Robins v Robins
1997 WJSC-CC 2194
THE CIRCUIT FAMILY COURT
COUNTY OF THE CITY OF DUBLIN
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GARDA SIOCHANA (COMPLAINTS) ACT 1986 S29
GARDA SIOCHANA (COMPLAINTS) ACT 1986 S29(2)(a)
GARDA SIOCHANA (COMPLAINTS) ACT 1986 S29(2)(b)
GARDA SIOCHANA (COMPLAINTS) ACT 1986 S29(4)
GARDA SIOCHANA (COMPLAINTS) ACT 1986 S29(5)(a)
SCHEME OF CIVIL LEGAL AID & ADVICE DEC 1989 (PRL 8543) S8(3)(1)
SCHEME OF CIVIL LEGAL AID & ADVICE DEC 1989 (PRL 8543) S8(3)(2)
COLLINS V DOYLE
FALLON V BORD PLEANALA
MIDLAND BANK LTD V CROSSLEY-COOKE
FARES V WILEY
MALONE V BROWN THOMAS & CO LTD
COHANE V COHANE
CIVIL LEGAL AID ACT 1995
AIREY V IRELAND 1979–
CIVIL LEGAL AID SCHEME 1979 S3(2)(3)
CIVIL LEGAL AID SCHEME 1979 S4(1)(5)
JUDGMENT delivered by JUDGE CATHERINE McGUINNESS on the 15th day of FEBRUARY, 1996.
The matter before the Court is a Motion brought by the Notice Party Anthony Robins, who is a brother of the Respondent, Paul Robins, seeking security for costs as against the Applicant. The original Application was brought by the Applicant on the 14th November, 1994 seeking a decree of judicial separation together with various forms of ancillary relief pursuant to the Judicial Separation and Family Law Reform Act, 1989.Among the reliefs sought is an order pursuant to Section 29 of the 1989 Act setting aside the disposition of the Respondent's interest in the premises situate at, Dundrum, Dublin, 16 to his brother Anthony Robins or otherwise. It is in connection with this aspect of the proceedings that Mr. Anthony Robins has been joined as a Notice Party. In regard to the Motion for security for costs a number of affidavits were opened to the Court as follows:-
Affidavit of David Bergin, Solicitor for the Notice Party sworn 20th June, 1995.
Affidavit of George Mullen, Solicitor for the Applicant, sworn 11th July, 1995.
Affidavit of Eamon Robins, Administrator of the Estate of Ted Robins, sworn 13th October, 1995.
Affidavit of Ciaran Callan, Solicitor for the Administrator, sworn 26th October, 1996.
Affidavit of George Mullen, Solicitor for the Applicant, sworn 1st December, 1995.
In addition, legal submissions were made by Ms. Dooge, B.L. for the Notice Party and Mr. Fitzgerald, B.L. for the Applicant.
A number of the factual matters which are the background to the proceedings are not in dispute. The Applicant and the Respondent were married on 25th July, 1980 and there is one child of the marriage, now aged 14. The parties lived in Avenue, Clondalkin until in or about 1989. At the beginning of that year they moved to Road, Dundrum, which was the home of Mr. Ted Robins, father of the Respondent and of the Notice Party. Mrs. Robins, Senior, had recently died and Mr. Robins, Senior was ill at the time. The Applicant and the Respondent were to care for the Applicant's father. The Applicant claims that in or about late 1989 or early 1990, a family agreement was reached that the Applicant and the Respondent were to raise monies to renovate the downstairs of the house for the accommodation of Mr. Robins, Senior, in return for which the premises were to be transferred to the joint names of the Applicant and the Respondent. Before this occur, Mr. Ted Robins died intestate on 12th October, 1990 and Mr. Eamon Robins was appointed administrator of his estate.
Shortly after the death of Mr. Ted Robins a further family agreement was reached between the Respondent and his seven siblings that the Applicant and the Respondent would buy out the interests of each of the seven siblings in the premises at Road and take over the title to the premises. There is some disagreement as to price. It appears that approval was given by the First National Building Society for a mortgage for this purpose in or about June, 1991. However, at this stage the marriage relationship between the Applicant and the Respondent, which had been problematic for some time, deteriorated further and the Applicant left the family home in August, 1991. The parties have not lived together since that date.
