High Court grants disclosure of income tax returns and employment contracts in a financial maintenance dispute.

REDACTED

[2025] IEHC 402 RECORD NO. 2020/88M THE HIGH COURT

FAMILY LAW

IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964

AS AMENDED

AND IN THE MATTER OF THE FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT, 1976 AS AMENDED

AND IN THE MATTER OF T., A CHILD

BETWEEN/

D.D.

Applicant

AND

N.B.T.

Respondent

Ex Tempore Judgment of Ms. Justice Nuala Jackson delivered on the 11th day of July 2025.

INTRODUCTION

1. The substantive motion of the Respondent in this matter seeks the following reliefs in relation to financial matters,

(a) An Order varying the Terms of Settlement herein signed on 6 December 2021,

(b) An Order directing the appropriate maintenance and requisite expenses to be paid for [REDACTED].

The balance of the motion relates to child arrangement orders.

FACTUAL BACKGROUND

2. The financial provisions in the Terms of Settlement of the 6 December 2021 are as follows:

(i) There is financial provision made in relation to access arrangements if this involves the Applicant travelling to [REDACTED] with T.

(ii) There is ongoing periodic maintenance for the support of T. There is also provision for the discharge by the Respondent of expenses relating to T’s care.

(iii)There is provision for lump sum payments (paragraph 10) which lump sums are expressed to relate to specific expenses. (Given that three and a half years have passed since the signing of the agreement, it is to be assumed that these lump sums have been utilised in the discharge of the expenses to which the Terms refer but disclosure has previously been directed by me in this regard.)

(iv) There is a provision relating to the purchase of a house. This house was purchased in the sole name of the Respondent. The Terms set out the circumstances which this property is to be transferred to the Applicant. The Applicant is to be entitled to reside there for her lifetime. The Terms appear to envisage that this property will be transferred to the Applicant and owned by her. It is unclear if alteration of this provision is sought by the Respondent. The terms of the motion are wide enough to govern this, but I am unclear as to the jurisdiction that I would have so to do.

This is a matter upon which I would have to be addressed by Counsel.

(v) There is a provision relating to the transfer of shares to the Applicant. It is my understanding that this has not taken place. It is unclear if alteration of this provision is sought by the Respondent. The terms of the motion are wide enough to govern this, but I am unclear as to the jurisdiction that I would have so to do.

This is a matter upon which I would have to be addressed by Counsel.

(vi) There is a provision in relation to the provision of a motor vehicle by the Respondent to the Applicant. From the representations and submissions, I have heard herein, I do not believe that any variation of this provision is sought.

However, it is not entirely clear if alteration of this provision is sought by the Respondent. The terms of the motion are wide enough to govern this, but I am unclear as to the jurisdiction that I would have so to do. This is a matter upon which I would have to be addressed by Counsel.

(vii) There is provision for the Respondent to provide securitisation, in terms of a life policy. Once again, it is unclear if alteration of this provision is sought by the Respondent. The terms of the motion are wide enough to govern this, but I am unclear as to the jurisdiction that I would have so to do. This is a matter upon which I would have to be addressed by Counsel.

(viii) I note that the Terms of Settlement are expressed to be “in full and final settlement of all claims between the parties, save for Maintenance” (paragraph 13).

3. I have considered the grounding affidavit of the Respondent herein. The averments relating financial arrangements are set out at paragraphs 11 and following of the grounding affidavit sworn on the 28 May 2024. Therein he avers:

“I say and believe that the maintenance sum is excessive to T’s needs, and I agreed to that amount and other payments in order to be supportive and keep the peace but that payment now, together with the other constant additional demands made on me, are excessive. In addition, payment of these amounts has not stemmed the endless demands for more monies from the Applicant, which is always clearly the bargaining chip for me to see T despite the clear commitments set out in the Agreement above.”

4. The Terms of Settlement relating to the house purchase are referenced in paragraph 12 of the grounding affidavit. There is no reference therein to there being any application to alter this. The further provision made is referenced in other paragraphs. There is reference to ad hoc payments made over and above the Terms of Settlement. At paragraph 16 it is stated “I say and believe that the Applicant was put in a strong and secure financial position by the Terms of Settlement.” While the Respondent’s contention for the rationale behind such provision is deposed to (which the Applicant may or may not dispute), the focus of the affidavit would appear to be directed towards variation of the financial provision made in respect of the child to be paid on an ongoing basis and not towards variation of capital provision.

