Court allows property adjustment order to protect applicant and children from financial hardship.

Neutral Citation Number: [2009] IEHC 248

THE HIGH COURT

FAMILY LAW

2007 37 M

IN THE MATTER OF THE JUDICIAL SEPARATION AND

FAMILY LAW REFORM ACT 1989 AND

THE FAMILY LAW ACT 1995

BETWEEN

C. O’C.

APPLICANT

AND

D. O’C.

RESPONDENT

JUDGMENT of Ms. Justice Dunne delivered on the 14th day of May, 2009

The applicant herein brought proceedings seeking a judicial separation commenced by special summons issued on the 23rd

May, 2007. The proceedings were listed for Thursday 7th February, 2008, and on that date a settlement was announced

to the court and orders were made on foot of the terms of that settlement. I will refer to the terms of that settlement

shortly.

The parties herein were married on the 22nd July, 1988, and there were six children of the marriage. The eldest of those

children was born on the 20th July, 1989 and the youngest was born on the 26th June, 1998. Of the children the four

youngest children reside with the applicant and the two older children reside principally with the respondent.

At the time of entering into the settlement, the parties had a number of properties and the settlement contemplated a

transfer of various properties from one party to the other. The family home is a property known as Cluain Ard. There is

also a property known as The Rivers. In addition to those properties, the parties were the joint owners of a commercial

premises which was held subject to a loan in favour of Anglo Irish Bank Plc. That property was registered solely in the

name of the respondent, but it was acknowledged by him that the parties were joint beneficial owners of that property.

The parties had a holiday home, known as The Billows. There was also an apartment owned by the parties at The Dell.

There was a computer company in which the applicant had an interest as did her parents.

The settlement made provision for the transfer of the various properties I have referred to above. There were also

arrangements made in relation to the payment of maintenance and also the payment of a lump sum, I will deal with those

matters subsequently.

The principal issues in the hearing before me relate to property adjustment orders made pursuant to s. 9(1) of the Family

Law Act 1995. The settlement required the respondent to transfer to the applicant his legal and beneficial interest in the

property known as The Rivers to the applicant free of encumbrance. The respondent was to discharge the existing

mortgage on that property and to vacate the property by no later than the 1st October, 2008. The applicant was ordered

by means of a property adjustment order pursuant to s. 9(1) of the Family Law Act 1995, to transfer to the respondent

her legal and beneficial interest in the family home, Cluain Ard. The order provided that the applicant was to have the

right to reside in the family home to the exclusion of the respondent until the 1st October, 2008. She was to vacate

those premises not later than that date. In addition to those orders, orders were also made directing the applicant to

transfer her legal and beneficial interest in the property known as The Billows; the commercial premises; her shareholding

in the computer company and she further agreed to procure the transfer of her parents’ shares in that company. A

declaration was also made that the respondent was the sole legal and beneficial owner of two other properties including

The Dell. One of the other provisions of the settlement noted that the applicant was to facilitate the respondent in

preparing the family home for sale and she agreed to provide access to the premises and gardens and agreed to the

placing of that property on the market. It was also agreed that in the event of a sale, the applicant was to vacate the

premises to facilitate the closing of the sale of that property.

As can be seen from the above, it was contemplated that the terms of the settlement would be complete on or before

the 1st October, 2008. A key element was the removal of the applicant from the family home to the property known as

The Rivers, which property was to be mortgage free.

The applicant has complied with her obligations under the terms of the settlement save for the transfer of the family

home. She has transferred her interest in The Billows to the respondent, her shares in the company and she procured the

transfer of her parents’ shares in the company. The respondent has also had the benefit of the declarations as to his

beneficial interest in a number of properties made pursuant to the settlement.

There are some issues in relation to the maintenance required to be paid by the respondent to the applicant and it is also

the case that the respondent has not discharged a sum of €20,000 which was to be paid to the applicant by the

respondent by way of lump sum payment.

