High Court orders respondent's attachment and committal to prison for contempt of court regarding unpaid maintenance.

Neutral Citation: [2014] IEHC 648

THE HIGH COURT

FAMILY LAW

RECORD NO: 47M/2014

IN THE MATTER OF THE FAMILY LAW DIVORCE ACT 1996

BETWEEN:

R

APPLICANT

-AND-

R

RESPONDENT

Judgment of Ms. Justice Bronagh O'Hanlon delivered on the 28th day of November 2014.

1. This application comes before the court on behalf of the applicant seeking the attachment and committal of the respondent

pursuant to O.44 of the Rules of the Superior Courts 1986 arsing from the respondent’s failure to comply with an order of this court

dated the 16th of July 2014, which, inter alia, directed the respondent to recommence paying the sum of €1,200 per week to the

applicant for her support and the support of the dependent children of the family with effect from the 21st of July 2014 and every

Monday thereafter pursuant to s. 12(1) of the Family Law (Divorce) Act 1996.

2. This motion arises from ancillary divorce proceedings between the parties and is grounded on affidavit evidence. On the 16th of

July 2014, the applicant filed a motion for an interim maintenance order to this Court. The applicant outlined that she had been in

receipt of maintenance in the sum of €1,200 per week from the respondent, but that the respondent had failed to pay the

aforementioned maintenance payment in its entirety in the seven weeks prior to this hearing. Along with the expenses of managing

the household, the applicant provided an account of the educational expenses of the parties' children to the Court.

3. The respondent attributed his failure to pay the aforesaid maintenance payment to a separate ongoing legal dispute with a third

party. In this motion hearing, the respondent was acting as a lay litigant. This Court acknowledged the respondent's right to self-

representation, but due to the complexities and nuances of the subject matter of the proceedings and the serious nature of

attachment and committal proceedings, this Court advised the respondent to avail of professional legal representation.

4. On the 16th of July 2014, the Court granted the following orders: (i) an order directing the respondent to recommence the

payment of the sum of €1,200 per week to the applicant for her support and for the support of the dependent children of the family

with effect from the 21stof July 2014, (ii) an order entitling the applicant to withdraw the sum of €25,000 from the parties' joint bank

account for the normal household expenses of the family home, (iii) an order entitling the respondent to withdraw the sum of €25,000

from the parties' joint bank account to be used to obtain appropriate accommodation and (iv) an order providing liberty to the

applicant to withdraw a further lump sum, up to maximum of €30,000, from the parties' joint bank account to discharge specific

educational costs and the upkeep of the dependent children as they fell due, given that the three children were all in university at

this time and were studying in college away from the family home.

5. On the 17th of October 2014, the applicant filed a motion for the attachment and committal of the respondent for failure to comply

with the Court's maintenance order dated the 16th of July 2014, in particular, the Court's order directing the respondent to

recommence payment of maintenance in sum of €1,200 per week to the applicant. The applicant also sought judgment against the

respondent for the outstanding maintenance in the sum of €13,200 which has now increased to the sum of €19,200 as of the 28th of

November, 2014. The respondent submitted that his failure to comply with the aforementioned Court order was attributable to an

alleged mistake in the said order, namely that the applicant should not have received a lump sum of €25,000 along with weekly

maintenance payments of €1,200. The respondent outlined that he could not comply with the said maintenance order as he required

all necessary financial resources for pending legal proceedings. During this hearing, the Court enquired as to whether the respondent

applied for legal aid. The respondent outlined that he did not want to avail of legal aid but that he would pay for legal representation

or self-represent.

6. The Court adjourned the motion for the attachment and committal of the respondent to the 7th of November 2014, by which time

the respondent was to have discharged the outstanding maintenance due by him to the applicant under the order of the Court dated

the 16th of July, 2014.

7. On the 7th of November 2014, the applicant's motion to attach and commit the respondent was adjourned until the 11th of

November 2014.

8. On the 11th of November 2014, the parties appeared before the court on the issue of the respondent's request to appoint a

"McKenzie friend". The Court did not appoint the respondent's nominee as a "McKenzie friend" as that person was not available to the

Court at that time. At this hearing, the Court offered the services of a solicitor who was willing to volunteer legal advice on a pro-

bono basis regarding the legal consequences of the attachment and committal proceedings. The respondent refused this facility.

9. On the 14th of November 2014, the Court appointed “SC” as the respondent's "McKenzie friend" and accepted a number of

undertakings from that person regarding his appointment as a “McKenzie friend”. This Court notes that having appointed the said

“McKenzie friend”, the respondent refused to accept him to act and indicated to the Court that he intended appealing the said

decision. The applicant’s counsel informed the Court that he would be proceeding to attach and commit the respondent on the 28th

of November, 2014.

