McE v O'S (Maintenance)

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Sheehan
• Judgment Date: 05 February 2009
• Neutral Citation: [2009] IEHC 52
• Docket Number: [2007 No. 308 C.A.]
• Court: High Court
• Date: 05 February 2009

[2009] IEHC 52

THE HIGH COURT

[No. 308 C.A./2007]

McE (E) v O'S (J)

(CIRCUIT COURT APPEAL)

IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964, AND

IN THE MATTER OF THE FAMILY LAW (MAINTENANCE OF SPOUSES

AND CHILDREN) ACT 1976, AND IN THE MATTER OF THE FAMILY LAW

ACT 1995

BETWEEN

E. McE.

APPLICANT

AND

J. O'S.

RESPONDENT/APPELLANT

AND

G. O'S.

NOTICE PARTY

GUARDIANSHIP OF INFANTS ACT 1964 S11(1)

GUARDIANSHIP OF INFANTS ACT 1964 S11(2)(B)

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

FAMILY LAW ACT 1995 S42

GUARDIANSHIP OF INFANTS ACT 1964 S3

GUARDIANSHIP OF INFANTS ACT 1964 S11

Y (M) v Y (A) 1997 3 FAM LJ 86 1996/8/2614

GUARDIANSHIP OF INFANTS ACT 1964 S6(4)

COLGAN v INDEPENDENT RADIO & TELEVISION COMMISSION & ORS 2000 2 IR 490 1999 1 ILRM 22 1998/14/4774

WESTERN HEALTH BOARD v M (K) 2002 2 IR 493 2001/24/6537

MATRIMONIAL CAUSES ACT 1878 (UK)

MARRIED WOMEN (MAINTENANCE IN CASE OF DESERTION) ACT 1886 (UK)

ILLEGITIMATE CHILDREN (AFFILIATION ORDERS) ACT 1930

MURPHY v AG 1982 IR 241

ENNIS v BUTTERLY 1996 1 IR 426 1997 1 ILRM 28 1996/11/3271

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

STATUS OF CHILDREN ACT 1987 S18

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

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

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

FAMILY LAW

Maintenance

Non-marital child - Property adjustment order - Courts - Jurisdiction - Whether court had jurisdiction to make orders in respect of non-marital children - Whether order for payment of maintenance could include carer's allowance - MY v AY (Unrep, Budd J, 11/12/1995) distinguished; Ennis v Butterly [1996] 1 IR 426, The State (Nicolau) v An Bord Uchtála [1966] IR 567 and Murphy v Attorney General [1982] IR 241 applied - Guardianship of Infants Act 1964 (No 7), s 11 - Family Law (Maintenance of Spouses and Children) Act 1976 (No 11), s 5A - Constitution of Ireland 1937, Article 41 - Respondent's appeal allowed (2007/308CA - Sheahan J - 5/2/2009) [2009] IEHC 52

McE(E) v O'S(G)

Facts: The respondent appellant father sought to appeal order of the Circuit Court directing the respondent to pay to the applicant mother €1200 per month for the support and maintenance of their son on particular items. The second order directed the respondent to pay the applicant €500,000 to facilitate the purchase of accommodation for the applicant and a son. The applicant was a professional singer who resided with her parents and the respondent had three defendant children and another child to pay maintenance to. The respondent was a plumber by occupation and had a property company with his wife.

Held by Sheehan J. that the applicants claim for housing would be refused. The sum of €1200 monthly was appropriate for maintenance and the father would be directed to pay one half of the vouched expense for speech therapy. The vouched expense would be paid monthly. In light of the monthly maintenance, no further lump sum would be appropriate. The applicant was not entitled to a carers allowance in addition to maintenance. The appeal would be allowed and the order of the Circuit Court discharged and the respondent would be ordered to make a monthly maintenance payment.

Reporter: E.F.

1 1. This is an appeal by the respondent/appellant father, against orders made in the Circuit Court on the 26 ^th 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 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 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 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 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 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 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 8. The applicant and the respondent lived together from late 1999 to August, 2002 and from August, 2003 to June, 2004.

9 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 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 11. I regard the following matters which emerged in the course of the evidence as significant.

a 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 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 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 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 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 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 G. While it is clearly some time since the respondent worked as a plumber, he is clearly very experienced in...