5. The motion is drafted in extremely wide terms, but the grounding affidavit appears to me to be focussed only on ongoing provision. I would re-iterate that I would require to be addressed upon my jurisdiction to vary executed and/or agreed lump sum payments and capital provision for the Applicant. I am not in any manner determining this matter. However, based upon the grounding affidavit and the submissions I have heard from the Respondent to date, I am going to proceed for the moment on the basis that this is an application for variation of ongoing provision, not capital provision previously agreed to.

6. When this matter was before me on the 28 February 2024 and on the 10 March 2024, I made directions in relation to disclosure and the vouching of the Affidavit of Means of the Respondent. I accept that the Applicant was a litigant in person at that time and that her now legal representatives may wish to clarify and readdress the issue of disclosure. At that time, I made directions in relation to disclosure as follows:

- the provision of vouched Affidavits of Means, vouching to be for one year prior to the date of the issuing of the motion herein,

- the Respondent to provide vouching from the 1 January 2023 to date relating to all bank accounts and investments set out in schedule one, his salary, and third schedule indebtedness. For the Applicant, all bank accounts and related from 1 January 2023 to date together with a list and vouching of debts that were paid from the lump sum previously received.

7. Certain vouching has been made by the Respondent consequent upon the directions referenced and the Applicant seeks more extensive vouching than has been provided.

I have been asked, in the context of this case management hearing, to determine the extent of vouching to be made by the Respondent.

THE LAW

8. The application before me is pursuant to the Guardianship of Infants Act, 1964 (as amended) and the Family Law (Maintenance of Spouses and Children) Act, 1976.

These two pieces of legislation are “family law proceedings” as defined in Order 70A(1)(1)(e) of the Rules of the Superior Courts (‘RSC’). Rule 6 of Order 70A deals with the requirement for swearing an Affidavit of Means, which the Respondent has done herein. Rule 6 (3) provides that vouching of such Affidavit of Means may be sought. In the event of dispute in relation to the swearing of such Affidavit of Means or the vouching thereof, rule 6(4) provides:

“(4) In the event of a party failing properly to comply with the provisions in relation to the filing and serving of an Affidavit of Means as hereinbefore provided for or failing properly to vouch the matters set out therein, the Court may, on application by notice of motion, grant an order for discovery and/or make any such order as the Court deems appropriate and necessary, including an order that such party shall not be entitled to pursue or defend as appropriate such claim for any ancillary relief under the Act save as permitted by the Court and upon such terms as the Court may determine are appropriate or the Court may adjourn the proceeding for a specified period of time to enable compliance with any such previous request or order of the Court.”

(underlining added)

In the current context, I must decide what is “appropriate and necessary” in this instance.

9. The Practice Direction HC51 (‘PD’) is also engaged. It provides for a general rule of a vouching period of three years prior to the institution of proceedings. Direction 4 of this PD provides for vouching of Affidavits of Means. Of course, it must be remembered that this PD is usually being applied in the context of multiple issue and proper provision applications for divorce and/or judicial separation. Mindful of the fact that appropriate and necessary disclosure will depend upon the nature of the application, Direction 5 provides:

“The nature and extent of the vouching required to comply with the requirement in paragraph 4 will depend on the circumstances of the case, but ordinarily will include, although may not be limited to, the following: [list of disclosure categories]” (underlining added)

10. I have also considered the caselaw pertaining to what is colloquially described the “millionaire’s defence”, an assertion by a litigant in family law proceedings that disclosure of their financial circumstances is not required due to their level of wealth being such that they can afford to comply with whatever financial provision the court orders. This contention has been considered by the Irish courts in a small number of cases, most recently, in XC v. YC [2023] IEHC 671, where O’Donnell J. considered a motion brought by the Respondent in a cohabitation case that he should not have to swear an Affidavit of Means in circumstances in which he had confirmed that his wealth was “no less than €30,000,000” and thus sufficient to comply with any reasonable order for financial relief which the court might make. The applicable statutory provisions were considered by the Court (these statutory provisions in the case of cohabitation proceedings are similar to those under consideration in the present proceedings). O’Donnell J. found that, based on the legislative framework in place, the obligation to swear an Affidavit of Means was mandatory and could not be waived. The RSC expressly provide for remedies in the case of default of the obligation, but this is entirely different from a waiver of the obligation. As stated by O’Donnell J.:

“44. In the court’s view, neither of the above provisions support the existence of a power to waive the necessity for the respondent to file and serve an affidavit of means. Whether one approaches the reference to “reasonably required” in section 197(1) as directed to the specific proceedings or the general task of the court set out in sections 174, 175, or 17 187 or a combination of the two, the language does not bear a construction that a party will comply with the obligation merely by demonstrating that they are so wealthy as to be able to meet any award that may be made. Likewise, O.70B, r.5 does not make the service of an affidavit of means optional. Sub-rule (4)

does allow the court to respond with some flexibility to a situation where a party fails or refuses to serve an affidavit of means, but (a) the power of the court only is triggered in a situation where there is default in the primary and overriding obligation, and (b) the range of remedies open to the court in such cases is directed to achieving not restricting proper disclosure.

