Special Committee Family Law (Maintenance of Spouses and Children) Bill, 1975 debate -
Tuesday, 2 Dec 1975

SECTION 24.

Mr. G. Collins

I move amendment No. 5b :

In page 15, before section 24, to insert a new section as follows :

" The Court shall provide that the sums specified in any order made under the provisions of this Act, shall be appropriately increased each year, in accordance with the increase, if any, in the Consumer Price Index ".

The amendment is very simple but an extremely important one. We believe that if agreements are to be fair and equitable in regard to present day circumstances they must have provision built into the agreement in the nature of an escalator clause which would provide for increases in payments to keep pace with the cost of living. Otherwise, these agreements will be outdated in a very short time with inflation at its present rate. A person in receipt of £40 per week in 1975 would find that the value of the income would have diminished considerably in 1978.

Chairman

Would the Deputy not be turning the unfortunate district justice into an economist and statistician?

Mr. G. Collins

It could be tied up with the Consumer Price Index.

Mrs. Hogan O'Higgins

If the salary goes up that should go up.

Mr. G. Collins

If we are able to look after ourselves with the National Wage Agreements to cover the Consumer Price Index we should do something about people who are not able to look after themselves.

Chairman

There is provision in section 16.

Mr. G. Collins

How does one protect one's income against cost of living increases?

Mr. Cooney

The court has power to vary the order made from time to time depending on the amount of disposable income coming into the hands of the debtor. It has this power under section 5. It would be wrong to build into the Bill an automatic increase. The whole point of having this Bill as framed is to give the court power to inquire into the circumstances of the particular family coming before it and make an award which would be equitable to all the parties coming before it. If we were to build in an automatic blanket type of increase we could possibly be doing a hardship to either or both parties. We might be providing for too little in the case of a substantial increase in the spouse's earnings or we might be doing a hardship to the spouse by providing too big an increase from the amount of his total income. Once the court has power to vary the order depending on the means of the party, I think that is as far as we should go.

Mr. Collins

With regard to that, there are problems people might not be aware of. I accept that the court has power to examine the situation and examine circumstances, and that is all very fine, but does it mean, if we leave it at that, that the people who are involved in the agreement have to come before the court every year to apply for an increase just to keep up with the cost of living? Surely, if this is so, and Mrs. X has an agreement with Mr. X must she come before the court every year just to keep up with the cost-of-living increases? I can understand the situation where Mrs. X's earnings improve, then she should come back in and have the whole position re-examined or re-appraised. Otherwise would the Minister not think you are going to have a queue at the courts once a year to get these things updated?

Mr. Cooney

I do not agree that it would be any hardship or that it would be administratively difficult to deal with applications. We are legislating here for what is a minority situation. The idea of the courts being clogged up with wives coming along seeking variations in maintenance orders is slightly unreasonable. I think it is better that the autonomy of the courts be preserved in this and that the courts could look at each case on its merits of that particular case rather than that we should legislate in an attempt to propose an automatic and blanket and mandatory increase. I think it would be preferable to leave the power to the courts.

Mr. Andrews

I am sorry to be at variance with the Minister on this, but the Minister has used the expression—this may not be exact—that these types of cases are in a minority. Unfortunately the problem is growing considerably. I have here a number of statistics which I seek permission to read into the report of the Select Committee and the record of that committee.

Chairman

Where do they come from?

Mr. Andrews

Some appear in the 19th Interim Report of the Committee on Court Practice and Procedure and elsewhere. I have here a number of statistics for the District Court in the Dublin Metropolitan District and the number has been increasing steadily in the past number of years. The number of applicants which came before the court since 1971 has been as follows: from the 11/8/1971 to the 31/8/1972, 109 applications; from the 1/8/1972 to the 31/8/1973, 180 applications; the 1/8/1973 to the 31/7/1974, 171 applications.

Chairman

Could we have the actual reference and what paragraph it is?

Mr. Andrews

Yes, I will do that when I have completed my last statistic: the 1/8/1974 to the 31/7/1975, 248 applications.

Mr. Cooney

With respect, Deputy, that could not be in the——

Mr. Andrews

No, it could not. I was going to suggest——

Chairman

Could we have the exact reference?

Mr. Andrews

Yes. If you go to the District Court it appears in the record of the Dublin Metropolitan District Court register.

Chairman

Could the Deputy give the date of the records?

Mr. Andrews

Oh, I could not give the date of the actual records. But the number of applications coming before that court since 1971 has been set out and, consequently, the records in the District Court register must show those figures.

Mr. Collins

Can Deputy Andrews say how many we had in 1971 and 1975?

Mr. Andrews

We had 109 in 1971 and 248 from 1/8/1974 to the 31/7/1975.

Mr. Cooney

Has the Deputy got the figures for the number of cases for which orders were made?

Mr. Andrews

I have not got those.

Mr. Cooney

I am quoting now from page 11 of the 19th Interim Report.

