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  • A court designated by law may grant a dissolution of marriage where but only where it is satisfied that i at the date of the institution of the proceedings the spouses have lived apart from one another for a period of or periods amounting to at least four years during the previous five years ii there is no reasonable prospect of a reconciliation between the spouses iii such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses any children of either or both of them and any other person prescribed by la and iv any further conditions prescribed by law are complied with The statutory machinery is contained in the 1996 Act s 5 1 of which provides in language identical to that of Article 41 for the grant of a decree of divorce Part III of the Act enables the court to make a variety of orders relating to the financial position of the spouses including periodical payments and lump sum orders property adjustment orders financial compensation orders and pension adjustment orders Section 20 1 then provides that in determining the provisions of such orders the court shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned Subsection 2 then provides that without prejudice to the generality of s s 1 in deciding whether to make such an order as aforesaid and in determining the provisions of such an order the court shall in particular have regard to the following matters a the income earning capacity property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future b the financial needs obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future whether in the case of the remarriage of the spouse or otherwise c the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses commenced to live apart from one another as the case may be d the age of each of the spouses the duration of their marriage and the length of time during which the spouses lived with one another e any physical or mental disability of either of the spouses f the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family including any contribution made by each of them to the income earning capacity property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family g the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and in particular the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family h any income or benefits to which either of the spouses is entitled by or under statute i the conduct of each of the spouses if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it j the accommodation needs of either of the spouses k the value to each of the spouses of any benefit for example a benefit under a pension scheme which by reason of the decree of divorce concerned that spouse will forfeit the opportunity or possibility of acquiring l the rights of any person other than the spouses but including a person to whom either spouse is remarried Subsection 3 requires the court in making the orders concerned to have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force There is no such separation agreement in the present case Finally s 20 5 provides that The court shall not make an order under a provision referred to s s 1 unless it would be in the interests of justice to do so The 15th Amendment to the Constitution which removed the prohibition on any law providing for the dissolution of a marriage and enabled the courts to grant decrees for the dissolution of marriages was a change of far reaching importance The Matrimonial Causes Act 1857 which provided for the establishment of a divorce jurisdiction in England and Wales did not apply to Ireland and while there was no express prohibition on divorce in the Constitution of the Irish Free State equivalent to that in the present Constitution the only manner in which a divorce could be obtained in the absence of any legislation was by the promotion of private bills Since no standing orders were adopted enabling such legislation to be promoted no divorce jurisdiction existed in Ireland until the passing of the 15th Amendment That amendment and the 1996 Act fundamentally altered the nature of our law affecting marriage and the family There were two important features of this change in the law First it was now possible where the constitutional and statutory preconditions for a divorce were met and a divorce granted for the parties to remarry Secondly the court in granting such a divorce was required to ensure that such provision as it considered proper would be made for the spouses and any children of either or both of them The legislation which was enacted by the Oireachtas in this radically different context was clearly modelled to some extent on modern English divorce legislation In particular sub paragraphs a to i of s 20 2 of the 1996 Act correspond exactly to the provisions of s 25 2 a to h of the English Matrimonial Causes Act 1973 as amended by the Matrimonial and Family Proceedings Act 1984 There is however an important difference Section 25 A of the English Act enables the court when ordering periodical payments to be made or lump sums to be paid by either spouse to the other to provide that the financial obligation of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable In relation to such orders accordingly the English legislation embodies the clean break principle first laid down by the House of Lords in Minton v Minton 1979 AC 593 No such provision appears in the 1996 Act Moreover under s 22 the court may if it considers it proper to do so having regard to any change in circumstances or any new evidence inter alia vary or discharge the following orders referred to in s 22 1 b a periodical payments order d a lump sum order if and in so far as it provides for the payment of the lump sum concerned by instalments or requires the payment of any such instalments to be secured Lord Scarman in Minton v Minton said There are two principles which inform the modern legislation One is the public interest that spouses to the extent that their means permit should provide for themselves and their children But the other of equal importance is the principle of the clean break The law now encourages spouses to avoid bitterness after family breakdown and to settle their money and property problems An object of the modern law is to encourage each to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down It is of course beyond argument that the Irish legislation precludes the courts from giving the same effect as does the English legislation to the clean break principle In so providing the Oireachtas was undoubtedly mindful of the express requirement in Article 41 that proper provision should be made for the spouses and their children It was presumably considered that to include a clean break provision on the English model could expose dependent spouses to hardship in the future and that this would not be consistent with the constitutional protection which they were being afforded In this connection it is of interest to note that while expressing his concurrence with the clean break approach adopted in Minton v Minton Lord Fraser of Tullybelton gave this warning I respectfully agree that there are great advantages in the finality of a clean break But it is easy to envisage an exceptional case in which a totally unforeseeable change in the circumstances of one of the former spouses occurs soon after a final court order has been made disposing of the financial issues between them Such a change might render the order so inappropriate as to appear harsh and unjust The change might be for better as by unexpected inheritance of property or for worse as by a sudden serious illness To cover such exceptional cases it would in my view be desirable that the jurisdiction of the court to vary any order should invariably be preserved as a matter of general law It seems to me that unless the courts are precluded from so holding by the express terms of the Constitution and the relevant statutes Irish law should be capable of accommodating those aspects of the clean break approach which are clearly beneficial As Denham J observed in F v F Judicial Separation 1995 2IR 354 certainty and finality can be as important in this as in other areas of the law Undoubtedly in some cases finality is not possible and thus the legislation expressly provides for the variation of custody and access orders and of the level of maintenance payments I do not believe that the Oireachtas in declining to adopt the clean break approach to the extent favoured in England intended that the courts should be obliged to abandon any possibility of achieving certainty and finality and of encouraging the avoidance of further litigation between the parties In this context I would respectfully disagree with the view of McGuinness J on this in D J v D D 1998 FLJ 17 where speaking as a High Court judge having referred to the observations of Denham J to which I have already referred she commented It appears to me that by the subsequent enactment of the Family Law Act 1995 and the Family Law Divorce Act 1996 the Oireachtas has made it clear that a clean break situation is not to be sought and that if anything financial finality is virtually to be prevented The court in making virtually any order in regard to finance and property on the breakdown of a marriage is faced with the situation where finality is not and never can be achieved This also appears to mean that no agreement on property between the parties can be completely final since such finality would be contrary to the policy and provisions of the legislation The statutory policy is therefore totally opposed to the concept of the clean break This policy is not only clear on the face of the statutes but was most widely discussed referred to and advocated in the considerable debate that surrounded the enactment of divorce legislation I am satisfied that while the Irish legislation is careful to avoid going as far as the English legislation in adopting the clean break approach not least because of the constitutional constraints it is not correct to say that the legislation goes so far as virtually to prevent financial finality On no view could such an outcome be regarded as desirable and I am satisfied that it is most emphatically not mandated by the legislation under consideration While s 20 2 lists in detail the factors to which the court is required to have regard in making the various financial orders provided for in part III of the Act it is obvious that the circumstances of individual cases will vary so widely that ultimately where the parties are unable to agree the trial judge must be regarded as having a relatively broad discretion in reaching what he or she considers a just resolution in all the circumstances While an appellate court will inevitably endeavour so far as it can to ensure consistency in the approach of trial judges it is also bound to give reasonable latitude to the trial judge in the exercise of that discretion Some principles which are to be applied in the exercise of the discretion are beyond dispute As Lord Hoffmann said of the corresponding English legislation in Piglowski v Piglowski 1 WLR 1360 it establishes no hierarchy of factors In what is probably still the typical Irish case where one or both parties are in receipt of income but their joint assets are not of such significant value as is the case here the first task of the court will almost certainly be to consider what the financial needs of the spouses and the dependant children are At one end of the spectrum there will be cases in which at best no more than basic subsistence requirements at the most can be met At the other there will be both substantial assets and income available and the court will be concerned with the proper distribution in terms of the section of the available assets so as to ensure that proper provision is made for the spouses and any dependent children It is of course the case that the 1996 Act does not require the assets of the spouses to be divided between them and the dependant children in every case There will undoubtedly be cases in which it would be solely concerned with the appropriate level of the maintenance to be paid by one spouse to the other and as to what is to happen to the family home But in cases such as the present where there are substantial assets which have admittedly been brought into being in circumstances where it would be unjust not to effect some form of division between the parties the court will inevitably find itself having to determine where the parties are unable to agree how the assets should be divided between them and whether that division should take the form of a lump sum order or a property adjustment order In Irish society today it can no longer be assumed that the husband and wife will occupy their traditional roles in which the husband has been the breadwinner and the wife the home builder and carer The roles may on occasions even be reversed and in many instances both husband and wife will be in receipt of income from work In those cases where one spouse alone is working and in the result a significantly greater responsibility for looking after the home has devolved on the other it is clear that under s 20 f the court must have regard to that as a relevant factor Moreover and this is of particular significance in the present case the court is obliged by virtue of subparagraph g to have regard to the financial consequences for either spouse of his or her having relinquished the opportunity of remunerative activity in order to look after the home or care for the family Other factors which bulk large in the present case and to which the court is obliged to have regard is the standard of living enjoyed by both parties before the breakdown of the marriage their respective ages and the duration of the marriage The conduct of the parties will also be relevant where in the opinion of the court it would be unjust to disregard it and as already noted this played a part albeit a relatively minor one in the trial judge s determination in the present case Ultimately however when all these factors have been assessed by the trial judge he or she must be satisfied that any financial orders which he may make as a result under Part III constitute proper provision for each of the spouses and the dependent children within the meaning of the Constitution and the 1996 Act In the present case as already noted the trial judge was invited by counsel for the respondent to treat the appropriate range within which a lump sum in favour of the wife should be assessed as between one third and one half of the net assets Assuming for the moment and there was some disagreement as to the figures that this suggested a lump sum of somewhere between 4 4 million and 7 million it was submitted in this court that the figure ultimately arrived at by the trial judge was significantly closer to the lower end of the range Counsel for the applicant in this court argued that neither the Irish nor the English authorities rendered that approach legitimate The Irish authorities McA v McA 2000 1 IR457 D v D and MK v SK Supreme Court unreported Judgment delivered 6th November 2001 turn largely on their particular facts and do not give any express guidance as to the issue to which I have just referred In what have come to be known somewhat unattractively as big money cases and which I would prefer to categorise as counsel for the respondent suggested as ample resources cases there are some observations by the English courts as to the relationship in those cases between the division actually effected of the assets and a division of the assets on the basis of equality Those decisions did not afford any guidance however to whether the suggested lower level i e one third of the net assets is a relevant consideration since there is no equivalent in that jurisdiction to the fixed share provisions of the Succession Act 1965 In the first of

