J.C. (applicant/ respondent) v C.C. (respondent/ appellant).

Family Law - Maintenance - Appeal from interim order - Applicant in second relationship - Applicant maintaining partner's two children from previous marriages - Applicant also maintaining own child from new relationship - Claim of inability to contribute to maintenance for child of his marriage.

The High Court (before Mr Justice Kinlen); judgment delivered 23 November 1995.

WHERE a spouse has entered a new relationship and is maintaining his partner's children together with a child of that new relationship, he cannot avoid his liability to his child from the marriage. Where both parents are professional people, both will be liable for their child's maintenance equally.

The High Court so held in affirming the Circuit Court order and increasing the maintenance.

Meliosa Dooge BL for the applicant/ respondent; Dervla Browne BL for the respondent/ appellant.

MR JUSTICE KINLEN said that the applicant and the respondent were lawfully married to each other in June 1975. They were at the date of marriage, and since, domiciled in Ireland. There was one child of the marriage who was born in 1982.

The applicant had established a second home since the breakdown of his marriage with a M.M. with whom he now resided. She apparently had been married and divorced on two occasions and has a child from each relationship. Apparently, she got no maintenance at all from the respective fathers of these two infants. She now has had an infant by the applicant. Mr Justice Kinlen said that he now had to run a home and a mortgage for M.M. and the three children and himself.

The child of the applicant and the respondent resided firstly with his father but now resided with his mother, the respondent, in these proceedings.

Mr Justice Kinlen stated that the respondent had said that she would pay a half of the mortgage on the family home but that her husband must pay the other half. Both parties were professional people and have each got an income from their respective practices.

The applicant brought a motion to the Circuit Court dated 5 January 1995. On 27 March 1995, Judge McGuinness dealt with the motion and she directed interim maintenance in the sum of £30.00 per week in respect of the child of the applicant and the respondent. She further directed that the applicant contribute £300.00 towards the deposit for the fees for a private school. The documentation vouching the affidavits of means of both parties were to be exchanged on or before the 24 April 1995. Judge McGuinness also ordered that the remaining issues be adjourned to the hearing of this action.

Mr Justice Kinlen noted from the appeal dated 3 April 1995 that the respondent appealed the entire of the Circuit Court order.

The applicant stated that he had not the money basically to pay two mortgages. However, Mr Justice Kinlen said that this was a matter which should be dealt with at the hearing. His wife was not claiming anything for herself, save that he pay 50 per cent of the mortgage and that she pay the balance. The respondent was concerned with the maintenance of their child.

The applicant had taken on the burden of providing for two children he did not father. Mr Justice Kinlen said that it might concern the Circuit Court as to what efforts were made to make the respective fathers maintain their respective children. However, it was clear that the applicant could not avoid his liability to his child because he had taken on other liabilities. The case was due to be heard before Christmas. He said that the court was really only concerned, at this stage, with the amounts to be paid for the infant's maintenance. Both parents would be liable for this equally.

The Circuit Court judge hearing the whole case would be the appropriate person to decide the long term provisions. On the present application the court felt that £30.00 was inadequate. Mr Justice Kinlen fixed maintenance at £40.00 until the determination of the matter in the Circuit Court.

Solicitors: O'Connor & Bergin (Dublin) for the applicant/ respondent; Guest Lane Williams & Co (Cork) for the respondent/ appellant.