Mr. Andrews

These are applications.

Mr. Cooney

I want to quote that in 1971 the figure recorded in this is 108 or 109, as the Deputy said. But the number of cases in which orders were made was 36. That puts the matter in perspective.

Mr. Andrews

It does not put the matter in perspective at all. This is where the Minister is not taking a serious view of the situation. The Minister seems to be under-rating this very serious and growing social problem. If 108 people, according to the 19th Interim Report, came to the courts in 1971, as the Minister has stated, and there are only 36 applications granted, surely the figure of 108 is indicative of a serious problem existing.

Mr. Cooney

Yes. It is indicative of what existed in the courts. The courts found that there was a problem in 36 of the cases.

Mr. Andrews

Do you think then that the 108 applications for 1971 were vexatious and should not have been brought at all?

Mr. Cooney

I am not attempting to minimise the problem but I made the point, in reply to Deputy Collins, that we are legislating for a minority.

Mr. Andrews

But a growing minority, unfortunately.

Mr. Cooney

Yes, unfortunately.

Mr. Collins

Is the situation, then, that we do have, say, 200 or 300 cases? We know the numbers are very small, but even if we have 300 or 400 cases each going back on an annual basis to have the cost-of-living increases put into their agreements is that not going to foul up the whole situation?

Mr. Cooney

I do not think so. To worry about the system is to worry about something that is really extraneous to our problem, which is to provide that the court will have power to adjudicate between the parties. We will have to revise the system to make sure it can deal with them. That is the answer to that point.

Mr. O'Brien

Do you see the £40 per week system being reviewed from time to time? There will come a time when the £40 will have changed in value.

Mr. Cooney

Yes, but that will require an Act of Parliament. The jurisdiction of the court is involved. It will have to be revised from time to time.

Mr. Andrews

It is interesting to note that in the 1974 report from the Dublin branch of the Samaritans marital problems are the largest number of problems dealt with by that very worthy organisation. To come back to a point that Deputy Collins made earlier, many of these marital problems were in fact brought about by alcohol.

Chairman

Is there anything further on this?

Mr. Andrews

Just to put it in perspective, this is a serious growing social problem and it cannot be fobbed off under any circumstances.

Mr. Cooney

It is not being fobbed off and that is why this legislation is being introduced.

Mr. Andrews

We know the Minister dealt with Deputy Collins' amendment.

Mr. Collins

I think the Minister is very wrong in not accepting it.

Mr. Andrews

I think the amendment is a valid amendment.

Mr. Collins

You will only force people to come back to the courts once a year.

Chairman

But ages of family will change and the demands will change from time to time.

Mr. Andrews

The Minister suggests that in some way the amount payable might be in some way reduced.

Mr. Cooney

Perhaps, in certain cases.

Mr. Andrews

This built-in provisio could be an appropriate amendment.

Mr. Cooney

It could be reduced. A dependent child could pass the age of dependency.

Mr. Andrews

Time, trouble and expense could be saved if this perfectly reasonable amendment were accepted. It is a very well drafted amendment.

Mr. B. Desmond

Ah, no. With respect, I think that the principle of the incorporation of indexation into statutory legislation at this stage would be weak.

Mr. Andrews

Too radical for the Deputy.

Mr. B. Desmond

I can envisage a situation where a child may come before the court and the court, in its wisdom, may decide to grant a sum well in excess of that which would be appropriate on indexation.

Mr. Cooney

That is the point. A blanket, mammoth increase is a dangerous thing. It should be left to the discretion of the court.

Mr. Collins

There is nobody taking away from the discretion of the court. If Mr. X's circumstances improve considerably then the court can give, if it so desires, a much higher award.

Mr. B. Desmond

I will give an example. Recently I appeared as a witness in a court case. The judge, in relation to a particular mining accident, when dealing with the earnings took into account the consumer price index. He also took into account the skilled rates in the particular job. He also took into account the number of dependants of the person. It was well in excess of the 23 per cent the person would have been entitled to under the CPI order. I can see a valid point in it, but every judge takes into account the consumer price index.

Mr. G. Collins

He can only do so on a yearly basis. I am trying to prevent a situation arising whereby people have to come back to the courts at least once a year to get their allowances increased to keep up with the cost of living.

Chairman

There is one difficulty here that is a result of some remarks made by the Minister. He said that if we are going to increase the figures to deal with the question of jurisdiction you need legislation for that purpose. Supposing I had an award made of £40 per week and the CPI was going to be applied you are automatically changing the jurisdiction of the court without legislation. That is the only difficulty I see.

Mr. Cooney

In that theoretical situation, if the court had awarded the maxima in the jurisdiction of the court and we had this amendment accepted the award would then be outside the jurisdiction of the District Court and be set aside. The party would have to start all over again and it would be in the High Court.

Mr. Power

If we do not accept this amendment, are we not providing something that will be out-dated? It will put the onus on the person to keep coming back to have it brought up-to-date. That is not something people like to do.

