High Court of Ireland Decisions

You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M. (L.) v. Devally [1997] IEHC 50; [1997] 2 ILRM 369 (13th March, 1997)
URL: http://www.bailii.org/ie/cases/IEHC/1997/50.html
Cite as: [1997] 2 ILRM 369, [1997] IEHC 50

[New search] [Printable RTF version] [Help]

M. (L.) v. Devally [1997] IEHC 50; [1997] 2 ILRM 369 (13th March, 1997)

THE HIGH COURT

Record No. 86 JR 1996

BETWEEN

L.M.

APPLICANT

AND

HIS HONOUR JUDGE LIAM DEVALLY

RESPONDENT

AND

D.W.

NOTICE PARTY

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

1. 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.

2. 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."

3. Subsection (5) is not relevant.

4. 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.

5. 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.

6. 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.

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

7. 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).

8. 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.

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

"(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.

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

(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 -

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

(i) each parent,

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

(iii) any other dependant children of either parent,

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

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

(i) a spouse,

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

(iii) any other dependant children of either parent,

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

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

10. 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).

11. 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)."

(Section 21 has no relevance in this case).

12. Section 25 of the 1987 Act provides:-

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Children (Affiliation Orders) Act, 1930 (hereafter in this section referred to as "the Act of 1930" is hereby repealed.

(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.

(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 continued accordingly.

(4) Subsections (2) and (3) of this section are without prejudice to any proceedings initiated, or any Order or part of such Order made, under the Act of 1930 to which those subsections do not relate."

13. The Applicant claims that the learned Circuit Judge erred in law in holding he had no jurisdiction to award maintenance and in particular by reason of the agreement of the 21st November, 1983. Ms. Clissman argued that Section 5A of the 1976 Act (as inserted by Section 18 of the 1987 Act) gives the Court power to order maintenance for the support of a non-marital child subject to the consideration of certain factual and financial circumstances laid down in subsection (3). This is an unfettered jurisdiction. The restriction in subsection (4) does not apply.

14. Any covenants or waivers made by the Applicant in respect of future claims for maintenance are void and unenforceable. This is analogous to a purported waiver of maintenance rights by a spouse as in D. -v- D . (unreported, Supreme Court, 8th May, 1978).

15. Section 27 of the 1976 Act precludes any agreement which would deprive an applicant from claiming maintenance for a non-marital child. The fact that the agreement was entered into before the passing of the Act of 1987 does not affect its invalidity. It ceased to have effect when the 1987 Act became law by virtue of the repeal of the 1930 Act and by virtue of Section 27 of the 1976 Act. The exclusion of a non-marital child from benefiting from an Order of maintenance under the 1976 Act (as amended by the 1987 Act) by reason of a pre-existing agreement would be contrary to the purpose of the 1987 Act which was to confer equality on children (see long title). The Order made in the Circuit Court under the 1930 Act on the 13th October, 1983 could not have been made under Section 5A of the 1976 Act. There were no uncompleted proceedings under the 1930 Act therefore subsections (2) and (3) of Section 25 of the 1987 Act do not apply. Section 5A does not include capital payments and so cannot be deemed to be an Order under Section 5A of the 1976 Act. Since the 1983 agreement is not caught by Section 25(2), it did not survive the repeal of the 1930 Act.

Section 21 of the Interpretation Act, 1937, subsection (1)(c) provides:-

"Where an Act of the Oireachtas repeals the whole or portion of a previous statute, then, unless the contrary intention appears, such repeal shall not -

(c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the statute or portion of a statute so repealed."

16. This has no application in that there is a contrary intention expressed. The savers in respect of Orders which could have been made under Section 5A did not affect any other Orders under the 1930 Act. The 1987 Act provides for a new procedure in applications for maintenance for non-marital children to which Section 27 of the 1976 Act applied. The agreement therefore should be construed in the same way as in D. -v- D ..

17. Mr. Durcan submitted there was a presumption that the statute was not intended to have retrospective effect. He cited Hamilton -v- Hamilton , (1982 I.R. 466) where the wife claimed that a disposition by the husband in pursuance of a contract entered into before the Act came into operation was void because she had not consented to the assurance to the purchaser after the Act became operative. Chief Justice O'Higgins considered the principle of retrospectivity. In that case it was decided that the provisions of the Family Home Protection Act, 1976 did not furnish either expressly or impliedly grounds for displacing the common law presumption that the Act was not intended to have retrospective effect.