10. To date, the respondent has not complied with paragraph one of the order of this Court dated the 16th of July, 2014.

Submissions of the Applicant

11. The applicant submits that the respondent has failed to comply with this Court's order dated the 16th of July 2014. It is submitted

by the applicant that the respondent's explanation for non-compliance with this Court's order is contradictory and that the evidence

before the Court reflects that the respondent is in a position to comply with the aforementioned order. The applicant highlights that

the respondent has attempted to attribute financial constraints on business ventures with his inability to pay maintenance to the

applicant.

12. The applicant further submits that this explanation is contradicted by the respondent's testimony in that he needs all incoming

financial resources to pay for "behind the scenes legal and accountancy advice". The applicant proffers that such an assertion

imports an ability on the part of the respondent to meet the financial requirements of the order dated the 16th of July 2014, but that

the respondent refuses to comply with said order.

13. The applicant submits further that the respondent's refusal, as opposed to his inability, to comply with the order is corroborated

by the second schedule of the respondent's affidavit of means sworn on the 6th of October 2014, where the respondent avers at

paragraph one of said schedule;

"the Applicant until recent weeks was in receipt of €1,200 per week (5,200.00 per month) from the

respondent/commercial venture from which she discharged all of the household family and children's expenditure. In recent

days the respondent has changed the arrangement and paid the Applicant €500 per week, being €300.00 per week for the

Applicant and €200.00 for their son, N. The respondent has implemented his threat to pay € 200.00 each, per week (a

total of €600.00 per week) into the Account of the three children, K, F and H. Please see Grounding Affidavit of the

Applicant for further details".

14. The applicant submits that the aforesaid averment represents a clear and unambiguous challenge by the respondent to the

authority of the Court and its order dated the 16th July, 2014.

15. O.44 of the Rules of the Superior Courts 1986 outlines the procedures and protocols to be adopted before the Court is to grant an

order of attachment and committal. The applicant submits that they have fully complied with the requirements of O. 44 and that all of

the necessary pre-requisite proofs have been adduced, these being (i) there has been a failure by the respondent to comply with this

Court’s order dated the 16th of July 2014, directing the respondent to pay the sum of €1200 per week to the applicant for her

support and for the support of the dependent children of the family with effect from the 21st of July 2014, (ii) that the Court must be

satisfied that his non-compliance with the aforesaid order lies with his refusal as opposed to his inability to pay the aforementioned

maintenance to the applicant and (iii) this Court is satisfied that the applicant has satisfied the aforementioned proofs beyond a

reasonable doubt.

16. The applicant refers to the decision of Hardiman J in Dublin City Council v. McFeely & Ors [2012] IESC 45 where he held (at para.

9):

"It is important that the Court Order allegedly breached should be indicated with absolute clarity and precision in the

Motion for attachment and committal and that the evidence alleged to establish the breach of the order should be led in

the proper form after due and timely service of the Motion for attachment and committal".

17. The applicant submits that the court can be entirely satisfied that the respondent understands what is required of him under the

order dated the 16th of July 2014, and that there can be no doubt that the respondent is deliberately and consciously refusing to

comply with his obligations under the aforesaid order.

18. In supporting the proposition that this Court should invoke its power to attach and commit the respondent for non-compliance

with this Court's order dated the 16th of July 2014, the applicant cites Dublin City Council v Mc Feeley where Hardiman J outlines(at

para.7):

"It is essential that the Courts should possess power to punish in a summary manner contempt of the Court or of the

Courts’ orders. If the Courts did not possess this power then a person who had lawfully obtained relief from a court might

find himself or herself unable to enforce that relief".

19. The applicant relies on IBRC & Ors v Quinn & Ors [2012] IESC 51 to draw the distinction between civil and criminal contempt, the

former being coercive and the latter being punitive. In Quinn, Fennelly J held (at para. 95):

"The position seems to me to be clear. A person, who has been found guilty of contempt of court, may be required by an

order of a court to purge his contempt. Where following a finding of contempt, a person refuses to obey the court order,

he may be imprisoned by order of the court until he undertakes to obey the order, i.e., purges his contempt. Imprisonment

is not the only remedy. In certain types of case, a court has been known to impose a daily or other periodic fine. In the

case of a corporation, assets may be sequestered".

20. The applicant submits that they come to this Court seeking compliance by the respondent with his obligations under the order

dated the 16th of July 2014. The applicant concedes that it is solely the function of this Court to determine how said compliance of

the aforementioned order is achieved.

21. The applicant also draws the Court's attention to O. 44 rule 9 of the Rules of the Superior Courts 1986, which addresses motions

for attachment and committal in respect of contracted debts under s.6 of the Debtors Act, (Ireland) 1872. S. 6 of the Debtors Act

outlines that a Court may commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who

makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any

competent court. The applicant submits that the Order dated 16th of July 2014 cannot be construed as "a debt contracted after the

passing of this Act", but is rather an obligation imposed by the Court upon the respondent in the exercise of its statutory power

pursuant to s.12 of the Family Law (Divorce Act) 1996. Therefore, the applicant proffers that this Court is not confined to imposing a

six week term of imprisonment on the respondent.

