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Cite as: [2000] IEHC 40

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H. (E.) v. M. (J.) [2000] IEHC 40 (4th April, 2000)

THE HIGH COURT
EASTERN CIRCUIT
FAMILY LAW
No. 210-CA-99

BETWEEN
E.H.
APPLICANT
AND
J.M.
RESPONDENT
Judgment of Mr. Justice Kinlen delivered on the 4th day of April, 2000

1. This matter came before Judge Linnane on the 21st May, 1999. The Applicant holds an honours degree in education and is a qualified social worker. The Respondent is a human resource manager. The parties met in England. E.H. was middle aged and anxious to have children. She asked the respondent J.M. to father children by her. They did not marry. However they produced two children one born on the 11th April, 1984 and the other on the 27th February, 1988. The parties have resided separate and apart from each other since September 1996.

2. The parties signed a separation agreement on the 6th December, 1996 which reads:-

"Separation of J.M. and E.H.
Separation is by mutual agreement. L's setting up her own home is a constructive solution to our current difficulty.
Both parents are committed to continuing to parent R and R.
Custody of the children is shared equally between both parents.
Both parents have equal rights and responsibilities regarding the children, equal rights of access and both homes are of equal importance to the lives of the children.
Access to the children will be shared on a 50-50 basis taking into account the needs and wishes of the children and the commitments of both parents. The children will spend alternate weekends with each parent and two evenings with L during the week (one sleepover at L's home). This will need to be a flexible arrangement where e.g. one parent is away from home. The privacy of each other to be respected.
Both parents will make efforts to live within reasonable travelling distance of each other so that the children can have easy access to both homes. Ideally this would be within cycling distance.
All significant decisions regarding the children will be arrived at by consultation neither parent has the right to make decisions without consulting the other and if necessary the children.
Significant decisions include:-
Those regarding choice of school, place of residence, arranging of holidays, Christmas and birthdays, treatment of illlnesses, dental care, choice of leisure pursuits.
A current arrangement to be reviewed at six monthly intervals. The children's needs and wishes to be taken into account". This is then dated the 6th December, 1996 signed by both parties. By the order of the 21st May, 1999 the court ordered:-
1. "That the applicant and respondent retain joint custody and guardianship of the dependant children herein
2. That the applicant herein is entitled to retain the children's allowance receivable on behalf of the dependent children.
3. That the respondent is to be responsible for discharging the health insurance cover, the dental fees, all school fees and any extra curricular activity expenditure including any school trips, cost of school uniforms and school books for the dependent children herein.
4. That the respondent is to discharge the sum of £50 per week maintenance to the applicant in respect of each of the children. This sum to be paid into the bank account of the applicant. The payments to be back dated to the 15th October, 1998.
5. That the respondent do pay the sum of £250 per month for suitable alternative accommodation for the dependent children. This comprises of 1/3 of the cost. If there is an increase in the costs this is to be discharged in the same proportion. i.e. 1/3 by the respondent. Bank payments commence from the 15th October, 1998 not withstanding that the accommodation has not yet been provided.
6. The overall monies to be paid at the present time to amount to £650 per month.
7. That commencing on the 28th May, 1999 and on the last Friday of each month there after. The accommodation contribution (which is backdated) is to be paid by the respondent by standing order to the applicant into a separate account to be used for the benefit of the children and deposit on new accommodation when obtained.
8. The respondent is to discharge the sum of £1000 per annum to the applicant for the cost of a holiday for the children with the applicant. [The eldest boy will be 16 on the 11th April and I am sure would prefer a holiday with his pals rather than with his mother. All arrangements must be by consent of both parties]. However the Circuit Court directed £1,000 per annum and this Court would reduce it to £500
9. That the respondent do hold his Norwich Union shares in trust for the benefit of the defendant's children.
10. That the cost of this application be awarded to the applicant
11. An order adjourning the matter to the 7th October, 1999 for mention".

3. An application by the respondent to stay this order was refused both by the Circuit Judge and on appeal by the High Court.

4. The evidence and submissions in this case took three days. The respondent appeared by himself although he had counsel and solicitor in the Circuit Court. Miss. H. came to Ireland looking for work and began counselling in 1992 for 18 months and in March, 1996 was a full time social worker. He had decided to come to Ireland in 1995. There was a great deal of evidence of what each is alleged to have earned and dispersed over the years. She has rented accommodation and he has a site with planning permission. However the Circuit Court by order of the 23rd June, 1999 made the following orders:-


1. "that there be no dealings by or on behalf of the respondent in respect of the site at Ashtown, Roundwood, County Wicklow comprised in folio 18946F County Wicklow until further order".

