High Court 

In re The Family Law (Maintenance of Spouses and Children) Act 1976 and In re SP (Infant Child); 

P v Judge Thomas Ballagh and P and Another (Notice Parties)

1998/338 JR 

31 July 1999 

 
SMITH J: 

This matter comes before the Court by way of an application for Judicial Review of three Orders of the District Court made by the above named Respondent at Newbridge District Court, two Orders being made on the 4 June 1996 and the third Order being made on the 25 January 1999. 

The Orders of the District Court to which the Applicant herein takes exception were applications brought by the Applicant's wife SP the first named Notice Party for a Maintenance Order against PF in relation to her daughter SP born on the 12 August 1993 and also for a lump sum payment in respect of expenses incidental to the birth of SP. The third application to the District Court related to an application to vary the Maintenance Order upwards. 

The Applicant herein and the first named Notice Party SP were married to each other on the 21 July 1990. There was one child born to the said SP namely S on the 12 August 1993. 

The birth of the said SP was registered on the 31 August 1993 and the birth certificate states that FNP the Applicant herein is the father and SMTP the first named Notice Party is the mother. 

The applications by SP to the District Court at Newbridge, Co Kildare, for maintenance and a lump sum payment was made pursuant to the provisions of Section 5(a)(1) of the Family Law (Maintenance of Spouses and Children) Act 1996 as amended and the application for the lump sum payment was made pursuant to the provisions of Section 21A of the Family Law (Maintenance of Spouses and Children) Act 1976 as amended by the Status of Children Act 1987. 

The Respondent in the application to the District Court was PF of Co Laois. 

The complaint made by the said SP who at that time was residing with the Applicant and SP at Newbridge, Co Kildare, was that PF being the parent of the said SP a dependant child whose parents were not married to each other and not being a child who was being frilly maintained by the other parent had failed to provide such maintenance as was proper in the circumstances and that he failed to make such contributions as was proper in the circumstances towards the expenses incidental to the birth of the said SP who was a dependant child. 

The Respondent herein Judge Thomas Ballagh on the 4 June 1996 having being satisfied that the summons was duly served on the maintenance debtor and after hearing evidence tendered on behalf of the maintenance creditor ordered:- 

1. That the maintenance debtor pay to the maintenance creditor the sum of £125 per month for the support of the said child SP. By further Order on the 4 June 1996 it was ordered by Judge Thomas Ballagh that the said PF pay to the said SP the sum of £250 in respect of the birth of the said child SP. 

A further application was made to the District Court and by Order of the District Judge on the 25 January 1999 the Order of the 4 June 1996 was varied by ordering that the maintenance debtor pay to the maintenance creditor the monthly sum of £175 for the support of the dependant child SP. 

The Applicant herein is desirous that the three Orders of the Respondent herein should be quashed. 

Section 46 sub-section (1) of the Status of Children Act 1987 provides that where a woman gives birth to a child during a subsisting marriage to which she is a party then the husband of the marriage shall be presumed to be the father of the child unless the contrary is proved on the balance of probabilities. 

Part 6 of the Status of Children Act 1987 deals with declarations of parentage. 

Section 5 sub-section (1) of the Status of Children Act 1987 provides that a person born in the State or any other person may apply to the Circuit Court in such manner as may be prescribed for a declaration that under this section that a person named in the application is his father or mother as the case may be or that both the persons so named are his parents. 

Section 35 sub-section (4) provides that where a person makes an application for a declaration under this section by his next friend the Court shall refuse to hear or refuse to continue hearing as the case may be the application if at any stage the Court considers that it would be against the interests of the Applicant to determine the application. 

Section 35 sub-section (7) provides that the Court may direct that notice of any application under this section shall be given in the prescribed manner to such other persons as the Court thinks fit and where notice is so given to any person the Court may either on its own motion or on the application of that person or any party to the proceedings order that that person shall be added as a party to those proceedings. 

Following the application by SP for maintenance and the lump sum payment in the District Court the Registrar of Births amended the birth certificate of the said SP by deleting the name FNP as the father and inserting the name PF of Co Laois as the father. The birth certificate has again been amended by the deletion of PF named as father and the re-insertion of the name FNP as father of SP. 

The Applicant's complaint herein is that he in law is presumed to be the father of SP and in addition to that he is also the only father that she knew as the parties lived together as a family unit at Newbridge, Co Kildare and that in those circumstances he should have been put on notice of the applications to the District Court by his wife SP or by the Respondent herein Judge Thomas Ballagh. 

Mr John Rogers, Senior Counsel, who appeared for the Respondent herein and also for the second named Notice Party and Mr O'Sullivan, Solicitor, who appeared on behalf of the first named Notice Party indicated to the Court that no objection was being taken to the delay in bringing the application for judicial review. 

Mr Rogers in his submission to the Court indicated that he acting on behalf of the Respondent herein and the Attorney General was not objecting to the making of an Order for Certiorari in respect of the three Orders made herein by the Respondent at Newbridge District Court, Co Kildare. He further submitted that it did not appear to him that it was a proper procedure that the District Court could embark on a maintenance and/or lump sum application in respect of a non-marital child without putting the father on notice of the applications of his wife and mother of the child. 

He further submitted that when the application was being made to the District Court that SP knew that the Applicant was registered as father of SP on the birth certificate and that that fact should have been brought to the attention of the District Judge and if brought to the attention of the District Judge that he should then have put the Applicant herein on notice of the applications. 

He stated that that whether the District Judge was so informed or not that the proper constitutional interpretation of Section 5(a) of the Family Law (Maintenance of Spouses and Children) Act 1975 is that the father of the non-marital child must be put on notice of the application for maintenance and/or lump sum payment. 

Mr O'Sullivan, Solicitor on behalf of SP the first named Notice Party submitted that I should not make an Order of Certiorari in respect of the Orders of the District Court as it would not be in the best interest of SP. He also submitted that the Applicant herein was not entitled to be put on notice of these applications by SP to the District Court. 

I accept the submission of Mr Rogers. It appears to me that the Applicant as the legal father of SP and being the only father figure that she knew was entitled to be put on notice of any application that his wife proposed to make to the District Court for maintenance or a lump sum payment in respect of SP. 

Until an application is made to the Circuit Court pursuant to the provisions of the Status of Children Act 1987 for a declaration of paternity the Applicant herein is presumed in law to be the father of SP. 

Accordingly I propose to make an Order quashing the two Orders made by the Respondent herein on the 4 June 1996 the first one in which SP is the maintenance creditor and PF is the maintenance debtor. In the second Order dated the 4 June 1996 in which SP is the Applicant and PF is Respondent and the third Order dated the 25 January 1999 in which SP is the maintenance creditor and PF is the maintenance debtor. It is not appropriate to make any of the further declaratory Orders sought by the Applicant herein and I decline to do so.