18. Mr. Durkin said there was an end to the duty to maintain once the Order under the 1930 Act was made and to give the statute the interpretation claimed by the Applicant would call into question its constitutionality. He submitted that D. -v- D . was decided in the way it was because children who are marital have inalienable rights whereas children who are non-marital do not.

19. He submitted the operative effect of the Order made by the Circuit Court continues by virtue of Section 25(4) of the 1987 Act which enforces the presumption of non-retrospection. If not deemed to be Orders under Section 5A by virtue of subsection (2), the Order of the Circuit Court remains unaffected by the provisions of the 1987 Act and applies to the proceedings brought by the Applicant. It operates as a complete bar.

20. He cited the case of F. -v- F ., (1995 2 I.R. 354) which dealt with the effect of judicial separation proceedings under the Judicial Separation and Family Law Reform Act, 1989 by an applicant who had already applied for her divorce a mensa et thoro in 1986 and settled that claim. It was held the cause of action was the same and this precluded any fresh action claiming effectively the same relief. In this case the cause of action is the same, namely, a claim for maintenance.

21. He submitted this case has statutory immunity given by the 1930 Act. Even if the statutory immunity is not there, the agreement and the Order are sufficient to stop new proceedings. It was never intended that Section 27 would have retrospective effect.

22. In deciding this case it is necessary to consider what exactly was the immunity given by Section 10(4) of the 1930 Act. In my opinion it was a complete bar to proceedings under the 1930 Act and no more. While the immunity no doubt extended to cover the Act as amended, there was no immunity given to cover any statutory re-enactment dealing with the same subject matter.

23. The 1987 Act introduced a new regime for non-marital children. The maintenance was not limited by reference to a specific sum. Since the immunity given by Section 10(4) of the 1930 Act related only to proceedings under the 1930 Act, then once the new regime was introduced by the 1976 Act as amended by the 1987 Act, the indemnity did not extend to the new regime. That regime specifically provided in Section 27 of the 1976 Act that an agreement should be void insofar as it would have the effect of excluding or limiting the operation of any provision of the 1976 Act, the exception in Section 21 not being relevant.

24. It was held by the Supreme Court in D. -v- D ., (unreported, 8/5/78) per Walsh J. that it was not possible to contract out of the Act of 1976 by an agreement made after the Act came in to force or by agreement entered into before the legislation was enacted.

25. In that case there was an agreement compromising divorce a mensa et thoro proceedings under which a lump sum was payable "in full satisfaction of all claims in the petition". Walsh J. said (at page 7):-

"It is clear from the whole structure of the Act that its purpose is to deal with the situation of the parties at the time the proceedings were brought under the Act and that the primary function of the Act is to ensure that proper and adequate maintenance will be available in accordance with the provisions of the Act to spouses and children. The basic question to be decided is whether at any given time there is a failure by one spouse to provide reasonable maintenance for the support of the other spouse and for any dependant children of the family of the spouses. In my view it is not possible to contract out of the Act by an agreement made after the Act came into force or by an agreement entered into before the legislation was enacted."

26. And later (at page 9):-

"It appears to me that in a case such as the present one the function of the Court under the Act of 1976 is to determine whether or not there is a financial need justifying the making of the Order sought under the Act. Therefore if by reason of a previous arrangement between the parties either in the form of a separation agreement or in some less formal type of agreement one spouse makes payments to the other spouse or may have already made a lump sum payment, the income of which or other use of which may be sufficient to alleviate in whole or in part the financial needs complained of, the Court shall have regard to such payments in deciding what Order should be made in a claim for maintenance pursuant to Section 5 of the Act."

27. In my view the same principles should apply here. The right to make an Order under Section 5A is not barred by reason of the agreement which ceased to have effect on the passing of the 1987 Act. The lump sum payment is a factor to be taken into account when the Court comes to consider the merits. The Court must consider whether D.W. "has failed to provide such maintenance for the child as is proper in the circumstances" (Section 5A(1)) and if it so appears to the Court, it may make a Maintenance Order for such amount and at such times for such period during L.M.'s life as the Court considers proper. In deciding whether to make a Maintenance Order and how much, it must have regard "to all the circumstances of the case", as well as in particular the matters set out in subsection (3)(a) and (b).

