L.M. (applicant) v His Honour Judge Liam Devally (respondent) and D.W. notice party).

Judicial Review - Certiorari - Refusal to hear maintenance application - Statutory immunity - Act repealed - Whether immunity survived repeal - Family Law (Maintenance of Spouses and Children) Act 1976 (No 11). sections 5(a). 21(a) and 27 - Status of Children Act 1987 (No 26). sections 18, 21 and 25 - Illegitimate Children (Affiliation Orders) Act 1930 (No 17), sections 4. 5. 8. 10(1), 10 (2), 10(3) and 10(4) - Courts (No 1) Act 1981 (No 11), section 14 Interpretation Act 1937 (No 38 section 21.

The High Court (before Miss Justice Carroll), judgment delivered 13 March 1997.

THE statutory immunity contained in the Illegimitate Children (Affiliation Orders) Act, 1930 in relation, to further maintenance applications lapsed when the Act was repealed. Any agreements made under the 1930 Act which could not be made under the Family Law (Maintenance of Spouses and Children) Act 1976 as amended by the Status of Children Act 1987 ceased to have effect. Therefore, the statutory immunity no longer applied and a fresh application for maintenance could be heard in the Circuit Court.

The High Court so held in granting an order of certiorari quashing the decision of the trial judge and directing that the matter be sent back to the Circuit Court for hearing.

Inge Clissmann SC and Raghnal O Riordan BL for the appellant; Gerard Durcan SC and Peter Ward BL for the notice party.

MISS JUSTICE CARROLL said that the matter came before her by way of an application for judicial review of the decision of the learned trial judge dismissing an application for maintenance on the rounds that he had no jurisdiction to make such an order. The application for maintenance was made in relation to the non marital child of the applicant and the notice party under section 5(a) of the Family Law (Maintenance of Spouses and Children) Act 1976 as inserted by section 18 of the Status of Children Act, 1987.

The child was born in 1983.

That year the applicant applied to the Circuit Court for maintenance under the Illegitimate Children (Affiliation Orders) Act 1930 as amended by the 1976 Act. However, no affiliation order was made in the case as the parties came to a voluntary agreement that a lump sum be paid by the notice party to the applicant, and pursuant to section 10(1) and (2), the agreement between the parties was approved by the Circuit Court on 13 October 1983.

Section 10(4) of the Act of 1930 provided that where the issue of maintenance had been determined by an affiliation order or a voluntary agreement had been approved by the court, further proceedings could not be taken under that Act against anyone in respect of the same child. Effectively, an order under section 10 operated as a complete bar to any further proceedings under the Act. Miss Justice Carroll proceeded to outline the relevant statutory provisions in the Acts of 1930, 1276 and 1987 which govern the issue of maintenance. Section 5A(1) of the 1976 Act, as inserted by section 18 of the 1987 Act provides that a parent of a child can apply to the court to make an order for maintenance, in respect at the child where it is felt that the other parent has failed to provide such maintenance as is proper in the circumstances. Section 5A(3) lists the factors which the court must have regard to in deciding to make a maintenance order and the amount thereof.

Section 21A of the Act prohibits the commuting of weekly maintenance payments by payments of a lump sum and payments of lump sums exonerating a parent from its obligations of maintenance of a non marital child. Any agreement which would have the effect of excluding or limiting the operation of any provision of the Act is void by virtue of section 27 of the Act.

Section 25(1) of the 1987 Act repealed the 1930 Act. All orders made and proceedings initiated under the 1930 Act in relation to maintenance which could have been made or initiated under section 5A of the 1976 Act are deemed by virtue of section 25(2) and (3) to have been made or initiated under section 5A.

Miss Justice Carroll said that the applicant claimed that the learned trial judge erred in law, in holding that he had no jurisdiction to award maintenance. It was submitted the power to make maintenance orders pursuant to section A is an unfettered jurisdiction and is only subject to certain factual and financial considerations.

By virtue of section 27 of the 1976 Act all agreements in relation to waivers by one party of his or her rights under the Act are void and unenforceable. The agreement that no further claims in relation to maintenance could be made against the notice party ceased to have effect once the 1930 Act was repealed and, furthermore, all such agreements were now considered to be invalid pursuant to section 27 of the 1976 Act. The fact that the agreement predated the 1987 Act did not affect its invalidity. To allow a non marital child to be excluded from benefitttng under the 1976 Act as amended by the 1987 Act would be contrary to the purposes for which the 1987 Act was introduced, namely to confer equality on all children.

Section 5A of the 1976 Act does not provide for the making of capital payments and therefore the agreement reached between the parties in 1983 could not have been made under section 5A and hence cannot be deemed to be an order under Section 5A. It is not saved by section 25(2) of the 1981.

And hence the 1983 agreement is no longer valid. The applicant contended that section 21(1)(c) of the Interpretation Act 1937 had no application in that the Act of, 1987 expresses a contrary intention providing for a new procedure in dealing with maintenance applications in relation to non marital children.

Miss Just ice Carroll considered the arguments put forward to the contrary. It was submitted that there was a presumption that the Act of 1987 was not intended to have retrospective effect and once the order was made under the 1930 Act the duty to maintain ended. To construe it otherwise would call into question the constitutionality of the Act. As the agreement of 1983 could not be deemed to be an order under section 5A of the 1976 Act it was unaffected by the 1987, Act and remained valid. It was still a complete bar to further maintenance proceedings.

The case of F v F [1995] 2 IR 354 was, cited as support for the proposition. There, and applicant who had settled her claim for divorce a mensa et thoro prior to the introduction of the Judicial Separation and Family Law Reform Act 1989 was precluded from bringing any fresh application as the cause of action was the same and she could not claim effectively the same relief. In this case the applicant was also looking for relief which she had sought and obtained on a previous occasion.

Miss Justice Carroll was of the view that the immunity contained in section 10(4) of the 1930 Act was a complete bar to proceedings under that Act only. It was not an immunity which governed future statutory reenactments dealing with the same subject matter. Section 27 of the 1976 Act rendered all agreements which excluded or limited the operation of the 1976 Act void, insofar as it limited or excluded the operation of that Act. Referring to the case of D v D (unreported, Supreme Court, 8 May 1978) Miss Justice Carroll was of the view that it was not possible to contract out of one's responsibilities under the Act by virtue of an agreement entered into either before or after the passing of the Act. The agreement under the 1930 Act remained of relevance in that section 5A(3) of the 1976 Act directs that the court must take into account payments made thereunder when considering the merits of the application.

Miss Justice Carroll said that a completely new right was at issue here, the right of non marital children to maintenance. The present case differed from D v D in that respect.

The bar to further proceedings contained in section 10(4) of the 1930 Act fell once the Act was repealed. Section 21(1)(c) of the Interpretation Act 1937 could not carry over an immunity that only lasted as long as the Act wherein it was contained remained in force. Furthermore, section 27 of the 1976 Act rendered the agreement itself invalid.

Miss Justice Carroll concluded by saying that non marital children acquired new rights under the 1987 Act and that the Act provided that the rights of the notice party are safeguarded by requiring the courts to consider the merits of the application in light of any payments already made. Section 5A does not have retroactive effect. The question was whether the notice party had tailed in his duty to provide proper maintenance for the child in all the circumstances.

The court grafted an order of certiorari and directed that the matter be sent, back to the Circuit Court for consideration.

Solicitors: John J O'Hare & Co (Dublin) for the applicant, McGonigle (Dublin) for the notice party.