Maintenance General
Cases
P.J. v J.J.
[1992] ILRM 273 Barr J
The parties were married on 5 June 1952. There are four children of the marriage, all daughters, the youngest of whom is 25 years of age. All are married and have long since left home. The wife resides in a three-bedroomed house in Rathfarnham, Dublin, which was purchased by the husband, subject to mortgage, in the 1970s. The marriage finally broke down in or about 1978. At that time the husband entered into a relationship with another lady and took up residence with her in Kinsale. That relationship is continuing. A separation agreement, dated 14 May 1980, was entered into between the parties and was duly made a rule of court under the provisions of s. 8 of the Family Law (Maintenance of Spouses and Children) Act 1976. It provides, inter alia, that:
(1) The wife shall remain in possession of the family home at Rathfarnham for her lifetime. In the event that she wishes to vacate the dwelling house, it shall be sold and the proceeds divided equally between the parties.
(2) The husband shall pay to the wife a sum per month, free of all deductions, which sum is adjustable annually according to the consumer price index. The amount of maintenance so adjusted now payable amounts to £527 per month.
There is no provision for a reduction in maintenance in the light of changed circumstances which may occur.
(3) In addition to maintenance, the husband shall pay the following disbursements in relation to the family home and the personal requirements of the wife (a) the mortgage; (b) the ESB account; (c) the telephone account; (d) household insurance; (e) a sum for household maintenance; (f) the wife’s VHI; (g) the provision of a car for the wife.
Up to October 1990 the husband owned 75% of the shares in a company called R. and W. S. Ltd. He was also managing director of the company which owned and operated four newsagent cum stationery shops situated in shopping centres in C. and in C. At one time the company operated seven shops, but the business, like many other similar enterprises, has been in decline in recent years. About eight months ago the husband sold his interest in the business for £110,000. He subscribed £50,000 thereof towards the purchase price of a house in Kinsale which cost £135,000. His lady partner subscribed the balance of the purchase price.
Another reason why the husband has sold his interest in the business is that he is now in poor health and has found it difficult to carry on. The evidence of his general practitioner, Dr N., bears that out. The husband and his partner have embarked upon a plan to extend the recently purchased house in Kinsale so that it will have eight bedrooms and will be suitable for use as a guest house. It will not be ready for occupation until the 1992 season and it is not possible presently to estimate what his earnings from that business will be. The husband is endeavouring to sell his present home in Kinsale, but there is a glut of properties on the market there presently due to recessionary pressures affecting second homes. If he cannot sell that house, he will run it as a guest house also. It has a present market value of approximately £80,000.
Until about two years ago the husband not only honoured all the financial terms of the separation agreement, but also made substantial additional payments for the benefit of his wife and more particularly his daughters, including gifts of £5,000 to each child on marriage and also the cost of their weddings. I am satisfied that the arrears under the separation agreement which have accrued since then arose out of the decline of the husband’s business, leading to an inability on his part to meet his financial obligations to the wife as previously.
The wife sued for arrears of maintenance and other payments due under the separation agreement, and that claim was compromised in November 1990 upon payment of £10,000 by the husband out of the proceeds of sale of his interest in the retailing company. The wife is 65 years of age and she also has health problems. She is employed as a records clerk in a Dublin hospital and her net earnings are about £700 per month, including interest on £7,000, being the balance remaining out of the arrears of maintenance paid by the husband in November 1990. The retirement age for her job is 65 years and no pension is payable. However, her employers are not yet aware of her actual age.
Evidence was given as to the wife’s overheads. I am satisfied that, excluding social expenditure and the cost of holidays, they amount to about £750 per month on average net of tax and that that is fair and reasonaable in all the circumstances. The latter sum includes ESB and telephone accounts which ought to be paid by the husband under the terms of the maintenance agreement. I have no doubt that when the wife’s employment at the hospital comes to an end, which it must do in the next three or four years at the latest, she will be in serious financial difficulties, having only the State contributory old age pension to substitute for her hospital salary. Apart from this potential difficulty, the wife is presently suffering financial hardship due to the non-payment by the husband of maintenance and other disbursements under the terms of the separation agreement. Arrears presently amount to £4,895.
In the light of the foregoing facts, the husband is seeking an order varying downwards the maintenance provisions of the separation agreement because of change in his financial circumstances and other related factors. The wife has resisted that application and has herself claimed arrears of maintenance.
The husband’s application raises a net point of law, ie , whether the maintenance provisions of a separation agreement, which has been made a rule of court pursuant to an application under s. 8 of the Family Law (Maintenance of Spouses and Children) Act 1976 are reviewable under s. 6 of that Act, and may be adjusted downwards by the court if it is satisfied that by reason of changed circumstances the maintenance debtor is unable to meet his obligations on foot of the agreement and justice requires that adjustment should be made in the amount of maintenance payable.
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This issue has been the subject of two conflicting judgments in the High Court. The first is that of Carroll J in J.D. v B.D. [1985] ILRM 688, and the other is that of Barron J in D. v D. [1990] 2 IR 361. I have considered both judgments and, with respect, I support the conclusion arrived at by Carroll J that s. 6 of the 1976 Act is not available as a vehicle for the review of maintenance provisions in a separation agreement which itself contains no such machinery.
The broad objective of ss. 5 to 7 of the 1976 Act is to provide machinery to enable spouses and/or children to obtain periodic maintenance payments from the other spouse in an amount that is fair and reasonable in all the circumstances. A maintenance order having been made under s. 5, it may be discharged or varied subsequently in the light of changed circumstances on application to the court by either spouse under s. 6. S. 7 provides for the making of interim orders. S. 8 of the Act allows the court to make orders in respect of marital agreements (as in the present case) and such orders are deemed to be maintenance orders for certain limited purposes in the transmission of maintenance payments through the District Court as provided by s. 9 and attachment of earnings proceedings under Part III of the Act. In making an order under the section the court must be satisfied that the payment is a fair and reasonable one which in all the circumstances adequately protects the interests of both spouses and the dependant children, if any, in the family. Whether in the instant case the separation agreement ought to have been made a rule of court in the absence of an appropriate provision for review in the event of changed circumstances of either party, is not a matter which is before me.
The rationale of s. 8 of the Act appears to be that the legislature recognises the right of spouses to enter into maintenance contracts and it will not interfere with the terms agreed between the parties, but where such contracts have been approved by the court as being fair and reasonable, the contract is deemed to be a maintenance agreement in certain specific circumstances provided for in the Act of 1976 relating to mode of payment and enforcement. The specified limited circumstances in which a maintenance agreement duly approved by the court under s. 8 shall be regarded as being a maintenance order does not include the right to review provided for in s. 6. The relevant sections to which I have referred are clear in their terms. A court is entitled to interpret legislation so as to resolve any ambiguity or obvious error therein. However, where the statute is clear in its terms, the court has no power to extend its provisions to make good what is perceived to be a significant omission. If the court took that course it would entail going beyond statutory interpretation and into the realm of law-making, a function which under the Constitution is reserved to the Oireachtas. Occasionally circumstances arise where the court is powerless to avoid injustice and, sadly, this case is one of them. I am obliged to hold that the husband is not entitled to a review of the maintenance provisions of the separation agreement under s. 6 of the Act.
The alternative claims which he makes are patently devices in effect to secure indirectly the benefit of a review under s. 6. He is bound by the terms of the maintenance agreement and I am satisfied that he is not entitled to either of the alternative orders which he seeks.
As for the wife’s claim for payment of outstanding maintenance and other related benefits under the terms of the separation agreement, it follows in the light of the foregoing that she is entitled to orders for payment of the amount due to date which is £4,895.
In the hope that it may be of some assistance to the parties, both of whom I am satisfied are fair-minded people, I think I should indicate what my attitude would have been if I had held that I had power to review the maintenance provisions in the separation agreement. Both parties are now reaching an area of health problems which in varying degrees are often part and parcel of late middle age. It seems that the husband’s health difficulties have been aggravated by the decline in his retail business since in or about 1988 and the pressures which that gave rise to. I am satisfied that he has been obliged to sell his interest in the business for health reasons and because of its decline in recent times. He is embarking upon an alternative business which is within his restricted health capacity and I have no doubt that he will be hard pressed financially to bring about the metamorphosis he has put in train. It is common case that when times were better for him he honoured the terms of the agreement with his wife and that he did substantially more for her and for their daughters than was required of him under the agreement.
As already stated herein, I am satisfied that since 1988 the husband has been in difficult financial circumstances and that he has not had the resources to honour his financial obligations to his wife in full, bearing in mind that capital is required to set up the new guest house business to replace that which he has sold. Hopefully this new enterprise will prosper and that after it gets under way he will be able to revert to his full obligations under the terms of the separation agreement. I would have reduced his liability to £300 per month from 1 January this year, but all ancillary payments to be made by him as provided for in the agreement and the matter to be reviewed again in or about October 1992, or at such time as the wife loses her employment, should that event happen in the meantime. Perhaps the parties may be able to agree on terms, without prejudice, along these lines.
