L. M. v Devally

• Jurisdiction: Ireland
• Judge: Miss Justice Carroll
• Judgment Date: 13 March 1997
• Neutral Citation: [1997] IEHC 50
• Court: High Court
• Date: 13 March 1997

[1997] IEHC 50

THE HIGH COURT

Record No. 86 JR/1996

M (L) v. M (D)

BETWEEN

(L)M.

APPLICANT

AND

HIS HONOUR JUDGE LIAM DEVALLY

RESPONDENT

AND

(D.)W.

NOTICE PARTY

Citations:

FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976 S5A

STATUS OF CHILDREN ACT 1987 S18

ILLEGITIMATE CHILDREN (AFFILIATION ORDERS) ACT 1930

ILLEGITIMATE CHILDREN (AFFILIATION ORDERS) ACT 1930 S4

ILLEGITIMATE CHILDREN (AFFILIATION ORDERS) ACT 1930 S5

ILLEGITIMATE CHILDREN (AFFILIATION ORDERS) ACT 1930 S8

ILLEGITIMATE CHILDREN (AFFILIATION ORDERS) ACT 1930 S10(1)

ILLEGITIMATE CHILDREN (AFFILIATION ORDERS) ACT 1930 S10(2)

ILLEGITIMATE CHILDREN (AFFILIATION ORDERS) ACT 1930 S10(3)

ILLEGITIMATE CHILDREN (AFFILIATION ORDERS) ACT 1930 S10(4)

ILLEGITIMATE CHILDREN (AFFILIATION ORDERS) ACT 1930 S10(5)

COURTS ACT 1981 S14

FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976 S21A

STATUS OF CHILDREN ACT 1987 S21

FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976 S27

STATUS OF CHILDREN ACT 1987 S25(2)

STATUS OF CHILDREN ACT 1987 S25(3)

D V D UNREP SUPREME 8.5.78 1978/4/

INTERPRETATION ACT 1937 S21(1)(c)

HAMILTON V HAMILTON 1982 IR 466

STATUS OF CHILDREN ACT 1987 S25(4)

F V F 1995 2 IR 354

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989

FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976 S5A(1)

FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976 S5A(3)(a)

FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976 S5A(3)(b)

H V H 1995 3 FAM LJ 96

STATUS OF CHILDREN ACT 1987 S25(1)

Synopsis:

Family

Maintenance for non-marital child; voluntary agreement between parties for lump-sum settlement; whether agreement precluded court from making a maintenance award under s.5A of the Family Law (Maintenance of Spouses and Children) Act 1976; retrospective effect of s.27 of the 1976 Act; D. v. D. (unrep. SC 8/5/78) followed) Held: Certiorari granted; court did have jurisdiction to make a maintenance order (High Court: Carroll J 13/03/1997)

L.M. v. Judge Devally

[1997] 2 ILRM 369

1 Judgment of Miss Justice Carroll delivered the 13th day of March, 1997.

2 This is an application seeking an Order of Certiorari by way of Judicial Review of a decision of His Honour Judge Devally made on the 1st November, 1995 in the matter of a claim for maintenance by L.M., the Applicant, in respect of her non-martial child, B., against D.W., the Notice Party herein who is the natural father of the child. The claim was brought under Section 5A of the Family Law (Maintenance of Spouses and Children) Act, 1976(the 1976 Act) as inserted by Section 18 of the Status of Children Act, 1987(the 1987 Act). The learned trial Judge dismissed the claim on the grounds that he had no jurisdiction to make an Order for maintenance.

3 B. was born in 1983. L.M. made an application to the Circuit Court in 1983 under the Illegitimate Children (Affiliation Orders) Act, 1930(the 1930 Act) as amended by the 1976 Act. Section 4 of the 1930 Act provides for an Order for the payment of weekly sums by way of maintenance and Section 5 provides for variation of such Order. Under Section 8 these weekly sums may be commuted by the payment of such lump sum as may be fixed by the Court. Section 10(1) and (2) provide for application to the District Court to approve voluntary agreements between the natural father and the mother to make provision for the child either before or after an Affiliation Order is made. Subsection (3) provides (inter alia) that a Judge shall not approve of an agreement under this section unless he is of opinion and so records in his Order that the provision is substantially as beneficial to such child and its mother as the benefits which could be obtained under the Act. Subsection (4) provides:-

"An Order under this section recording the approval by a Justice of the District Court of an agreement shall where no Affiliation Order has been made in respect of the illegitimate child to whom such agreement relates, be a complete bar to proceedings under this Act against any person in respect of such child and, where an Affiliation Order has been made in respect of such child, shall be a complete bar to any further proceedings under this Act in respect of such child against the putative father of such child and to all proceedings under this Act against any other person in respect of such child."

