Attempt to quash order for maintenance payment fails

 

Marques -v- Judge John Brophy Ors.

Neutral citation (2010) IEHC 339.

High Court

Judgment was delivered on July 30th, 2010, by Ms Justice Mary Irvine.

Judgment

An attempt to quash orders to make maintenance payments failed in the High Court.

Background

The applicant was married in 2000 to a woman who had two children, who became dependent on him upon his marriage. The couple then had another child.

They came to Ireland in June 2000 and separated in December 2004. She took proceedings in the District Court in May 2005 seeking maintenance for herself and the three dependent children.

The applicant was directed to pay €350 a week to the respondent, €50 for her own maintenance and €100 each for the children. In June 2005 he applied unsuccessfully to vary the maintenance order. He fell into arrears in the payments and in August the wife applied to the District Court for enforcement of the order.

In November 2005 Judge John Brophy in the District Court ordered him to pay the arrears, amounting to €2,100, within six weeks. In February 2006 a warrant was made for his arrest under the Enforcement of Court Orders Act and he was arrested. The case was adjourned to allow him pay the arrears.

In March 2006 the applicant appealed to the Circuit Court against the District Court’s refusal to vary the maintenance order. He was advised to seek a variation in the District Court. This was heard on March 29th, and the maintenance was varied to €1,500 a month, €300 for the wife and €400 each for the children. The applicant then sought to vary this amount.

The proceedings relating to the committal warrant for the arrears continued, and were adjourned in May with advice to the applicant to make a contribution towards the arrears. In July, no payment having been made, Judge Brophy committed the applicant to prison for three months for non-payment.

While in custody he appealed against his committal and against the maintenance orders.

The case came up in January 2007, and was adjourned. In March Judge O’Shea made an order varying the maintenance payments to €54 a week for his natural child, on the basis of his circumstances having changed.

The appeal against the severity of sentence was adjourned several times over the next two and a half years to permit him to make a contribution towards the arrears, which then stood at €14,000.

The wife also put her case for the payment of maintenance and arrears to the court.

In July 2007 the Circuit Court ordered the applicant to pay €56 in maintenance and €15 towards the arrears.

In December the wife sought an increase in the payment, and the Circuit Court ordered that €70 a week be paid in maintenance and €30 weekly in arrears.

The applicant sought to judicially review this decision, arguing that he did not get sufficient notice of the notice party’s application, and that the Circuit Court judge acted ultra vires in making the order, as only the District Court could make maintenance orders. He also claimed there had been undue delay in the hearing of his appeal against the severity of sentence.

Decision

Ms Justice Irvine said the applicant did get sufficient notice of the notice party’s application, and he had not demonstrated any prejudice arising from the case due to the proceedings coming before the court in an expedited manner.

She said there was an originating jurisdiction to make maintenance orders in both the Circuit Court and the District Court, and the applicant’s arguments on jurisdiction could not succeed.

In relation to the delay in hearing his appeal against severity of sentence, Ms Justice Irvine said this was an appeal brought by the applicant himself. The delay in question was four years.

Had the applicant himself been trying on a regular basis to get the appeal processed and was thwarted by the court or the notice party, the delay might well be considered inordinate or inexcusable.

However, the applicant appeared to have been a willing participant in a series of adjournments.

In any case, he had not produced any evidence to show that he had been disadvantaged by the delay. Given the fact that his financial circumstances were under constant scrutiny since May 2005, and he was legally represented until March 2009, there was likely to be a substantial amount of documentation to enable him to mount his appeal against severity of sentence.

The relief sought by the applicant was therefore, somewhat opportunistic, legally flawed and on its facts without merit, and should be refused.

The full judgment is on www.courts.ie

The applicant appeared in person