R. H. v N. H.
1983 No. 225
Supreme Court
24 October 1985
[1986] I.L.R.M. 352
(Finlay CJ, Henchy and Hederman JJ)
FINLAY CJ
(Henchy and Hederman JJ concurring) delivered his judgment on 24 October 1985 saying: This is an appeal brought by the defendant, who is the husband against an order of the High Court made by Costello J on 20 June 1983 pursuant to s. 5 of the Family Law (Maintenance of Spouses and Children) Act 1976 (the 1976 Act) directing him to pay to the plaintiff, who is the wife, a sum of £800 per month in respect of her maintenance and that of the three children who are in her custody.
On 5 February 1980 the wife issued a summons against the husband in these proceedings, claiming inter alia, an order for custody of the children and maintenance for herself and the children. Those proceedings came before the late Ellis J and were at hearing before him and adjourned after an interim order for maintenance had been made.
The parties then negotiated and reached a settlement of the proceedings which was incorporated in a deed made between the parties and dated 19 May 1981. It does not appear that any order was made in the proceedings pursuant to that settlement and deed and it is clear that the deed was not made a rule of court.
The deed provided, inter alia, for the payment of a total amount of £357 per month maintenance and provided that that should be tied to an index stated to be the index of the defendant’s employers. The deed also provided that the husband was to retain the normal tax-free marriage allowance with the related children’s allowances and that the £357 had been calculated accordingly.
By notice of motion dated 29 November 1982, the plaintiff sought a mandatory order directing the defendant to comply with the terms of that deed of settlement and an order for judgment together with interest in the amount of £675 by way of arrears of maintenance, an order that the defendant should pay the monthly sum due in accordance with the terms of the order of this Honourable Court and claimed further or other relief. The matter came before Costello J on affidavit, and he in addition heard oral evidence from the parties. On that hearing the learned trial judge decided that the parties had not been ad idem concerning the variation clause contained in the deed of settlement and, secondly, that the provision in the deed of settlement that the husband should be entitled to the married man’s tax allowances was as a matter of law of no effect had not been accepted by the Revenue and was not in accordance with what actually happened.
Having regard to those findings and having heard evidence that there had been since the date of the deed of settlement a very substantial increase in the defendant’s salary due to promotion, he decided that he should fix maintenance on the facts as they then were, pursuant to s. 5 of the Act of 1976. He gave the parties, by adjournment, an opportunity of stating their means and outgoings and then heard both on affidavit and by oral evidence that issue and made the order to which I have referred.
The defendant in his appeal did not dispute that the maintenance fixed in the deed of settlement was capable of review by the court under certain circumstances but contended that those circumstances had not been established before the learned trial judge at the time he decided to fix maintenance under s. 5.
I am satisfied, notwithstanding the relatively recent date of the deed of settlement and the fact that it was negotiated by the parties with the benefit of full legal advice on both sides, that having regard to the learned trial judge’s finding that the parties were not ad idem concerning the vital clause which provided for an automatic review of the maintenance and his finding that one of the assumptions of law upon which the maintenance had been fixed, namely, the allowance to the husband of a married man’s tax allowances had not been borne out in fact, that he had jurisdiction to enter upon an enquiry under s. 5 of the Act of 1976 and to fix maintenance as a result of that enquiry.
The defendant, however, made a further submission asserting a want of jurisdiction in the High Court to fix maintenance under s. 5 and that was, that since the notice of motion had been issued subsequent to the coming into operation on 28 May 1982 of s. 12 of the Courts Act 1981, that if the plaintiff sought an order under s. 5, she was obliged to make application for it either in the District Court or in the Circuit Court.
I am satisfied that this contention must fail. The proceedings in which this application by notice of motion was made were instituted prior to the passing or coming into effect of s. 12 of the Courts Act 1981 and clearly the High Court had jurisdiction to hear it.
A further complaint was made by the defendant that the notice of motion did not in terms seek an order under s. 5. I am quite satisfied that the motion having sought further or other relief as an alternative claim that it was within the discretion of the learned trial judge to avoid the unnecessary expense and delay which would have been involved in forcing the parties to file a further notice of motion specifically claiming an order under s. 5 and that he properly exercised that discretion.
The other grounds of appeal submitted by the defendant who appeared in person, were, broadly speaking, directed against the amount of maintenance fixed by the order of Costello J and the findings of fact and calculations on which he reached that decision. Many of the submissions made under these headings were directed, not towards the absence of evidence to support the findings of the trial judge, but rather by way of complaint against his finding contested issues of fact in a particular way. This Court, of course, cannot and will not disturb findings of fact made by the trial judge where there was evidence to support them.
Certain broad principles are, in my opinion, applicable to the fixing of maintenance pursuant to s. 5 of the Act of 1976, arising from the terms of that section as well as from general principles of law. The court, it seems to me, in carrying out that task must first have regard to the somewhat pathetic fact that upon the separation of a husband and wife and, particularly a husband and wife with children, it is inevitable that all the parties will suffer a significant diminution in the overall standard of living. The necessity for two separate residences to be maintained and two separate households to be provided for makes this an inescapable consequence of the separation. Subject to that overriding consideration a court must, of course, ascertain the minimum reasonable requirements of, in this case, the wife and the children for whose upkeep she is responsible; it must then ascertain the income earned or capable of being earned by the wife, apart from the maintenance for which the husband is responsible; its next task is to ascertain the true net take-home pay or income of the husband; and, lastly, it must ascertain the reasonable living expenses of the husband, bearing in mind the general consideration of economy effecting all the parties concerned, but leaving him with a reasonable standard of living.
From the careful judgment of Costello J it would appear that he approached his task in general accord with these broad principles. He was satisfied that the wife had as income, apart from the maintenance to be provided by the husband, her earnings in a part-time occupation and children’s allowances, but no other source of income. An issue arose as to her legal ownership of a share in a family partnership owning property in the City of Dublin. The learned trial judge found on the evidence and, in my view, properly found on the evidence, that the scheme under which this legal ownership was vested in the wife was a scheme intended to avoid the burden of taxation for the wife’s mother and was carried out by a nominal lending of money for one day only to the wife to purchase the share in the property and that the wife was not entitled to any income derived therefrom, though she was technically the legal owner of a one-fifth share in it.
The learned trial judge arrived at the conclusion that the net take-home pay of the defendant at the time of the hearing was £1,278 per month. He based his calculation of the appropriate maintenance, having regard to the expenses established on behalf of both the wife and children on the one hand and the husband on the other, on that figure, expressing the belief that in the future it would probably increase.
On a careful examination of the evidence on which this calculation was made, I am satisfied that the learned trial judge was probably, by nature of some of the accounts and documents produced before him in evidence, led into error.
This figure of £1,278 was based on a calculation of the net take-home pay of the defendant in a sum of £1,177 to which the learned trial judge added a monthly figure of £101 car allowance included in the defendant’s remuneration from his employers.
The figure of £1,177 per month was based on a calculation of the gross earnings for the year ended 31 March 1983 in a sum of £24,634, less income tax in the sum of £10,082 and employee’s PRSI in the sum of £427.
With regard to these gross earnings, however, the only evidence before the trial judge from the pay office of the defendant’s employers was that it included a figure for overtime bonus payments in a sum of £3,338 which was most unlikely to recur to any extent at all in the year commencing 1 April 1983. This evidence was not contested and the learned trial judge had no other evidence as to the expectation of the defendant to earn in addition to his basic salary either bonus for overtime or any other overtime payment. In these circumstances, I am satisfied that there was an over-estimation in the net take-home pay which, on the evidence, the defendant was likely to earn into the future from the date of the order, of approximately £278 per month.
It appears from the certificate of his remuneration and expenses the defendant was paid in the eleven months prior to 31 March 1983 a gross sum of £2,072 for expenses and that included a car allowance of £101 per month. That figure was added in by the learned trial judge to his calculation of £1,177 net take-home pay.
It appears, however, from the schedule to the defendant’s affidavit of means and outgoings and the documents vouching it that the defendant in order to earn that car allowance had himself to provide a motor car, and that he had entered into a purchase agreement with his employers under which he had an obligation to pay in respect of the purchase of the car a sum of £112 per month. He had in the method of setting out the schedule of outgoings credited the £101 per month car allowance against the £112 per month’s car purchase loan repayment and claimed only a total annual sum of £135 in respect of car purchase. This somewhat inaccurate and misleading method of setting out the combined operation of the car allowance and the car purchase loan undoubtedly led to the second error which, in my view, occurred in the calculation of the defendant’s net take-home pay, namely, the inclusion of an additional £101 per month arising from the car allowance. Insofar as the amount paid on the car purchase loan in a sense is achieving the acquisition of a capital asset, it may be that the proper approach may have been to include some figure per month in respect of the car allowance, but certainly the entire sum would not appear to be appropriate.
There exists, therefore, a distinct possibility that the amount of maintenance fixed by the learned trial judge in June of 1983 on the evidence then adduced before him, was not properly related to the capacity of the defendant to pay and provide for his own living expenses. To that extent I am satisfied this appeal succeeds.
