Neutral Citation: [2016] IEHC 572
THE HIGH COURT
FAMILY LAW
[2014 No. 54 M.]
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989
AND IN THE MATTER OF THE FAMILY LAW ACT 1995
BETWEEN
N.K.
APPLICANT
RESPONDENT
JUDGMENT of Ms. Justice Bronagh O’Hanlon delivered on the 29th day of July, 2016
1. This is a judgment in relation to three motions which were before this Court on 24th June, 2016.
2. A notice of motion issued on behalf of the respondent wife, dated 15th December, 2015, that seeks interim maintenance pursuant to s. 7 of the Family Law Act 1995, and that also seeks that the applicant be directed to comply with the order of the High Court dated 12th August, 2015 relating to access to the dependent children.
3. A notice of motion, dated 25th January, 2016, filed on behalf of the applicant husband seeks that the respondent be restrained from dissipating funds in her accounts, amounting to €31,657 in one account and €12,082 in another account, pursuant to s. 35 of the Family Law Act, 1995. The applicant husband was also seeking a fresh section 47 report. Upon the recommendation of the previous s. 47 assessor, Dr. Curtin, neither the applicant nor the respondent were furnished with the previous full report already carried out so that the recommendations made could be understood and put in context.
4. A further notice of motion, dated 5th April, 2016, filed on behalf of the respondent wife seeks a declaration that alleged expenditure in the sum of €1,275,281 be declared a reviewable disposition pursuant to s. 35 of the Family Law Act 1995 and also seeks an order prohibiting any further transfer of monies by her husband from the jurisdiction.
5. The special summons in this case was served on 22nd July, 2014 by the applicant husband on the respondent wife. The applicant and respondent herein were married to one another on 2nd April 1995 in Pakistan. The applicant is resident and domiciled within the jurisdiction of this Court. There are three children of the marriage, M. born on 6th July, 1996, U. born on 18th January 1998 and H. born on 9th December, 2000.
6. The applicant is a consultant obstetrician and gynaecologist who is employed by the HSE and also operates a private practice. The respondent is a housewife who also received a salary from the applicant’s company during the marriage. Unhappy differences existed in the marriage for a period in excess of one year prior to the institution of the within proceedings.
7. A section 47 report was completed by Dr. Geraldine Curtin in July 2015.
8. An order was made on 12th August, 2015 by Barton J. of the High Court in terms of a consent between the parties that there would be joint custody of the dependent children with primary care going to the respondent mother and regular access to the applicant father. The applicant also agreed to discharge the rent on the property in which the respondent resides. The children did not reside with the respondent mother in accordance with the consent order.
9. An order was made on 18th December, 2015 by this Court reflecting terms of consent. The applicant agreed to pay the respondent the sum of €3,300 immediately. Access over the Christmas period was also agreed between the parties.
10. The respondent stated in an affidavit dated 15th December, 2015 that she accumulated savings of approximately €100,000 from child benefit and monies (€1,850 per month) paid to her as a secretary for the applicant’s company prior to the breakdown of the marriage. However, she states that she has had to use said monies for everyday living expenses and she stated that she is now in dire financial straits and is relying on the children’s allowance which is now just €135 per month as only one child is under 18 years of age.
11. The applicant stated in his affidavit dated 19th January, 2016 that he has discharged the cost of the respondent’s rent. He believes that the remainder of the monies that she has in savings should be frozen and he identified this money as the funds which he provided in support of the respondent. He aleeges that he has a tax liability to the Revenue amounting to approximately €1.2 million.
12. There is extensive conflict between the two parties as to the income of the applicant and the money that may be required by the respondent.
13. It was asserted on 24th June, 2016 by counsel on behalf of the respondent that the respondent has expenses in or around €6,000 per month although vouching for these expenses was not before the Court. It was further stated that the respondent has received no maintenance since the separation in July 2014 except for the paying of her rent and she is now seeking a lump sum as an entirely dependent spouse. It was further alleged by counsel for the respondent that the applicant has obstructed the access between the mother and her children which had been ordered by the High Court.
14. Counsel for the applicant responded to the interim maintenance motion in stating that it comes under s. 7 of the Family Law Act 1995 and therefore the Court can only consider any maintenance due from the date that the motion was brought up to the present date. In this context, this Court estimates that there are seven months arrears of maintenance due at this point in the proceedings in terms of interim maintenance.
15. On the applicant’s case he says he has paid his wife between July, 2014 and November, 2015 being 16 months, the amount of €38,000 which is the equivalent of €2,375 per month. This Court notes that in July, 2014 the respondent wife had €130,000 in savings and 24 months later she has approximately €50,000 and therefore she had to use €80,000 out of €130,000 in the last two years as well as the maintenance her husband paid her which is not disputed. This means that over the last 24 months out of €80,000 approximately in savings she had to spend from the monies on deposit the sum of approximately €3,333.33 per month and by the calculation of this Court therefore she was actually using in excess of €5,000 per month and this Court notes that at least some of the children were living with her for part of that time up until May, 2016. This Court accepts that in the respondent’s own calculation of what she spent, some of her money was paid as a down payment in respect of legal fees.
16. This Court notes the averment of para. 12 of the affidavit of the applicant of the 19th January, 2016 where he sets out that he is anxious that this Court fix a periodic sum in respect of the respondent’s reasonable maintenance until this matter is dealt with. However, this Court further notes that the applicant has not paid any maintenance over a great number of months even though the sum of €1,000 was lodged on the day prior to the hearing of the notice of motion herein. This Court does note that the applicant continues to pay €600 per month for rent for the respondent. Interestingly, the applicant did not think it worth his while to inform the respondent that he was even paying €1,000 until the morning of the hearing of this notice of motion.
