THE HIGH COURT

FAMILY LAW
RECORD NO. 2002/106M

IN THE MATTER OF THE JUDICIAL SEPARATION FAMILY LAW REFORM ACT, 1989
AND IN THE MATTER OF THE FAMILY LAW ACT, 1995

BETWEEN
EG
APPLICANT
AND

JG
RESPONDENT

Judgment of Mr. Justice Murphy dated the 29th day of April, 2003.

1.	 Motion

By notice of Motion dated the 12th December, 2002 the applicant sought an order pursuant to section 7 of the Family Law Act, 1995 granting the applicant maintenance pending suit for her support and the support of the dependant children of the marriage. The matter came for hearing on the 24th January, 2003 and was adjourned to the 17th February for cross examination of the respondent.
2.	Grounding Affidavit 
	The applicant's affidavit referred to the marriage dated the 2nd August, 1997 and the birth of two daughters on the 27th February, 1999 and the 30th May, 2001. The children were aged almost four and under two at the date of the hearing.
	The applicant says that she is on leave from work since the 8th January, 2001. The respondent is self-employed having recently sold his business for a substantial profit.

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	The responded, unhappy differences having arisen, vacated the family home on the 22nd September, 2002 and, the applicant says, is living in costly club accommodation. One month later the parties, by written agreement, agreed that the respondent should remain away from the family home until further order of the Court.
	The elder infant daughter is recovering from cancer. Certain reports from her consultants were referred to. The younger daughter suffers from an immune deficiency disorder. Her health difficulties are less serious than those of the elder daughter. Nonetheless the second daughter's illness requires attendances with various specialists and hospitals and is very disruptive. The applicant refers to a consultant paediatric immunologist's report.
	For this reason the applicant had taken unpaid leave from her employment. In addition while the parties were living together, they employed a fulltime child minder with a high level of experience to deal with such a demanding in a particular situation costing €3,870 per month. The costs were discharged by the respondent husband. The last payment made by him was to cover the period to the end of October, 2002.
	The applicant says that at that time the respondent interfered with the then existing childminding arrangements. The childminder gave notice that she intended to cease work. The applicant had then to hire a new childminder from an agency which cost €2,701 per month.
	As a result of this cost, the applicant says that she had to use her savings and had incurred debts of approximately €7,753 on her credit card. She incurred expenditure of approximately €16,430 since September, 2002 and referred to her credit card bill.
	The applicant says her monthly outgoings, including child minding expenses of €4,270, was over €13,000. The applicant refers to the respondent's wealth, property and investments.

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	By letter dated the 12th November, 2002, her solicitors wrote to the respondents solicitors requesting a reasonable sum for interim maintenance. No reply was received. A sum of €5,000 was lodged to her account on the 26th November, 2002 by the respondent as the amount which the respondent determined he was going to pay to the applicant each month for her support and that of the two dependant children.
	The applicant's outgoings, as per the affidavit of the 4th December, 2002 give a monthly sum of €13,000.
3.	 Applicant's Supplemental Affidavit of the 16th January, 2003
This affidavit repeats and expands some of the averments in the grounding affidavit. It refers in particular to the critical medical condition of the children and the requirements that displaced on her time and care. She also refers to the allegations made by the respondent which he denies.
	Reference is also made to her expenses and her means.
	She says that in July, 2002 the respondent withdrew a sum of over € 1m from the Bank. She says that he has spent almost € 400,000 between the 9th July, 2002, and the 19th December, 2002, which she calculates as a figure of over € 78,000 per month on average. The respondent, she says, has a substantial share portfolio.
	It is common case that the illness of the elder daughter had a profound effect on the relationship. The applicant recognises that the marriage has irretrievably broken down and that there is no possibility of reconciliation between them. However she wants to ensure that the children are not adversely affected by the breakdown. She says that the respondent's lodgement of € 5000 per month is insufficient to discharge the usual and necessary outgoings required. Her personal means are not as significant as the respondent had averred. Her financial position is modest compared to his.