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  • with 9 Statute Law The Family Law Divorce Act 1996 hereinafter referred to as the Act of 1996 provides for divorce The long title to the Act states that it is an Act to make provision for the exercise by the courts of the jurisdiction conferred by the Constitution to grant decrees of divorce to enable the courts to make certain preliminary and ancillary orders in or after proceedings for divorce to provide as respects transfers of property of divorced spouses for their exemption from or for the abatement of certain taxes including stamp duty and to provide for related matters Part II of the Act of 1996 is relevant especially s 5 which provides S 5 1 Subject to the provisions of this Act where on application to it in that behalf by either of the spouses concerned the court is satisfied that a at the date of the institution of the proceedings the spouses have lived apart from one another for a period of or periods amounting to at least four years during the previous five years b there is no reasonable prospect of a reconciliation between the spouses and c such provision as the court considers proper having regard to the circumstances exists or would be made for the spouses and any dependent members of the family the court may in exercise of the jurisdiction conferred by Article 41 3 2 of the Constitution grant a decree of divorce in respect of the marriage concerned Section 20 of the Act of 1996 sets out the criteria relating to the making of a financial ancillary relief order Under s 20 the court in deciding whether to make an order under ss 12 13 14 15 1 a 16 17 18 or 22 and in determining the provisions of such order shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned Without prejudice to the generality of subs 1 in deciding whether to make such an order and in determining the provisions of such an order the court shall in particular have regard to certain matters The matters are set out in the subsections The wording of s 20 is as follows 1 In deciding whether to make an order under section 12 13 14 15 1 a 16 17 18 or 22 and in determining the provisions of such an order the court shall ensure that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses and any dependent member of the family concerned 2 Without prejudice to the generality of subsection 1 in deciding whether to make such an order as aforesaid and in determining the provisions of such an order the court shall in particular have regard to the following matters a the income earning capacity property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future b the financial needs obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future whether in the case of the remarriage of the spouse or otherwise c the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses commenced to live apart from one another as the case may be d the age of each of the spouses the duration of their marriage and the length of time during which the spouses lived with one another e any physical or mental disability of either of the spouses f the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family including any contribution made by each of them to the income earning capacity property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family g the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and in particular the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family h any income or benefits to which either of the spouses is entitled by or under statute i the conduct of each of the spouses if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it j the accommodation needs of either of the spouses k the value to each of the spouses of any benefit for example a benefit under a pension scheme which by reason of the decree of divorce concerned that spouse will forfeit the opportunity or possibility of acquiring l the rights of any person other than the spouses but including a person to whom either spouse is remarried 3 In deciding whether to make an order under a provision referred to in subsection 1 and in determining the provisions of such an order the court shall have regard to the terms of any separation agreement which has been entered into by the spouses and is still in force 4 Without prejudice to the generality of subsection 1 in deciding whether to make an order referred to in that subsection in favour of a dependent member of the family concerned and in determining the provisions of such an order the court shall in particular have regard to the following matters a the financial needs of the member b the income earning capacity if any property and other financial resources of the member c any physical or mental disability of the member d any income or benefits to which the member is entitled by or under statute e the manner in which the member was being and in which the spouses concerned anticipated that the member would be educated or trained f the matters specified in paragraphs a b and c of subsection 2 and in subsection 3 g the accommodation needs of the member 5 The court shall not make an order under a provision referred to in subsection 1 unless it would be in the interests of justice to do so 10 Proper Provision The Constitution and the law require that proper provision be made having regard to the circumstances for the spouses and any dependent member of the family In determining the proper provision it is mandatory for the court to have regard in particular to the factors set out in s 20 2 a to l of the Act of 1996 The relevance and weight of each of the factors will depend on the circumstances of each case In this case the learned trial judge in relation to a number of the factors stated that he had regard to the provisions or that he had taken them into account Better practice would be to consider all the circumstances and each particular factor ad seriatim and give reasons for their relative weight in the case The wording of the law and Constitution relates to proper provision It is a proper provision based on the constitutional and statutory recognition of the family The special place of the family and of family duties are recognised In assessing the proper provision under Article 41 32 the court must look at both aspects of a spouse s role in the family two sides of the coin Thus the court must have regard to the role of the spouses in relation to the welfare of the family to their contribution in looking after the home or caring for the family s 20 2 f of the Act of 1996 On the other side of the coin the court must have regard to the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each and the degree to which the future earning capacity of a spouse was impaired by reason of the spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family s 20 2 g of the Act of 1996 By this total approach to the family role of a spouse and its effect formal recognition is given to the role of caring for the family Article 41 3 2 of the Constitution and the Act of 1996 clearly require that value be placed on the work of a spouse caring for dependents the family and the home This is consistent with the express recognition within the Constitution of the work done by the women in the home Article 41 2 provides 1 In particular the State recognises that by her life within the home woman gives to the State a support without which the common good cannot be achieved 2 The State shall therefore endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home This Article expresses an important fundamental principle underlying the constitutional family in Ireland I referred to this Article of the Constitution in Sinnott v Minister for Education 2001 2 I R 545 at p 662 to 665 In this case the learned trial judge assessed correctly the family role of the respondent and gave a significant weighting for her time spent in the home A long lasting marriage especially in the primary childbearing and rearing years of a woman s life carries significant weight especially if the wife has been the major home and family carer 11 A clean break principle A clean break principle may be found in the law as to financial orders relating to divorce in other jurisdictions However such a provision is not part of the Irish Constitution or legislation There is no provision providing for a single payment to a spouse to meet all financial obligations Rather the fundamental principle is one of proper provision However the absence of a clean break principle does not exclude a lump sum order The principles of certainty apply to family law as to other areas of the law Certainty is important in all litigation Certainty and consistency are at the core of the legal system However the concepts of certainty and consistency are subject to the necessity of fairness Consequently each case must be considered on its own facts in light of the principles set out in the law so as to achieve a just result Thus while the underlying constitutional principle is one of making proper provision for the spouses and children this is to be administered with justice to achieve fairness 12 A lump sum order There is nothing in the Constitution or legislation which prohibits a lump sum as part of a financial ancillary order In considering whether such an order is applicable the provisions of the Act of 1996 must be applied A lump sum may be part of the proper provision for a spouse Once such an order is made it becomes part of the circumstances of the family If any further application were to be made to court such a previous order would be relevant as having been an order that the court considered proper having regard to the circumstances The fact that such a lump sum order may exclude or greatly limit any further financial order by a court does not make the provision improper or the order unfair The underlying principle of the Act of 1996 is fairness As s 20 5 provides The court shall not make an order under a provision referred to in subsection 1 unless it would be in the interests of justice to do so This concept of justice fairness applies to both spouses A lump sum arrangement may bring a fair financial decision and certainty to the financial affairs of the family In this case both parties sought a lump sum order at issue was the amount 13 Assessment of Assets i Date The learned trial judge held that the assessment of assets must be as of the date of trial or the appeal I would affirm and uphold this finding It is consistent with the wording of the statute which refers to circumstances exist the income which each of the spouses concerned has or is likely to have the financial needs which each of the spouses has or is likely to have It is noteworthy that the statute is framed in this manner given that the scheme under the Constitution and the legislation requires separation prior to the proceedings Thus the ordinary meaning of the words make it clear that assessment is as of the date of trial However while the assessment of assets is at the date of the trial or the appeal there may be important factors relevant to that sum to be taken into consideration in determining the proper provision for the spouses It may impact on the particular factors stated in s 20 2 a l of the Act of 1996 it may be relevant to the generality of the provision or it may impact on the fairness of the provision Thus the fact that a considerable sum of money was acquired by a spouse after their separation the basis for such a new acquired sum or the existence of a deed of separation may be very relevant ii Not division The scheme established under the Act of 1996 is not a division of property The scheme established under the Act of 1906 provides for proper provision not division It is not a question of dividing the assets at the trial on a percentage or equal basis However all the circumstances of the family including the particular factors referred to in s 20 2 of the Act of 1996 are relevant in assessing the matter of provision from the assets The assets in this case acquired post separation by the applicant are property and he has benefited from the great increase in property prices However the funding of this property was assisted by his legal practice which in itself a had benefited directly from the work of the respondent by her work as receptionist cleaner etc on occasions as found by the High Court and b had benefited indirectly by her as the home maker leaving the applicant free to grow the practice Consequently such property falls for inclusion under several heads of s 20 of the Act of 1996 In this case the applicant did acquire considerable property after the spouses separated and before the trial date However the acquisition of the property was not unconnected with his solicitor s practice The significant role of the respondent in the development of that practice was established before and determined by the learned trial judge The increased assets of the applicant had a direct link with the input of the respondent in growing the practice which itself could be said to be a basis for the property acquisition I am satisfied that the learned trial judge was correct in applying these and other factors so as to include all the applicant s assets in determining the proper provision of the respondent and the situation of the applicant Assets should be assessed as at the date of trial However there may well be circumstances as to their relevance as an asset base in providing proper provision Thus if the parties had no joint enterprise such as a farm or business or professional practice and one party after separation commenced and achieved success in a wholly new area that may be a circumstance applicable to the determination of the asset base relevant to proper provision While the factors set out in s 20 2 a l must be applied it may affect the benchmarking of fairness iii Benchmark Irish law on divorce does not provide for property division Indeed it is irrelevant in very many cases where there is not enough money for two homes where one had existed and where lack of money is a severe concern and limiting factor for both spouses and children In cases of ample provision such as this the sums involve more than essentials Each case must be decided on its own circumstances However there are relevant fundamental legal principles such as to recognition of spouses work in the home as to spouses rights under the Succession Act as to the place of the family in our society Consequently I agree with the Chief Justice that a figure of one third of the assets may be a useful benchmark to fairness Against that bench may be aligned both positively and negatively the specific circumstances of a case and in particular the factors set out in s 20 2 a l of the Act of 1996 The concept of one third as a check on fairness may well be useful in some cases however it may have no application in many cases It may not be applicable to a family with inadequate assets It may not be relevant to a family of adequate means if for example such a sum could only be achieved by a sale of assets which would destroy a business or the future income of a party or parties or if it related to property brought solely by one party to the marriage or any other relevant circumstance It may not be applicable to a situation where a party has wealth from his or her own endeavours to which the other party has no claim except under the factors set out in s 20 2 a l of the Act of 1966 iv Value of assets There were some inconsistencies