17. Prior to the separation it is common case that the respondent drove a new 2012 Mercedes motor vehicle purchased in that year. She avers that she discovered that her motor vehicle was missing one morning and informed An Garda Síochána but was told later that because the said motor vehicle was registered in the applicant’s name, he felt he could do with it what he wished and it had not been stolen. The respondent was given a replacement 2002 Nissan Almera motor vehicle which was embarrassing to her and to the children and the children refused to travel in it. This Court notes that between July, 2014 until August, 2015 the respondent had to rely on taxis where she lived in Galway and the two younger children were in Ballinasloe and further that the applicant discharged some taxi expenses regarding the children’s travel but not personal travel of the respondent. In the context of a court application last summer, the applicant was to provide a motor vehicle for the respondent and to tax and insure same and this lead to him providing her with a 2009 Polo motor vehicle. Further difficulty arose for the respondent when her iPhone was removed by the applicant who replaced it with a Nokia mobile telephone purchased for €50. The respondent pays her own VHI private health insurance.
18. No motor vehicle is disclosed as being owned by the applicant in any of his affidavits of means sworn in the within proceedings or indeed no reference at all is made to same but this Court has discovered that the applicant drives a 2015 registered Range Rover motor vehicle registered in his own name. He did not borrow to buy this but was able to produce money to buy this vehicle outright. He has confirmed that it is not leased.
19. The applicant alleges in his affidavit of 2nd June, 2016 at para. 17 and on the 19th June, 2016 at para. 13 that there has been a diminution of his private practice income. Prior to this point, he was earning through his company in excess of €6,000 by way of private income, fees and of course he has in addition well in excess of €6,000 per month from the HSE by virtue of his position as a consultant gynaecologist. The applicant had €144,000 in a bank account as reflected in his affidavit of means sworn on 26th March, 2015. The applicant’s correspondence between his accountant and Revenue dated 3rd November, 2015 has been referred to and the applicant claims that the monies on deposit were used to discharge tax liability for 2014 in November, 2015.
20. This Court takes the view that neither party has complied fully and properly with the practice direction concerning disclosure although there is disclosure ongoing as between the parties. This Court takes the view that both parties have exaggerated somewhat in their respective affidavits of means and indeed these are both inadequately vouched. The applicant estimates the respondent’s alleged outgoings including rent, to be in excess of €4,000 and gives a figure of €4,115 and he claims this to be excessive in particular in relation to the amount of money the respondent claims to pay on food and he asserts that she has other people living with her and she has not accounted from any monies given by them to her. The applicant’s other claim is that he overpaid her money while the parties were living together and he says the overpayment over a three year period amounted to €52,318.50, €17,439 per year for that three year period.
21. This Court considers in all the circumstances of this interim application that the appropriate lump sum covering the last seven months to be paid forthwith by the applicant to the respondent is €25,900 out of the €40,000 he holds on deposit and this is a measure of the interim maintenance figure in the sum of €3,700 per month back dated for the appropriate period, noting that he has paid €600 per month for her rent, and this Court directs that the applicant continue to pay the €600 per month for the respondent’s rent for one further month to cover August, 2016. The lump sum of €25,900 is to be paid forthwith.
22. This Court further directs, in circumstances where there is inadequate vouching, the most appropriate way of dealing with the interim maintenance issue pending trial is as follows. The stated monthly payment due and to be paid by the applicant to the respondent by way of interim maintenance is set by this Court at €3,700 plus continuing payment of rent by the applicant to the respondent in the sum of €600 for one further month. A further sum of €700 monthly is payable in equal shares for the dependent children going forward from this date, pending trial. The applicant is duty bound to continue to pay these sums but is restrained by this Court from transferring ownership of, pledging as credit or otherwise interfering with the value of the 2015 Range Rover motor vehicle which he is driving at present, given the potential of this asset to provide a maintenance fund pending trial on the following basis.
23. This Court considers that in this high conflict case, if the applicant husband wishes to dispose of this vehicle he can do so under court supervision and on terms to be set by this Court so long as the entire net proceeds of sale constitute a fund pending trial to be controlled by his wife out of which she can deduct €3,700 per month pending trial. On that basis, he can seek to suspend the €3,700 per month maintenance payment pending trial, subject to this Court’s sanction on sale of the said vehicle.
24. The respondent will have to account properly in terms of vouching regarding the use of the monthly sum. Pending the realisation of a lump sum through sale of the vehicle the figure of €3,700 is to be paid by the applicant to her by way of interim maintenance. Once she has secured a lump sum through sale of this motor vehicle with court sanction the €3,700 may cease pending trial or other order of this Court.
25. This Court has asked the s. 47 assessor, Dr. Curtain to attend court in relation to her first interim report. This Court will leave over the issue of the s. 47 report concerning the children, pending hearing from Dr. Curtin. This Court has asked Dr. Curtin to attend so that issue of her requirement that the s. 47 details will not be released to the parties and be further considered by this Court and indeed in relation to the application to have a second assessor appointed as a possibility. This Court notes that the respondent is very opposed to this but first requires to hear fully from Dr. Curtin regarding such matters. In the mean time this Court notes that the parties agreed to an order and ruled same before Barton J. during the summer vacation on 12th August, 2015 and notes the respondent’s contention that the applicant has not complied with this consent order and her case at this point is that the applicant has refused to transfer the children to her.
26. Both parties have been directed by this Court not to dissipate any assets held by them in any of their accounts save with the permission of this Court pending trial and therefore adjourns the motions concerning same to the hearing of this action.
27. Reserved costs.
28. Refused stay.
