High Court adjusts access and property division due to changed financial circumstances and job loss.

Neutral Citation Number: [2010] IEHC 423

THE HIGH COURT

CIRCUIT APPEAL

2008 184 CA

2008 217 CA

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

ACT 1995 AND IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT 1996

BETWEEN

H. P.

APPLICANT

AND

F. P.

DEFENDANT

JUDGMENT of Mr. Justice John MacMenamin delivered the 15th day of July, 2010.

1. Since this matter was dealt with in the Circuit Court on 16th October, 2008, the parties’ circumstances have, unfortunately,

changed quite radically. Most relevantly, the respondent lost his job approximately one week before the hearing. This has had a very

substantial effect on the amount of the assets and means which are available to the parties. The Court has no option therefore but

to approach the issue in the light of the present changed circumstances in an effort to do justice between the parties. The focus

must be to see what steps can be taken to redress the situation.

2. This judgment only concerns those parts of Judge Nolan’s order which were in dispute.

Access

3. I would like to say at the outset that both parties have every reason to be proud of their daughter Z. She is a vivacious, charming

and intelligent girl. In view of the fact that a number of access queries required resolution I decided, on consent, for the parties to

briefly interview Z. I did so in the presence of the registrar and counsel on both sides. Clearly Z. enjoys the love and affection of her

mother and her father. This case is somewhat unusual in that there is no doubt that the father was seeking a substantial increase in

the access arrangements.

4. In the light of all the evidence, I have come to the conclusion that the circumstances with regard to access should be altered

somewhat from Judge Nolan’s order. There can be no objection to Z. enjoying the company not only of her father, but also her

father’s immediate family. Mrs. P. has expressed no problem in relation to this in any case. However, it has become crystal clear on

the basis of the evidence that it would not be desirable that access should take place quite in the manner which Judge Nolan

envisaged. I do not think it is desirable that access should take place while Mr. P.’s partner is present. I think ultimately this is in the

interest of all the parties at the moment. I would emphasise that no order in relation to access is a final one and this can be varied

when or if circumstances may allow.

5. Z. very clearly indicated that she enjoyed being with her father. I think this must be encouraged. Such a situation would not be

encouraged were access to take place merely on alternate week-ends. I think Z. is entitled to continuity in her relationship with her

father as much as with her mother, insofar as circumstances will allow. On this issue I would make one other comment. Clearly it is

very difficult to set all the circumstances of human life in stone. But one thing is clear. Commitments made to children should be kept.

If a commitment is made to take a child on some particular date or some particular occasion it should not be varied or altered without

very good reason. Alterations of this type undermine the relationship between the parent and the child. Consequently, I think it is

important that the orders which I make should be as clear as possible in the interests of all.

6. I am taking into account the latest correspondence and, in particular, the letter from the father’s solicitor of 30th June, 2010 and

the response from the mother’s solicitors on 6th July, 2010. I will direct that the father will have access from 11.00 a.m. to 7.00 p.m.

on alternate Saturdays and Sundays of each week-end. That means he will have access on Saturday of one week-end, and then on

the Sunday of the following week-end between 11.00 a.m. and 7.00 p.m.

7. I note that the father has indicated that he is happy to allow the mother to take Z. outside the jurisdiction for a two week holiday

to Spain.

Property and maintenance

8. I turn now to the property and maintenance issues. In the light of the present circumstances it seems to me that there is no

reality in looking at the previous situation as the main point of reference. Mr. P. was made redundant on 15th June, 2010. As I

understand the situation he has been in touch with Social Welfare to establish what his entitlements will be. It is anticipated that his

income will be approximately €196.00 per week. This clearly is in stark contrast to the situation which previously existed. Mr. P. is

entitled to have at his disposal some sums of money which will allow him to live. Equally the rights of the mother and the child to

maintenance should be preserved. Thus, I will make the following directions that Mr. P. will pay to Mrs. P. the sum of €30.00 per week

from his social welfare (€20 towards the mother and €10 for the child). As yet it is unclear what Mr. P.’s redundancy payments will be.

On one estimate they may be in the region of €30,000. A lump sum payment from redundancy is the one substantive area where Mrs.

P. can receive some assistance in order to meet her obligations with regard to the family home. I have the sense that trying to

protect the mother’s interest in the family home is something of a “rescue mission”. Ultimately, it may well be that the only solution

will be to sell the home and to find another one albeit rather smaller. That is not a matter for this Court, however. I will direct that

Mr. P. will pay to his wife 50% of the redundancy payment for her benefit and that of Z. A mechanism must be devised to ensure that

Mrs. P. will receive this payment when it becomes due. This is a matter to be dealt with between solicitors.

The properties

9. I turn then to consider the interests of the respective parties in the properties. Again I take into account the contents of the

respondent’s letter of 30th June, 2010. There the husband indicated he was prepared to relinquish his interest in the family home in

lieu of maintenance and on condition that: (a) he is removed from the mortgage and top-up mortgage on the family home, that is,

that he would have no liability in the future for these mortgages and/or (b) that if the bank refused to release him from the

mortgages, the family’s home be sold and the net equity used to purchase another family home for the mother and Z. Even were the

Court to adopt this course of action the question arises as to whether this is practical.