It is clear, however, that the appeal not having been brought forward until now that there may well have been substantial alterations in both the requirements of the applicant and of the capacity of the defendant to pay in the intervening period. The defendant properly pointed out to the court, though the matter was not dealt with in the evidence before the learned trial judge, that in fact changes in the income tax code had created some increase immediately after June 1983 in his net take-home pay. In my view, the order which should be made is that the appeal should be allowed and the matter remitted to the High Court for trial by Costello J having regard to the findings of this Court, maintenance now to be fixed for the future on the basis of evidence concerning the present situation and circumstances of the parties and with a power retrospectively to review the maintenance provided for in the order of June 1983 and make any consequential adjustments financially between the parties. The defendant must, however, continue to pay the sum of £800 per month ordered by the learned High Court judge until the determination of this review of maintenance under s. 5 of the Act of 1976.
G v G
Judgment of Mr. Justice Barron delivered the 15th day of MARCH 1989.
I have already indicated my general findings of fact. In essence, I have taken the view that the Respondent has failed to carry out a sensible investment policy and that if he had done so he would by now have available considerable sums of money in investments giving rise to reasonable returns.
His present accountant Mr. G prepared a list of assets and liabilities to show what would be available if he had acted more prudently. I found as a fact that after expenses he would have obtained £120,000 sterling or £150,000 from the sale of his Northern properties other than A S. I accepted that A S would produce £200,000 sterling if marketed sensibly but that this would take two to three years. If this had been commenced 18 months ago as it should, then half would have been realised by now. It was suggested that the proceeds be invested in a life assurance unit trust investment from which seven and a half per cent per annum could be taken without lessening the capital. On this basis the Respondent would have available a Department of Health and Social Security pension of £13,735, an estimated income from his dental practice of £14,000 and a notional income from unit linked funds of £12,975. This makes a total of £40,710.
The income from unit linked funds of £12,975 is based upon the value of the invested funds after investment as being £173,000. This figure comes mostly from figures supplied by Mr. G He allowed the sum of £150,000 as the proceeds of sale of the land in Northern Ireland. I accepted this figure as applicable to all the lands save A S. He then allowed the sum of £43,000 as the proceeds of sale of the lands in C and the sum of £55,000 as the proceeds from the sale of the shop in D R. From these sums he deducted: £30,000 representing outstanding income tax; £10,000 representing shop creditors; £75,000 representing loans from the Bank of Ireland; £25,000 representing a loan from the Allied-Irish Banks; £12,000 representing legal fees and other miscellaneous items; and £3,000 representing outstanding educational costs. The balance left came to £93,000. I deducted £20,000 from this upon the basis that the shop was to be sold to E for £35,000. I took half the proceeds of sale of A S at £100,000 sterling or £120,000, but took £100,000 as the figure for the value of the investment on the basis that there would be some cost of investment in the unit linked funds and perhaps higher costs of disposal than had been allowed for.
Before determining what would be reasonable alimony, there are a number of matters to be resolved. First, the present application strictly speaking should not have been re-opened unless it could have been shown that the figure of £350,000 placed on the Respondent’s real estate by Mr. Justice Barr was incorrect. The evidence as I have found shows it to be worth more than this. However res judicata does not strictly apply in family matters essentially because the circumstances of the parties are continually changing. The present case is no exception. There has been a sale of lands in the North. The circumstances of the Respondent’s dental practice have altered.
I have also taken the view that the Court should seek to assess the Respondent’s probable income if he did not persist in holding his lands. One would have assumed, considering the money it was costing him, that they were appreciating faster in value than the expenses. This is not so. Accordingly, the notional income is not the capital appreciation, since there is none, but what could be obtained if the proceeds were invested as suggested by Mr. G
In arriving at the moneys available for investment, it was assumed that the D R premises would be sold for £35,000 to E. This would have meant a gift of £20,000 to him. However, now that the time has come to do this, the Respondent says he will only sell in accordance with his valuer’s advice. In other words, his alleged concern for his son’s welfare is no more than so much hypocrisy. He regards the sale to E as a loss of face and the last thing he will accept is not to get his own way. If therefore he does not sell this property to E it the figure of £35,000 allowed for it by Mr. G, his potential income must be re-assessed. Much was said about the failure of the Applicant to obtain any income from her hotel investment. I have accepted that she cannot reasonably be expected to take proceedings to force her brother to pay dividends.
It is suggested that she should obtain employment. It may be that since she is receiving alimony she is not obliged to do so. Nevertheless I think her general attitude is wrong.
I appreciate that she makes a home for her children, but I do not think employment would prevent her from doing this. She points to her bad health. Again I do not think that this is as bad as she thinks. I understand her attitude and accept that she believes it is totally unreasonable for her to be expected to go out to work. I think for the moment, it is reasonable that she continues to make a home for her children. It is a pity that she cannot be allowed to help E. This she could do and it would be beneficial for her, for E and for her husband.
The Respondent lives in an expensive house in obviously comfortable circumstances. He can afford leisure activities and holidays to exotic places. These are things his wife is unable to afford.
Figures have been produced as to how much the Respondent can afford. Schedule 2 is calculated upon the basis that the alimony is paid after tax as at present. This shows the Respondent having a net disposable income of £13,213 as against the Applicant’s £15,672. However, he has only half the expenses of the house to pay whereas the Applicant has to meet the entire of hers. In my view, there are insufficient grounds for reducing this alimony.
When the further £100,000 sterling to be obtained from A S is available, there should be further funds to enable the Applicant’s standard of living to approach that of the Respondent.
In the circumstances the Respondent’s application will be refused.
SM v NM
[2015] IEHC 258JUDGMENT of the Court delivered by Ms. Justice Finlay Geoghegan on 19th day of November 2015
1. This judgment is given in an appeal brought by NM (“the father”) against an order made on the 1st August, 2014, by the High Court (O’Hanlon J.) in which for the reasons set out in a written judgment delivered on the 31st July, 2014, she concluded that there is a power under the Guardianship of Infants Act 1964, to order him to make an interim maintenance payment to SM (“the mother”) for the benefit of their dependent children. The order directed the father to pay an increased weekly sum of €5,000 in addition to the then weekly sum being paid by him to the mother for a period of 22 weeks commencing on the 8th August, 2014.
2. The factual and procedural background to that order was as follows. The mother is the applicant in two sets of proceedings in the High Court (2013 No. 15M and 2013 No. 22M). The father is the respondent in both sets of proceedings.
3. The father and mother are not and have never been married to each other. However, they have eight children together. Four children are adults and the four younger children are aged between twelve and seventeen. Four of the children have been diagnosed with medical and other conditions which give rise to special needs. In July 2014, six of the children were considered to be dependent and seven resided with the mother together with an infant daughter of the eldest daughter of the mother and father.
4. The mother is a homemaker. The father is a highly qualified professional person who has a valuable equity partnership in a well known international professional practice. The father earns significant sums from that partnership and it is not in dispute that his income over the last few years has been in excess of €2 million per year.
5. Regrettably, difficulties arose in the relationship between the father and the mother and the mother commenced proceedings on behalf of herself and the children under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, and also under the Guardianship of Infants Act and the other Acts referred to in the title of these proceedings.
6. At an early stage in the proceedings, the father agreed to pay an agreed periodic sum for maintenance and a consent order to that effect was made.
7. The judgment and order under appeal were made following the hearing of amended notices of motion issued in both sets of proceedings. In those motions the mother sought, inter alia, an order for a lump sum or in the alternative periodical maintenance or payment order, the purpose of which was to enable the mother provide for legal costs already incurred and envisaged to be incurred in preparation for the full hearing of both sets of proceedings.
8. In the High Court there were issues in dispute in relation to the jurisdiction of the court to make such orders and also as to the need for and amount of any such orders.
9. On the jurisdiction issues, the High Court judge concluded that the court did have jurisdiction under s. 11(b) of the Guardianship Act, as amended, to make an order of the type sought. On the facts of the case she determined that it was necessary and appropriate to make an order primarily to enable the mother secure her effective right of access to justice in order that the disputes which related to the welfare both of herself and the children in the two sets of proceedings could be fairly progressed and disposed of.
High Court order and further payments
10. The order of the High Court was that the father should pay an additional sum of €5,000 for a period of 22 weeks commencing on the 8th August, 2014. A stay was granted on that order provided an additional sum of €3,000 per week were paid for a period of 22 weeks.
11. It had been envisaged that the full hearing of the proceedings in the High Court would commence in January 2015. However, due to the sudden illness of counsel in the case, the matter had to be adjourned. At that point the father agreed to continue paying the additional weekly sum of €3,000.
12. At the time of the hearing of the appeal, the substantive proceedings in the High Court had not yet been heard and determined, but were due to be shortly heard. The father had paid a total sum of €110,000 approximately by the additional €3,000 weekly maintenance amounts. He confirmed to the court that he did not intend seeking the recovery of those amounts, but wanted the appeal heard in order to determine whether he was obliged to continue making such payments.