One of the issues that arose at the outset of the hearing before me was whether or not the hearing should take place by

way of hearing on affidavit or by way of oral evidence. I indicated at the outset that I would reserve my position in

relation to that aspect of the matter in circumstances where neither party had given any indication to the court that the

matter ought to be heard on oral evidence and neither party had served notice of intention to cross examine the other

party on the affidavits sworn herein. In the event, as the hearing progressed, it became clear that there were less issues

of conflict between the parties than might have been anticipated and it seemed to me to be unnecessary to hear oral

evidence in respect of the applications before the court save in respect of one issue which I deal with later.

I should briefly refer to the various applications before the court. Three notices of motion were before the court. The first

of those was a motion seeking the attachment and/or committal of the respondent for his failure to comply with the terms

of the consent order made herein on the 7th February, 2008. That notice of motion was issued by the applicant on the

19th November, 2008. In addition to that relief the applicant sought a number of further orders designed to give effect to

the outstanding terms of the settlement. A number of affidavits were sworn by both parties on foot of that motion. A

further motion was then issued by the respondent, in which he sought to set aside the ancillary orders made herein on

the 7th February, 2008, or alternatively reviewing the ancillary orders or in the alternative, an order pursuant to s. 18 of

the Family Law Act 1995, discharging and/or varying the ancillary orders. In addition, the respondent sought an order

pursuant to s. 9 of the Family Law Act 1995, directing the applicant to transfer to the respondent such property or

properties as to the court seemed just and equitable. The respondent also sought a lump sum payment from the applicant

to the respondent. The final notice of motion was a motion issued on behalf of the applicant seeking an order pursuant to

s. 9(1) of the Family Law Act 1995, directing the respondent to transfer the entire of the interest, legal and beneficial

held by him in the family home.

Both parties exchanged affidavits of means. The affidavit of means of the respondent herein was sworn on the 13th

March, 2009. In the course of that affidavit, the respondent has listed a series of assets and has also set out details in

relation to his liabilities. The position painted by the affidavit of means is one of extreme financial difficulty. It is clear from

the affidavit of means that the financial position of the respondent is critical. The commercial premises referred to above

is currently valued at approximately €7m. There is a loan outstanding in excess of €9.5m due to Anglo Irish Bank. A further

property is valued at €250,000 with a loan outstanding to Anglo Irish of €1.3m. The property known as The Billows has a

value of approximately €650,000 with a loan outstanding of €61,500 approximately. The property known as The Rivers has

a loan outstanding of just over €1m while it retains a value of approximately €650,000. The value of the family home is

stated to be approximately €1m and there is a loan of approximately €250,000 outstanding on foot of that property. There

is also the property known as The Dell, which has a value of €200,000 and a loan outstanding of €206,000.

The total income of the respondent is stated to be €112,900 approximately. In the course of his affidavit of means, the

respondent set out various other debts and liabilities including extensive credit card indebtedness. It can be seen from

the above that the position of the respondent is very serious.

It is clear from the affidavits sworn herein by the respondent that when contemplating the settlement, the subject matter

of these proceedings, the respondent availed of the advices of his legal team and of a financial adviser. It appears that

negotiations took place with Anglo Irish Bank with whom the respondent had the majority of his borrowings. Anglo Irish

Bank was aware of the parties impending proceedings and discussions took place with Anglo Irish Bank with a view to

restructuring the respondent’s borrowings to take account of the circumstances of the applicant and the respondent and

in particular to provide for a release of the security over the property known as The Rivers held by Anglo Irish Bank in

order to permit the transfer of that property to the applicant free of encumbrance and to permit the sale of the family

home. According to an affidavit sworn herein by Harry Gleeson, the respondent’s financial adviser, Anglo Irish Bank was

aware of the circumstances and willing to facilitate such an arrangement. It is the respondent’s case that the settlement

entered into, could only have been entered into on foot of the assurances given by Anglo Irish Bank that it would release

the security over the property known as The Rivers.

It subsequently transpired that Anglo Irish Bank did not agree to the release of the security held over the property known

as The Rivers. The word used by the respondent during the course of the hearing before me was that the bank “reneged”

on the arrangement. This became apparent to the respondent in May 2008. Notwithstanding that this was made known to

the respondent in May 2008, at no stage prior to mid October 2008, did the respondent make the applicant aware of any

difficulty in implementing the settlement by reason of the change of heart on the part of Anglo Irish Bank.