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  • estimated value of the wife s proprietary share of the total assets From that decision both parties appealed to the House of Lords the husband seeking the restoration of the order of the High Court and the wife claiming an equal share with the husband in the combined assets Both appeals were dismissed In his speech with which the rest of the Court agreed Lord Nicholls of Birkenhead rejected the principle of equality or the ascertainment of reasonable requirements of either spouse as being determinative of the amount to be paid to a spouse under the UK Matrimonial Causes Act 1973 as amended on or after the making of a decree of divorce The decision in White v White by the House of Lords was of enormous importance in the UK As Lord Nicholls pointed out that case gave the House of Lords an opportunity to review the legislation in this important area He expressed his observations in that respect at p 600 in the following terms The powers conferred by the 1973 Act have been in operation now for 30 years This is the first occasion when broad questions about the application of these powers have been considered by this House It goes without saying that these principles the principles trial judges should apply when hearing applications for financial relief in divorce proceedings should be identified and spelled out as clearly as possible This is important so as to promote consistency in court decisions and in order to assist parties and their advisors and mediators in resolving disputes by agreement as quickly and inexpensively as possible The present case is an unhappy if extreme example of how the parties resources can be eroded significantly by legal and other costs Having dealt with the facts of the case Lord Nicholls went on to examine the statutory provisions and how they had evolved from the Matrimonial Causes Act 1857 He explained how a fresh start was made by the Matrimonial Proceedings and Property Act 1970 following upon the report of the Law Commission prepared in 1969 under the chairmanship of Scarman J The Act of 1970 was subsequently re enacted in substantially the same terms by the Matrimonial Causes Act 1973 Sections 23 and 24 of the Matrimonial Act 1973 empowered the court on granting a decree of divorce and in certain other circumstances to make financial provision orders and property adjustment orders Section 25 of the Act of 1973 as substituted by the s 3 of the Matrimonial and Family Proceedings Act 1984 set out a list of matters which the court is to have regard to in deciding how to exercise those powers That list is virtually identical with the comparable provisions of s 20 of our Act of 1996 That similarity would encourage any observer to pay particular attention to the speeches in White v White in interpreting the Act of 1996 However notwithstanding the widespread similarities there are fundamental distinctions to be noticed in the legislative provisions in the two jurisdictions Again it was Lord Nicholls who pointed out that s 5 1 of the United Kingdom Act of 1970 having set out a list of factors to be taken into account by the court contained what he described as the tail piece which declared what should be the objective of the court when exercising its statutory powers to make financial provision orders and property adjustment orders The statutory objective was to place the parties so far as is practicable and having regard to their conduct just to do so in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other That tail piece was later deleted from the legislation and as was noted nothing was inserted in its place It was that lacuna which the House of Lords filled by ascertaining an implicit objective in the following terms at pp 604 605 In consequence the legislation does not state explicitly what is to be the aim of the courts when exercising these wide powers Implicitly the objective must be to achieve a fair outcome The purpose of these powers is to enable the court to make fair financial arrangements on or after divorce in the absence of agreement between the former spouses see Thorpe L J in Dart v Dart 1996 2 FLR 286 294 The powers must always be exercised with this objective in view giving first consideration to the welfare of the children In accordance with the objective of fairness the House of Lords pointed out that this goal was inconsistent with discrimination against a spouse traditionally the wife whose contribution to the marriage was historically made in domestic and social areas the value of which was not reflected in any apparent financial terms It was emphasised that the division of assets between spouses on a divorce should not be biased in favour of the money earner against the home maker and child carer The principal speech went on to point out that it would sometimes happen that a judge having carried out the statutory exercise would reach a conclusion involving a more or less equal division of the available assets However Lord Nicholls pointed out that this would happen less rather than more often However the decision went on to make the following suggestion at p 605 Before reaching a firm conclusion and making an order along these lines a judge would always be well advised to check his tentative views against the yardstick of equality and division As a general guide equality should be departed from only if and to the extent that there is good reason for doing so The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination However having offered that useful advice Lord Nicholls went on immediately to issue a warning in the following terms at pp 605 606 This is not to introduce a presumption of equal division under another guise Generally accepted standards of fairness in a field such as this change and develop sometimes quite radically over comparatively short periods of time The discretionary powers conferred by Parliament 30 years ago enable the courts to recognise and respond to developments of this sort These wide powers enable the courts to make financial provision orders in tune with current perceptions of fairness Today there is a greater awareness of the value of non financial contributions to the welfare of the family Despite these changes a presumption of equal division would go beyond the permissible bounds of interpretation of section 25 A presumption of equal division would be an impermissible judicial gloss on the statutory provision That would be so if though the presumption would be rebuttable Whether there should be a presumption in England and Wales and in respect of what assets is a matter for Parliament On that analysis Lord Nicholls rejected the appeal of the wife to treat the principle of equality as the starting point in relation to the division of the assets of the husband and wife The House of Lords then turned to the argument made on behalf of the husband Again Lord Nicholls traced the evolution of what he described as the alluring phrase of reasonable requirements It was first coined by Ormrod L J in O D v O D 1976 Fam 83 where he suggested that the position of the wife should be considered not from the narrow point of needs but to ascertain her reasonable requirements It was recognised that reasonable requirements were more extensive than reasonable needs This approach was rejected by Lord Nicholls as being unjustified by the relevant legislation He said at p 607 This conclusion I have to say seems to me worlds away from any ordinary meaning of financial needs Moreover this conclusion gives an artificially strained meaning to reasonable requirements the more especially as this phrase was adopted originally as a synonym for financial needs He then went on to say at p 608 The statutory provisions lend no support to the idea that a claimant s financial needs even interpreted generously and called reasonable requirements are to be regarded as determinative An observation contained in the principal speech which must be of great practical importance in the United Kingdom is set out on p 608 in the following terms But I can see nothing either in the statutory provisions or in the underlying objective of securing fair financial arrangements to lead me to suppose that the available assets of the respondent became immaterial once the claimant wife s financial needs are satisfied Why ever should they If a husband and wife by their joint efforts over many years his directly in his business and hers indirectly at home have built up a valuable business from scratch why should the claimant wife be confined to the court s assessment of her reasonable requirements and the husband left with a much larger share Or to put the question differently in such a case where the assets exceed the financial needs of both parties why should the surplus belong solely to the husband On the facts of a particular case there may be a good reason why the wife should be confined to her needs and the husband left with a much larger balance But the mere absence of financial need cannot by itself be a sufficient reason If it were discrimination would be creeping in by the back door In these cases it should be remembered the claimant is usually the wife Hence the importance of the check against the yardstick of equal division Lord Nicholls urged the abandonment of the expression reasonable requirements and the application instead of the language of the relevant statute Similarly in K M v P J orse K S Unreported Supreme Court 6th November 2001 McGuinness J stated that the Irish courts should be guided in the exercise of their discretion by the provisions of the statute The provisions of the 1996 Act leave a considerable area of discretion to the Court in making proper financial provision for spouses in divorce cases This discretion however is not to be exercised at large The statute lays down mandatory guidelines The Court must have regard to all the factors set out in section 20 measuring their relevance and weight according to the facts of the individual case In giving the decision of the Court a judge should give reasons for the way in which his or her discretion has been exercised in the light of the statutory guidelines It may be surprising in the light of the observations of the learned Judge that his conclusion and that of the House of Lords upheld the decision of the Court of Appeal who had reached their conclusion by identifying what that court had described as the reasonable requirements of the wife It is not surprising that the decision in White v White gave rise to considerable discussion and debate in legal and academic circles as well as a flood of literature which continues to debate whether equality is a relevant yardstick in determining the division of property between a husband and wife in big money divorce proceedings see Brasse White v White A Return to Orthodoxy 31 2001 Fam Law 191 Miles Equality on Divorce 60 2001 CLJ 46 and Northover and Peat Cowan Departure from Equality of Division 31 2001 Fam Law 510 at p 512 In his analysis of the judgment of Lord Nicholls Thorpe L J in Cowan v Cowan 2001 3 W L R 684 stated that The decision in White v White 2001 1 A C 596 clearly does not introduce a rule of equality The yardstick of equality is a cross check against discrimination Fairness is the rule and in its pursuit the reasons for departure from equality will inevitably prove to be too legion and too varied to permit of listing or classification They will range from the substantial to the faint but that range can be reflected in the percentage of departure However it would seem to me undesirable for judges to be drawn into too much specificity ascribing precise percentage points to the various and often counter balancing reasons which the facts of individual cases render relevant Thorpe L J then went on to summarise the English position as follows In summary therefore these seem to me to be the consequences of the House of Lords recent review of the ancillary relief cases in this court i Approved is the frequent theme of decisions in this court that the trial judge must apply such criteria as are to be found in section 25 ii Approved also is the almost inevitable judicial conclusion that the unexpressed objective of the exercise is to arrive at a fair solution iii Disapproved is any discriminatory appraisal of the traditional role of the woman as homemaker and of the man as breadwinner and arbiter of the destination of the family assets amongst the next generation A calculation of what would be the result of equal division is a necessary cross check against such discrimination iv Disapproved is any evaluation of outcome solely or even largely by reference to reasonable requirements A fundamental distinction between the United Kingdom legislation and the Irish Act of 1996 is the absence from the United Kingdom legislation as Lord Nicholls explained of any clause expressly stating the objective of the financial orders to be made by the court and the presence in the Irish legislation of an express and positive obligation imposed in accordance with the requirements of Article 41 3 2 ii of the Constitution that the court must be satisfied that proper provision has been made for each spouse As stated by McCracken J in M Mc A v X McA 2000 1 I R 457 at p 463 It must be borne in mind that the right to a divorce in this country is a constitutional right arising under Article 41 3 2 of the Constitution and that the Act of 1996 sets out the circumstances under which such constitutional right may be exercised The people in the referendum by approving the fifteenth amendment of the Constitution in the Act of 1995 permitted the abolition of the longstanding constitutional barrier to divorce but only on terms that where legislation empowered the granting of a decree of divorce that such provision as the court considers proper would be made for each spouse Such provision would appear to be a condition precedent to the granting of a decree of divorce The narrow requirement that a spouse was entitled to a periodic payment to