Cathcart v Owens

Factual and Procedural Background

This case concerns an application by the husband to set aside financial consent orders made in 2002, 2011, 2019, and 2020 relating to ancillary relief following the parties' separation. The parties, married in 1997, have been engaged in protracted litigation for over 20 years. The husband was a successful businessman and the wife had been employed as a cabin attendant. They had two children conceived through IVF arrangements involving the husband's sperm and donor eggs, with complex agreements concerning financial maintenance and parentage.

The financial settlements included lump sum payments, transfer of property interests, and ongoing child maintenance and school fees. The wife took preparatory steps for IVF treatment prior to the 2002 order, which the husband alleges were fraudulently undisclosed. Subsequent orders adjusted maintenance payments and addressed contact restrictions relating to the children’s biological parentage. The husband’s application to set aside these orders was made pursuant to Family Procedure Rules (FPR) 9.9A, and the wife cross-applied to strike out or abbreviate the hearing of that application. The matter was allocated to a High Court judge due to its complexity.

Legal Issues Presented

1. Whether the wife practised a deception on the husband with the intention of gaining personal or financial advantage by failing to disclose material facts prior to the making of the financial consent orders.
2. If fraud or non-disclosure is established, whether a reasonable person would have nonetheless agreed to the orders had the concealed matters been disclosed.
3. Whether the court would have made a substantially different final order had it known about the matters concealed.
4. Where the burden of proof lies at each stage of the enquiry into alleged fraud or non-disclosure in ancillary relief proceedings.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first considered the legal principles governing fraud and non-disclosure in ancillary relief cases, emphasizing that fraud must be distinctly pleaded and proved, and that the fraudulent conduct must have materially caused a substantially different order to be made. The court applied binding authority, notably Sharland v Sharland, to outline the burden of proof shifting from claimant to defendant after fraud is established.

The court analyzed the husband's three allegations of fraud concerning the wife's non-disclosure of preparatory IVF steps before 2002, a miscarriage in 2004 following a covert use of frozen embryos, and an alleged forgery of the husband’s signature on an IVF agreement in 2005. It held that preparatory steps that were paused or discontinued do not cross the threshold into deception or fraud. The court found no legal obligation on the wife to disclose such preparatory conduct.

Even if the preparatory steps were considered fraudulent non-disclosure, the court was satisfied that a reasonable person would not have withdrawn consent to the orders, nor would the orders have been substantially different. The 2002 financial settlement was deemed conventional and not unduly generous. The subsequent allegations were found implausible, particularly given the husband’s prior agreement to the conception of the second child and his acceptance of the financial arrangements.

The court emphasized that ancillary relief orders, including those made by consent, are subject to the court's independent discretion and are not mere rubber stamps. The court was satisfied that no fraud was proven and that the orders would not have differed materially if the alleged concealed matters had been disclosed.

Holding and Implications

The court DISMISSED the husband's application to set aside the financial consent orders of 2002, 2011, 2019, and 2020 pursuant to FPR PD 9A para 13.7, certifying the application as totally without merit.

This decision directly affects the parties by affirming the validity of the existing financial orders and rejecting the husband's claims of fraud and non-disclosure. The court did not establish any new legal precedent but applied well-established principles to a complex factual matrix, reinforcing the high threshold required to set aside consent orders on grounds of fraud or non-disclosure.