Appeal
13. The father pursued the appeal against the order made essentially on two grounds:
1. The High Court did not have jurisdiction to make the order pursuant to the Guardianship of Infants Act 1964; and
2. The High Court judge was incorrect in certain of the inferences drawn by her and in particular from the fact that there was a consent order for maintenance and the fact of the adjournment of a preliminary issue to the main hearing of the action.
Ruling on the 6th May, 2015.
14. At the conclusion of the hearing of the appeal, the court reached certain conclusions and reserved its decision on other aspects of the appeal. In a short ex tempore ruling the court informed the parties of the following decisions.
1. The Court reserved its judgment as to whether the High Court had jurisdiction pursuant to the Guardianship of Infants Act to make an order of the type made on the 1st August, 2014.
2. The High Court did, in any event, have jurisdiction under s. 7 of the Family Law Maintenance of Spouses and Children’s Act 1976, as amended, to make an order of the type made on 1st August 2014 as an interim order for the payment of a periodical sum to an applicant such as the mother. The amended notice of motion had sought the order pursuant to this section.
3. Even if the order made by the High Court on the 1st August, 2014, was, on the facts herein a proper exercise of such a jurisdiction under s. 7 of the 1976 Act, the Court was of the view that the upper limit of the aggregate of any such periodical order which ought to have been made on the facts herein was the sum of €110,000 which had already been made by the father.
4. Consequently the father was not under any continuing obligation pursuant to the High Court order of the 1st August, 2014, or on any other basis, to make an additional payment of €3,000 per week referred to as a condition of the stay on that order or pursuant to the agreement made in January 2015.
15. The Court in this judgment is giving its decision on the reserved issue as to whether or not the High Court had jurisdiction to make the order of the 1st August 2014, pursuant to s. 11 of the Guardianship of Infants Act 1964, as amended, on the facts herein. It is also giving its reasons for decisions already reached that there was jurisdiction on the facts herein to make an order of the type made pursuant to s. 7 of the 1976 Act, and that €110,000 was the upper limit of the aggregate of an appropriate order pursuant to s. 7 on the facts herein.
Jurisdiction under the Guardianship of Infants Act 1964.
16. Section 11(1) and (2) of the 1964 Act (as amended) provides:-
“(1) Any person being a guardian of a child may apply to the court for its direction on any question affecting the welfare of the child and the court may make such orders as they think is proper
(2) The court may by an order under this section –
(a) give such direction as it thinks proper regarding the custody of the child and the right of access to the child of his father or mother;
(b) order the father or mother to pay towards the maintenance of the child such as weekly or other periodical sum having regard to the means of the father and mother, the court considers reasonable.”
17. The issue herein arises as the father is not and was never married to the mother. While at first blush these provisions would appear to provide that the reference to “father” in s. 11 of the 1964 Act, is broad enough to include the father of non-marital children, a consideration of the statutory definition of the word “father” in s. 2 of the 1964 Act (as inserted by s. 4 of the Children Act 1997) demonstrates that this is not so.
18. Section 2 of the 1964 Act (as amended) provides that in the Act (except where the context otherwise requires) the word “father” does not “include the father of a child who has not married that child’s mother” unless either:-
“(a) an order under s. 6A (as inserted by the Act of 1987) is in force in respect of that child;
(b) the circumstances set out in subsection (3) of this section apply.
(c) the circumstances set out in subsection (4) of this section apply”
19. The reference in paragraph (a) to an order under s. 6A of the 1964 Act is a reference to a situation where a father has been made guardian by court order. It is agreed that this has never occurred in the present case, so that this paragraph does not apply to him. Subsection (3) only applies to persons who have gone through a ceremony of marriage which does not apply. In these circumstances, Mr. M. can only be a “father” for the purposes of s. 11 of the 1964 Act if the following conditions specified in s. 2(4) of the 1964 Act are satisfied:-
(4) The circumstances referred to in paragraph (c) of the definition of ‘father’ in subsection (1) are that the father and mother of the child concerned –
(a) have not married each other,
(b) declare that they are the father and mother of the child concerned,
(c) agree to the appointment of the father as a guardian of the child,
(d) have entered into arrangements regarding the custody of and, as the case may be, access to the child, and
(e) have made a statutory declaration to that effect as may be prescribed by the Minister for Justice, Equality and Law Reform.”
20. It is plain from the wording, structure and layout of the sub-section that these conditions are cumulative. If it had been intended that they should have been read disjunctively, the conjunction “or” would doubtless have been used as between the various specified conditions. By contrast, the sub-section employs the opposite conjunction “and”, thus making it plain that these conditions are, in fact, cumulative.
21. While some of these statutory conditions have been fulfilled, it is clear that others have not. Thus, for example, these parents have never agreed to the appointment of the father as guardian. Nor have they entered into agreements regarding the custody of the child or made a statutory declaration to that effect.
22. It follows, therefore, that N M is not the “father” of his children for the purposes of s. 11(2)(b) of the 1964 Act. As a consequence, therefore, that this means that the High Court had no jurisdiction to make a maintenance order against him pursuant to s. 11(2) of the 1964, precisely because he is not a “father” within the meaning of that sub-section.
23. Counsel for the mother, Ms. Clissman S.C., urged the Court to re-assess the interpretation of s. 11 of the 1964 Act having regard to the provisions of Article 42A.1 of the Constitution. This provision was inserted by the 31st Amendment of the Constitution Act 2015 and it took effect on 28th April 2015. Article 42A(1) now provides
“The State recognises and affirms the natural and prescriptive rights of all children and shall, as far as is practicable, by its laws protect and vindicate those rights”. (emphasis supplied)
24. In our view, that submission was unsustainable having regard to the then terms of the 1964 Act, as amended. The submission is tantamount to a challenge to the constitutionality of s. 11 of the 1964 Act, as then amended, although no such challenge had ever been raised before the High Court.
Section 7 of the Family Law (Maintenance of Spouses and Children) Act 1976.
25. Section 7 of the 1976 Act (as amended ) provides:-
“On an application to the Court for a maintenance order, the Court, before deciding whether to make or refuse to make the order, may, if it appears to the Court proper to do so having regard to the needs of the persons for whose support the maintenance order is sought and the other circumstances of the case, make an order (in this Act referred to as an interim order) for the payment to the applicant by the maintenance debtor, for a definite period specified in the order or until the application is adjudicated upon by the Court, of such periodical sum as, in the opinion of the Court, is proper.”
26. The mother in the proceedings in the High Court has sought from the father a “maintenance order” as defined by the 1976 Act. That definition includes an order under s. 5A of the Act. That section expressly provides for the making of a maintenance order in respect of a dependent child whose parents are not married to each other. The father is a “maintenance debtor” as defined by the Act.
27. As appears from the above, s. 7 of the 1976 Act, give to the court jurisdiction to make what is termed an “interim order” “if it appears to the court proper to do so having regards to the needs of the persons for whose support the maintenance order is sought”. The interim order which may be made is the payment “for a definite period specified in the order . . . of such periodical sum as, in the opinion of the court is proper”.
28. The court was referred to the judgment and reasoning of Holman J. in the English High Court in A. v. A. (Maintenance Pending Suit: Payment of Legal Fees) [2001] 1 WLR 605, where he held in the context of English matrimonial proceedings and the relevant English statutes which referred without definition to “maintenance” that the concept of maintenance was wide enough to include a current need to pay legal costs. While precisely the same considerations do not apply by reason of the wording of s. 7 of the 1976 Act, nevertheless it is of assistance. Section 7 of the 1976 Act in substance gives to the court a discretion to make an interim order for the payment of periodical sums where it appears to the court proper to do so “having regard to the needs of [the dependent children] for whose support the maintenance order is sought”. Where a court is satisfied, as the trial judge was herein, that on the particular facts and circumstances of the case a mother who is bringing a claim for a maintenance order needs the payment of periodical sums to meet legal costs in order that she be in a position to pursue the claim for a maintenance order on behalf of the dependent children then it has jurisdiction to do so.
29. The trial judge in her written judgment reached a conclusion that the payment of periodical sums to the mother in respect of legal fees was necessary on the particular and unusual circumstances of this case. At para. 19 of her judgment she accepted the following position as stated on behalf of the mother:
“It has been clearly stated on behalf of the applicant that her legal team will not be in a position to continue working on her case over the summer because they have not been in receipt of any fees, and the volume of work is extensive in terms of the complexity of the respondent’s financial arrangements and the necessity to employ specific tax advice, a forensic accountant and to examine the documentation which arise by way of discovery. This Court notes that the applicant is a lay person and full time mother of eight children many of whom have additional welfare needs.”
30. She later in her judgment concluded that the payments “are necessary as the applicant has neither the time nor the expertise to self represent”.
31. Accordingly, whilst the trial judge incorrectly identified s. 11 of the 1964 Act, as the statutory provision which gave her jurisdiction, nevertheless she did have jurisdiction under s. 7 of the 1976 Act, as amended. Further the mother had included in her notice of motion an alternative claim for relief under that section. This Court is of the view that on the exceptional facts and circumstances of these proceedings that the trial judge correctly concluded that the needs of the dependent children for whom the maintenance orders are being sought in the proceedings did require the making of an interim order for the payment of periodic sums specifically directed to enabling the mother retain lawyers and discharge fees to necessary experts given the scale and complexity of the father’s financial affairs.