Mr. Cooney

They may have to come back anyway. As family situations change, children grow older and there may be a greater income. They may have to get the amount in respect of the children increased. The amount to be payable in respect of a wife may have to be decreased and the court may have to take into account the alteration in the disposable income of the husband. There are endless circumstances, and the court may have to be asked in any event to look again at the original order made. One of these would be the increase in the cost of living. I think that the court is the proper tribunal to decide what should be payable in any particular case. It is wrong for the Legislature to impose a blanket mandatory power like this. It could, admittedly, work a hardship quite apart from the court mechanism. The whole Bill is geared to the court being the arbitrating tribunal.

Mr. B. Desmond

Some of the district justices are not very uniform in their applications of criteria.

Mr. Andrews

On the maximum jurisdiction of the Circuit and District Courts if a wife has been awarded £40 for her support and £10 for the support of her child, does that mean that she has to go to the High Court to look for a varying order upwards?

Mr. Cooney

It does. There is a change of jurisdiction there.

Mr. Andrews

I appreciate that.

Mr. Cooney

It relates to the magnitude of the payments involved.

Mr. Andrews

That comes to the matter of expense.

Mr. G. Collins

That is possibly more reason why there should be the one court to deal with all these matters.

Mr. Cooney

Eventually there will.

Mr. Andrews

Nobody adverted to the point I have just made. It is an extremely important point in this context.

Mr. Cooney

That point arises from the very fact of section 22 (2) (a).

Mr. Andrews

It was not stated clearly, on the basis of what these sections mean. This means that a spouse looking for an order to vary the maintenance order will have to go to the High Court at her own expense. Is that the position now?

Mr. Cooney

The cost will usually be met by the other spouse.

Mr. Andrews

The other spouse in this instance.

Mr. Haughey

There is an aspect of that in section 22 (2) (a). The Minister has written in £40 and £10. In the event of the District Court jurisdiction being increased by other legislation he has not provided that that £40 and £10 will automatically go up with the increased jurisdictions.

Mr. Cooney

In whatever piece of legislation will be amending this all the extra jurisdictions will be covered in it.

Chairman

It is a very sizeable sum. The District Court will award in a year £2,000 for a spouse and the per week £10 for each child, that is over £500 for each child. Does the Deputy want me to put the amendment?

Mr. F. O'Brien

The Deputy can put it to a vote.

Mr. Andrews

I wonder if the Minister would concede that we have a point, that there would be some point in bringing it up on Report Stage again or whether we may be wasting the Minister's time and the committee's time by discussing it further on Report Stage. Has he got any crumbs at all to throw me?

Mr. Cooney

It is not a question of being intransigent. I quite genuinely feel that the amendment is importing a bad principle into this legislation. The whole emphasis in the Bill is giving the court the discretion to examine the circumstances of the particular family coming before it. That discretion should be left to the court and this amendment would seriously interfere with that. It is not from the desire to want to say " no " that I am opposing it.

Mr. G. Collins

The Minister is reading far more into the amendment than what is in it. We do not want to interfere with the courts. If Mrs. X is getting £40 a week in 1970 then she should have £40 plus whatever the increase in the cost of living is in 1971, depending on her husband's disposable income.

Mr. Cooney

Not necessarily.

Mr. G. Collins

If her husband's income increases considerably in 1971 then Mrs. X can go back to the court and have the whole question re-examined. Can she?

Mr. Cooney

Yes.

Mr. G. Collins

Right, if the income varies and she feels that she should get more. We are not taking away from the imparting of the courts in that particular area at all. We are trying to protect people who will feel obliged to go back to the courts once or twice a year just to keep up with the cost-of-living increases and no more. We are not interfering with the authority of the courts in their discretion or anything like that.

Chairman

Do I take it that Deputy Collins does not want me to put the amendment and Deputy Andrews does?

Mr. G. Collins

No, Chairman. I think you are inclined to pass yourself out.

Mr. Cooney

I think Deputy Andrews made a point about——

Mr. Andrews

I did not make any point about withdrawing it or otherwise. All I wanted him to do was reconsider the possibility of having it discussed on Report Stage in the light of the Minister's very inflexible attitude.

Mr. Cooney

I made my position quite clear.

Mr. Andrews

The Minister made the point that it was totally unacceptable to him. We would be wasting the Committee's time by raising it again on Report Stage. That is what I wanted to clarify before Deputy Collins and I decided whether or not to put it to a vote.

Amendment put.

The Committee divided : Tá, 6; Níl, 8.

Tá : Deputies Andrews, Brosnan, G. Collins, Mrs. Geoghegan-Quinn, Haughey and Power.

Níl : Deputies Mrs. J. Burke, Cooney, B. Desmond, Mrs. E. Desmond, Esmonde, Mrs. Hogan O'Higgins, F. O'Brien and Pattison.