45. That is not to say that in cases of dispute the court is not entitled to limit disclosure by not requiring disclosure or vouching of matters of minimal value or importance. For example, if a bank account statement shows regular payments of grocery bills it may be wholly unnecessary to require the production of individual receipts and so forth.”

11. This issue has been considered by the English courts in a number of decisions, most recently in Y v. X [2024] EWFC 4 where Peel J. referenced the exceptionality of such defence to disclosure being entirely successful. He stated:

27. This is a standard version of the so-called "millionaire's defence" which has its origin in Thyssen-Bornemisza v Thyssen-Bornemisza (No 2) [1985] FLR 1069 and is deployed to avoid, or reduce, the need for financial disclosure which is otherwise almost universally required in financial remedy proceedings.

28. Where the millionaire's defence is relied upon, it is customary, in my experience, for at least some disclosure to be provided. There is only one reported case which I am aware of where no disclosure at all was required; that was the truly exceptional case of HRH Haya bint al Hussein v HH Mohammed bin Rasjid Al Maktoum [2022] 2 FLR 1185. The facts and circumstances were unique, and that case should not dictate a general approach when a party relies upon the millionaire's defence.

29. Even when the millionaire's defence is advanced, provision of some disclosure is, in my judgment, usually necessary for the following reasons:

i) It enables the claimant party, and the court, to have some understanding of the scale of wealth and how it is structured, consistent with the requirement on the court (whether under the Matrimonial Causes Act 1973, the Matrimonial and Family Proceedings Act 1984, or Schedule 1 of the Children Act 1989 as the case may be), to consider the income, earning capacity, property and other financial resources of the parties.

ii) It enables thought to be given to the structure and enforceability of any award.

iii) As Macur LJ said at para 21 of Re A (A Child: Financial Provision) [2014] EWCA Civ 1577, the extent of wealth "may still inform the reasonableness of the budgetary claims".

While the dicta of Peel J. are informative in relation to the rationale of disclosure, of course, in this jurisdiction different legislative requirements pertaining to provision and the significance of same arise and there are also different procedural rules pertaining to disclosure obligations.

ANALYSIS

12. First of all, there is a clear distinction between the XC v YC case and the present situation in that in that case objection was being made to the swearing of an Affidavit of Means. That is not the position here. The Respondent has sworn an Affidavit of Means. It is difficult to envisage circumstances in which an Affidavit of Means would not be required in family law proceedings relating to financial provision given the clear wording of Order 70A rule 1. It is also clearly provided for by the RSC that vouching of such Affidavit of Means may be called for. However, greater calibration is possible in relation to vouching as the RSC (at Order 70A rule 6(4)) make it clear that, where there is dispute in relation to the degree of vouching, the court must determine what is “appropriate and necessary”. The PD also makes it clear that the extent of vouching will depend on the circumstances of the particular case.

13. In the context of this application for additional vouching, I must be guided by what is necessary and appropriate having regard to the circumstances of the case. It seems to me that (subject to any contradictory indication being given by the Respondent) the submissions and the grounding affidavit of the Respondent herein indicate that a review of periodic provision is being sought by the Respondent herein. Clearly, income (of both parties) is most relevant in these circumstances. While the asset positions of the parties are relevant, it does not appear to me that a deep trawl into the asset positions of the parties is necessary in such circumstances. Clearly the assets of the parties must be known and vouched at an appropriate level and deeper analysis may be required where income deficiency to discharge current maintenance is being asserted in the context of a variation application by the maintenance debtor. Here the maintenance debtor does not assert his inability to pay (in correspondence letter of the

4 July 2025) he states, “[t]his variation of maintenance application is not based on our Client’s inability to pay but on your Client’s actual expenditure on the child as opposed to herself. Our client can pay what the Court directs. That is not the issue”

but rather he says the sums being paid are in excess of the needs of the child and are in excess of what is being expended on the upkeep and support of the child. It would appear that he also wishes to reference the earning potential of the Applicant.

However, these are the current parameters of the case before me and vouching must be calibrated such as is necessary to the case to be heard. This is the necessary disclosure.