It is not necessary to go into all of the matters set out on affidavit between the parties leading up to October 2008.

Suffice it to say that an arrangement was made to close the transfer of the family home on the 3rd October, at 3.00 pm.

It was only on the morning of that day that the applicant’s solicitor received a letter from the respondent’s solicitors

saying that the respondent was unable to redeem the mortgage on the property that was to be transferred into the sole

name of the applicant. It was suggested that this difficulty arose because of a failure to transfer the family home into the

respondent’s sole name, thus delaying the respondent’s efforts to dispose of the property. It appears that there was

indeed a purchaser available around this time for the family home. Not surprisingly, in circumstances where the respondent

indicated that he was not in a position to transfer the property known as The Rivers into the sole name of the applicant

free of encumbrance, the applicant did not proceed with the transfer of the family home into the sole name of the

respondent.

I should refer briefly to one other somewhat unusual feature of the case. The respondent had been residing in the

property known as The Rivers and obviously could not continue to do so, once the property was transferred to the

applicant. The respondent therefore entered into an arrangement to purchase another property. This property was known

as The Green Gables. It was a significant property. He paid a non-refundable deposit on the signing of the contract for

the purchase of The Green Gables and the contract provided a period of eighteen months for the closing of the sale. In

the interim, the respondent was permitted to reside in the property as a tenant. I fully understand and appreciate the

desire of the respondent to have a home to reside in and to provide a place where his children could reside with him or

visit on access with him. I do find it surprising that he chose to enter into a contract for the purchase of a property on

the 18th September, 2008, in circumstances where he was already aware of the difficulty in relation to Anglo Irish Bank

releasing the security over the property known as The Rivers; where he agreed to purchase a property for €1.250m with a

non-refundable deposit of €62,500 and the respondent did not seek to protect himself by ensuring that that special

conditions of the contract provided that the agreement to purchase was subject to loan approval.

There was an issue between the parties as to damage which had occurred to the property known as The Rivers.

Unfortunately, it seems that significant damage was caused to that property as a result of a water leak. That damage is

the subject of an insurance claim. Nothing of significance turns on that issue in the context of the matters I have to

decide in this hearing.

As I have said there is no significant dispute between the parties as to the financial position of the respondent. Indeed at

the outset of the hearing before me, counsel on behalf of the applicant indicated that having regard to the

circumstances, the application to attach and commit the respondent for failure to comply with the terms of the

settlement was not being pursued. It was emphasised that the principal application at this stage was for a property

adjustment order whereby the family home would be transferred into the name of the applicant. On the part of the

respondent, the relief sought was in essence to allow the respondent to retain some interest in the family home.

Mr. O’Riordan S.C. on behalf of the applicant in the course of his submissions made the comment that there were matters

set out in the affidavit of means of the respondent in relation to day to day expenditure and income that could be the

subject of challenge by way of cross examination. To that extent, there is obviously some dispute in relation to the

affidavit of means furnished by the respondent herein.

I referred earlier to the issue of oral evidence and I think it is fair to say that both parties are in agreement that for the

purpose of dealing with the issue of maintenance it would be preferable if there was oral evidence given in relation to that

aspect of the matter. In regard to that aspect of the matter I accept that it would be inappropriate to deal with the

maintenance issue in the absence of oral evidence. In any event, some concessions have been made by the applicant in

respect of the maintenance payable under the settlement in the course of the hearing before me. Accordingly I do not

propose to rule on that issue now.

The following facts are apparent from the affidavits before me or are not in dispute between the parties:

1. The applicant has complied fully with the terms of settlement save for the transfer of the family home by her to

the respondent given the respondent’s inability to transfer The Rivers house to the applicant free of encumbrance.

2. The applicant could not have been expected to complete the transfer of the family home to the respondent in

the absence of proper arrangements and safeguards in putting in place to ensure the transfer to her of The Rivers

property free of encumbrance.

3. At the time of entering into the settlement, it was clearly contemplated that there would be sequenced closing in

respect of the family home and The Rivers.