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 4.	 Replying Affidavit of Respondent
	The respondent, by the first affidavit dated 21st January 2003, says that he sold his company for €2.25m and is restrained from being employed in that business. He says he was a fulltime parent from January, 2001 and had given some time on a voluntary basis to a number of organisations. He says he intends to start a new business but will not if he has custody of the children. The applicant, he says, had obtained an interim ex parte sole custody order on the 30th September 2002 and an ex parte barring order. He says that the children are well looked after when in his care and in the care of his family some of whom are nurses.
	He disagrees with the expenses required for a childminder. He understands that the current childminder is in receipt of €400 per week net. When he left the family home he told the applicant by telephone that there was €2,000 in cash left there. The applicant was continually abusive to him. He maintained contact with the children's godparents.
	He says that the childminders left because the applicant said that one of them was negligent, another that she was required to do housework and a third because of the applicant's inappropriate behaviour.
	He says that arrangements in relation to meeting the children were changed as a result of which he saw both children together on nine occasions in 2 ½ months. He is conscious of the needs of the children and he says he cares for them appropriately. He wishes to see the children for extended periods rather than the two hour periods agreed. He feels obliged to have a security guard with him when collecting or delivering the children so as to he a witness to any alleged incidents.
	He says that in addition to the monthly sum of €5,000 he has made €3,000 available at Christmas. He also discharged the sum directed by the High Court being  2/3  of the finder's fee due to the childminding agency on the 20th January, 2001.

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	He says that the applicant owns land and has a house in the country. In addition she has €35,000 in a bank account into which he lodges the maintenance payments and also receives a social welfare payment.
	He believes that, the grocery expenditure to be excessive. He doesn't dispute the medical reports but says that fees were made at a time when the elder daughter was gravely ill. She is now well. The younger daughter's progress is normal for her age.
	The amount remaining from the sale of his business is subject to an outstanding tax liability of €100,000.
	He says he is not in receipt of a salary as a board member nor of rental income.
	He details certain substantial donations to a charity and to his brother and sisters.
	The respondent says that the apartment costs him €1,500 per month and that he intends buying a home for himself and the children but cannot do so if he has to meet the sum which the applicant seeks from his investments.
	He said it is not possible for him to pay the sum sought out of capital funds as it is not possible to predict his future earnings
 5.	 Further replying Affidavit of Respondent.
	The second affidavit (in related proceedings 2002/107M) relates to the access to the children from 2.00 p.m. to 5.00 p.m. each day. The respondent says that he had been caring for the children on a constant daily basis along with the applicant and with the assistance of childminders. He says that he has a very close relationship with his two children. There were instances where he had not had the agreed access. He was granted increased access over the Christmas period by order of Mr. Justice Quirke on the 20th December, 2002 in order to have overnight access so that his relatives could see the children. He refers to problems in relation to this access.
 6.	Cross-examination of Respondent
	Mr. Shatter, Solicitor for the applicant, having served the requisite notice, cross examined the respondent as to his means and, in particular, as to the proceeds of sale of the shares in his business. Questions were asked regarding pre-acquisition bonuses and claims against the company the shares of which were held by the respondent. Questions were also raised in relation to the respondent's property here and abroad. Issues arose in relation to tax and to rebates.
	The respondent's reply expanded on but were consistent with his affidavit of means. He had decided to live off capital and had plans to get back to business. It was impossible for him to pay the sum that the applicant sought. He took his view with some of items claimed by the applicant as expenditure and referred to her assets which were not quantified in her affidavit of means. He was paying rent of € 1,500 per month and had commitments to contribute to a pension fund.
	In reply to Ms. Clissman S.C., on re-examination, the respondent referred to his desire to purchase a house rather than to continue renting. The maintenance sought was not sustainable.
 7.	Submissions of the Applicant
	Interim maintenance under Section 7 had to be adequate and reasonable in all the circumstances of the case. It was the mirror image to an interim payment order under Section 16.
	Mr. Shatter referred to the recent decision of the Supreme Court in T v. T and of the High Court in K v. K (O'Neill J.).
	The respondent cannot argue that there is a low income yield on his capital. That argument was not accepted in RB v. MB. The court is entitled to make an maintenance order as a charge on his capital assets as was done in CP v. DP [1983] 3 I.L.R.M. per Finlay P.