14. In relation to appropriateness, it is important (particularly where there is no status relationship between the parties) that the financial privacy of each be intruded upon only to the extent that is necessary for the application being made. Additionally, the cost, financial and time, involved will be a consideration in determining appropriateness. In depth forensic financial analysis is extremely expensive and timeconsuming. In the current circumstances, this is a non-marital maintenance variation application being brought by the Respondent not on the basis of a change of circumstances on his part but on the basis that the sum being paid (by agreement) is excessive in all of the circumstances, having regard to the needs of the child and circumstances of the other parent. Whether variation is legally permissible in such circumstances is a matter for the substantive hearing. I must consider what vouching by the Respondent is appropriate in these circumstances.

15. It must, in addition, be remembered that as this is a variation application, it is to be assumed (and neither party has contended to the contrary) that there was full and complete (or at least adequate) disclosure in order to achieve settlement in the first instance. Both parties were legally represented in the context of such settlement.

16. I have determined that disclosure ought to be focussed upon the income circumstances of the Respondent with asset circumstances to be vouched but without a deep trawl which might otherwise be necessary. If the parameters of the case alter, this determination may have to be reviewed and revised.

17. I was provided with a supplemental vouching request letter from the Applicant (30 May 2025) and the Respondent’s letter of response thereto (4 July 2025). I have calibrated my determination herein with reference to these letters:

(a) I note that it is agreed that the bank statements sought at number 1 will be provided.

(b) I will not make a direction in relation to bank statements and statements relating to other financial institutions of the breadth requested. An Affidavit of Means has been sworn. This must include statements relating to accounts with all financial institutions (whether in the assets or liabilities portion of the Affidavit). Vouching of these has been provided and agreed. If there are missing accounts asserted, obviously a different situation would arise. However, I am not going to presume that the disclosures in the Affidavit of Means are deficient absent some basis for so doing. The Respondent should be advised of the importance of completeness of his Affidavit of Means in this regard as to all accounts in which he has a legal or beneficial interest and the potential consequences of omission in this regard.

Omission is not to be assumed, however. Therefore, I will make no direction in relation to heading number 2.

(c) The income of the Respondent (relative to that of the Applicant and the needs of the child) are at the kernel of this case. Here the income has been vouched in the form of a tax return. The Applicant seeks vouching to show receipt by him of this sum. I consider this to be necessary. I will therefore direct disclosure in respect of item 3.

(d) In the circumstances of this case, I consider the queries relating to the Respondent’s company to be excessive. I will direct disclosure of his employment contract (with references to third parties save the employer, if any, redacted). At the current time, I am not directing further vouching in respect of item number 4.

(e) I note that it is agreed that the items sought at number 5 would be provided. It is appropriate that they would be.

(f) Number 6 - I believe that the monies received from sale of investments has been vouched. I do not believe that any further vouching in this regard is necessary in the context of the current application before me.

(g) In relation to number 7, a short narrative (investment/utility/gift etc) of the use of these withdrawals should be provided but disclosure of named recipients is not required. The Respondent may in due course be cross examined about these if issues arise.

(h) The tax return relating to this payment should be provided. I am not directing calculations as sought in respect thereof as set out at number 8.

(i) I am not directing disclosure as sought at number 9. The Respondent avers to owning a car (make disclosed) in his Affidavit of Means. Bank statements provided show a payment for such vehicle. I am not directing any further documentation in this regard. I note that it has been confirmed in correspondence that the car averred to, and the bank entry are one and the same vehicle.

(j) In relation to number 10, if this AmEx account is in the Respondent’s name, it should be provided. If it is not, I have no knowledge as to whether is it within his possession or procurement and therefore I am making no direction in respect of it although cross-examination in respect of such payments may arise. If this is an account of the Respondent, appropriate redaction and explanation as referenced at

(g) above may arise in this context also. In this regard, I note the premise referenced in the Respondent’s response namely that he does not assert inability to pay.

However, lifestyles standards are a relevant consideration in the application under consideration.

(k) I am not making a direction in relation to number 11 (a comparative analysis of expenditure in the Affidavit of Means and in the vouching received). This is a matter for cross-examination.

(l) Vouching must always be updated to an appropriate date in advance of hearing.

While the date will vary from case to case, a date of three months prior to the hearing would appear appropriate in this instance.

18. I note that some vouching deficiencies on the part of the Applicant are referenced in the Respondent’s response letter of the 4 July 2025. This should be attended to and I so direct.

19. I will reserve the costs of this case management hearing.