4. The respondent is in breach of the settlement insofar as it concerns the transfer of the family home and The

Rivers property.

5. The financial circumstances of the respondent have deteriorated to a significant extent between the date of

entering into the consent and the date by which the terms of the consent were to have been implemented in full.

6. The respondent’s current financial circumstances are such that it is not possible for him to comply with his

obligations under the settlement insofar as the transfers of the family home and The Rivers are concerned.

7. It is clear that the co-operation of Anglo Irish Bank Plc was a significant element in facilitating the terms of the

agreement entered into by the applicant and the respondent and that in circumstances where Anglo Irish Bank Plc is

not willing to release its security over The Rivers, the respondent is not now in a position to complete those

transfers.

8. Although there are some matters in dispute between the applicant and the respondent in respect of the affidavit

of means sworn by the respondent herein, it cannot be disputed that the respondent finds himself in a situation

where a number of his significant assets are now in negative equity.

I should say at this point, in parenthesis, that I do not necessarily accept the values given for all of the properties

referred to in the affidavit of means as these values are unvouched and may have been provided by a

representative of Anglo Irish Bank, as was indicated to me in the course of the hearing but I do accept that the

properties are not worth what they were previously worth by reason of the economic downturn and the reduction in

property prices generally and I further accept that the figures given in relation to the loans in respect of the said

properties is as set out in the affidavit of means.

9. The income of the respondent as disclosed in the affidavit of means is such that the respondent is not in a

position to service the borrowings in respect of the various properties referred to therein.

10. The respondent has a number of other forms of indebtedness.

11. The respondent has not paid to the applicant the lump sum payment provided for in the consent of €20,000

although a facility was provided by Anglo Irish Bank plc for the purpose of making that payment.

It is now necessary to consider the legal principles applicable having regard to the facts as found or not in dispute

between the parties. The first point to note is as I have already mentioned, that the applicant herein no longer presses

the court for an order of attachment and committal in circumstances where it is manifestly clear that committing the

respondent to prison for failure to comply with the orders made pursuant to the settlement would not have the effect of

compelling the respondent to comply with the orders. It is quite clear that the changed circumstances of the respondent

are such that he is not in a position to comply with the orders. Therefore the issue to consider is whether it is open to

the court to make further property adjustment orders as sought by both parties or whether it is appropriate to set aside

or discharge or vary the consent orders made herein as sought by the respondent.

The first point to note in relation to property adjustment orders is that it is open to a court to make such orders on more

than one occasion. The concept of a property adjustment order was first introduced by the provisions of s. 15 of the

Judicial Separation and Family Law Reform Act 1989. It provided at s. 15(1) as follows:-

“(1) On granting a decree of judicial separation or at any time thereafter, the court may, on application to it by

either spouse, make a property adjustment order, that is to say, any one or more of the following orders –

(a) an order that a spouse shall transfer to the other spouse, to any dependent child of the family or to

such person as may be specified in the order for the benefit of such a child such property as may be so

specified, being property to which the first-mentioned spouse is entitled, either in possession or

reversion;

...

(2) The court may, following the granting of a decree of judicial separation, consider and determine whether an

order or orders should be made by it in favour of a spouse under this section on one occasion only unless on that

occasion a spouse wilfully conceals information of a material nature relevant to the making of any such order or

orders.”

That provision was amended by s. 9 of the Family Law Act 1995, which in turn was amended by the provisions of the

Family law (Divorce) Act 1996. It is significant to note that s. 9 of the 1995 Act, does not contain a provision such as

that contained in s. 15(2) of the 1989 Act. Therefore it is open to a spouse to make an application for more than one

property adjustment order save in certain circumstances which are not of relevance in the context of the application

before me.

The mechanism adopted by the parties herein in relation to the transfer of the family home and the property known as

The Rivers was effected by means of s. 9(1) of the Family Law Act 1995. The making of an order pursuant to s. 9(1) of

the 1995 Act, is subject to the provisions contained in s. 16 of that Act. That provides that the court in deciding whether

to make such an order and in determining the provisions of such an order shall have regard to a number of matters set out

in section 16(2). I will refer to those provisions in more detail later.

