R v C (Appeal of Consent Order)

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Nuala Jackson
• Judgment Date: 07 February 2025
• Neutral Citation: [2025] IEHC 76
• Docket Number: Record No. 2024 54 CAF

In the Matter of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010, As Amended

In the Matter of Section 5(1) of the Family Law Act, 1981, As Amended

In the Matter of Section 48 of the Family Law Act, 1995, As Amended

In the Matter of Section 44 of the Family Law (Divorce) Act, 1996 As Amended

In the Matter of the Land and Conveyancing Law Reform Act, 2009, and

In the Matter of the Family Law (Maintenance of Spouses and Children) Act 1976

Between

T. R.

Applicant/Appellant

and

O. B. C

Respondent

[2025] IEHC 76

Record No. 2024 54 CAF

THE HIGH COURT

CIRCUIT APPEAL

EASTERN CIRCUIT

COUNTY OF MEATH

Consent order – Maintenance – Cohabitation – Appellant appealing from a consent order – Whether the consent order was unfair and unreasonable

Facts: The appellant appealed to the High Court from an order of the Circuit Court: “That Orders be made as set out in the Consent Terms filed this day and dated the 10th July, 2024, which is attached as a schedule to this order and where the terms fall outside the pleadings herein receive same and make a Rule of Court.” The appellant referenced her right to appeal and her dissatisfaction with the Circuit Family Court orders, arguing that they were insufficient to address the needs of herself and the dependent children, that they were unfair and unreasonable having regard to the greater resources of the respondent, that the respondent enjoyed a lifestyle standard far in excess of that open to her and the children and that there had been non-disclosure of his full financial resources on the part of the respondent. The proceedings concerned applications for the granting of reliefs in the context of: (i) the cohabitation legislation; (ii) s. 31 of the Land and Conveyancing Law Reform Act 2009; and (iii) maintenance legislation.

Held by Jackson J that, in relation to (i) above, s. 173 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 provides for an application for redress to be made by an economically dependent qualified cohabitant. Jackson J held that it was not appropriate for her to grant redress as pleaded pursuant to the 2010 Act in circumstances in which there was a signed acknowledgment of the appellant that she was not a qualified cohabitant. Jackson J noted that the consent terms satisfied the validity criteria provided for in s. 202(2) of the 2010 Act. She found that there were no exceptional circumstances such as would justify the varying or setting aside of the agreement reached on the basis that serious injustice would otherwise arise. In the context of relief under the 2009 Act, she held that the principles enunciated by Bradley J in Paes v O’Connor [2024] IEHC 199 applied. Regarding the final category of order sought by the appellant relating to maintenance for the support of the dependent children pursuant to s. 5A of the Family Law (Maintenance of Spouses and Children) Act 1976 (periodic maintenance) and s. 44 of the Family Law Act 1995 (lump sum maintenance), Jackson J noted that s. 5A of the 1976 Act permits a court where it appears to the court that a parent has failed to provide such maintenance for the child as is proper in the circumstances to make such periodical payments order for the support of the child as the court may consider proper. She held that s. 5A bestows upon the court a discretion to determine what is proper; the court is not, however, at large in that regard. She noted the factors to be taken into account by a court in the exercise of that discretion set out in s. 5A(3). She noted that the parties reached agreement in relation to those reliefs and there was no court hearing or determination in relation to them. She found that the appellant, having so compromised matters and having foregone her entitlement to litigate the issues before the Circuit Family Court, sought to have a first instance hearing in the context of an appeal; this was not what was envisaged by statute, was contrary to authority and would negate the function and purpose of the appeal process.

Jackson J dismissed the appeal.

Appeal dismissed.

JUDGMENT delivered by Ms. Justice Nuala Jackson on the 7 ^th February 2025 .