Submissions of the Respondent

22. The respondent has not sworn a replying affidavit in respect of the applicant's Notice of Motion for his attachment and committal

nor has he produced written submissions to the Court on this matter. The respondent has been present in court for all hearings on

this motion for attachment and committal and has given live testimony.

23. The respondent has attributed his failure to comply with the order dated the 16th of July 2014 to a number of factors. The

respondent outlined that his failure to pay the prescribed sum of maintenance to the applicant was attributable to a financial decline

in his commercial ventures. However, the respondent did allude to the fact that he needed to keep all his incoming financial resources

for “behind the scenes legal and accountancy advice” and other ancillary legal proceedings. The respondent submitted further that

the Court’s order dated the 16th of July 2014 directing the respondent to recommence payment of the sum of €1,200 per week to the

applicant along with granting the applicant liberty to withdraw €25,000 from the parties’ joint bank account was erroneous.

24. The respondent submits that the applicant has received sufficient income over the last two years and does not require the sum of

maintenance prescribed in the order dated the 16th of July, 2014.

Conclusion

25. I have considered the evidence and submissions of both parties extensively. On the 16th of July 2014, this Court granted an order

directing the respondent to recommence the payment of sum of €1,200 per week to the applicant for her support and for the support

of the dependent children of the family, (ii) an order entitling the applicant to withdraw the sum of €25,000 from the parties' joint

bank account for the normal household expenses of the family home, (iii) an order entitling the respondent to withdraw the sum of

€25,000 from the parties' joint bank account to be used to obtain appropriate accommodation and (iv) an order providing liberty to

the applicant to withdraw a further lump sum of €30,000 from the parties' joint bank account to discharge specific educational costs

and the upkeep of the dependent children in their university courses as they fall due. There are no errors in this order.

26. The respondent is a lay litigant and has exercised his right to self-representation. Throughout these proceedings, the Court has

implored the respondent to avail of legal representation by private means or by applying for legal aid, so that he can understand the

gravity of the consequences of failing to comply with the Court order dated the 16th of July, 2014. On the 11th of November 2014,

the Court offered the services of a solicitor who was willing to volunteer legal advice on a pro-bono basis to the respondent so that

he could attain an understanding of the consequences of the forthcoming attachment and committal proceedings. The respondent

refused this opportunity to obtain legal advice.

27. To date, the respondent has failed to comply with paragraph one of the order of this Court dated the 16th of July 2014. This

Court is of the opinion that the aforesaid order was of absolute clarity and precision, and that the respondent understood his

obligations under the said order at all material times.

28. Order 44 rule 4 of the Rules of the Superior Courts 1986 states;

“When the person against whom an order of attachment is directed is brought before the Court on his arrest, the Court

may either discharge him on such terms and conditions as to costs or otherwise as it thinks fit or commit him to prison for

his contempt either for a definite period to be specified in the order, or until he shall purge his contempt and be

discharged by further order of the Court”.

29. In Dublin City Council v McFeely & Ors [2012] IESC 45, Fennelly J outlines (at para.2):

“The remedy of committal for contempt of court is an indispensable procedural remedy, whereby the courts can give

effect to their orders, promote enforcement of orders in the interest of the parties and guarantee respect for the

administration of justice and the rule of law. Without it, defiant and recalcitrant litigants might be able to defy the courts

and the law and deprive opposing parties of their just rights. The ultimate remedy is committal to prison for contempt of

court”.

30. As this contempt is of a criminal nature, the respondent has been advised by both the Court and counsel for the applicant of his

right against self-incrimination. The Court has provided the respondent an opportunity to provide reasons as to why a penal sanction

should not be imposed.

31. This Court finds beyond a reasonable doubt that the applicant has established the necessary proofs to warrant an order for the

attachment and committal of the respondent, these being (i) there has been a failure by the respondent to comply with this Court’s

order dated the 16th of July 2014, directing the respondent to pay the sum of €1200 per week to the applicant for her support and

for the support of the dependent children of the family with effect from the 21stof July 2014 and (ii) that the respondent’s non-

compliance with the aforesaid order lies with his refusal as opposed to his inability to pay the aforementioned maintenance to the

applicant.

32. On this basis, the Court finds the respondent in contempt of the aforementioned Court order and seeks to attach the respondent

and commit him to prison until he purges such contempt pursuant to O.40 of the Rules of the Superior Courts 1986.

33. The Court directs that the respondent be attached and committed to prison for a 28 day period but places a stay on the said

order from Friday the 28th of November 2014 to Tuesday the 2nd of December 2014, to allow the respondent consider his position

and purge his contempt by paying the outstanding debt, now in the sum of €19,200 as of the 28th of November 2014, to the

applicant in respect of maintenance.

34. Costs to the applicant, costs to be taxed in default of agreement.