As mentioned previously, the respondent seeks a number of reliefs including the setting aside of the ancillary orders made

herein as part of the consent or alternatively reviewing those orders or alternatively staying those orders on such terms

as may seem just and equitable or in the alternative discharging and/or varying those orders pursuant to s. 18 of the

Family Law Act 1995. The outstanding matters that require to be dealt with in terms of the settlement are the transfers

of the family home and the property known as The Rivers and the payment of the lump sum of €20,000. I should briefly

refer to the provisions of s. 18 of the 1995 Act. Section 18(1) sets out the orders to which it applies and at s. 18(1)(e) it

is clear that an application to vary a property adjustment order made pursuant to s. 9(1)(a) which is the provision

providing for the transfer of property cannot be varied. This is notwithstanding the fact that a property adjustment order

pursuant to s. 9(1)(a) can be made on more than one occasion. Therefore the position appears to be that although s. 18

cannot be invoked for the purpose of varying an order providing for the transfer of property pursuant to s. 9(1)(a) of the

1995 Act, there is nothing to preclude the possibility of an application being made for a property adjustment order on

more than one occasion. In the event both parties have made such an application.

I should at this point refer briefly to a number of authorities that were opened to me by Ms. Clissmann S.C. on behalf of

the respondent. The first of those decisions was a case of Benson v. Benson (deceased) [1996] 1 F.L.R. 692, in which

the parties entered into a consent order in the County Court in December 1992, which provided for the transfer of the

former matrimonial home to the wife, the making of a lump sum payment by instalments and the continuation of periodical

payments until the lump sum was paid in full. After the making of the consent order the wife was diagnosed as suffering

from terminal cancer from which she died in June 1993. In 1993 the husband contended that there were a number of

crises in his business life which caused his financial position to deteriorate. He thereafter sought to vary the 1992 consent

order and sought leave to appeal out of time. In dismissing his appeal it was held that the general rule was that the

courts would uphold agreements freely entered into at arms length by parties who were properly advised. Leave to appeal

out of time could be granted where new events had occurred since the making of the order, which invalidated the basis of

the order so that the appeal would be likely to succeed. The new events should have occurred within a relatively short

time of the making of the order and the application for leave should in the circumstances be made reasonably promptly.

The grant of leave should not prejudice any third party with an interest in the property. In that case it was held that the

business crises alleged by the husband did not constitute a new event in that he had been aware of the potential

problems with his businesses which did not divert him from consenting to the order in December 1992. The death of his

wife was not contemplated and did constitute a new event. Because of the delay in making the application to set aside,

the court refused to grant leave to the husband to review the consent order.

I was also referred to the decision in the case of Barder v. Caluori [1988] 1 A.C. 20, a decision of the House of Lords;

Dixon v. Marchant [2008] E.W.C.A. Civ. 11, which considered the decision in the Barder case referred to above and to

the decision in the case of V.B. v. J.P. [2008] E.W.H.C. 112 (Fam) a decision of the family division of the High Court of

Justice in the United Kingdom. The factual matrix in the Barder decision is extremely unusual. In that case the parties

entered into a consent in proceedings for divorce, which provided that the wife was to have care and control of the two

children of the marriage and provision was made for the husband to transfer to the wife the legal and equitable interest in

the family home. Before the order had been complied with the wife had killed the children and committed suicide. The

husband applied for leave to appeal out of time against the consent order and the wife’s mother obtained leave to

intervene to oppose the application. The matter ultimately came before the House of Lords where it was held, inter alia,

that the consent order had been based on the fundamental assumption that the wife and children would for a substantial

period require a suitable home; that that assumption had been totally invalidated by their deaths; and that on the

hypothesis that leave to appeal out of time had rightly been given, the appeal should be allowed and the judge’s order

restored. It was also held that the conditions on which a court might properly exercise its discretion to grant leave to

appeal out of time from an order for financial provision or property transfer made after divorce on the ground of new

events were, that new events had occurred since the making of the order that invalidated the basis on which the order

had been made so that an appeal would be certain or very likely to succeed, that the new events should have occurred

within a relatively short time after the making of the order, that the application for leave to appeal out of time should

have been made reasonably promptly in the circumstances of the case and that the grant of leave should not prejudice

third parties who had acquired, in good faith and for valuable consideration, interests in property the subject of the order;

that all four of those conditions have been satisfied, the judge had been entitled to exercise his discretion to grant leave

to appeal out of time and there had been no ground in which the Court of Appeal could properly have reversed that

exercise of discretion.

