A man’s action aimed at setting aside an order requiring him to pay €3,256 in child maintenance arrears has been halted as “an abuse of process”.
The High Court’s Mr Justice Garrett Simons said the man had not disclosed all material facts to the judge in August 2022 when he granted him leave for judicial review of the May 2022 maintenance order made by the Circuit Court.
A transcript which was not available until after leave was granted showed the man misrepresented the nature of the hearing before the Circuit Court, the judge said. The man provided sworn documents conveying the “false impression” the Circuit Court acted in breach of fair procedures and of the basic rules of evidence.
Now that the true circumstances of the case were before him, the judge said he was setting aside his grant of leave. The man, “regrettably”, had not apologised for, or sought to explain the “subterfuge” in his affidavit seeking leave, he said.
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The man has 14 days to make submissions if he wishes to oppose the judge’s intention to make an order that the man pay his estranged partner’s costs of her successful application to set aside the leave.
The judge noted the man had not made an actual complaint in his judicial review about the Circuit Court judge’s order requiring him to pay some €70,000 – half – of the measured legal costs of some €140,000 incurred by the woman in the family law proceedings.
However, the man had given misleading information to the High Court there was no expert report vouching those costs, he said. The man had not challenged a legal costs accountant’s report provided to him some months before the Circuit Court hearing and there was no error in that court’s approach to the measurement of the costs, he held.
Outlining the background, the judge said the man and woman had a child together but are estranged and there has been long-running litigation over matters such as child access and maintenance payments. The family law proceedings were listed for hearing before the Circuit Court on more than 40 occasions.
The May 2022 Circuit Court order directed the man to pay €3,265 in respect of maintenance payment arrears. He was not required to make any future periodical payments but to instead make “ad hoc” contributions towards the child-rearing expenses incurred by the respondent.
As well as directing him to pay half of the measured legal costs of €140,720 incurred by the woman in the family law proceedings, the Circuit Court also made what is known as an Isaac Wunder order restraining him taking any further proceedings without its permission.
The judge considered a transcript of the Circuit Court hearing which was not available until February 2023, some months after the man secured leave. When seeking leave, the man alleged the Circuit Court had relied on material not provided on affidavit or via testimony, had not permitted cross-examination of the woman and denied him the right to submit evidence.
The transcript of the Circuit Court hearing, and affidavits in the family law proceedings, showed this characterisation of the Circuit Court hearing was “grossly misleading”, Mr Justice Simons held. It was “simply untrue” to say there was no evidence before the Circuit Court in relation to the outstanding maintenance payments. The transcript showed the respondent had given sworn oral evidence there was a sum of €3,256 outstanding.
The man’s sworn statement his counsel had sought to cross-examine the respondent was also untrue and his sworn averment that the respondent had sworn no supportive affidavit was incorrect as she had filed three affidavits in support of her appeal from the District Court, he said. The man also failed to disclose the “convoluted history” of the family law proceedings and created a false impression the appeal had been determined in a peremptory manner by the Circuit Court.