32. The Court wishes simply to add that this is a jurisdiction which it appears should only be exceptionally exercised. Further, where it is exercised it appears incumbent on a court to very carefully case manage the proceedings, including encouraging the parties to attempt to resolve matters by use of alternative dispute resolution mechanisms. In making such an order a court is effectively requiring payment out of a fund which might otherwise be available to provide different benefits for dependent children. It is, therefore, essential even where a court takes the view that it is necessary to make such an order so that the mother or other person making the claim for the maintenance order for the benefit of the dependent children may be able to effectively pursue necessary proceedings on their behalf, nevertheless great care should be taken to ensure that such proceedings are pursued in the most cost effective manner feasible.
33. As already indicated, at the time of the hearing of this appeal, the father had paid an aggregate of €110,000 in the periodic payments intended to discharge legal costs. Applying the above principles to the facts fully set out in the affidavits it is sufficient to say that the Court considers that €110,000 was the outer limit of the periodic payments which ought to have been directed on the facts herein. As the father had indicated that he was not seeking to recover any of the said €110,000 it is unnecessary to consider whether any lesser aggregate amount ought to have been ordered on the facts herein. The Court is not intending to so indicate.
Conclusion
34. The Court will, accordingly, vary the order made by the High Court on the 1st August, 2014, so as to vacate that part which refers to the conclusion that there is a power under the Guardianship of Infants Act 1964, to make an order for “an interim maintenance payment” to the applicant on behalf the dependent children. Having regard to the order made by this Court on the 6th May, 2015, no further order appears necessary having regard to the terms of this judgment.
E McE v J O’S
[2009] IEHC 52
JUDGMENT of Mr. Justice Garrett Sheehan delivered on the 5th day of February, 2009
1. This is an appeal by the respondent/appellant father, against orders made in the Circuit Court on the 26th November, 2007, directing the respondent to pay to the applicant mother, the sum of €1,200 per month for the support and maintenance of their son P., born in October, 2000, and that such sum be expended on health insurance, speech therapy, books, clothing and other necessities for the said infant.
2. A second order directed the respondent to pay to the applicant the sum of €500,000 to facilitate the purchase of appropriate accommodation for the applicant and P.
3. In the course of this judgment I refer to the mother as the applicant and the father as the respondent. The respondent’s wife also participated in these proceedings as a notice party.
4. The applicant instituted proceedings in July, 2004 in the Circuit Court and sought, inter alia, the following orders pursuant to the Guardianship of Infants Act 1964 and the Family Law Act 1995.
1. An order pursuant to s. 11(1) of the Guardianship of Infants Act 1964, directing that the respondent, in the best interest and welfare of the infant P., provide the funds required to purchase a house in the joint names of the applicant and the infant, P., and that he also establish a trust fund to be operated for the benefit of the dependent child, P.
2. An order pursuant to the provisions of s. 11(2)(b) of the Guardianship of Infants Act 1964, directing that the respondent shall pay such weekly or other periodical sum as the court deems appropriate and/or an order pursuant to the provisions of s. 5(A)(1) of the Family Law (Maintenance of Spouses and Children) Act 1976, for the provision of financial support by the respondent by means of periodical payments for such period during the lifetime of the applicant/parent of such amount and at such times as this Honourable Court may consider proper for the support of the dependent child of the parties having regard to the income and earning capacity and the financial resources of each parent.
3. An order pursuant to the provisions of s. 42 of the Family Law Act 1995, for the provision of a lump sum payment of such amount or amounts at such time or times as may be specified by this Honourable Court to be discharged by the respondent to the applicant for the benefit and support of the dependent child, P.
5. The applicant is 31 years of age and a professional singer by occupation who resides with her parents in her own family home.
6. The respondent is 45 and lives apart from his wife and three dependent children in his own house. He has another dependent child in respect of whom he presently pays monthly maintenance in the sum of €400.
7. The respondent is a plumber and a property developer by occupation. His sole business at the time of this appeal was a property company which he jointly owned and managed with his wife. The rental income from this property company provided the respondent and the notice party with their income and comprises properties with a net value of circa €3,000,000. The parties agreed a 10% reduction in the value of these properties in October, 2008 in light of the current economic climate.
8. The applicant and the respondent lived together from late 1999 to August, 2002 and from August, 2003 to June, 2004.
9. It appeared from the evidence that the respondent’s excessive alcohol consumption contributed to the breakdown of the parties’ relationship. During the twelve month period when the applicant and the respondent lived apart, the applicant resided in rented accommodation with P.
10. I have heard evidence over five days in July, 2008 and October, 2008 from the applicant and the respondent as well as the notice party and the applicant’s accountant and an expert in relation to the infant’s speech difficulties.
11. I regard the following matters which emerged in the course of the evidence as significant.
A. The respondent is a married man with three dependent children and the father of two other non-marital children. He runs a property business with his wife and at the time this appeal was heard, his sole source of income was the rental income from the properties he jointly owned and managed with his wife. He previously worked as a plumber.
B. The applicant is a professional singer who has demonstrated considerable responsibility, effort and ability in progressing her own career while at the same time devoting considerable time to her child.
While she presently shares a room with P. in her own family home, I hold that this decision of the applicant to live with her parents in her family home is not dictated by financial necessity.
C. The applicant’s accountant, Mr. Murtagh, estimated that the respondent had a net asset value of €1,869,000 which said sum included pensions to the value of €366,994 and with a rental income attributable to him of circa €35,000. This evidence has to be considered in light of the agreed 10% reduction in property values.
D. In recent years the respondent has been living primarily from the proceeds of sale of property he jointly owned with his wife, rental income, and the sum of €175,742 being the net proceeds of the respondent’s entitlement from the liquidation of a property development company he was involved in.
E. The respondent and the notice party have spent significant sums of money in the past four years relative to their asset base and rental income. This level of spending is not sustainable and it is clear that the respondent will have to return to work.
F. The applicant’s income as a professional singer has steadily increased over the years. According to her own accountant, her net income for 2007 was circa €19,000 and it was clear from her evidence that her earnings for 2008 were heading for a significant increase. In addition to her earnings, the applicant is in receipt of a single parent’s allowance of €149.30 per week, as well as a child benefit payment of €166 per month. According to her accountant, the applicant’s gross income from her singing career in the years prior to 2007 was 2002 (€1,150), 2003 (€6,079), 2004 (€11,250), 2005 (€9,930), 2006 (€15,516).
It is reasonable on the basis of the applicant’s evidence to assume that she will have available to her this year the sum of at least €35,000 for the maintenance of herself and her child before payment of any sum to her by the respondent.
G. While it is clearly some time since the respondent worked as a plumber, he is clearly very experienced in that work. And while the evidence before me did not specifically address the question of the respondent’s earning capacity as a plumber, I hold that he has income potential as a plumber.
H. Since the hearing in the Circuit Court there has been a marked improvement in the applicant’s financial position and a marked decline in the value of the respondent’s assets.
12. In approaching the respondent’s appeal, I must first address the question of this Court’s jurisdiction to uphold the order of the Circuit Court made pursuant to s. 11(1) of the Act of 1964 which directed the respondent to pay the applicant €500,000 to enable her to purchase a home for herself and P.
13. All parties have made lengthy written and oral submissions relating to jurisdiction.
14. Essentially the applicant seeks a property adjustment order in her favour and that of P., and contends that the Guardianship of Infants Act 1964, allows the court to make such an order. The respondent and notice party argue that one can not interpret the 1964 Act in this way, not least because of the States pledge in Article 41 of the Constitution to guard with special care the institution of marriage.
15. In support of her contention that the court has such jurisdiction the applicant relies on s. 3 and s. 11 of the Guardianship of Infants Act 1964, and in particular on the judgment of Budd J. in M. Y. v. A. Y. (Unreported, High Court, 11th December, 1995).
Section 3 of the Guardianship of Infants Act 1964, states:-
“Where in any proceedings before any court the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.”
16. Section 6(4) of the Guardianship of Infants Act 1964, provides that the mother of a non-marital infant shall be guardian of the infant, and s. 11(1) of the said Act provides that any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant and the court may make such orders as it thinks proper.
17. In the course of his judgment in M. Y . v. A. Y. Budd J., stated at p. 19:-
“I accept that this Court has wide powers under Section 11 of the Guardianship of Infants Act, 1964 and in particular this empowers the Court to make orders with regard to the payment of maintenance to provide for the son, G. and also for his mother who looks after him and in whose custody he is. In my view the section is also wide enough to empower the Court to make the orders in respect of lump sum provision for the purchase of a suitable house, which both parties agreed would be beneficial to the son, G.”
18. I hold that this case on which the applicant relies for support is distinguishable on the fundamental basis that it concerned parties who were married, and therefore it does not provide support for the applicant in this case.
