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M. (M.) v. M. (G.) [1999] IEHC 46 (25th November, 1999)
THE
CIRCUIT COURT
EASTERN
CIRCUIT
COUNTY
OF KILDARE
1999
No. 430 CA
BETWEEN
M
M
APPLICANT
AND
G
M
RESPONDENT
JUDGMENT
of Mr Justice Diarmuid B O’Donovan delivered on the 25th day of November
1999
1. This
is an appeal by the Respondent against an Order by Her Honour Judge Jacqueline
Lenane made herein on the 15th day of October, 1999 whereby the learned Circuit
Court Judge made an Order varying an Order of the Court made herein on the 11th
day of July, 1996 in the following terms, namely;
1. An
Order that the Respondent do pay to the Applicant the sum of £120 per
month in respect of maintenance of P M, the eldest son of the Applicant and the
Respondent and that the Respondent be responsible for the payment of all school
fees and medical expenses payable in respect of the said P M.
2. An
Order that the maintenance payable by the Applicant to the Respondent under the
said Order of the 11th day of July, 1996 in respect of their children, C M and
G M, be increased to a sum of £320 per month in respect of each child and
that the Respondent be responsible for the payment of all fees payable in
respect of the said C M to the school in the city of Dublin and be responsible
for the payment of all dental expenses incurred on behalf of the said C M and
the said G M and
(3) that
the Respondent do pay to the Applicant a lump sum of £5,000 within three
months of the date of the said Order.
2. For
her part, the Applicant has cross appealed against the said Order of the
learned Circuit Court judge on the grounds that her apportionment of
maintenance was inadequate and that she erred in failing to award maintenance
to the Applicant.
3. Statements
of their respective income and expenditure for the year 1998 were filed on
behalf of the Applicant and the Respondent prior to the hearing in the Circuit
Court and, during the course of the hearing before me, I heard evidence from
both the Applicant and the Respondent and from Mr J H, and Mr M N. I was also
referred to the several books of discovery made by the Respondent.
4. In
the light of the evidence which I heard and the documentation to which I was
referred, I have come to the following conclusions, namely:
1.
In
the circumstance that P M, the eldest son of the Applicant and the Respondent
has now attained the age of 19 years, having been born on the 26th day of
March, 1980 and is not receiving any full-time education or instruction at any
University, College, School or other educational establishment, I am satisfied
that he is no longer a “dependant member of the family” within the
meaning of the
Family Law Act, 1995 and, accordingly, I do not consider that
the learned Circuit Court Judge was entitled to require the Respondent to pay
maintenance in respect of the said P M. Therefore, I will allow the
Respondent’s appeal insofar as the payment of that maintenance is
concerned and I will also allow the appeal insofar as he was required to pay
school fees and medical expenses in respect of the said P M. At the same time,
I recognise the reality that, since he completed his full time education, the
said P M, for whatever reason, has proved unable to support himself on any
regular basis and, accordingly, to a greater or lesser extent, has been
dependant for every day living upon the support of his mother, the Applicant,
although I accept that his father, the Respondent, pays fees in respect of a
part-time course which the said
5. P
M is currently attending. However, I am satisfied that, at the present time,
it is the Applicant who bears the financial burden of the day to day living
expenses of the said P M; a burden that she can ill afford, and while I
sympathise with the view of the Respondent that the said
6. P
M should be encouraged to “stand on his own feet” and, to that end,
that it is counterproductive that he should be allowed to believe that his
mother will continue to subsidise him ad infinitum, nevertheless I think that,
for so long as the said P M remains dependant, the Respondent should make some
contribution towards his support. However, this is merely an exhortation on my
part because I do not consider that I am entitled by law to require that the
Respondent pay maintenance in respect of the said P M. Neither, indeed, do I
accept the submission by Counsel for the Applicant that I should recognise the
reality that the Applicant has been and continues to cater for the needs of the
said P M by awarding her a lump sum payment as provided for by Section 42 of
the Family Law Act, 1995. While I accept that I have jurisdiction to make such
an award, I do not consider it appropriate that I should do so for the reasons
that I believe that the payment of such a lump sum for the expressed purpose of
recouping the Applicant in respect of the cost of maintaining the said P M
would only discourage the said P M from becoming self sufficient.
