High Court of Ireland Decisions

You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M. (M.) v. M. (G.) [1999] IEHC 46 (25th November, 1999)
URL: http://www.bailii.org/ie/cases/IEHC/1999/46.html
Cite as: [1999] IEHC 46

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

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