meet his or her usually her needs or that each spouse was entitled to such a payment to meet his or her reasonable requirements is not the test in this jurisdiction The statutory and constitutional test and requirement is that there must be proper provision irrespective of by whom it is provided What that will amount to in any particular case will depend upon the examination of the factors set out in s 20 of the Act of 1996 and the exercise by the trial judge of his discretion within the application of those principles Apart from the difference in legislation there is a fundamental distinction to be made between the proceedings in the present matter and those in White v White In the English case the court was concerned to ascertain the terms on which the parties could make what is described as a clean break In this jurisdiction the clean break is not an available option This point was highlighted by McGuinness J in K M v P J orse K S Unreported Supreme Court 6th November 2001 when she stated The concept of a single capital payment to the wife to meet her reasonable requirements for the remainder of her life has never in fact formed a part of Irish family law There are two main reasons for this Firstly such a capital payment is inevitably a part of a clean break settlement in divorce proceedings In this jurisdiction the legislature has in the Family Law Divorce Act 1996 laid down a system of law where a clean break solution is neither permissible nor possible Secondly the approach of the Irish courts in accordance with both Article 41 2 of the Constitution and the statutory guidelines has been to give full credit to the wife s contribution through her work in the home and as a mother to her children See for example J D v D D 1997 3 I R 64 In this jurisdiction the overriding requirement of a fair outcome is governed by section 20 5 of the 1996 Act The Court shall not make an order under a provision referred to in sub section 1 unless it would be in the interests of justice to do so The combination of the clean break and the objective of achieving fairness has led the courts in England to approaching that sort of case as a division of assets Lord Nicholls repeatedly refers to the division of assets and has emphasised the necessity of achieving fairness in that context Indeed it would be difficult to conceive of fairness as an object in itself as distinct from a particular standard by which an identified objective was achieved The Act of 1996 and the constitutional provision pursuant to which it was enacted makes no reference to division In any divorce proceedings the court in making an order approving or imposing financial dispositions in favour of a spouse is concerned with provision and not division It is of course obvious that the court does have powers to make adjustment of property orders which to some extent might have the appearance of division of property but any

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  • present offices in about 1983 the Respondent assisted him in the furnishing of that office buying paintings and furnishings for the property The relationship was very turbulent and there were many arguments between the parties which at times resulted in the Applicant leaving the family home and staying overnight elsewhere The Applicant left the family home in August 1994 There is no reasonable prospect of reconciliation between the parties The Applicant is currently in a relationship of two years standing with a new partner who has recently given birth to their child It is the Applicant s intention to marry his partner on the court granting a decree of divorce herein Both parties disagree as to the level of financial adjustments to be made between them The Applicant s total assets were somewhere in the region of 20 million the majority of which came from property The Respondent s assets in comparison stand at around 1 million The Respondent has spent most of her professional life working in low key medical posts as both parties agreed that this was more compatible to family life The Respondent re entered part time general practice 1991 on a very limited basis Between 1990 and 1998 the Respondent devoted herself to her home and family and organised a limited work schedule around this In November 1998 the Respondent went into practice as a sole general practitioner in an attempt to bring more structure and security to her life However she has found it very difficult to build up her practice and it appears that it will be a long time before financial security is achieved through her work The Respondent s work as a sole general practitioner involves a high level of commitment and she is on call twenty four hours a day The twin demands of her career and motherhood have put a considerable strain on the Respondent and she feels that it not in her children s interest that she continues working at this frantic level Accordingly she is anxious that lump sum provision be made in order to secure her own and her children s future As explained by the Chief Justice in his judgment the value of the net assets of the Applicant as of the time of his application for a divorce to the High Court maybe considered as approximately 14 million The value of the lump sum award made by the High Court to the Respondent represents approximately 38 of that valuation Proper Provisions for the spouse The duty of the courts to ensure that proper provision is made for a spouse before a decree of divorce is granted flows directly from the provisions of Article 41 of the Constitution and it is in the context of that Article as a whole that the nature and extent of the duty set out in the 1996 Act must be interpreted Article 41 of the Constitution provides as follows The Family Article 41 Article 41 1 1 The State recognises the Family as the natural primary and fundamental unit group of Society and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law 2 The State therefore guarantees to protect the Family in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the Nation and the State 2 1 In particular the State recognises that by her life within the home woman gives to the State a support without which the common good cannot be achieved 2 The State shall therefore endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home 3 1 The State pledges itself to guard with special care the institution of Marriage on which the Family is founded and to protect it against attack 2 A Court designated by law may grant of a dissolution of marriage where but only where it is satisfied that i at the date of the institution of the proceedings the spouses have lived apart from one another for a period of or periods amounting to at least four years during the previous five years ii there is no reasonable prospect of a reconciliation between the spouses iii such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses any children of either or both of them and any other person prescribed by law and iv any further conditions prescribed by law are complied with 3 No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved As I have previously had occasion to state the Constitution and in particular Article 41 reflects a shared value of society concerning the status of the family in the social order as a natural primary and fundamental unit group in society The State is required to protect the family inter alia because it is indispensable to the welfare of the nation and the state Moreover the constitution requires the State to guard with special care the institution of Marriage With these purposes in mind the constitution as adopted in 1937 contained a complete prohibition on the dissolution of marriage The fifteenth amendment to the Constitution with which we are now dealing replaced that prohibition and clearly with those purposes also in mind was placed in Article 41 and specified four pre conditions which must be fulfilled before an order dissolving a marriage may be granted It is in this context that the notion of proper provision for the spouses must be interpreted In acknowledging the nature and status of marriage and the family in society the Constitution reflects its historical cultural and social role underpinned by values common to all religious traditions This is by no means unique to Ireland and is reflected in the constitutions of many states and the Universal Declaration of Human Rights adopted by the general assembly of the United Nations in 1948 See my judgment in North Western Health Board v H W 2001 3 I R at 736 Of course society as always evolves and continues to evolve and there are a far greater number of committed partnerships established outside marriage than was heretofore the case Nonetheless marriage itself remains a solemn contract of partnership entered into between man and woman with a special status recognised by the Constitution It is one which is entered into in principle for life It is not entered into for a determinate period The moment a man and woman marry their bond acquires a legal status The relationship once formed the law steps in and holds the parties to certain obligations and liabilities Even where a marriage is dissolved by judicial decree the laws of many if not most states require that the divorced spouses continue to respect and fulfil certain obligations deriving from their dissolved marriage for their mutual protection and welfare usually of a financial nature This reflects the fact that marriage is in principle intended to be a lifetime commitment and that each spouse has fashioned his or her life on that premise If the law permitted a spouse to cut himself or herself adrift of a marriage on divorce without any continuing obligation to the former spouse it would undermine the very nature of the marriage contract itself and fail to protect the value which society has placed on it as an institution It would give rise for example to a complete disregard for the status of a spouse whose principal role in the marriage was working in the home in support of the other partner who was the principal earner or breadwinner Hence the constitutional imperative of proper provision for spouses The life long commitment which marriage in principle entails means that there is a mutuality of an intimate relationship in which singular aspirations in life of each partner are adapted to mutual life goals They adapt their lives to live and work together for the mutual welfare of their family which usually but by no means necessarily so also involves the birth and rearing of children Husband and wife having mutual duties and responsibilities for the welfare of each other and the marriage will throughout the marriage make private decisions as to the role each of them will play in the support of the marriage the achievement of their goals and their lifestyle These decisions are likely to have an effect on their way of life even after the eventuality of a divorce such as the capacity of one of them at that stage to establish an independent and secure way of life In contemporary society both spouses may work to financially support the family the husband may support the wife or the wife may support the husband Historically of course in this country and in many other countries and it was certainly the position at the time when the Constitution was adopted there was usually only one breadwinner in the family almost invariably the man Limited value was often attached to the contribution made to the marriage by a non earning spouse She and it was usually she was treated more as simply a dependant rather than a partner when financial provision was made on separation Her basic or essential needs tended to be the primary yardstick in such arrangements In many marriages one spouse either does not work outside the home works part time or works intermittently over the years in casual or part time work All of these private decisions are taken because there is a fundamental importance to the role of parents in the home and it is frequently seen as desirable for the welfare of the family that one parent should devote most of his or her time to the home particularly where the rearing of children is involved While these considerations may apply to either spouse it must be said that in the vast majority of cases the spouse who gives the primary commitment to working in the home is the wife That was the position in this case The parties commenced a married life with comfortable but relatively modest resources and assets They were young practitioners in their respective professional careers which were initially the only source of the family income The Respondent adapted her own lifestyle and limited her own professional career in order to pursue other mutual goals of the family namely the establishment and development of a successful solicitor s practice on behalf of her husband and looking after the home and the children At different times and different ways she took an active part in directly helping her husband to develop his professional practice By working in the home she facilitated and enabled her husband to give the kind of commitment necessary to establish such a successful practice In my view the work of a spouse in the home in this case the Respondent s wife cannot be a basis for discriminating against her by reason only of the fact that the husband was the major earner or the breadwinner during the course of the marriage The Constitution views the family as indispensable to the welfare of the State Article 41 2 1 recognises that by her life in the home the woman gives to the State a support without which the common good cannot be achieved No doubt the exclusive reference to women in that provision reflects social thinking and conditions at the time It does however expressly recognise that work in the home by a parent is indispensable to the welfare of the State by virtue of the fact that it promotes the welfare of the family as a fundamental unit in society A fortiori it recognises that work in the home is indispensable for the welfare of the family husband wife and children where there are children In my view in ensuring that proper provision is made for the spouses of a marriage before a decree of divorce the courts should in principle attribute the same value to the contribution of a spouse who works primarily in the home as it does to that of a spouse who works primarily outside the home as the principal earner The value to be attached to their respective contributions in those circumstances is perhaps underscored by Article 42 1 of the Constitution which refers inter alia to the duty of parents to provide according to their means for the religious and moral intellectual physical and social education of their children I would observe in passing that the Constitution as this court has stated on a number of occasions is to be interpreted as a contemporary document The duties and obligations of spouses are mutual and without elaborating further since nothing turns on this point in this case it seem to me that it implicitly recognises similarly the value of a man s contribution in the home as a parent This is not to say that in making