D. -v- D . was followed by Barr J. in H. -v- H ., (1995 3 Family L.J. 96 HC).

In F. -v- F., (1995 2 I.R. 354) the Supreme Court held that earlier proceedings for a divorce a mensa et thoro (which were compromised) precluded the institution of separate proceedings for judicial separation under the Judicial Separation (Family Law Reform) Act, 1989 given that both causes of action were the same in all but name. But D. -v- D . was distinguished. Blayney J. said at page 362/363:-

"The issue in the D. -v- D. case was very different to the issue in the instant case..... The judgment of the Court was delivered by Walsh J. who held that the claim of the wife fell within Section 5 of the Act of 1976 and that the operation of the Act could not 'be affected by a separation agreement or other document in the nature of the consent in this case entered into before the passing of the Act unless there is an express provision to the contrary in the Act'. What the case decided was that a wife could not be precluded from claiming maintenance under the Act of 1976 by a term in a consent entered into before the passing of the Act under which she had accepted a lump sum in full satisfaction of her claims under her petition for divorce a mensa et thoro. The position in the instant case is very different. The issue is not whether a term in the consent entered into by the Applicant is preventing her from issuing proceedings under the Judicial Separation and Family Law Reform Act, 1989. What the Court has to consider is the whole effect of the consent, not simply the effect of one term. And the whole effect of the consent entered into in the proceedings of 1987 was to satisfy and discharge the applicant's claim for a divorce a mensa et thoro so that she was barred thereafter from bringing such a claim. And this continued to be the position after the Act of 1989 became law as it did not introduce a new cause of action but altered the title of the procedure to judicial separation. This fact also distinguishes the instant case from D. -v- D . as the Court there was dealing with the completely new right which had been introduced by Section 5 of the Family Law (Maintenance of Spouses and Children) Act, 1976."

28. In her judgment, Denham J. said at page 369:-

"Certainty and finality of litigation are important. Some issues in family law are not capable of a final Order by law, e.g. maintenance. However the fact that some issues in family law Courts are not capable of finality, does not deprive this area of the law of the important concepts of certainty and finality. Whereas care for dependants requires that there be no finality in some areas the general law regarding certainty should apply unless excluded by law or justice."

29. And later at page 370:-

"The law on maintenance does not in general permit of a final settlement. It is not possible to contract out of the law on this subject. See Walsh J. in D. -v- D. (unreported, Supreme Court, 8th May, 1978). That arises because of the specific terms of the law."

30. It seems to me that what was referred to by Blayney J. as a completely new right introduced by Section 5 of the 1976 Act was reference to a new regime for the payment of maintenance to spouses and children since the right to maintenance as such pre-dated the 1976 Act.

31. In the same way in this case a completely new right was given under Section 5A in respect of the maintenance of non-marital children.

32. The right given by Section 10(4) of the 1930 Act to the Notice Party was an immunity to proceedings under the 1930 Act. When that Act was repealed the immunity lapsed.

33. Since the immunity acquired under Section 10(4) only lasted until the repeal of the 1930 Act, the immunity could not carry over by virtue of Section 21(1)(c) of the Interpretation Act, 1937.

34. Quite apart from the statutory immunity under the 1930 Act to proceedings under that Act, the agreement itself ceased to have effect by virtue of Section 27 of the 1976 Act. When the 1987 Act inserted Section 5A into the 1976 Act this section became an integral part of the 1976 Act and was subject to Section 27 of the same Act.

35. Section 25(1) of the 1987 Act repealed the 1930 Act. The remaining subsections of Section 25 did not affect the operation of Section 27 of the Act of 1976. The effect of Section 25(4) of the 1987 Act simply meant that any Orders or unfinished proceedings under the 1930 Act which were not deemed to be Orders or proceedings under Section 5A(2) or (3) of the 1976 Act were not affected by the deeming provisions. In my opinion it cannot be interpreted to give extra validity to an Order which by virtue of the wording of Section 10(4) did not survive the repeal of the 1930 Act.

36. The 1987 Act conferred new rights on non-marital children. It takes account of the rights of the Notice Party, D.W., by requiring the Court to take account of all the circumstances of the case which would include the lump sum payment. Ultimately the decision is whether the Notice Party has failed to provide such maintenance for the child as is proper in the circumstances.

37. Section 5A does not have retroactive effect as it looks to the future maintenance of the child while taking account of the lump sum payment as a factor.

38. The appropriate Order is to grant an Order of Certiorari and send the matter back to the Circuit Court to hear the application on the merits.