C.F. -v- J.D.F., [2005]IESC45 (2005)

Docket Number:246/03
Party Name:C.F., J.D.F.
Judge:McGuinness J.
 
FREE EXCERPT

THE SUPREME COURT

2003/246

McGuinness J.

McCracken J.

Kearns J.

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

IN THE MATTER OF THE FAMILY LAW ACT 1995

IN THE MATTER OF THE DOMESTIC VIOLENCE ACT 1996

IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964

AND IN THE MATTER OF M.F. AND E.F. (INFANTS)

BETWEEN:

C.F.

APPLICANT

and

J.D.F.RESPONDENT

Judgment of Mrs Justice McGuinness delivered the 12th day of July 2005

In these family law proceedings there are two appeals before the court, the first being an appeal by the respondent J.D.F. against the judgment and order of the High Court (O'Sullivan J.) made and delivered on the 16th day of May 2002 and the second an appeal by the applicant C.F. against a subsequent order made by the same judge in the High Court on the 14th day of November 2002. Since both appeals arise from the same original family law proceedings in which the applicant sought a decree of judicial separation together with wide ranging ancillary orders the appeals were heard together. As is frequently the case in such proceedings both parties accept that their marriage has irretrievably broken down and there is no appeal against the actual decree of judicial separation. The appeals arise from ancillary matters, details of which will become clear later in this judgment.

THE FACTUAL BACKGROUND

The factual background as found by the learned trial judge is set out in his original draft judgment and his revised written judgment of the 16th May 2002. In summary the facts are as follows. The applicant C.F. ("the wife") was born on the 1st December 1957. The respondent J.D.F. ("the husband") was born on the 30th January 1953. The parties were married in a civil ceremony on the 15th November 1989, having previously participated in a religious ceremony of marriage on the 19th October 1988. There are two children of the marriage, both daughters, M. born 13th November 1992, now twelve years of age, and E. born 28th January 1995, now ten years of age.

The wife had been previously married on the 8th August 1980. This marriage was short lived and a church annulment was granted after approximately eighteen months. The parties obtained a decree absolute of divorce in England on the 27th March 1989; this was accepted as being valid in this jurisdiction.

The husband and wife were involved in a relationship from in or about 1985. The husband worked as a trader in the Bank of Nova Scotia in Dublin. The wife operated a business as a beautician. This business operated mainly in a provincial city but had two branches in Dublin.

At the beginning of the relationship the wife owned a house in the provincial city where she had her business. She sold this house in 1985 and divided the proceeds between investment in her business and a contribution towards the acquisition of the family home in the Donnybrook area of Dublin. The husband also contributed to the acquisition and the refurbishment of this property, in part by means of a bank loan.

The husband came from a farming background in the County Wicklow area. The wife had an interest in horses, as had the husband. In 1989 the husband bought a farmhouse from his aunt. This farmhouse was situated in close proximity to a considerable farm owned by the husband's father. The farmhouse was situated on half an acre, but had no other land attached to it. It is held in the husband's sole name.

In 1992 the husband and wife moved to reside in this property in Wicklow, where their two children were born. The wife's businesses went through a somewhat troubled period and were sold - it appears at some small loss, or at least with no profit - between 1992 and 1994. The family home in Donnybrook was sold in 1996 for the sum of £160,000.

In 1998 the husband's employment at the bank was terminated and he received a settlement from his employers. In or about this time he embarked on the establishment of a stud farm business at the family home in Wicklow. He invested money in developing stables and other facilities for this business. Considerable financial evidence was given during the lengthy trial in the High Court regarding this business, and indeed regarding all other aspects of the parties' financial history, but for the purposes of deciding the issues on this appeal there is no need to consider the details of this evidence. The learned trial judge accepted on the evidence that by 2002 the stud farm business was making a profit.

Since there was no land attached to the parties' family home in Wicklow, the husband operated the stud farm on 22 acres of land adjacent to the family home which was part of the farm owned by his father, Mr J.F. senior. Although the husband used this land for the purposes of his stud farm, the land remained in the ownership of his father. The husband from time to time assisted his father on his farm, and it appears that the father, though now elderly, also at times assisted his son. The learned trial judge held that they had a close relationship.