financial provision for spouses that their assets should be divided between them Neither the Constitution nor the 1996 Act requires that expressly or implicitly It is rather that spouse in this case the wife should not be disadvantaged by reason of the fact that all or nearly all of the assets and income in the marriage are those of the other spouse It also means that in cases where there are very substantial assets belonging to one spouse which greatly exceed any conceivable day to day needs of either spouse whatever their standard of living those assets should not as a matter of course remain with the spouse who owns them with the other spouse being confined to depending on periodic payments I think it is appropriate to recall for example two of the factors which the courts is required to take into account pursuant to Section 20 2 f and g f the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family including any contribution made by each of them to the income earning capacity property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family g the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived with one another and in particular the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family So for example in having regard to the considerations cited above which have particular relevance in this context but the same must apply in all other considerations taken into account by the court the court will not discriminate between the spouses solely because their contribution to marriage and in particular to the welfare of the family was of a different nature Paragraph b of the same provision refers to the financial needs obligations and responsibilities which each of the spouses had or is likely to have in the foreseeable future But the Oireachtas did not limit the proper provision for a spouse solely to his or her financial needs and responsibilities The 1996 Act requires regard to be had to all the relevant considerations set out in Section 20 always with the objective of making proper provision Proper provision should seek to reflect the equal partnership of the spouses Proper provision for a spouse who falls into the category of a financially dependant spouse where the other spouse is the source or owner of all or the bulk of income or assets of the marriage should seek so far as the circumstances of the case permit to ensure that the spouse is not only in a position to meet her financial liabilities and obligation continue with a standard of living commensurate with her standard of living during marriage but to enjoy what may reasonably regarded as the fruits of the marriage so that she can live an independent life and have security in the control of her own affairs with a personal dignity that such autonomy confers without necessarily being dependant on receiving periodic payments for the rest of her life from her former husband I say in principle because it is evident that in so many cases the resources or circumstances of the parties will dictate that the only means of making future provision for the spouse in question will be by periodic payments from the husband Quite evidently this maybe because for example the sole source of income may be a salary or income from a business or profession The latter two may have an asset value which needs to be left in the hands of the earning spouse in order that the income necessary to make proper provision for both spouses can be generated I therefore agree with the Chief Justice there is nothing in the Act which prohibits the making of lump sum payments to a spouse when the court is exercising its jurisdiction in these matters Indeed the Constitution would require that this be done if in the particular circumstances of the case the Court considered in its discretion that that was the appropriate manner by which proper provision should be made for the spouse in question In cases of this nature ample resources cases the payment by one spouse to another of a very substantial lump sum maybe the appropriate manner in which

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  • value of the assets held by the husband is of the order of 25 million They were acquired however with the assistance of substantial bank borrowing The value net of liabilities is agreed to be between 18 and 19 million The order is not one for the transfer of assets or interests in assets Hence the parties accept also that in order to make provision in the form of a lump sum for the wife in accordance with the law assets will have to be realised This in turn necessarily entails the incurring of realisation costs and expenses in the form of legal and other professional expenses and tax liability in particular capital taxes On this last basis it is accepted that the relevant value of the assets is reduced to approximately 14 million I need to say very little more about how such wealth came to be acquired by these parties I am happy to adopt the account given in the judgment of the Chief Justice The spouses in this case are from fairly normal reasonably comfortable middle class background The husband is a solicitor the wife a medical doctor They did not set out on their married life with any substantial capital resources though the wife owned a house in Dublin They expected to live from the earnings of their respective professions The husband of course prospered spectacularly The wife on the other hand contributed to the husband s capacity to build up his practice in ways which may now appear modest but which were undoubtedly crucial in the important early stages to the capacity of the husband to build up his own independent practice as a solicitor She did unpaid secretarial work and used to clean the office She also provided some office furniture The wife also limited the pursuit of her own career as a medical doctor She devoted herself to maternal and household duties at the expense of her own career for the benefit not only of her husband but for the welfare of the entire family The striking imbalance between the resources of the two spouses does not result only from the comparatively traditional adoption of the respective roles of breadwinner and homemaker In the case of this model of marriage it has been commonplace that the husband becomes the owner of the great bulk of the family property the wife being in a dependant position The present case is exceptional Firstly the husband has been able to benefit from the very high level of earnings in recent years of solicitors in Ireland in the practice of personal injury litigation Secondly he was able to avail of the profits of and the cash resources available to him through his practice as a solicitor to borrow very large amounts of money The principal bone of contention on the appeal has been the fact that the husband after the parties commenced to live apart acquired an office block which constitutes some eighty per cent of the value of his assets Thus over a small number of years he became a man of great wealth The task of the learned High Court judge was to make proper provision for the wife and the children of the marriage in the light of the statutory provisions and having regard to the circumstances The matters listed in the twelve sub paragraphs of section 20 2 of the act of 1996 are designed to ensure that the Court will have regard to all the wide variety of circumstances which should in the interests of justice be weighed in the balance when considering what is proper provision The starting point in that regard must be on the one hand to the resources and on the other to the needs obligations and responsibilities of the parties There is no stated limitation on the financial resources or on the financial needs obligations and responsibilities to be considered by the Court and which may be available for the purpose of making provision They may extend to resources or to needs obligations or responsibilities which either spouse is likely to have in the future sub paragraphs a and b respectively This suggests that any property whenever acquired of either spouse and whenever and no matter how acquired is in principle available for the purposes provision Thus property acquired by inheritance by chance or the exclusive labours of one spouse does not necessarily escape the net I lay emphasis on the term in principle On the other hand not all such property is automatically available either It is easy to think of cases where such a result would not be just A short lived marriage by a fortune hunter to a wealthy heiress comes to mind Other sub paragraphs are designed to ensure that the Court has a very broad discretion It may consider the standard of living enjoyed by the family before the proceedings were instituted or before the spouses commenced to live apart from one another as the case may be sub paragraph c This provision appears to have been taken verbatim from the act of 1989 section 20 2 c In the case of divorce the parties will necessarily have been living apart for at least four of the five years preceding the issue of proceedings Regard is also to be had to the age of the spouses the duration of their marriage and the length of time during which the spouses lived with one another sub paragraph d On the facts of this case I think the learned High Court judge was entitled in the light of the relevant circumstances to have resort for the purposes of making a lump sum order to the full range of the husband s resources In particular I think there was a close link between the acquisition of the office block and the resources of the husband s solicitors practice I think the wife was entitled by reason of her contributions to the family generally and her

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  • dated 2nd September 1997 having regard to the particular circumstances of this client is contrary to law By letter of the 22nd September 1997 the Plaintiff acknowledged this letter and pointed out that any relevant application should be addressed to the offices of the Appeal Commissioners This letter was in turn acknowledged by the Defendant s accountant by letter of 22nd September 1997 By letter of the 27th April 1988 the Appeal Commissioners advised the Appellant and Plaintiff as respondent of the date time and place of the hearing being the 25th June 1998 On that date there was no attendance by or on behalf of the Appellant the Defendant and by letter of 3rd July 1998 the Plaintiff wrote to the Defendant pointing out to him that as there was not attendance by him or on his behalf his appeal against the refusal of the inspector to admit his appeal is now gone by default On the 13th of October 1998 these proceedings were commenced by the issuing of a summary summons out of the Central Office of the High Court The Judgment of the High Court In declining to accede to the submissions of Counsel for the Appellant in the High Court the learned High Court judge concluded that the Appellant could have at any time between the 29th May 1997 the date of the section 2 1 order and the institution of the present proceedings on the 13th October 1998 applied for a discharge of that order Accordingly he held that it was the failure of the Plaintiff to apply to have that order suspended that resulted in his not having access to funds for the purpose of making a valid appeal against the assessments This conclusion was reached on the basis that the position adopted by the Appellant in the High Court was to all intents and purposes that the monies in question were not the proceeds of illegal activity on his part The learned High Court Judge then went on to hold that even if the monies of the Appellants were treated as the proceeds of crime it is still open to him to make an application under section 6 of the Proceeds of Crime Act 1996 to ask the court to allow the said money to be paid out as necessary expenses within the meaning of that section On that basis the learned High Court judge concluded that the inability of the Appellant to avail of the appeal procedures pursuant to Section 957 2 a was attributable to his own failure to apply for an order suspending the freezing order or for an order paying out the monies pursuant to Section 6 of the aforesaid Act Accordingly the learned High Court judge rejected the argument that the combined effect of the impugned Acts was to deprive him of a right of appeal There was to be found within the relevant statute the avenues by which he could have had access to the monies the subject of a freezing order for the purpose of enabling his appeal against the assessment to tax proceedings It was only after having so found that the learned trial judge went on to express the view that the Appellant had no locus standi to challenge the validity of the impugned sections of the Statutes referred to For this view he cited the decision of McCracken J in Coughlan v Ireland and the Attorney General and Others the High Court unreported 12th July 1995 Submission of the Appellant On this second issue the Appellant first of all appeals on the ground that the learned High Court Judge erred in holding that he had no locus standi to challenge the constitutionality of the impugned statutory provisions He seeks an order remitting this matter to the High Court for adjudication upon the constitutional validity of the said provisions As regards the learned trial judge s finding that the Applicant could have applied to the High Court under Section 2 3 of the 1996 Order seeking to discharge or vary it it was submitted that the learned High Court judge failed to have regard to the short period of time within which it was open to the Appellant to make such an application after the notification of the assessments for income tax to the Appellant and the last day for the filing of an appeal against the assessment An application under Section 2 3 would have had to be made in the context of the tight 30 day deadline within which tax returns had to be filed the income tax admitted to be due paid and the notice of appeal lodged The learned trial judge also erred in concluding that the onus was on the Appellant to make an application to the court when it was open to the Criminal Assets Bureau to apply to have the order discharged in order to facilitate the release of funds to the Defendant which the Criminal Assets Bureau had itself assessed to tax It was also submitted that it is inconsistent with the raising of assessments of the type raised by the Respondent in these proceedings that a person in the position of the Appellant should be required to demonstrate to a Court that the property did not represent the proceeds of crime so as to avail himself of the Section 2 3 remedy The Appellant further contended that the learned trial judge erred in holding that he could alternatively have availed himself of an application pursuant to section 6 of the Proceeds of Crime Act 1996 whereby the court may permit access to funds for the purpose of enabling the person the subject of such an order to discharge reasonable living and other necessary expenses This provision should not be interpreted as encompassing tax liabilities If it had the section