The High Court has refused an application by Karen Nyhan to quash a Circuit Court order dismissing her motion to enforce a maintenance order. Mr Justice Noonan held that any error by the Circuit Court judge in interpreting the parties’ separation agreement was made within jurisdiction and that an appeal, rather than judicial review, was the appropriate remedy.
Ms Nyhan sought certiorari of an order made on 7 May 2014 by Judge David Riordan. The order dismissed her motion seeking enforcement of a maintenance order against Anthony Nyhan, identified in the proceedings as the notice party. The High Court delivered judgment on 8 April 2016.
The judgment records that the parties married in 1976 and obtained a judicial separation in 2001, alongside a written agreement under which Mr Nyhan was to pay maintenance. The order was later varied, and after their divorce in 2007 it was set at €200 a week. On appeal, it was varied to €220 a week in 2008.
Mr Nyhan retired on ill-health grounds in 2011 and received a redundancy payment. He stopped maintenance payments that December and advised Ms Nyhan that his pension share would be paid. The judgment records that she received a pension payment of €39,308 and was entitled to €230 a month from the pension from December 2011. Ms Nyhan later sought enforcement; Mr Nyhan separately applied to vary the maintenance order. Both motions were heard by Judge Riordan.
At that hearing, Judge Riordan concluded that maintenance had been intended to cease when the pension began, found no default and disallowed Ms Nyhan’s requested relief. He said Mr Nyhan’s separate application did not arise because it was subsumed into the order.
Ms Nyhan argued in the High Court that the pension adjustment order did not terminate the maintenance order under the relevant legislation, and that the Circuit Court order was therefore made without jurisdiction. Mr Nyhan’s counsel submitted that the Circuit Court judge had decided the case on its facts and the parties’ agreement, and that any error should be addressed on appeal.
Mr Justice Noonan said an error of law does not automatically make a decision amenable to judicial review. He found that Judge Riordan had considered the evidence and had apparently based his conclusion on the parties’ presumed intention under their agreement, rather than on an interpretation of the legislation. Even if that interpretation was mistaken, the High Court judge said, it was an error within jurisdiction. The judicial review application therefore failed.