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	The applicant had not been cross examined. It is, accordingly, not open to the court to vary the amount claimed by her in respect of childminders. Health insurance had been decided by the parties before marital difficulties arose. There was a disproportion between the respondent's monthly telephone expenditure of €600 and the applicant's expenditure of €250. This was the touchstone in terms of the relative expenditures of the parties.
	The respondent has no impediment to taking up employment in April. In the circumstance Mr. Shatter submits that the applicant is entitled to €9,000 per month.
 8.	 Submission of the Respondent
	Ms. Clissman S.C. submitted that there was no specific reason for cross examination. There was no evidence of any dishonesty on the part of the respondent. He had agreed to pay out of capital. In this regard she referred to CP v. DP.
	The sum originally claimed by way of expenditure was €13,000 per month. Mr. Shatter was asking the court to make an award of €9,000 per month which would be €108,000 per annum which, was in her submission, based on grossly exaggerated figures It was proper that the respondent pay a sum that could be maintained into the future.
 9.	Decision of the Court
The Court acknowledges the dedication of both parents to their young children in what must have been a very trying time for them both. While, happily, the health of each girl has improved problems still remain. The applicant has made a claim in respect of medical expenditure, speech therapy costs and health insurance cover which, other than the last mentioned item, have not been contested.
	It is unfortunate that the time and devotion of both parents to their children may have had adversely affected their own relationship.
	It was agreed during the hearing that the respondent would have greater access to the children and I trust that this arrangement has proved satisfactory.

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	In relation to interim maintenance, the court has to consider all the circumstances of each party. Interim maintenance has to be adequate and reasonable but must also be sustainable. The issue in relation to a payment out of capital has been readily conceded by the respondent and does not appear to be an issue.
	What is an issue is the level of interim maintenance claimed in circumstances where neither party is at present earning and both have assets. The respondent in cross examination says that his net assets after liabilities are £2 million (£2.4 million less €370,000).
	The first schedule of the husband's affidavit of means sworn the 19th of November 2002 broadly corresponds with that figure.
	The court has to consider the respective monthly outgoings as claimed in the respective affidavit of means. In the case of the applicant this was €13,000 per month though the claim by Mr. Shatter was in the sum of €9,000 per month. This compares with the respondent's expenditure of €8,000 approximately per month. There are, not surprisingly, some overlaps particularly in the case of childminding costs which the applicant puts as €4,370 per month (items 20 and 30); the respondent puts as €2,600 per month. Car insurance for two cars is claimed by the respondent.
	Apart from childminding, the largest expenditure of the respondent husband is that of rent of €1,500 per month.
	Both parties claim €260/£280 per month in respect of speech therapy.
	The overall expenditure for both is €21,000 per month (or €17,000 on the basis of the revised claim). This, of course amounts to a substantial funding requirement to sustain such expenditure. It is difficult to see how, even on an interim basis, that such expenditure could be maintained out of the net capital assets of the respondent.
	However, both parties have earning capacity. The respondent has not alone the greater capacity to earn but also the greater opportunity to do so now that the contractual restrictions are no longer in force. I have also to take into consideration his rental expenditure and allow for the duplication already referred to.
	It may well be that the childminding expenses are excessive and that the applicant's monthly outgoings in respect of provisions and holiday fund are many times that of the respondent. In fairness to the parties there was no detailed objection to many of the other items. A general objection was made of exaggeration. This may apply to some extent to both estimates of monthly personal outgoings.
	The applicant has taken upon herself the prime care of the children and the maintenance of the home. It seems to me appropriate, on an interim basis, and having regard to all the circumstances, that the court should make an order for maintenance in the sum of €7,000 per month from 1st March 2003 onward until the determination of the action