would have expressly said so In any event such an interpretation of the section would not have been immediately obvious to any legal advisor and any such application would have to be made within the short time limit available under the 1997 Act for appealing against an assessment for income tax On the facts of this case the Plaintiff was informed on the 25th August 1997 some nine days before the 30 day time limit expired that his appeal would not be accepted unless the returns were submitted and tax paid Submissions of the Respondent On behalf of the Respondents it was submitted that the assessments to tax were raised on 5th August 1997 and the Appellant was at all material times aware that in order to appeal against such assessments he was required by statute to deliver a notice of his intention to appeal make returns of the income which he claimed he had earned during the relevant periods and pay the amount of tax and interest due by reference to those returns He failed to pay the sum of income tax due on foot of his own returns within the time for appeal Accordingly the inspector properly refused his notice of appeal against the assessment The Appellant appealed against that refusal but failed to proceed with the appeal The Appellant had failed to avail himself of the remedy pursuant to Section 2 3 whereby he could have sought to set aside the order made pursuant to Section 2 on the grounds that the monies lodged to his credit in the building societies were not the proceeds of crime Alternatively he could have applied to the court pursuant to Section 6 of the 1996 for the payment out of the necessary monies as constituting necessary expenses within the meaning of that section Having regard to the procedures which were available to the Appellant pursuant to Section 2 3 and or Section 6 of the 1996 Act he is incorrect in his contention that the combined effect of the relevant statutory provisions was to deprive him of access to the monies in question The locus standi issue It seems to me that a misconception has arisen concerning the notion of locus standi in this case In my view the Appellant clearly had locus standi in respect of the second issue in these proceedings including the constitutional dimension to his arguments It is quite clear from the facts and circumstances of the case that he was adversely affected by the application of the relevant provisions of the Acts concerned Whether the Acts adversely affected him in a manner which infringed his constitutional rights is another matter In Cahill v Sutton 1980 I R 269 at 286 Henchy J stated The primary rule as to standing in constitutional matters is that the person challenging the constitutionality of the statute must be able to assert that because of the alleged unconstitutionality his interests had been adversely affected emphasis added However in the High Court the Appellant made substantial submissions as to why the relevant sections of the impugned Acts should be interpreted as having the effect of denying him access to his monies and assets the subject of the freezing order In his judgment the learned High Court Judge gave full consideration to these submissions and concluded that there was no such a denial of access but that the relevant statutory provisions provided various procedures by which he could have done so In short he dealt with the substance of the Appellant s case and the Appellant was in substance accorded locus standi to the extent necessary to argue the second issue in this matter My reasons for coming to that conclusion are as follows The second issue in these proceedings in respect of which the Appellant claims locus standi falls into two parts namely i Whether the combined effect of the Acts impugned is to deprive him of access to his monies the subject of the freezing order and ii if that is correct in law whether as a consequence there is a constitutional right which has been infringed If the Appellant is wrong in his first contention as to the combined effect of the relevant Acts the second part of the issue does not arise If he is correct in his basic premise as to the effects of the Acts then an issue arises as to whether being denied access to the monies and assets which the High Court in separate proceedings had ruled were the proceeds of crime for the purpose of paying the relevant tax on lodging his notice of appeal against assessment constituted a breach of constitutional rights It would not automatically follow that because he had been denied access to such monies and assets the subject of such a High Court Order that there was necessarily a breach of his constitutional rights That would be a separate matter to be considered and determined by the Court if it arose It seems to me abundantly clear that if the Appellant fails to establish that the provision in question have the effect of depriving him of access to his assets to the extent alleged then the preliminary premise fails and the question as to the constitutionality of the Acts does not arise That premise is the first and essential concrete issue in the case As has already been seen the judgment of the High Court interpreted Section 2 3 a and Section 6 of the Proceeds of Crime Act 1996 one of the Acts whose provisions are impugned as providing to the Appellant a means of access to his monies and assets Hence the first and basic premise of the Appellant s case was dismissed on the merits of the argument advanced Having so concluded no other issue arose in relation to the Appellant s defence to the Plaintiff s claim and in particular the basis on which he could raise a question as to the constitutionality of the impugned Acts was not established In substance the learned High Court judge decided the issue and the Appellant was not limited or in any way affected by any supposed lack of locus standi in making his arguments Of course if the learned High Court judge had held that the provisions in question had the effect of denying him access to his assets then at least hypothetically other issues could have arisen such as identification of the precise right alleged to have been infringed and whether in fact it had been so infringed But no such issues could arise once the substantive arguments concerning the Appellant s basic premise had been dismissed It was only after making his substantive finding that the learned High Court judge went on to conclude that he accepted the Respondent s submission that the Defendant had no locus standi and in this regard he expressly relied upon the decision of McCracken J in Coughlan v Ireland and the Attorney General and Others cited above which he stated had been opened to him by counsel for the Respondent In this Court also counsel for the Respondent relied upon that decision of McCracken J as authority for the proposition that the Appellant in this case should be considered to have no locus standi In my view to interpret the judgment of McCracken J in that case as supporting such a proposition is to misunderstand its content and effect Coughlan v Ireland was a case in which the Plaintiff challenged the constitutionality of Section 65 of the Courts of Justice Act 1936 on the grounds that he could not afford to pay the sum of 40 for the purpose of lodging his notice of appeal in respect of the relevant orders made in the High Court in those proceedings I do not think it is necessary to go into the details of that case except to refer to some salient points At page 2 of his judgment McCracken J noted as a preliminary point the Defendants claim that the Plaintiff has no locus standi as he was in fact in a position to make the payments at the relevant time His conclusion on that point is to be found at page four where he states accordingly I find that the Plaintiff does have locus standi to bring these proceedings in that he would appear to have been impecunious at the relevant time On the merits of the Plaintiff s claim he went on to find that legal aid was available to the Plaintiff and if he satisfied the relevant criteria he would have had access to the Courts He concluded his judgment in the following terms In my view as the means were provided by the State whereby he could under controlled circumstances have access to the Courts I do not think he is entitled either to challenge the constitutionality of the section of the Courts of Justice Act I am not satisfied that he has in fact been deprived of access to the Courts in those circumstances On any view I do not consider that the latter passage can be interpreted as denying locus standi to the Plaintiff in that case The phrase I do not think that he is entitled to challenge either the constitutionality of the section is not open to the interpretation even in its own particular context that he was denying locus standi to the Plaintiff To my mind McCracken J was simply expressing a view that the Plaintiff on the merits had failed to establish his preliminary premise on which his ground for raising an issue as to the constitutionality of the section was based In the instant case although the learned High Court judge headed the part of his judgment dealing with the merits of the Appellant s arguments with the words locus standi and concluded after dealing with the substance of the arguments of the Appellant with a finding that he had no locus standi I am of the view that the substantive meaning and effect of the judgment of the High Court in this case is that the Appellant was accorded locus standi to the extent necessary so that his argument on the preliminary premise was fully adjudicated upon The substance and effect of the learned High Court Judges judgment is essentially the same as that of McCracken J in Coughlan v Ireland namely that having failed in his basic premise any question concerning the constitutionality of the Acts no longer arose For these reasons I do not consider that the Appellant s contentions regarding his locus standi in the High Court are grounds for allowing the appeal I will now turn to the substantive issue as to whether the learned High Court Judge was correct in ruling that the combined effect of the Acts in question was not such as to deprive the Appellant of access to the monies and assets the subject of the freezing order in the manner contended S econd issue Access to assets the subject of the freezing order The Appellant in an affidavit sworn by him on the 25th February 1999 in these proceedings averred at paragraph 4 for the purpose of setting out the level of his indebtedness to the Revenue Commissioners as follows I say that I have certain income from my activities as a street trader for the years in question as detailed in Mr Shine s submissions but it was nothing like the kind of estimated income underlining the assessments made by the Bureau in this case Mr Shine is the Appellant s accountant who submitted returns of income tax for him to the Revenue Commissions in respect of the years with which the assessments were concerned As the learned High Court judge correctly points out in his judgment it was incumbent on the Appellant when making a return to disclose all his income and in the present case none is disclosed as being the proceeds of crime The assessments to tax concerning the Appellant were made for the years of assessment 1988 1989 to 1995 1996 inclusive Subsequent to the issuing of those assessments by

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  • of the last mentioned goods was in excess of the total amount in this section referred to as the standard amount receivable from the sale of the goods exported during the standard period corporation tax payable by the company for the relevant accounting period so far as it is referable to the income attributable to the said excess shall be reduced to nil and the corporation tax referable to the income attributable to the said excess shall be such an amount as bears to the relevant corporation tax as defined in subsection 10 the same proportion as the income attributable to the said excess bears to the total income brought intocharge to corporation tax 2 For the purposes of subsection 1 the income attributable to the said excess shall be taken to be such sum as bears to the amount of the company s income for the relevant accounting period which is attributable to the sale of goods whether exported or not the same proportion as the amount of the said excess bears to the total amount receivable by the company from such sale in the relevant accounting period 3 Where a company claims and proves as respects a relevant accounting period a that during the standard period in relation to the trade no goods were in the course of the trade exported out of the State or that the standard period is not applicable and b that during the relevant accounting period goods were in the course of the trade exported out of the State corporation tax payable by the company for the relevant accounting period so far as it is referable to the income from the sale of the goods so exported shall be reduced to nil and the corporation tax referable to the income from the sale of goods so exported shall be such an amount as bears to the relevant corporation tax the same proportion as the income from the sale of goods so exported bears to the total income brought into charge to corporation tax 4 For the purposes of subsection 3 the income from the sale of the goods so exported shall be taken to be such sum as bears to the amount of the company s income for the relevant accounting period which is attributable to the sale of goods whether exported or not the same proportion as the amount receivable in the relevant accounting period from the sale of goods exported bears to the total amount receivable by the company from the sale of goods whether exported or not in the relevant accounting period 5 In a case in which the preceding provisions of this section apply and the export out of the State in the relevant accounting period consisted of or included goods with respect to which section 54 3 provides for the inclusion thereof in the definition of goods this Part shall have effect subject to the insertion in subsections 2 and 4 of and of merchandise whether exported or not other than such goods after goods whether exported or not wherever the latter words occur 6 Not relevant 7 Not relevant 8 Not relevant 9 A reduction shall not be made under this section in respect of corporation tax payable on income from any mining operations A crucial feature of Part IV of the 1976 Act is the definition of goods which are defined by s 54 1 as meaning goods manufactured within the State by the person who exports them or some of them and who in relation to the relevant accounting period is the company claiming relief under this part Section 54 goes on to deem certain products to be goods manufactured in the State which would not in their ordinary meaning be understood to be goods subjected to any manufacturing process It was under Part IV of the 1976 Act that Tara sought export sales relief in respect of the years relevant to these proceedings by reference to the income received by it in respect of the concentrates exported by it during