Shortly after the departure of the Applicant, it appears that the Respondent informed Eamon Robins, the administrator of the estate, that he no longer wished to proceed with the purchase of the Road premises. Eamon Robins asserts in his Affidavit that the premises were then put up for sale through an estate agent. This is to some extent disputed by the Applicant. Later in 1991 a further family meeting was held and it was agreed that the Notice Party and his partner, Ms. Miriam Harvey, would purchase the property by buying out the interests of the other siblings. Each sibling was to be paid a sum of £7,000. This sale of the property was completed in January, 1993. The matter was handled by Ciaran Callan, Solicitor for the administrator of the estate, and David Bergin, Solicitor, of Messrs. O'Connor and Bergin, Solicitors, who acted for the Notice Party. Both solicitors aver that the transaction was bona fide and took place in an appropriate manner. The sum of £7,000 was paid to the Respondent for his interest in the premises.
The Applicant in her proceedings alleges that this transaction was designed to defeat her claim for financial relief against the Respondent and seeks an order pursuant to Section 29 of the 1989 Act setting it aside.
The relevant parts of Section 29 of the 1989 Act provide as follows:-
2 "29(2) Where proceedings for financial relief are brought by one person against another, the Court may on the application of the first mentioned person -
(a) if it is satisfied that the other party to the proceedings is with the intention of defeating the claim for financial relief about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property, make such order as it thinks fit for the purpose of restraining the other party from so doing or otherwise for protecting the claim;
(b) if it is satisfied that the other party has with that intention made a reviewable disposition and that if the disposition were set aside financial relief or different financial relief would be granted to the Applicant, make an order setting aside the disposition … and an application for the purposes of paragraph (b) shall be made in the proceedings for the financial relief in question …
(4) Any disposition made by the other party to the proceedings for financial relief in question (whether before or after the commencement of those proceedings) is a reviewable disposition for the purposes of sub-section (2)(b) and (c) of this section unless it was made for valuable considerable (other than marriage) to a person who at the time of the disposition acted in relation to it in good faith and without notice of any intention on the part of the other party to defeat the applicant's claim for financial relief.
(5) Where an application is made under this section with respect to a disposition which took place than three years before the date of the application … and the court is satisfied -
(a) in a case falling within sub-section (2)(a) or (b) of this section that the disposition or other dealing would (apart from this section) have the consequence … of defeating the applicant's claim for financial relief, it shall be presumed, unless the contrary is shown, that the person who disposed of or is about to dispose of or deal with the property did so, or, as the case may be, is about to do so, with the intention of defeating the applicant's claim for financial relief."
At this stage, it is, of course, neither possible nor proper for the Court to speculate as to the likelihood of the Applicant succeeding in her claim under Section 29. However, on the pleadings, it does appear that she has at least some form of stateable case. Her allegations as to her husband's attitude to financial matters are to some extent strengthened by the fact that since the breakdown of the marriage, he has failed properly to maintain the Applicant and the child of the marriage. A Maintenance Order was made by the District Court. The Respondent was subsequently sentenced to a period of imprisonment for failure to obey this Order but at that point he left the jurisdiction and resided abroad for a period.
The Applicant has the benefit of legal aid through the Civil Legal Aid Scheme and is certainly a person with little or no financial resources to meet an order for costs, should such an Order be made against her in the event of her failing in her proceedings against the Notice Party. The Notice Party, while he does not qualify for legal aid, has only very moderate financial resources and I accept absolutely Ms. Dooge's contention that it will be a hardship to him to meet his own costs in these proceedings. I would also accept Mr. Fitzgerald's submission that if an order for security for costs is made against the Applicant, she clearly will have no resources to meet it and will be forced to withdraw her proceedings against the Notice Party. She would of course be able to continue her proceedings against...
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