After the wife sold her businesses she was no longer employed outside the home. With the aid of a housekeeper she cared for the home and children. She frequently rode out horses for a neighbouring farmer, had an active social life and was involved in charities. The learned trial judge held that her contribution to the stud farm business was minimal.

There were difficulties in the marriage from in or about 1995. These worsened in 1997-8. In April 2000 the wife issued the present proceedings. She left the family home in October 2000. Since then she has lived in rented accommodation in County Kildare. The children lived in the main with the wife, but continued to attend the local school which is near the family home. The wife has a relationship, which the learned trial judge held was not sexual, with another man.

THE PROCEEDINGS

Since the Special Summons initiating the proceedings does not appear to be included among the pleadings provided to this court it is not entirely clear what precise reliefs were originally sought by the applicant wife. However, these can in the main be inferred from the judgment and order of the learned trial judge. It is clear that throughout the proceedings the wife maintained that the 22 acres on which the stud farm operated formed part of the family home or at least part of the matrimonial assets.

On the 20th March 2001 the wife's solicitors wrote to the solicitor for the husband's father, Mr J.F., stating that it was the wife's case that the father held lands jointly and/or on trust for the husband and in addition that the husband was or was likely to be the beneficiary of lands held in his father's name. The solicitor sought to carry out a valuation of Mr F. senior's lands. They also made reference to bank accounts which they alleged were held jointly by Mr F. senior and his son and sought discovery concerning these accounts. The letter continued as follows:

"As we are formally notifying you of the claim made by our client in relation to the above mentioned property, you might confirm whether your client seeks an opportunity to make representations with respect to any orders the court might make pursuant to the Family Law Act 1995. Alternatively, you might confirm whether your client is agreeable to being joined as a notice party to these proceedings."

While it is clear on the evidence before the High Court that this letter was received by the solicitors and was shown to Mr F. senior, it appears to have evoked no response. No steps were taken by the wife's solicitors to make the husband's father a notice party to the proceedings.

Mr F. senior was called as a witness by the wife. His examination in chief by senior counsel for the wife, Ms Clissmann, was criticised both by senior counsel for the husband and, at times, by the judge as tending towards cross-examination. Mr F. senior was clearly not particularly anxious to assist the wife's cause. His solicitor, Mr Osborne, was present in the court with him and occasionally intervened in the proceedings to clarify matters, for example in connection with his client's will. During the course of argument before this court Ms Clissmann submitted that the letter sent to Mr F. senior constituted sufficient notice to him and that it was not necessary for him to be made a notice party to the proceedings.

The trial was lengthy, lasting some nine days. A great deal of the evidence turned on the financial resources of the husband, both in this jurisdiction and in the Isle of Man, on the ownership of the farm lands and on the operation of the stud farm. Fortunately, since the central issue of the first appeal turns on a particular point of law, there is no need to survey the detail of this evidence. Suffice it to note that it was clearly established that the 22 acres on which the stud farm operated remained, as it had always been, in the legal ownership of Mr F. senior. (The matter at issue in the second appeal is entirely separate, and will be dealt with later in this judgment.)

The learned trial judge gave judgment on the 16th May 2002. In his order he granted a decree of judicial separation. By way of ancillary relief he further ordered:"1. That the respondent do have the right to occupy for life the family home situate at S. Stud, G., in the County of Wicklow to the exclusion of the applicant;2 That the said family home do include the 22 acre site immediately adjoining the residence upon which site the respondent has developed the stables, yard, lunge ring and enclosed fenced area;

3 That the respondent do pay to the applicant a lump sum of 489,000 being the sum of 461,000 representing a fair evaluation of the applicant's interest in the assets (with the exception of the furniture of the house) of the family home and the sum of 28,000 to balance the notional sum available to the respondent in the context of extra costs caused by his lack of co-operation with the requirements of discovery;

4 That the applicant do continue...

To continue reading

REQUEST YOUR TRIAL