BACKGROUND

1 The Applicant/Appellant herein instituted proceedings pursuant to the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 as amended (‘the 2010 Act’) on the 27 ^th April 2020. She subsequently issued separate proceedings under a number of different statutory provisions namely section 5(1) of the Family Law Act, 1981, as amended (‘the 1981 Act’); section 48 of the Family Law Act, 1995, as amended (‘the 1995 Act’); section 44 of the Family Law (Divorce) Act, 1996 as amended (‘the 1996 Act’); and the Family Law (Maintenance of Spouses and Children) Act, 1976 (‘the 1976 Act’). While the second set of proceedings sought reliefs relating to the erstwhile jointly occupied proceedings, the title to the said proceedings does not make reference to the Land and Conveyancing Law Reform Act, 2009 (‘the 2009 Act’) nor is this legislation referenced in the reliefs sought. However, reliefs are sought pursuant to the 2009 Act in the Counterclaim filed in the later proceedings.

2 A Notice of Appeal was served by the Applicant/Appellant and this references only the record number for the cohabitation proceedings. However, the Order of the Circuit Family Court from which the appeal is brought relates to Consent Terms encompassing both sets of proceedings and the re-visiting by way of appeal is sought in respect of the reliefs granted in both. I note that an application to consolidate was included in the second proceedings above but this does not appear to have been progressed. The Notice of Appeal appeals from the whole of the Order of the Circuit Family Court which Order was, as stated above, a composite for both proceedings. I have also considered the Affidavit of the Applicant/Appellant of the 18 ^th October 2024, sworn in the context of the appeal, and it clearly encompasses both sets of proceedings. The evidence and submissions before me did likewise. In consequence, having heard from both of the parties, I am going to amend the Notice of Appeal to encompass both sets of proceedings as this clearly accords with the argument before me, with what both parties envisaged and is also with what the Circuit Family Court Order encompassed.

3 As I have commented previously, the statutory intricacy which forms the background to the within appeal demonstrates the legal complexity of litigation pertaining to non-marital families in Ireland.

4 I am setting out in this background the issues which are not substantially in dispute as between the parties.

5 There was little argument that the parties had cohabited for a long number of years, that they had done so in the context of an intimate and committed relationship and that the relationship was now at an end. There are two children of the relationship, both of whom remain dependent and will do so for a considerable number of years. The parties had both been in employment at the commencement of their relationship and for a number of years thereafter. The Applicant/Appellant gave up her employment outside the home in the context of family arrangements and, in particular, in the context of health deficits experienced by one of the children. She is now in receipt of modest earnings, supplemented by social welfare receipts. She has a modest pension provision from her time in employment. The Respondent remains in gainful employment outside the home. He continues to accumulate a pension in the context of his employment.

6 The children have at all times since the cessation of the relationship between the parties resided primarily with the Applicant/Appellant. There was no suggestion that this would change. The commitment of the Applicant/Appellant to the care of the children was not disputed. The Respondent asserted a desire to have a full and active involvement in the lives of the children and that the Applicant/Appellant was not supportive in this regard. While there have been difficulties in relation to contact between the Respondent and the children, this was not an active matter in this appeal. The only matter pertaining to the children which is at issue in the proceedings herein is that of maintenance.

7 Legal title to the residence in which the parties resided together is held in the sole name of the Respondent and it was purchased by him a number of years prior to the commencement of the relationship between the parties. It is subject to tracker mortgage 1 and, in consequence, the repayments have fluctuated greatly in recent years. The Applicant/Appellant moved into the property in or about 2010 in the context of the relationship between the parties and she continues to reside there with the children.

8 There was allegation and counter-allegation in the pleadings herein. The Applicant/Appellant contended that she had made contribution towards this residence in the form of renovations, maintenance and furnishing expenditure. This was disputed. She further contended that she had contributed equally towards the mortgage while she was in gainful employment and that, upon cessation of such employment, that family and household expenses had been shared with the Respondent paying the mortgage and the Applicant/Appellant discharging other necessary expenses of the family. This was disputed. The Applicant/Appellant furthermore contended that she had contributed a redundancy payment which she received to the family's outgoings and also that she had provided a lump sum to the Respondent from her resources to discharge a loan. This was disputed. These contributions were of some antiquity but nevertheless relevant. It was also contended that the Applicant/Appellant had facilitated the Respondent in attending courses for educational enhancement which assisted him in his career path....