The High Court dismissed an application by a former husband to call a forensic accountant to explain his finances during proceedings over his bid to vary a divorce decree. Mr Justice Henry Abbott said the husband’s disclosure conduct amounted to litigation misconduct of the most serious kind and showed a serious lack of good faith towards the court.
The judgment, delivered on 2 June 2011, followed a July 2010 decision. The former wife had sought to have the husband committed for contempt over alleged non-compliance with the divorce order, including the removal of mortgages from a property intended to be left unencumbered for her. The husband responded with an application to vary the decree under section 22 of the Family Law (Divorce) Act 1996.
The court had earlier refused the husband’s applications to dismiss the committal proceedings and to withhold documents under legal professional privilege. At the hearing, his counsel proposed that forensic accountant Mr Grant give evidence about the husband’s financial position. The wife’s counsel argued that this could not address the alleged failures to disclose and provide supporting material in advance.
The wife’s counsel submitted that affidavits identified six instances of non-disclosure before and after the June 2007 divorce decree. She said the most serious involved an undisclosed €640,000 mortgage on the property and a sports car said to have cost €410,000, and put the combined value of the alleged non-disclosures at about €1.4 million. The judge found that the car had not been disclosed in the husband’s affidavit of means. He did not find that two forensic accountants had discussed the second mortgage before the divorce settlement, saying that claim was not proven in an affidavit.
The judge applied the civil standard of proof—the balance of probabilities—to the wife’s application to dismiss the proposed evidence, while requiring misconduct of the most serious kind. He said the power to bar a litigant from pursuing relief must be used extremely rarely, given the right of access to the courts. He nevertheless concluded that the husband’s conduct justified dismissing the application to call Mr Grant in limine.
The judgment did not finally resolve what would happen to the variation application or the disputes over enforcement. It said the husband might be able to return to the variation process on terms if he made a “radical” change in approach and gave assurances backed by a programme of action to restore the court’s trust. Possible measures discussed included independent oversight of his business finances or a financial expert’s report. These were suggestions in the judgment, not orders made in it.