4 Subsection (5) is not relevant.

5 The jurisdiction conferred on the District Court under the 1930 Act was extended to the Circuit Court by virtue of Section 14 of the Courts Act, 1981.

6 No affiliation Order was made in this case. The proceedings issued by L.M. were compromised by an agreement between the parties which was approved in the Dublin Circuit Court on the 13th October, 1983.

7 The Order provided as follows:-

"This application coming before the Court on this date (13-10-83) and the Court having heard the evidence tendered and the submissions made by counsel on behalf of each party and having been informed that the parties had settled the matters at issue Doth accept:-"

(1) the Respondent's acknowledgement of paternity in this matter,

(2) and in full and final settlement of all and any claims between the parties will pay to the Applicant the sum of £2,000 on this date and the sum of £5,500 on or before the 13th March 1984.

8 And Doth make no further Order with liberty to apply."

9 While the Order does not actually record that the Circuit Judge is of opinion that the provision is substantially as beneficial to the child (as provided in Section 10(3) of the 1930 Act), no point was taken in respect of the omission and the case was argued on the basis that the Order of 13th October, 1983 was a valid Order under Section 10(4).

10 The agreement was not signed until the 21st November, 1983. There it was agreed that in consideration of the payment of the sum of £7,750 (an increase of £250 from the sum agreed on 13th October, 1983) by D.W. to L.M., L.M. covenanted to apply the money for the maintenance. support and education of B., to provide B. with proper and sufficient food, clothing, lodging, medical attention and education until she was 16 and to keep D.W. indemnified against all actions and claims (etc.) in relation to the maintenance or education or otherwise in respect of B.. There was a reciprocal covenant by D.W. (inter alia) not to communicate with L.M.

11 Section 5A of the 1976 Act (as inserted by Section 18 of the 1987 Act) provides:-

12 2 "(1) 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.

13 (2) [This relates to applications by a person other than a parent and is not relevant.]

14 (3) 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 -

15 (a) The income, earning capacity (if any), property and other financial resources of -

16 (i) each parent,

17 (ii) the dependant child in respect of whom the Order is sought,

18 (iii) any other dependant children of either parent,

19 a including income or benefits to which either parent, the dependant child is aforesaid or such other dependant children are entitled by or under statute, and

20 (b) The financial and other responsibilities of each parent towards -

21 (i) a spouse,

22 (ii) the dependant child in respect of whom the Order is sought,

23 (iii) any other dependant children of either parent,

24 3 and the needs of any dependant child as aforesaid or of any such other dependant children, including the need for care and attention."

25 (4) [This relates to Maintenance Orders under sub-section (2) and is not relevant.]

26 It is not possible under the 1976 Act (as amended by the 1987 Act) to commute weekly maintenance payments by lump sum payments or to make lump sum payments so as to exonerate a parent from the obligation of maintenance of a non-marital child. Lump sum Orders can only be made towards the expenses incidental to the birth or the funeral of a child who is a non-marital child. (See Section 21A of the 1976 Act, as inserted by Section 21 of the 1987 Act).

27 Section 27 of the 1976 Act provides:-

"An agreement shall be void insofar as it would have the effect of excluding or limiting the operation of any provision of this Act (other than Section 21)."

28 (Section 21 has no relevance in this case).

29 Section 25 of the 1987 Act provides:-

30 2 "(1) The Illegitimate Children (Affiliation Orders) Act, 1930(hereafter in this section referred to as "the Act of 1930" is hereby repealed.

31 (2) Any Order made by a Court under the provisions of the Act of 1930 and in force immediately before the commencement of this Part shall, insofar as such Order could have been made under Section 5A (inserted by this Part) of the Act of 1976 had it been in operation when that Order was made, be deemed for all purposes to be an Order made under the said Section 5A.

32 (3) Any proceedings initiated under the provisions of the Act of 1930 and not completed before the commencement of this Part shall, insofar as such proceedings could have been initiated under Section 5A of the Act of 1976 had it been in operation at such initiation, be deemed for all purposes to be proceedings under the said Section 5A and may be...