10. I must comment also that I consider that there was a certain lack of realism on Mrs. P.’s part with regard to the family home. She

indicated to this Court that she was confident that she would be able to do a deal with Ulster Bank and that a deal had been offered

to her as long ago as February. For a number of reasons I adjourned the case. I clearly indicated to Mrs. P. that she should check

whether this offer was still open as I anticipated it would not be. As it transpired my fears proved correct. The parties must be alive

to the fact that they must protect their own interests. It is a matter for solicitors and counsel to ensure that the parties properly

appraise those interests prior to coming to Court. So far as the bank was concerned matters had changed because of the husband’s

redundancy. But the husband’s obligations and duties remain under the Acts of 1989, 1995 and 1996.

11. Having considered the matter I consider that the wife should be entitled to the remainder of the husband’s interest in the family

home. The husband will sign all documents necessary for the purpose of transferring his interest. This is a variation of Judge Nolan’s

order where he had apportioned the interest between the parties 60:40. I am taking into account the substantial work which the

mother has put into the home and into the family, and also the husband’s offer made on 30th June, 2010 although couched in

different terms. The husband will sign all documents necessary for the transfer of his interest. It will then be a matter for Mrs. P. to

see whether she can enter into another arrangement with the Ulster Bank. She has indicated that she intends to try and find work. It

may also be that she will receive assistance from her own family.

12. Both parties are entitled to be protected, however, in this arrangement. Consequently, if Mrs. P. has not been able to put a

suitable viable arrangement in place with the bank within three months I will direct that the family home be sold within nine months of

the date of this judgment or such further time as may be agreed between the parties, and Mrs. P. is to have the entirety of the

remaining equity in the home after the bank’s interest has been satisfied.

13. I turn now to the other properties. No real claim was made that the wife was entitled to any interest in either of two properties in

Co. Dublin. These are all referred to in the letter of 30th June, 2010. But these are properties with a potential long term value if the

market improves significantly.

14. I must now focus on three other properties in Dublin.

15. The Circuit Judge concluded, on the basis of the evidence before him, that these properties were actually owned by Mr. P., Snr.

that is, the respondent’s father. Having heard evidence on the issue I am unable to share this view. Moreover, I think the respondent

is estopped from asserting this position in light of the fact that all the legal documents which have been shown to this Court clearly

indicate that the respondent (and not his father) is the legal owner of the property.

16. The evidence of Mr. McGrath, the manager of A.I.B. was conclusive. The bank provided mortgage facilities. They were clearly of

the belief that the respondent was the owner. The father executed all documents necessary to transfer his interest. He would not

have received the loan as he was not qualified to do so. Mr. McGrath’s evidence demonstrated that the bank’s appreciation of

matters was that the respondent, and not E. P., was the owner of this property for the purposes of the development.

17. The evidence as to what was now happening to the rent on this property was, frankly rather vague. I have the impression, rightly

or wrongly, that the respondent may be receiving those rents and sending some part of it on to his father and retaining other parts of

it perhaps for maintenance of the properties. The truth of the matter is that all the documentation is consistent with the respondent

being the owner of the property. He is in receipt of the rents. I would wish to emphasise that it is not that I reject the evidence of

the respondent’s mother and father but, rather, that I must have regard to the legal situation as it so clearly exists.

18. I therefore declare that the respondent is the owner of each of these three properties in Co. Dublin. In the light of this

circumstance, and in the light of the other changed circumstances, it seems to me that the Court should, in justice, take steps in

order to ensure that the interests of the parties and Z.’s interests are protected.

19. I have no hesitation in indicating the wife is not entitled to any share or interest in the other properties. It seems to me that

having regard to the situation as it presents itself at present, she is, by virtue of her work as a mother and the manner in which she

has sought to protect the interests of the family, entitled to a declaration of some interest in the three properties also. In my view

there is no reality in seeking to realise the value of these properties by sale. It seems to me the best hope is to await improvements

in the property market. The interest of the bank is so entrenched that it seems to me that the simple consequence of endeavouring

to sell any one of the properties at the moment would be, to put the matter bluntly, that the bank would look for its money and that

there would be no money available for Mrs. P. I will, however, declare that Mrs. P. is entitled to 25% interest in each of those three

properties. I will declare she is entitled to 25% of the rent from these properties.

The family home

20. In a letter of 5th July, 2010, Ms. Brenda Dennis of Ulster Bank indicated to the wife’s solicitor that in order to release Mr. P. from

the mortgage it would require a full application and arrears to be cleared before it could be considered formally. It will be noted also

that the bank say that the requirements for this application include evidence of full repayment capacity by the sole applicant, arrears

must be cleared in full and a full credit assessment carried out. I wonder how this can be done? Mrs. P. would be well advised to fully

understand precisely what this means. She should also clearly understand the meaning of the statement that both parties are jointly

and severally liable for the mortgage and the outstanding arrears. Thus, in my view, while I have set a time limit within which steps

are to be taken with regard to the property, this must be subject to a serious reality check. If it transpires that there is no possibility

of the bank being satisfied with any new arrangements the parties should, in their own interests, move to sell the family home as soon

as possible in order to prevent further arrears mounting up. It is only in this way that the equity in the family home will be best

preserved and protected in order to ensure that another house can be bought for the mother and Z.

21. I do not see any reason to alter any of the other stipulations made in Judge Nolan’s order about Christmas and Easter access. In

my view, any future applications in this matter with regard to maintenance should be dealt with in the Circuit Court. Therefore I will

remit the balance of these proceedings to the Circuit Court.