2. While
I accept the evidence of the Respondent, supported by that of Mr J H, that he
does not receive any payment in respect of locum services and that he no longer
receives any cash payments from the (named) Stud, I am not convinced that the
Respondent’s evidence accurately reflected the entirety of his current
income. Given that he was unable to explain the source of lodgements of
£2,000 and £5,000 respectively made to his account no. 12061695 in
the Bank of Ireland on the 1st day of April, 1999 and the 30th day of April,
1999, I believe that his income is somewhat greater than he was prepared to
admit to. I am influenced in this conclusion by the fact that the several
accounts discovered by the Respondent do not appear to reflect any cash
payments from his private practice although he conceded in evidence that he
received such cash payments; albeit that they were few and for relatively small
amounts. I am also influenced by the fact that I was not convinced that the
Respondent’s stated income included subsistence allowances and motor
expenses which were allowed to him by the (named) Stud and, in any event, in
the light of the Respondent’s alleged expenditure, it seems to me that
the healthy state of his several bank accounts over the last few years, as
evidenced by the discovery which he made, reflects a greater income than that
to which he was prepared to admit. On the other hand, in the light of the
evidence of Mr N, I accept that the Respondent has no security of employment
with the Department of Agriculture and that, as a result of current budgetary
constraints within the department, the probabilities are that his income from
the department will be reduced by half in the near future. Nevertheless,
balancing the evidence of the Applicant against that of the Respondent, I
believe that the Respondent is in the stronger financial position and, in
particular, that he has a greater net income than has the Applicant. Moreover,
I am satisfied that the cost of maintaining the dependant children of the
Applicant and the Respondent; C M and G M, has increased since the Order of
this Court made on the 11th July, 1996. Accordingly, I would affirm the Order
of the learned Circuit Court Judge increasing the amount of maintenance payable
by the Applicant to the Respondent in respect of the said dependant children to
a sum of £320 per month in respect of each child and, furthermore, I
direct that the Respondent be responsible for all fees payable in respect of
the said C M to the school in Dublin and that he be responsible for the payment
of all dental expenses incurred on behalf of the said C M and the said G M.
3. Given
that it is expressed in the said Order of the 11th day of July, 1996 that the
same was intended to be in full and final settlement of all financial matters
outstanding between the Applicant and the Respondent, save for periodic
maintenance, and notwithstanding the provisions of
Section 42 of the
Family Law
Act, 1995, I am not persuaded that this is an appropriate case in which I
should award a lump sum payment to the Applicant, nor, indeed, that I should
award her periodical payments for her support or maintenance. Accordingly, I
will allow the Respondent’s appeal insofar as the lump sum of £5,000
awarded to the Applicant by the learned Circuit Court Judge is concerned. In
this regard, while, as I have indicated, I am satisfied that the
Respondent’s current income is somewhat greater than he would have led me
to believe and I am also satisfied that the Applicant’s net income is
less than that of the Respondent, I think that the imbalance will be redressed
by the increase in the amount of maintenance which the Respondent will be
required to pay in respect of his children, C M and G M and, given that I
accept that the Respondent is likely to suffer a reduction in income in the
near future, I am not persuaded that the current disparity between the incomes
of the Applicant and the Respondent justify an award of a lump sum payment to
the Applicant.
4. The
increased maintenance in respect of C M and G M shall be back dated to the 1st
September, 1999 and all arrears in respect of same shall be paid within three
months of this date.
7. The
Applicant shall recover from the Respondent the costs of this application to be
taxed in default of agreement.
cjodmm
© 1999 Irish High Court
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