19. I accept the notice party’s submission that there are a number of other matters that I must be mindful of when considering the applicant’s submission as to how the relevant sections of the Guardianship of Infants Act 1964 are to be interpreted. These include:-
“(1) Section 5 of the Interpretation Act 2005, which provides as follows:-
(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)-
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of-
(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2(1) relates, the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where than intention can be ascertained from the Act as a whole.
(2) The Act must be interpreted in a manner which is constitutional and the court must adopt the interpretation that most favours the validity of a statute only if there is a doubt about the constitutional validity of another meaning (Colgan v. Independent Radio and Television Commission [1999] 1 ILRM 22).
(3) The fundamental rule of statutory interpretation of expressio unius exclusio alterius applies. The expression of one is the exclusion of the other.
(4) The court must look at the pre-existing law to see the wrong for which the common law did not provide (the purposive approach) Western Health Board v. K. M. [2002] 2 I R 493.”
(5) The court in applying these principles must note that the common law imposed a narrow obligation on a husband to support and maintain his wife. When the jurisdiction exercised by Ecclesiastical Courts over matrimonial matters was transferred to the Court for Matrimonial Causes in 1871, the substantive law did not change. A father had a common law duty to maintain his marital children, but did not have a similar duty in relation to his non-martial children. The basis for the award of maintenance is founded in statute. The Matrimonial Causes Act 1878, which gave magistrates summary jurisdiction to grant maintenance orders, and the Married Women (Maintenance in Case of Desertion) Act 1886 remained the basis for spousal maintenance until the enactment of the Family Law (Maintenance of Spouses and Children) Act 1976.
(6) Prior to the enactment of the Guardianship of Infants Act 1964, there was no provision whereby a parent could be ordered to pay maintenance for a marital child. This was the wrong which was remedied by the Act of 1964. The provision of maintenance for a non-marital child was provided for by the Illegitimate Children (Affiliation Orders) Act 1930. The Act of 1930 provided that a mother could obtain a court order to require the father of the child to make payments to her towards the maintenance of their child.
The amending legislation contained in the Status of Children Act 1987, repealed the Act of 1930 and amended the Family Law (Maintenance of Spouses and Children) Act 1976, to allow for the determination of maintenance disputes in relation to non-marital children. This Act did not extend the provisions of s. 11(2)(b) of the Guardianship of Infants Act 1964, to non-marital children.
(7) In approaching the interpretation of the Guardianship of Infants Act 1964, contended for by the applicant, the court must consider the constitutional position of the family.
(8) The court must look at the constitutional position of the notice party, who is a wife working in the home and is entitled to special protection by virtue of Article 41. In Murphy v. Attorney General [1982] I.R. 241, the Supreme Court stated at p. 286 that:-
“[t]he pledge…to guard with special care the institution of marriage is a guarantee that this institution in all its constitutional connotations, including the pledge given in Article 41, s. 2, sub-s. 2, as to the position of the mother in the home, will be given special protection so that it can continue to fulfil its function as the basis of the family and as a permanent, indissoluble union of man and woman.”
(9) In Ennis v. Butterly [1996] I I.R. p. 426, Kelly J. stated at p. 439:-
“…notwithstanding the extensive reform of family law which has taken place in this country over the last 20 years, nowhere does one find any attempt on the part of the legislature to substantially enhance the legal position of, or to confer rights akin to those of married persons upon the parties to non-marital unions, e.g. a right to maintenance.”
In reaching this conclusion Kelly J. at p. 438 found support in the judgment of Henchy J. in the case of The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567. Kelly J. cited the following with approval :-
“For the State to award equal constitutional protection to the family founded on marriage and the ‘family’ founded on an extramarital union would in effect be a disregard of the pledge which the State gives in Article 41, s. 3, sub-s. 1 to guard with special care the institution of marriage.”
20. Taking all the above matters into consideration I am obliged to conclude that the Circuit Court had no jurisdiction under s. 11 of the Guardianship of Infants Act 1964, to make the order it did directing payment of a lump sum of €500,000 by the respondent to the applicant, to provide a home for the applicant and P.
21. In the course of the hearing before this Court the applicant further contended that this Court had power to make such a property adjustment order pursuant to s. 42 of the Family Law Act 1995.
22. While many of the arguments applicable to s. 11(1) are also relevant in a consideration of this submission as the notice party has pointed out in her written submissions the claim for housing for the applicant and her son was specified at para. 2 of the Civil Bill to be pursuant to s. 11(1) of the Guardianship of Infants Act 1964, and no application was made to amend the Civil Bill. On this ground alone I would refuse the applicant’s claim pursuant to s. 42 for the provision of housing for herself and the child P.
23. There is no dispute that the applicant’s claim for maintenance pursuant to s. 5A of the Family Law (Maintenance of Spouses and Children) Act 1976, as inserted by s. 18 of the Status of Children Act 1987, is well founded.
24. Section 5A(1) provides that:-
“Subject to subsection (3) of this section, where, in respect of a dependant child whose parents are not married to each other, it appears to the Court on application to it by either parent of the child that the other parent has failed to provide such maintenance for the child as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that the other parent make to the applicant parent periodical payments, for the support of the child as aforesaid, for such period during the lifetime of the applicant parent, of such amount and at such times, as the Court may consider proper.”
25. Section 5A(3) provides that:-
“The Court, in deciding whether to make a maintenance order under this section and, if it decides to do so, in determining the amount of any payment, shall have regard to all the circumstances of the case and, in particular, to the following matters-
(a) the income, earning capacity (if any), property and other financial resources of-
(i) each parent
(ii) the dependant child in respect of whom the order is sought, and
(iii) any other dependant children of either parent,
including income or benefits to which either parent, the dependant child as aforesaid or such other dependant children are entitled by or under statute, and
(b) the financial and other responsibilities of each parent towards,
(i) a spouse,
(ii) the dependant child in respect of whom the order is sought, and
(iii) any other dependant children of either parent,
and the needs of any dependant child as aforesaid or of any such other dependant children, including the need for care and attention.”
26. I have already set out in the earlier part of this judgment a number of matters which I hold to be significant. In considering the monthly payment to be made to the applicant for the maintenance of P., I have taken into account all the circumstances of this case and have had particular regard to the matters set out in s. 5(3)(a) and (b) and I consider the sum of €1,200 per month to be the appropriate maintenance payment. In view of P.’s speech difficulties I also order that the father pay one half of the vouched expense for speech therapy in the event that this becomes necessary. I direct that these vouched expenses be paid monthly.
27. I have considered the applicant’s request for a lump payment pursuant to s. 42 of the Family Law Act 1995, in addition to the monthly maintenance payment. This application is separate and distinct from the applicant’s request for a lump sum payment for the provision of accommodation for herself and her son. In view of the amount of the monthly maintenance, I do not consider any further sum by way of lump sum payment to be appropriate and I refuse the claim on this basis. While a literal interpretation of s. 42 of the Family Law Act 1995, would appear to allow for the making of a lump sum order in addition to a maintenance order in favour of a non-marital child, I have not considered this Court’s jurisdiction to make such an order and simply hold that in view of the amount of maintenance, an additional lump sum order is not appropriate in the circumstances of this case.
28. The applicant also claims the sum of €2,750 in respect of a carers allowance to be incorporated in and added to the monthly maintenance for her son In support of this claim she relied on a number of English authorities. The legislative, social and constitutional background to the English cases is different to ours in relation to the key issues of this case and I am unable to rely on any of these English cases as authority for the proposition. The applicant is not entitled to a carers allowance in addition to the maintenance paid pursuant to s. 5A of the Family Law (Maintenance of Spouses and Children) Act 1976, as inserted by s. 18 of the Status of Children Act 1987. Accordingly, I allow the appeal, discharge the order of the Circuit Court and order that the respondent make a monthly maintenance payment in respect of the child P. in the sum of €1,200 together with the provision for payment of speech therapy in the event of this being required.
S.D. v M.L.
[2012] IEHC 583
JUDGMENT of Mr. Justice Michael White delivered on the 30th July, 2012
1. The applicant by Plenary Summons of the 20th March, 2009 has issued proceedings seeking a declaration that she is the owner of certain property in South West Ireland (hereinafter called “the property”) She also seeks damages for the conversion and detinue of a BMW motor car.
2. The applicant also issued a special summons on the 1st April, 2009 pursuant to the provisions of the Guardianship of Infants Act 1964, the Family Law Maintenance of Spouses and Children Act 1976 and the Family Law Act 1995 seeking maintenance and lump sum payments in respect of their son C.
3. By order of the High Court of the 12th July, 2010, the proceedings were consolidated. The proceedings were heard by the High Court Family Court on the 6th, 7th, 8th, 26th and 29th March, 2012. Written submissions were received on the 1st May and judgment was reserved.
4. By order of the High Court of 18th July, 2008, in previous proceedings M.L., applicant and S.D., respondent Record No. 2007/70M it was ordered as follows:-
(1) That the applicant be appointed as a guardian to the infant C.L.
(2) That the applicant and respondent have joint custody.
