex parte to this Court for the following reliefs:

10

1. An order granting the applicant herein leave to make application to this Honourable Court pursuant to Part. III of the Family Law Act 1995 for ancillary relief following the divorce of the applicant and the respondent herein by decree absolute granted by the District Court of Hong Kong made on the 23rd day of July, 2002.

11

2. Such further and other orders as to this Court shall seem just

12

The said application was grounded inter alia on the affidavit of the wife and the draft special summons which was subsequently issued on the 21st day of December, 2005, following the successful ex parte application on the 16th day of December, 2005.

13

The wife's claim in the special summons is in two parts marked A and B.

14

In part A the claim is for an order pursuant to section 29 (1) (e) of the Family Law Act, 1995 that the decree of divorce granted by the Hong Kong District Court on the 23rd day of July, 2002, dissolving the marriage as between the applicant and the respondent is not entitled to recognition in this State having been obtained by the respondent as a result of duress and/or without the free and voluntary consent of the applicant and/or without the applicant having received the benefit of independent legal advice and/or because the aforesaid divorce should be refused recognition as a result of a denial of substantial and/or natural justice and to recognise the aforesaid divorce would be contrary to the public policy of the State.

15

At A2 the wife seeks an order for a decree of judicial separation and the remaining twenty three orders the wife seeks in part A can be summarised as relating to an application for joint custody of the two children of the marriage and various ancillary financial reliefs.

16

In the second part at B the wife claims:

17

B1 In the alternative an order pursuant to s.23 of the Family Law Act, 1995 following the divorce of the applicant and respondent herein granted by the Hong Kong District Court on the 23rd day of July, 2002, for relief pursuant to Part III of the Family Law Act 1995 and in particular as set out hereunder. The remaining eighteen orders the wife seeks under part B can be summarised as relating to an application for joint custody of the two children of the marriage and various ancillary financial reliefs.

18

In the course of her grounding affidavit the wife deposed that throughout the marriage the husband had sought to exert complete control over all significant aspects of her married and private life and that as a result her decision making powers and free will were effectively suppressed by him. In particular she deposed that she was expressly forbidden by her husband to attend with her obstetrician/gynaecologist during and after her pregnancies save with his express prior consent and in his presence. The wife further deposed that difficulties arose in the marriage in 1996 and exhibited an agreement she entered into with her husband in January, 1997 which she alleged was not entered into freely by her. In this agreement the wife inter alia guaranteed that she would never again attempt to seek medical advice or services without proper prior discussion of the matter with the husband and would never again at any time or in any place or for any purpose ignore the husband's views in relation to such matters under any circumstances whatsoever.

19

The wife further exhibited a deed of separation dated the 16th day of January, 2002 and deposed that the statement in the said deed to the effect that she had entered into the agreement of her own free will and that she was not subject to any duress or any undue influence was wholly incorrect.

20

At para.45 of her affidavit the wife claimed that she could not now successfully apply for and obtain orders for financial relief in Hong Kong. As a critical part of the outcome of the husband's application to have the ex parte order set aside depends on the importance and weight to be attached to this claim it is as well to set para.45 out in full. It reads:

"I say and believe and am advised by my solicitors who have consulted expert legal advice in Hong Kong that had this deponent participated in the Hong Kong divorce proceedings and sought ancillary relief in that context the Hong Kong courts would have possessed jurisdiction to make ancillary relief. In that context, the Hong Kong courts would have possessed jurisdiction to make ancillary relief orders similar to those that can be made by both this Honourable Court and by the English courts. I say and believe and am advised that in these circumstances the orders that could have been made by the Hong Kong courts include maintenance pending suit, periodical payments, secured periodical payments, lump sum payments, transfer of property, settlement of property, and variation of settlement orders. According to expert advice received, I cannot now successfully apply for and obtain such orders in Hong Kong".

21

On the 20th day of January, 2006, the husband was duly served with a copy of the special summons and the wife's grounding affidavit. He was also served with copies of the various exhibits as well as the wife's affidavit of means and affidavit of welfare.

22

On the 16th day of March, 2006, the husband's solicitor entered an appearance in the following...

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