those years In those circumstances a question to be considered was whether the concentrates had been manufactured by Tara so as to constitute goods within the meaning of the 1976 Act s 53 aforesaid Having regard to the decisions in McCausland v The Minister for Commerce 1956 N I 36 Cronin v Strand Dairy Ltd 1985 3 I T R 441 McCann v O Culachain 1986 I R 196 and Irish Agricultural Machinery Ltd v O Culachain 1990 1 I R 535 and the nature of the process to which the ores were subjected to produce the concentrates there could be no doubt but that the product constituted goods within the meaning of the section and this in fact was rightly conceded by the Inspector The issue on which the parties disagreed and disagreed vigorously was whether the processing or manufacturing stage constituted a mining operation Certainly it was a stage which produced an income for Tara and accordingly if it could be described correctly as a mining operation subsection 9 of s 58 aforesaid would have applied so as to disentitle Tara to the relief The Finance Profits of Certain Mines Temporary Relief from Taxation Act 1956 had defined mining operations in a limited sense as meaning mining operations by underground or open cast excavation within the State whether before or after the passing of this Act but only insofar as scheduled minerals have been or are obtained thereby That basic definition enabled the legislature to provide a definition of new mining operations and limited the application of the Act and the exemptions thereby granted to the working of a qualifying mine which is defined as or limited to a mine insofar only as new mining operations were carried on therein That definition was maintained in the Finance Taxation of Profits of Certain Mines Act 1974 Tara have contended that the statutory definition and the ordinary meaning of the words mining operations as used in the 1976 Act mean in relation to lead and zinc mining at any rate the process which culminates with the extraction and raising of the ores to the surface That is to say the process which in the present case concludes with the delivery of the ores to the storage bins or tepee Tara argue that the very facts which require or permit the subsequent process to be described as a manufacturing process exclude the possibility of describing that process as a mining operation Counsel for Tara argued that the manufacturing process might equally well be carried on as an entirely separate trade by an independent company and perhaps in a different location when it was submitted nobody would suggest that the manufacturing aspect carried on by the independent company was a mining operation The Inspector contended that all of the activities carried on by Tara up to and including the production of the concentrates constituted mining operations The purpose it was said of the activity was the production of the concentrates The ore itself was not marketable and could not be transported off site for treatment as the transport costs would be uneconomic In addition the Inspector argued that the structure of the legislation granting exemptions in respect of the trade of working a qualifying mine the various allowances provided in respect of tax when payable and the provisions of the 1976 Act dealing with export sales relief required that the manufacturing process should be treated or recognised as being a mining operation The Commissioners recognised correctly that the net issue before them was whether Tara had income from any mining operations They had regard to evidence given by distinguished experts as to what constitutes mining operations They considered a number of cases particularly those decided in Australia as to the meaning of the term mining operations in not dissimilar legislation and they reached the conclusion following We decided that the Company operates a mine and that it also carries out a separate activity subsequent to its mining activity namely the processing of ore the result of its mining operations to manufacture concentrates of lead and zinc We also decided that the mining activity and the manufacturing activity were of similar scale and that neither was subsidiary or incidental to the other In our opinion the manufacturing activity was in the words of the judges in the Broken Hill case on page 4030 distinct from although connected with the taxpayer s mining operations and clearly did not come within the meaning of the phrase mining operations While we did not have any difficulty in so deciding we found support for our conclusion in the evidence of the expert witnesses that different branches of science are involved in the mining activity and the manufacturing process each branch of which requires separate training and education of its specialists We concluded that the company does not sell its mining output It subjects that output to a separate manufacturing process to produce concentrates of lead and zinc which it sells in the course of its trade Therefore the company s income is derived from the sale of the said concentrates It follows that the company cannot be said to have income from any mining operations within the meaning of section 58 9 of the Corporation Tax Act 1976 and that it is consequently entitled to Export Sales Relief in respect of its trading income for the periods with which this appeal is concerned It was from that decision that the Inspector appealed to the High Court Mr Justice Roderick Murphy allowed the appeal In essence the learned judge concluded that there was no basis for the finding by the Appeal Commissioners that the manufacturing process was not a mining operation when they had held that this expression could encompass all of the activities carried out by the company At p 29 of the transcript he said The conclusion that not all of the company s activities could be said to come within the meaning of mining operations can however have no basis given the finding that the term mining depending on the context on which it and cognate terms are used could encompass the type of activities carried out by the company The conclusion is not a finding of paragraph v as the Commissioners did not deem it necessary to make a finding of fact specifically in regard to whether the term mining operations as used within the mining industry would include all of the activities carried on by the company or just the underground activities At the conclusion of his judgment at p 33 of the transcript Murphy J said The finding that the manager of the mining divisions responsibilities end at that point and that the manager of the processing division is responsible for all activities after the ore arrives in the tepee including the manufacture of lead and zinc concentrates does not in my view determine the beginning and end of mining operations as experts would appear to be uncertain as to the extent of mining operations and such term could encompass all the activities of the company The decisions of the Commissioners do not accordingly sit firmly on the findings It may be that within the decision there are further latent findings These further findings seem in turn to be somewhat at variance with the extensive findings found by the Commissioners as such It would seem to me that in essence that the learned judge concluded that the Commissioners having decided that all of the activities of the company could constitute mining operations did not reach any conclusion or make any finding which would justify excluding any of those activities from the ambit of that classification Certainly the Appeal Commissioners had been unable to find any definition of the term mining operations or to provide any description of the activities which those words embraced and thus to delineate the boundaries or ambit of this phrase In the absence of any such prior determination it is I believe impossible to make a conclusive finding of fact as to what does or does not fall within that description The proposition that a finding of primary fact by the Appeal Commissioners should not be set aside by the Court unless there was no evidence whatever to support it is well established See Mara v Hummingbird 1982 I L R M 421 and Brosnan v Mutual Enterprises Ltd 1997 3 I R 257 However what constitutes mining operations is a mixed question of law and fact Depending upon the proper definition of that term a finding of fact may establish whether such activities are involved but a finding of fact without such prior definition could not be conclusive of any legal proposition In the present case the exposition by the Appeal Commissioners as to the nature extent and purpose of the activities carried on by the company over ground is clear and as a matter of fact conclusive But without guidance as to what mining operations entail these findings do not advance the matter significantly Frequently findings of fact relate to the basic proposition as to the credibility of witnesses In taxation matters findings often concern issues which can be clearly distinguished in principle but may require a delicate judgment in practice For example the question whether a person who sells property at a profit is trading or achieves a windfall capital gain is essentially a fact or conclusion which a court of first instance is entitled to draw as was held in Mara v Hummingbird supra Again the weighing of factors which determine whether a loss is of a revenue or a capital nature is a conclusion of fact on which the decision of the Appeal Commissioners is conclusive Brosnan v Mutual Enterprises Ltd supra However these cases clearly illustrate the fact that the tribunal determining an issue must know the factors to be taken into account and assessed so as to reach a conclusion which involves issues of law as well as fact In the present case the Appeal Commissioners were unable to provide any definition or description of the term mining operations Let it be said this is a task which has eluded courts in several jurisdictions It was argued in the present case that any operations or activities which occurred after the ore had been brought to the surface were incapable of falling within the description of mining operations That argument was supported by the decision of the Exchequer Court of Canada in Marbridge Mines Ltd v The Minister for National Revenue 71 D T C 5231 in which Gibson J stated at p 5234 that mining ends with the bringing of the mineral ore to the ground surface Clearly the Appeal Commissioners did not accept that proposition If they had done so their conclusions would have been expressed differently and briefly It would have been wholly unnecessary to consider the value nature or purpose of the works carried out after that primary objective had been achieved I am satisfied that the Appeal Commissioners did not make any finding of fact or draw any conclusion which precluded the learned High Court judge from determining whether the processing activity constituted a mining operation or absolve him from the duty of so doing The main issue in this case is how much of the work carried on by a mining company can be said to constitute mining operations within the meaning of the Act Is it the case that only that which occurs below ground constitutes mining operations or does the definition extend to include the process undertaken in relation to the raw materials extracted from the mine At what point can it be said that the mining operations cease Two propositions can be advanced without dispute First the extraction of minerals from the earth and the bringing of such materials to the surface including all such works necessary to facilitate this process such as the sinking of shafts or the building of tunnels forms part of what may be termed mining operations Secondly processes which subject the raw material to change in their physical or chemical properties commercial characteristics or other characteristics such that the end product has a utility marketability and quality different from that of the original raw product constitute manufacturing It is inconceivable that any definition of mining operations could be given which would not include the underground mining activities in which Tara have engaged As those activities form a substantial part of the business of the tax payer the first question which arises is whether Tara derives any income from those operations At first sight it may seem surprising that this would not be so Ordinarily one would expect a substantial expenditure by a tax payer to result in an income to him However as Tara argued in the present case it is the final link in an integrated business and not the original or intermediate steps which provides the income To suggest that any earlier activity produces an income would in fact involve some concept of apportionment being deemed to have taken place This proposition is well illustrated by s 50 of the Finance Act 1980 which is later in date but in pari materia with the legislation under consideration here Subsection 2 of s 50 aforesaid provides as follows Where a company carries on a trade which consists of or includes the manufacture of goods and in the course of the trade carries on any mining operations within the meaning of subsection 1 a from which it obtains any scheduled mineral mineral compound or mineral substance of the kind referred to in that subsection and any such mineral compound or substance is not sold by the company in the course of the trade but forms the whole or part of the materials used in the manufacture of such goods or is to any extent incorporated in the goods in the course of

