The Court of Appeal has ruled that the High Court could not order a father to make interim maintenance payments under the Guardianship of Infants Act in proceedings involving his children, but had power under a separate maintenance law to order temporary payments for their mother’s legal costs.
The judgment, delivered by Ms Justice Finlay Geoghegan on 19 November 2015, concerned an appeal by N.M. against a High Court order made on 1 August 2014. The parents were never married and have eight children together. At the time relevant to the High Court proceedings, six children were considered dependent, and four had diagnosed conditions giving rise to special needs.
The High Court had ordered an additional €5,000 a week for 22 weeks, on top of an existing maintenance payment. A stay was granted on condition that €3,000 a week was paid for the same period. After the expected hearing was adjourned because counsel became suddenly ill, the father agreed to continue the €3,000 weekly payments. By the appeal hearing, he had paid about €110,000 and said he would not seek to recover it, but wanted the appeal decided to clarify whether further payments were required.
The Court of Appeal held that the Guardianship Act’s definition of “father” did not cover him for the relevant maintenance power. The statutory conditions for an unmarried father to fall within that definition were cumulative; among other things, the parents had not agreed to his appointment as guardian, made custody and access arrangements, or made the required statutory declaration. The High Court therefore lacked jurisdiction under that provision.
However, the court had already ruled that section 7 of the Family Law (Maintenance of Spouses and Children) Act 1976 gave the High Court jurisdiction to make an interim order for periodical payments. It said that, in the exceptional circumstances of this case, payments could meet the mother’s need to retain lawyers and necessary experts so she could pursue maintenance claims for the dependent children. The court stressed that this power should be used only exceptionally, with careful case management and attention to cost.
The Court of Appeal considered €110,000 the outer limit of appropriate payments on the facts before it. As the father was not seeking repayment, it did not decide whether a lower amount should have been ordered. It varied the High Court order by removing its conclusion that the Guardianship Act authorised interim maintenance payments. In light of its earlier ruling of 6 May 2015, it said no further order was necessary.