It may well be appropriate in a particular case to consider the possibility of allowing a party to extend the time within

which to appeal an order, albeit a consent order, on the basis of the occurrence of new events. It is interesting to note

that in the cases of Benson v. Benson, Barder v. Caluori, the issue to be determined was whether leave to appeal the

consent orders should be granted. It is not entirely clear how the matter came before the court in the case of V.B. v. J.P.

referred to above. The matter at issue therein related to the application by the wife for an increase in the amount of

periodical payments made in that case. The application was made in the context of a “clean break” settlement. The

decision in the case of Dixon v. Marchant was an appeal following the making of a consent order and the question at

issue in that case was whether the fact that a wife had remarried shortly after a consent order had been made which

provided for payment of a lump sum to capitalise the periodical payments due to her did that constitute a “Barder type

event” which invalidates that basis or fundamental assumption upon which the order was made. Leave to appeal had been

granted in that case and the matter was dealt with by way of an appeal. It is important to note that the applications to

set aside the consent orders were dealt with either by way of appeal or in the context of an application to extend the

time for leave to appeal in three out of the four cases referred to above and possibly in the fourth case as well. In my

view, the criteria laid down in those decisions, namely, that new events had occurred since the making of the order that

invalidated the basis on which the order had been made so that an appeal would be certain or very likely to succeed, that

the new events should have occurred within a relatively short period of time after the making of the order, that the

application for leave to appeal out of time should have been made reasonably promptly in the circumstances of the case

and that the grant of leave should not prejudice third parties who had acquired, in good faith and for valuable

consideration interests in property, the subject of the order. I am of the view that the courts in this jurisdiction would

take the same approach as that in the UK where the general rule referred to in Benson v. Benson is that the courts would

uphold agreements freely entered into at arms length by parties who were properly advised.

In the present case, part of the application before me is to set aside/discharge an order of this Honourable Court. I have

some doubt as to whether that is an appropriate application in the present case. I do not think the respondent meets the

criteria set out above as to new events that have occurred since the making of the order which invalidate the basis of

the order. I accept that the respondent’s financial position has deteriorated since the making of the order and that the

position of Anglo Irish Bank has not helped. However, at the time of entering into the consent, it is clear that the

respondent was already in a position where his finances were fully stretched. He could not have entered into the

settlement without some co-operation from Anglo Irish Bank. It seems to me that what is at issue herein is not so much

the occurrence of a new event so much as the continuation of an existing trend. I would therefore be of the view that

this is not an appropriate case in which to set aside/discharge the settlement and in particular the consent orders made

thereunder.

I do feel that I should sound a note of caution as to the proper procedure to be followed on such an application as the

matter of the correct procedure to be followed on an application to set aside/discharge a consent order was not argued

before me. In this case, the parties freely entered into a settlement having been properly advised. Is it appropriate that

the court which made the orders pursuant to the settlement should subsequently be asked to set aside those orders? The

approach in the UK seems to be to grant leave to appeal the consent orders on the basis of new events which have

arisen since the making of the consent order. A decision on this point should be left over until an appropriate case in

which the arguments are made before the court.