(3) That the infant continue to reside with the respondent at her present address and in the event of the respondent moving from her present address it should not be any further distance from the school attended by the said infant, than the present distance, and in these circumstances the court doth deem the respondent to be the primary carer of the said infant.
(4) That neither the applicant or the respondent shall remove the said infant from this jurisdiction without the consent of the other party such consent not to be unreasonably held
(5) That at least two weeks notice of any trip abroad to be given to the other party.
(6) That the said infant’s passport be retained by the applicant.
5. The court did further declare that the habitual residence of the infant is Ireland, and that the arrangements for access as between the parties herein do continue, and the said infant do spend alternate weekends with the applicant from Friday evening to Tuesday morning and on the other week the applicant do have one night overnight access with the infant the applicant to collect the infant from school on Monday and return the said infant to school on Tuesday morning.
A Brief History of the Relationship
6. The parties met in January 1999 and commenced a relationship. The applicant lived in Dublin and the respondent resided in South West Ireland. The parties discovered in March 1999 that the applicant was pregnant and they agreed to cohabit in the South West. The parties have not married each other.
7. The parties commenced living together in the respondent’s property in the South West. C. their son was born on the 17th November, 1999.
8. The parties’ relationship was volatile, and on a number of occasions the applicant moved out of the respondent’s residence, to rented property, the rent being discharged by the respondent. The court is satisfied that the relationship ended in July 2006.
9. Because of the volatile nature of the relationship, the applicant and C regularly moved house. This instability became a matter of concern to the respondent
10. When the property was purchased in 2005, the parties were living apart from each other. The applicant was living with C. at rented property and the respondent was living in a substantial property in his ownership.
11. The respondent is a businessman of substantial means.
12. The applicant is not engaged in gainful employment and during the relationship did not work, except for a short period of part time work on Saturdays at a jewellers.
13. Although the proceedings have been consolidated it is appropriate to deal with the issues in each set of proceedings separately. The court will deal first with the dispute over the legal ownership of the property.
Undisputed Facts in Respect of the Acquisition of the Property
14. The property is a four bedroomed semi detached house. At initial purchase the dwelling house had not yet been constructed. The parties viewed the site in March 2005. The respondent paid a booking deposit of €3,000. There were two separate agreements, a contract for the sale of the site for €70,000 which was signed on the 7th March, 2005, by the respondent. That contract was made between Ger O’Rourke the registered owner and the respondent. A separate building agreement was completed on the same date between Chieftain Construction Limited and the respondent. The contract price was €170,950. The booking deposit had already been paid and there were then stage payments of €18,984.50 on execution, €40,000 on completion of the wall plate and €108,965.50 on the closing date.
15. A deed of transfer dated the 8th June, 2005, was executed by Gerard O’Rourke the registered owner and the respondent was the named transferee, but did not execute the document.
16. A letter of loan offer issued from the Bank of Ireland on the 26th September, 2005, to the applicant. The loan approved was €200,000 repayable over 25 years. The respondent signed a separate letter of the 27th September, 2005, confirming that he was gifting an amount of €50,000 to the applicant which was not repayable and that he was waiving any interest in the property on foot of making the gift. The applicant signed the deed of mortgage on the property which remains undated.
17. The title to the property has not yet been registered, and the mortgage has not been registered as a burden.
18. Apart from the mortgage, the other funds for the purchase including the deposit and fees, have been discharged by the respondent. The respondent has discharged the monthly mortgage repayments paid outgoings on the property and has been responsible for the maintenance and upkeep of the property.
The Disputed Facts Surrounding the Purchase of the Property
19. The applicant contends that prior to the initial contract for the sale of the property there had been discussions between the parties in 2004 and 2005, as a result of which the respondent had agreed to purchase a property for her to ensure her financial security. The respondent contends that the purpose of the purchase, was to benefit C. and the applicant would be able to reside in the dwelling. A conflict of evidence also exists about the visit to the site in March 2005 when a booking deposit, was paid.
20. Based on the evidence presented to the court by the applicant, the respondent Michael Kennedy of Bank of Ireland and P.K. an employee of the respondent present at the site on the date it was agreed to purchase, the court is satisfied of the following facts:-
(i) The decision to visit the site in March 2005 was not pre-planned. The applicant was either telephoned by the respondent when he was on the way from his offices to the estate or when he had arrived there. There were three houses left for sale, 184 which P.K. agreed to purchase, no 179 the site in dispute and another in the immediate vicinity of 179. There was a choice of two properties both with large sized gardens.
(ii) I am satisfied from the evidence of Michael Kennedy and the documentary evidence that initially the respondent intended to purchase the property in his own name for the benefit of C., but then changed his mind and intended to put the property in the applicant’s name and the mortgage documentation was applied for in her name.
(iii) I accept the motives for this were financial to avail of the first time buyer’s grant and other potential financial advantages.
(iv) There may have been a number of conversations between the applicant and respondent in the period before March 2005 about the desirability of purchasing a property rather than renting it. The respondent may well have congratulated the applicant on the day of the agreement to purchase the property, but it is difficult to establish what message was being conveyed to the applicant.
(v) If it was a gift, the court would have expected that Michael Kennedy would have been told about this in his initial discussion with the respondent and that the contract for sale and the building agreement would have either been in the applicants name or signed by the respondent in trust for her. The independent evidence available to the court does not reflect that it was the respondent’s initial attention to grant an outright gift of the property to the applicant for her own financial security. It was inextricably linked with the provision of security for C., with acceptance that the applicant would have the right to reside there and that the respondent would discharge the costs associated with the purchase, mortgage and general upkeep of the dwelling house.
(vi) There was a delay between the signing of the contract and building agreement, and the completion of the transaction. The property on completion in 2006 was rented. The respondent received the rent. The applicant did not move into the property until 2007.
Assertion by the Applicant of a Contract in her Favour
21. The contracts for the purchase of the site and the building agreement were between the registered owner of the property, the contractor and the respondent. The applicant was not a party to those transactions.
22. The respondent arranged the mortgage finance for the property through Michael Kennedy of the Bank of Ireland. The respondent had been a long term customer of the Bank of Ireland primarily in commercial lending. Michael Kennedy gave evidence that on occasions when the respondent required to borrow money for personal reasons he would facilitate him by introducing him to persons in the Bank of Ireland, personal lending division. When the contracts for the purchase of the site and the building agreement were signed, the method of financing had not been finalised.
23. When loan approval was granted to the applicant on the 26th September, 2005 and the respondent signed a letter of gift of the balance of purchase monies there was an intention to put the property into the name of the applicant. I am satisfied that the letter of gift was signed to facilitate loan approval.
24. I cannot see how this decision to apply for the loan in the name of the applicant and to sign a letter of gift for the balance of purchase monies of €50,000 and to guarantee the mortgage, can be regarded as a contract between the parties. She had the comfort of the guarantee of a person of substantial means, who has continued to discharge the mortgage since the date of drawdown. The applicant based on her financial circumstances would not have qualified for a mortgage as she did not have savings or employment. She has had the benefit of the property rent free since 2007. A consequence of the decision of the respondent not to proceed with the transfer into the applicants name is that the bank to obtain proper security would require the loan transferred back into his own name. The essential elements of contract offer, acceptance and consideration were absent.
The Law on Proprietary And Promissory Estoppel
25. The doctrines were explained and differentiated by Costello J in In the matter of J.R., a Ward of Court: [1993] ILRM 656 at Page 660, when he stated:-
“For present purposes I will use the classification which is now generally accepted (see Snell’s Principles of Equity, 28th ed., p.554 and Halsbury’s Laws of England (4th ed.), vol. 16, 1071 1072) and refer to (i) promissory estoppel and (ii) proprietary estoppel. A promissory estoppel will arise where by words or conduct a person makes an unambiguous representation as to his future conduct, intending that the representation will be relied on, and to affect the legal relations between the parties and the representee acts on it or alters his or her position to his or her detriment the representor will not be permitted to act inconsistently with it (see Snell’s Principles of Equity, 28th ed., 556). If the subject matter of the representation is land, no right or interest in the land results from this estoppel – a personal right is vested in the representee which will preclude the representor from enforcing a title to the land. A proprietary estoppel is different in a number of ways. When it relates to land it may result in the creation of rights in or over the land. It has been explained as follows:-
Where one person (A) has acted to his detriment on the faith of a belief, which was known to and encouraged by another person (B), that he either has or is going to be given a right in or over B’s property, B cannot insist on his strict legal rights if to do so would be inconsistent with A’s belief. (See In re Basham [1987] 1 All ER 405 at 410. ”
26. In Courtney v. McCarthy [2008] 2 IR 376, a decision of the Supreme Court Geoghegan J. stated:-
“A major argument on behalf of the vendor which featured particularly in the High Court was based on the old adage that estoppel was a shield and not a sword. Again, some of the modern English case law placed before this court convincingly demonstrates that while there may be a technical truth in that adage, it is largely irrelevant as far as having any operative effect. It certainly does not mean any longer, if it ever did mean it, that estoppel can only be a matter of defence and can never ground a cause of action. Estoppel is regularly raised as a matter of reply to a defence. Thus, in the example of this particular case, insofar as the vendor purports to set up the rescission as a defence to the counterclaim for specific performance, the reply to that defence on the part of the purchaser is that, in all the circumstances, the vendor is estopped or precluded from asserting the rescission. For all practical purposes, therefore, the counterclaim is grounded on estoppel”.