5. She would like to have sole custody of the children but in the opinion of this court that would not be in the best interest of the children. This court is only concerned with their well being. The applicant appears (perhaps understandably) to be bitter. She is living in a rented house and has to share a room with her daughter. She complains about the mobile home being inadequate for the children but he cannot develop a site because of the order she obtained from the Circuit Court. While the respondent has produced a great deal of documentation including audited accounts this court is not 100% certain in that it has all the facts of his earnings. The respondent maintains that the applicant could earn much more than she is earning but she insisted that she had to give up work so as to attend to the children. If it ever were valid there is no foundation in the circumstances of today. The children are 16 and 12 respectively. The respondent and the applicant should meet half the value of the expenses in respect of the children even though her earning potential is much less than his. There is no doubt there are faults on both sides. When the court is dealing with arrears I requested information as to how they might be paid off. The respondent said he would pay them in a lump sum from his own resources. It would appear that both parties have the potential to earn more than they are presently earning.

6. As well as the two participants A. B. gave evidence because she knew both parties very well and that E.H. and the children came to her for holidays. She understood there was an amicable agreement between the parties that parenting was to be 50-50, she was very surprised at proceedings being taken and was very sorry to see it all end in court. She knew the two children who are friends with her children of the same age. They are lovely well adjusted and have their own lives but are aware of the trouble that exists between their parents. She described the mobile home as being modern, fitted with water and heating and is comfortable, each child has its own room. However the respondent J.M. says that if the property was free from court order that he would build a house for himself and his children. He has given this undertaken to this court.

7. There are bus services to secondary schools but the parents apparently want them in specific schools which do not have a bus service. The boy is at a very expensive secondary school near Bray. He is apparently doing well there. The court will not want to interfere with his educational arrangements. However it costs such very large sums of money in the overall picture as presented to the court that one queries whether it is economically sensible. However if at all possible the parties in accordance with their agreement will resolve this problem. It as presently appears there is really not enough money. Together with this M.N. sister to J.M. said that the children spend most their summer holidays with her and that her daughter is great friends with the son R. and they meet regularly. L. wanted time to herself and the children had remained with their father or stayed with this witness. When L. was staying with her she might borrow her bike and go away for a few days. She hoped L would sort out the affair but failed. She is separated herself and had many talks with L. She believed L. was content with the agreement already recited.

8. Ms. Browne on behalf of E. H. referred the court to important judgments, one by Costello P. and one by Budd J. (delivered on the 11/12/1995). They support the view that the court at this time has very wide powers.

9. This court reverses the decision of the learned Circuit Judge made the 23/06/92 ordering that there be no dealings by or on behalf of the respondent in respect of the site at Ashtown, Roundwood, Co. Wicklow comprised in folio 18946F Co. Wicklow until further order". However this reversal is made on the basis of an undertaking to this court whereby the respondent agreed that he will build a house or bungalow on the said folio site within 3 years of the date of this order. The court doth further order as follows:-

1. That the applicant and respondent retain joint custody and guardianship of the dependant's children herein
2. That the applicant herein is entitled to retain the children's allowance receivable on behalf of the dependant's children.
3. That the respondent is to be responsible for discharging the health insurance cover, the dental fees, all school fees and any extra curricular activity expenditure including any school trips, costs of school, uniforms and school books of the dependent children herein. In view of the aforegoing orders the respondent made it clear that he was not appealing the £100 per week for the two children and agreed that he would pay all of the items set forth in the above paragraph.
4. That the respondent do pay to the applicant the figure of £2,100 as the amount due related to arrears of maintenance from October 1998 to May 1999 as agreed between the parties to be paid forthwith
5. The respondent do pay £500 p.a. for holidays for the children for the next four years and thereafter will pay (if anything) what maybe agreed between the parties
6. That the respondent do pay £200 per month for suitable alternative accommodation for not more than 6 years from the 27th February 2000 unless otherwise agreed by both parties. The arrears to be paid forthwith and thereafter on the 15th of each month.
7. Since the Court is concerned only with the well being of the children the applicant and respondent are free agents and owe no duty to each other, other than joint parenting.
  1. If necessary each party has liberty to apply to the relevant Circuit Court but it would be preferable and less costly if the parties could in accordance with their agreement agree on issues as they arise.

10. The applicant to have all awarded and reserved costs. However the Court makes no order as to the costs of this appeal.

© 2000 Irish High Court

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URL: http://www.bailii.org/ie/cases/IEHC/2000/40.html