Despite the fact that I have some doubts about the procedure to be adopted on an application to set aside an agreement

or consent order where new events have occurred since the making of the agreement or consent order, I am satisfied

that this court has jurisdiction to consider the applications for a further property adjustment order in the context of the

events that have occurred. On that basis s. 16(2) of the 1995 Act sets out a number of matters to be taken into

consideration in deciding whether to make an order pursuant to section 9(1)(a). It seems to me that the matters set out

in s. 16(2) which are of particular relevance for the purpose of this hearing relate to the income, earning capacity,

property and other financial resources of the spouses now and in the foreseeable future, the financial needs, obligations

and responsibilities which each of the spouses has or is likely to have in the foreseeable future and the contributions

which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family including

any contribution made by each of them to the income, earning capacity, property and financial resources of the other

spouse and any contribution made by either of them by looking after the home or caring for the family. I have also taken

into account the income of the spouses and the accommodation needs of the spouses. Having regard to the change of

circumstances that has occurred, the applicant wife has now sought an order transferring the family home into her sole

name. The respondent sought that the court should make an order directing that the family home be held in the joint

names of the spouses. It was also proposed that at the stage that the youngest child had reached the age of 23 that

the property should be sold.

In considering what the approach should be in this case, I feel that it is impossible not to have regard to the terms of the

consent order that was entered into by the parties. That consent order provided for a disentangling of the applicant and

the respondent’s ownership and interests in a variety of properties. The applicant was to be left, after transferring any

interest she had in a number of properties with an unencumbered interest in the property known as The Rivers. The

respondent was to have the benefit of effectively all of the other properties accumulated over the years. He also has the

computer business which appears to be trading still, albeit at a loss at the moment. There is no suggestion made that the

properties transferred by the applicant to the respondent were of no value at the time that she complied with the terms

of the order. There was apparently no imminent threat to the respondent’s financial viability at the time of entering into

the consent. It is the decision of Anglo Irish Bank Plc not to provide the facility which had been available in February 2008

that has apparently caused the respondent the difficulty in complying with his obligations under the settlement.

In considering the applications for property adjustment orders made by the applicant and the respondent herein, I am

satisfied that the respondent is not now in a position to comply with that part of the consent order that requires that

transfer of the family home by the applicant to the respondent in return for the transfer by the respondent to the

applicant of The Rivers free of encumbrance. Having said that, I find it difficult to understand why the respondent did not

inform the applicant of these difficulties once he found out about the problem with Anglo Irish Bank Plc in May 2008. Even

if the facility from Anglo Irish Bank Plc was not forthcoming, there is nothing to suggest that the respondent made any

effort to overcome the difficulties that had arisen. There was a purchaser available for the family home but it was

unreasonable and unrealistic to expect the applicant to transfer her interest in the family home in the absence of any

indication as to how or when The Rivers would be transferred to her free of encumbrance. It is all the more surprising that

this should be the case in circumstances where the respondent himself was in a position to enter into a contract for the

purchase of a substantial property in September 2008, albeit with a closing date some eighteen months thereafter.

Given the current financial circumstances of the respondent, I am concerned that the applicant finds herself in a situation

where she has complied with the terms of the consent order to the extent that she can and now finds herself in the

position where she does not now have the option of the transfer of The Rivers to her. The current position in relation to

the property known as The Rivers is that it has reduced in value, and has borrowings secured on it well in excess of its

value. The only property at the moment with any realistic equity is the family home. (There is another property which

does have a value in excess of the loan outstanding on that property but it is held as a security for the borrowings from

Anglo Irish Bank Plc.) I am mindful of the provisions of s. 16(5) which provide that the court shall not make an order under

s. 9(1)(a) unless it would be in the interests of justice to do so. In attempting to do justice, I am considering not just the

needs of the applicant, but so far as possible the needs of the family as a whole. I am conscious of the fact that four of

the children reside with the applicant. It seems to me that the proposition put before the court on behalf of the

respondent, does little or nothing to ensure that the accommodation needs of the applicant and the dependent children of

the family will be provided for into the future. Indeed the proposal involves the sale of the family home when the youngest

child reaches the age of 23. Given the precarious financial position of the respondent, it seems to me that the needs of

the applicant and the dependent children are best met by the making of a property adjustment order in favour of the

applicant, such that the entire interest of the respondent in the family home is transferred to the applicant. Making an

order in the terms sought by the respondent would put the applicant into an even more precarious position than the one

in which she presently finds herself.

I will hear the parties further in relation to the consequences of this ruling as the completion of the property transfer

order, the maintenance issue and the lump sum payment.