27. He went on to quote with approval a portion of the Judgement of Brandon L.J. in Amalgamated Property Co. v Texas Bank [1982] 1 Q.B. 84 at pp 131 – 132:-
“In this way, the [Defendant] bank, while still in form using the estoppel as a shield, would in substance be founding a cause of action on it. This illustrates what I would regard as the true proposition of law, that, while a party cannot in terms found a cause of action on an estoppel, he may, as a result of being able to rely on an estoppel, succeed on a cause of action on which, without being able to rely on that estoppel, he would necessarily have failed. That, in my view, is, in substance, the situation of the bank in the present case”.
28. The respondent has guaranteed the mortgage and has continued to pay the monthly repayments without fail since the date of purchase. No financial disadvantage has accrued to the applicant. She has had the considerable advantage of living rent free in the property since 2007. She has assumed none of the responsibilities of ownership as all the outgoings on the property are discharged by the respondent. She has not acted to her detriment on the faith of a belief that the property would be transferred to her. Proprietary estoppel does not arise in this case.
29. On the issue of promissory estoppel, I do not accept that there was a promise made to the applicant to gift her the property. I am satisfied that the purpose of the transaction was to provide a secure place of residence for C. from which the applicant would also benefit. To that extent promissory estoppel arises, which has never been denied by the respondent. He has at all times acknowledged the right of the applicant to reside rent free in the property with C. That does not go as far as granting a right of residence for life to the applicant. It remains in place until C. reaches the age of 18 if he is in gainful employment or up to 23 years of age if he continues in full time education.
Resulting Trust
30. As a matter of fact no resulting trust arises in favour of the applicant in this transaction. The respondent apart from the mortgage provided all the funds for purchase of the property, has guaranteed the mortgage and has paid the monthly repayments since drawdown. The reverse would be the case if the legal ownership had been vested in the applicant.
Ownership of BMW Motor Vehicle
31. The applicant had the use of a number of motor vehicles during her relationship with the respondent, provided through his company. The company initially insured the vehicles. The company had this arrangement with other employees and the respondent’s father. The vehicles and the insurance certificates were subsequently registered in their individual names to protect the company from higher insurance charges.
32. The purchase of the BMW for €95,000 was financed by the respondent and the loan repayments were paid by the company.
33. The respondent should not have signed the applicants name to the transfer of ownership form, when he took back the vehicle. The vehicle registration certificate is not proof of ownership.
34. If there was a gift of the vehicle as alleged and the respondent reneged on it, the applicant has been compensated by the supply to her in February 2012 of a Renault Megane coupe. The court will grant a declaration in her favour of ownership of that vehicle.
Maintenance and Lump Sum Proceedings
35. A court order is not required for the respondent to discharge his financial responsibility to C., as he has taken these matters very seriously and has always acted responsibly. To date there has been an arrangement that the respondent has paid the applicant a wage through his company and has also provided generous payments for the benefit of C., in addition to discharging the mortgage and other outgoings on the property. The respondent has accepted for the purpose of these proceedings he has the assets to discharge the courts order, and has thus been relieved from the burden of substantial disclosure.
36. The payments should now be made in a more structured manner. A weekly sum of maintenance should be allocated to the applicant for the upkeep of C. rather than a wage from the company. The appropriate sum is €450 per week.
37. The court will also direct that the respondent discharge the following payments:-
(i) The mortgage on the property, together with house insurance and mortgage protection insurance.
(ii) Payment for school books, uniforms and extra tuition.
(iii) School fees if they arise at secondary school.
(iv) Payment for extra curricular sporting and music activities.
(v) Car insurance, car tax and periodic service on the Renault Megane.
(vi) Household charge.
(vii) Payment for Christmas of €1,000.
(viii) A holiday payment of €3,000 per annum.
(ix) Payment for structural and general repairs to the dwelling.
38. The applicant shall be responsible for the payment of utility bills such as gas, electricity, fuel, refuse collection, and satellite TV.
39. The court order of the 18th July, 2008 has placed certain restrictions and responsibilities on the applicant and I am of the view that in addition to the weekly payment a lump sum annual payment of €7,000 is appropriate in the circumstances of that order being in place. That sum should be applied for the benefit of C. but at the discretion of the applicant. It is to be paid in two annual instalments on the 1st March, and 1st September.
J. D. v B. D.
1975 No. 257 Sp.
High Court
6 September 1984
[1985] I.L.R.M. 688
(Carroll J)
CARROLL J
delivered her judgment on 6 September 1984 saying: A net point has arisen in this case, namely whether the amount payable under a separation agreement providing for maintenance (herein referred to as a maintenance agreement) which has been made a Rule of Court under s. 8 of the Family Law (Maintenance of Spouses and Children) Act 1976 (herein referred to as ‘the Act’) can be varied downwards.
What has happened here is that the husband entered into a maintenance agreement which was made a Rule of Court on 29 February 1980. It provided for the payment of a weekly sum to be increased every twelve months in accordance with increases in the Consumer Price Index. It took no account of whether there was a corresponding increase in the husband’s take home pay or whether there was any change in the circumstances of the husband or the wife.
If the court had made a maintenance order under s. 5 of the Act, the court would have power under s. 6, if there were a change of circumstances, to vary the maintenance if it thought proper to do so.
The wife has brought a motion for committal for failure to pay the sum provided in the maintenance agreement or, alternatively, attachment of earnings. The husband has brought a counter motion to vary the maintenance. It has been argued on behalf of the wife that the court has no power to vary the maintenance downwards because of the specific provision of s. 8 of the Act:
Where—
(a) the parties to a marriage enter into an agreement in writing (including a separation agreement) after the commencement of this Act that includes either or both of the following provisions, that is to say—
(i) a provision whereby one spouse undertakes to make periodical payments towards the maintenance of the other spouse or of any dependent children of the family or of both that other spouse and any dependent children of the family;
(ii) a provision governing the right and liabilities of the spouses towards one another in respect of the making or securing of payments (other than payments specified in paragraph (a) (i) of this section), or the disposition or use of any property, and
(b) an application is made by one or both of the spouses to the High Court or the Circuit Court for an order making the agreement a rule of court,
the court may make such an order if it is satisfied that the agreement is a fair and reasonable one which in all the circumstances adequately protects the interests of both spouses and the dependent children (if any) of the family, and such order shall, in so far as it relates to a provision specified in paragraph (a) (i) of this section, be deemed, for the purpose of s. 9 and Part III of this Act, to be a maintenance order.
It is the last part of this section which is relevant. It specifically provides that an order making the agreement a Rule of Court in so far as it relates to maintenance shall be deemed to be a Maintenance Order for the purposes of s. 9 (which concerns payments being made through the District Court Clerk) and Part III (which concerns the attachment of earnings).
In accordance with general principles relating to the interpretation of statutes, the specific excludes the general and therefore this section precludes an agreement which has been made a Rule of Court being deemed a maintenance order for the purpose of any other section or part of the Act. It follows that if the agreement is not to be deemed a Maintenance Order for the purpose of s. 6, the court does not have power to vary it.
This raises the question of whether a maintenance agreement which does not contain a provision enabling application to be made to the court to vary it in the same way as if it were a Maintenance Order, is an order which is a fair and reasonable one. I ask this question even though it is more than probable that I have made settlements a Rule of Court where such a provision was not contained. Since the point has now been raised, it is my opinion that unless there is such a provision for variation, the agreement is neither fair nor reasonable.
The present case provides an illustration. In this case the agreement was entered into when the wife was not working and neither were any of the children. The husband was living with his widowed father. After the agreement the wife obtained employment and also received money from some of the children who were earning. The husband’s father died and his free accommodation ceased. The weekly sum of £45 payable in February of 1981, according to the Consumer Price Index, was equivalent to £80 per week in February 1984.
The question of whether the order making the agreement a Rule of Court should or can be now set aside has not been argued and must be left for another day.
Even though the interpretation of s. 8 put forward by the wife is in my opinion correct, the net result does not benefit her. She seeks to commit her husband for failure to pay or alternatively seeks attachment of his earnings.
I would not commit the husband to prison for failing to observe an agreement which, in view of the change in circumstances, is unjust.
Any order for attachment must specify the protected earnings rate as defined by s. 10 (4) (b) of the Act, i.e. ‘the rate below which, having regard to the resources and the needs of the maintenance debtor, the court considers it proper that the relevant earnings should not be reduced by a payment made in pursuance of the attachment of earnings order’.
Therefore if payment of the amount provided under the maintenance agreement would reduce the balance of the husband’s earnings below the protected earnings rate, the wife cannot succeed in attaching the entire amount.
Representation
Solicitors for the plaintiff: R. F. Gallagher Shatter & Co.
Solicitors for the defendant: Eugene F. Collins & Son.