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  • 4 sub sections 3 and 4 of Section 6 Sections 12 to 48 Sections 68 and 70 and Sections 75 to 78 were brought into operation from the 31st day of October 1995 In summary these were the provisions covering the placing of children in voluntary care the bringing of children into care in emergency situations and the making of long term care and supervision orders The relevant sections in Part V deal with the jurisdiction powers and procedures of the Court in relation to child care proceedings while Part VI which includes both Section 36 and Section 47 in general sets out the arrangements that may be made by Health Boards in regard to children in their care The long title of the Act sets out that it is an Act to provide for the care and protection of children and for related matters The general function of the Health Board under the Act is set out in Section 3 which provides 3 1 It shall be a function of every Health Board to promote the welfare of children in its area who are not receiving adequate care and protection 2 In the performance of this function a Health Board shall a take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co ordinate information from all relevant sources relating to children in its area b Having regard to the rights and duties of parents whether under the Constitution or otherwise I regard the welfare of the child as the first and paramount consideration and II In so far as it is practicable give due consideration having regard to his age and understanding to the wishes of the child and c have regard to the principle that it is generally in the best interests of a child to be brought up in his own family 3 A Health Board shall in addition to any other function assigned to it under this Act or any other enactment provide child care and family support services and may provide and maintain premises and make such other provision as it considers necessary or desirable for such purposes subject to any general directions given by the Minister under Section 69 4 A number of other sections of the Act are relevant to the matters at issue in these proceedings They are as follows 9 1 A Health Board may subject to any general directions given by the Minister and on such terms or conditions as it sees fit make arrangements with voluntary bodies or other persons for the provision by those bodies or other persons on behalf of the Health Board of child care and family support services which the Board is empowered to provide under this Act 2 Nothing in this section shall empower a Health Board to delegate to a voluntary body or any other person the duty conferred on it under Section 4 to receive certain children into care or the power to apply for an order under Part III IV or VI 10 A Health Board may subject to any general directions given by the Minister and on such terms or conditions as he thinks fit assist a voluntary body or any other person who provides or proposes to provide a child care or family support service similar or ancillary to a service which the Health Board may provide under this Act a by a periodic contribution to funds of the body or person b by a grant c by a contribution in kind whether by way of materials or labour or any other service Part IV Care Proceedings 16 Where it appears to a Health Board with respect to a child who resides or is found in its area that he requires care or protection which he is unlikely to receive unless a Court makes a Care Order or a Supervision Order in respect of him it shall be the duty of the Health Board to make application for a Care Order or a Supervision Order as it thinks fit 18 1 Where on the application of a Health Board with respect to a child who resides or is found in its area the Court is satisfied that a the child has been or is being assaulted ill treated neglected or sexually abused or b the child s health development or welfare has been or is being avoidably impaired or neglected or c the child s health development or welfare is likely to be avoidably impaired or neglected And that the child requires care or protection which he is unlikely to receive unless the Court makes an order under this section the Court may make an order in this Act referred to as a Care Order in respect of the child 2 A Care Order shall commit the child to the care of the Health Board for so long as he remains a child or for such shorter period as the Court may determine and in such case the Court may of its own motion or on the application of any person extend the operation of the order if the Court is satisfied that the grounds for the making of a Care Order continue to exist with respect to the child 3 Where a Care Order is in force the Health Board shall a have the right control over the child as if it were its parent and b do what is reasonable subject to the provisions of this Act in all of the circumstances of the case for the purpose of safeguarding or promoting the child s health development or welfare and shall have in particular the authority to i decide the type of care to be provided for the child under Section 36 ii give a consent to any necessary medical or psychiatric examination treatment or assessment with respect to the child and iii give consent to the issue of a passport to the child or to the provision of passport facilities for him to enable him to travel abroad for a limited period 4 the remainder of the section is not relevant Part V Jurisdiction and Procedure 24 In any proceedings before a court under this Act in relation to the care and protection of a child the court having regard to the rights and duties of parents whether under the Constitution or otherwise shall a regard the welfare of the child as the first and paramount consideration b 28 1 The District Court and the Circuit Court on appeal from the District Court shall have jurisdiction to hear and determine proceedings under Part III IV or VI 2 Proceedings under Part III IV or VI may be brought heard and determined before and by a justice of the District Court for the time being assigned to the district court district where the child resides or is for the time being Part VI Children in the Care of Health Boards 36 1 Where a child is in the care of a Health Board the Health Board shall provide such care for him subject to its control and supervision in such of the following ways as it considers to be in his best interests a by placing him with a foster parent or b by placing him in residential care whether in a childrens residential centre registered under Part VIII in a residential home maintained by a Health Board or in a school or other suitable place of residence or c in the case of a child who may eligible for adoption under the Adoption Acts 1952 to 1988 by placing him with a suitable person with a view to his adoption or d by making such other suitable arrangements which may include placing the child with a relative as the Health Board thinks proper 2 In this Act foster parent means a person other than a relative of a child who is taking care of the child on behalf of the Health Board in accordance with regulations made under Section 39 and foster care shall be construed accordingly 3 Nothing in this section shall prevent a Health Board sending a child in its care to any hospital or to any institution which provides nursing or care for children suffering from physical or mental disability 47 Where a child is in the care of the Health Board the District Court may of its own motion or on the application of any person give such directions and make such order on any question affecting the welfare of the child as it thinks proper and may vary or discharge any such direction or order Submissions of Counsel Senior Counsel for the Appellant Ms O Toole submitted that the learned High Court judge had erred in holding that in child care matters the District Court was something more than a court of appeal and exercised something more than a supervisory jurisdiction She contended that in the context of the scheme of the 1991 Act Section 47 should be given a restrictive interpretation The District Court she submitted was in no sense a Court of Appeal under the 1991 Act the Act did not envisage appeals being made from the decisions of the Health Board to the District Court The jurisdiction of the District Court was that of a Court of first instance as set out in Section 28 quoted above Counsel for the Appellant accepted that the District Court had a supervisory jurisdiction which was reflected in the Court s powers inter alia to appoint a guardian ad litem for a child to procure necessary reports and to provide for parental access to a child However this supervisory jurisdiction extended she submitted solely to matters within the parameters of the 1991 Act Section 47 should not be construed to mean that the District Court was at large in making wide ranging orders affecting children who are in the care of the Health Board Ms O Toole stressed that the whole structure of the child care system under the 1991 Act was considerably more restrictive than the former Fit Person Order régime under the Children Act 1908 Under the 1991 Act only a Health Board could apply to the District Court for an order placing a child in long term care and only a Health Board could hold a child in care While under Section 36 the Health Board was empowered to take various steps such as placing a child with a foster parent or in residential care or making other suitable arrangements the child remained in the care of the Health Board throughout and the Health Board was responsible for his or her welfare The District Court had a supervisory jurisdiction within this régime and within this régime only Section 47 Counsel argued enabled the District Court to make necessary orders in the interests of the child of a type not necessarily specified in the other sections of the Act but these orders must remain within the context of the child being in the care and under the actual supervision of the Health Board Counsel for the Appellant submitted that if a child such as the child in question in these proceedings was placed with relatives in a foreign jurisdiction that child was no longer in any real sense in the care of or under the supervision of the Health Board In those circumstances the supervisory jurisdiction of the District Court over the child would become in practical terms a nullity The District Court might make orders affecting the child but would have no way of enforcing such orders To all intents and purposes once the child was placed outside the jurisdiction neither the Health Board nor the District Court could fulfil their respective roles in promoting and overseeing the welfare of the child In summary Ms O Toole submitted that the District Court could not lawfully direct the placement of a child with relatives or foster parents outside the State pursuant to the provisions of Section 47 and that to do so was ultra vires its power Senior Counsel for the Western Health Board Mr Durcan accepted that Section 47 of the 1991 Act must be construed in the context of the Act but submitted that it should be construed in the context of the Act as a whole and of its general purpose rather than restrictively in the context of Part VI alone The purpose of the Act was summarised in its long title an Act to provide for the care and protection of children and in Section 3 the Health Board was enjoined to regard the welfare of the child as the first and paramount consideration It was notable that the wording of Section 47 closely resembled the wording of Section 11 of the Guardianship of Infants Act 1964 which also operated in a scheme where the welfare of the child was paramount Section 11 had always been interpreted very widely and in a purposive way the same approach should apply in the construction of Section 47 of the 1991 Act This had been the approach taken by the learned High Court judge In arguing for a purposive interpretation of the section Mr Durcan submitted that the Act was a remedial or protective statute intended to protect children and that as such it should be given a liberal and purposive interpretation in accordance with the principles enunciated by Walsh J in the case of Bank of Ireland v Purcell 1989 IR 327 Further the Act should be construed in the light of the realities of every day life and the variety of circumstances in which the need to protect children may arise This view he said found support in the words of Keane J as he then was in the case of DPP Houlihan v P G 1996 1 IR 281 where the learned judge stated in regard to certain provisions of the Children Act 1908 At the same time as was properly said in the course of argument they must be applied in the light of the Constitution and to the extent that it can be done without violence to the language of the enactment in a matter which reflects the reality of life today Mr Durcan also suggested that the case of M F v Superintendent Ballymun Garda Station 1991 1 IR 281 was authority for the proposition that the interpretation to be placed upon statutory provisions designed to protect children should be reached on foot of principles particularly derived from the clear constitutional protection of the interests of children in any legal proceedings It should Mr Durcan submitted not be forgotten that the Health Board had made the current application to the District Court precisely because the Board believed on the evidence available to it that the proposed placement was in the best interests of the child concerned Counsel for the Health Board also submitted that the Child Care Act 1991 was intended to be a comprehensive code for the protection of children and was designed to operate effectively in the context of the realities of life in Ireland at the end of the twentieth century Two aspects of the reality of life in this country were firstly a long history of emigration and secondly increasing mobility in regard to employment opportunities Mr Durcan pointed to the example of the close economic and social relationship between this jurisdiction and Northern Ireland Many families in border areas would have close relatives on the other side of the border in another jurisdiction albeit perhaps only a number of miles from their own home Equally there would be many cases where families would reside on one side of the border for a number of years but would then move to the other side perhaps for reasons concerned with job or housing opportunities It must also be accepted that the increasing mobility of persons between the various jurisdictions within the European Union was not only permitted but positively encouraged It was said Mr Durcan against this background that the Court should view the construction of the provisions of the Child Care Act 1991 as put forward by the Appellant The Appellant contended that a child could not no matter how compelling the circumstances to the contrary be placed with a relative or foster parent outside the jurisdiction This would mean that a child whose family lived in Donegal could not be placed with relatives who lived in Derry even if this was the course of action which clearly best promoted the welfare of that child It would equally mean that a foster family who had had a child in their care for a number of years and who were obliged to move to another jurisdiction for employment purposes could not bring their foster child with them even though the child might have integrated into their family and even though movement to another foster family might be clearly detrimental to the child s interests If the interpretation of Section 47 put forward by the Appellant was correct in stating that such placement outside the jurisdiction was prohibited because it would place the child outside the control of the Health Board and or the District Court then it would appear that such a course of action could not take place even if the parent or parents consented to it since such consent would not remedy the suggested difficulty in regard to the lack of continuing control Mr Durcan submitted that the effect of the construction contended for by the Appellant would be that in a significant number of cases the course of action which would best promote the welfare of the child would not be available to the Health Board or indeed to the District Court dealing with the care application The Respondent submitted that such a situation could never have been intended by the legislature would be detrimental to the welfare of children and was not required by a proper

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/3da3898901f0ba8280256f15003b9ab5?OpenDocument&TableRow=2.1 (2016-02-09)
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