A v B

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 25 November 2020
• Neutral Citation: [2020] IEHC 610
• Docket Number: [2019 No. 74 CAF]
• Court: High Court
• Date: 25 November 2020

IN THE MATTER OF THE FAMILY LAW DIVORCE ACT 1996

BETWEEN

A

APPELLANT

(FORMERLY RESPONDENT)

– AND –

B

RESPONDENT

(FORMERLY APPLICANT)

[2020] IEHC 610

Max Barrett

[2019 No. 74 CAF]

THE HIGH COURT

JUDGMENT of Mr Justice Max Barrett delivered on 25th November 2020.

I

Background

1 This is an appeal by Ms A against the financial provision made by the Circuit Court in respect of the parties following on their divorce. It follows on 1½ days of hearing in the High Court at which both parties represented themselves. It was a notably challenging hearing, thanks entirely to Mr B's demeanour and behaviour. He was repeatedly verbally abusive of Ms A in court, he had to be asked many times to stop cutting across her when she spoke, he often scoffed at Ms A's submissions when he was supposed to be quiet, he threatened Ms A with prosecution for perjury and, at one point, suggested that she was defaming him when in truth she was but making submissions in a notably restrained and competent manner (submissions that are, of course, cloaked with privilege from liability in defamation). More than once Mr B used foul language and more than once he was so intemperate that the court had to indicate that a Garda would have to be called in if he persisted in his behaviour. In fairness, Mr B apologised to the court for some of his interruptions. Notably, however, he never apologised to his former wife. Instead to the very end he was making vitriolic comments about or to her and almost constantly cutting across her whenever she spoke. Ms A indicated that this was what it was like when she was living with Mr B.

2 Two of Mr B's children, a son and daughter, gave evidence about how challenging their father's behaviour was when he was living at home. Mr B's son seemed quite stoic in Mr B's rather intimidating presence; his daughter, a gentle soul, physically recoiled when Mr B spoke. (On Day 2, Ms A eventually turned sideways in her seat in court in a clear attempt to avoid the aggression that was continuously being directed towards her). After I entered the Four Courts on the morning of Day 2 of the hearing, I could not but notice, as I walked down the corridor towards the courtroom, just how far apart the parties were sitting – Ms A and her children at one end of the corridor and Mr B at the other – and how close and loving the mother, son and daughter were in their interactions, all of them notably sitting in such a way that they did not have to look down the corridor towards Mr B.

3 The daughter recalled hours of arguments at home, always hearing her father's voice being the first to be raised, how she was forever afraid for her mother, how her father used to come close to her mother's face and point his finger into her face, how the daughter used to get stomach upsets from the stress, and how she often told schoolteachers that she was upset. When her father asked her about ‘good times’ the daughter could not recall a time when life at home had ever been less than uneasy. She did not recall her father ever striking her mother, but her brother did. The daughter painted one particularly striking vignette of when she was a little girl sitting at the top of the stairs one night, her head cupped in one hand, the other wiping away her tears, listening to her father going on and on in some argument, and all the time being worried for her mother's well-being.

4 Remarkably, Mr B at one point in the proceedings sought to justify striking his wife during their marriage. The court set him straight on this point and, disturbingly, must reiterate, yet again, a point that it made as recently as X v. Y [2020] IEHC 525, at para. 47, and which it has already had to reiterate since:

“There is no context in an intimate relationship in which domestic violence is permissible. … A party to an intimate relationship should never have to live in the fear and/or with the actuality of domestic violence being perpetrated upon that party. There are no ‘ifs’ or ‘buts’ in this regard, no exceptions, no mitigating circumstances. Domestic violence and/or the threat of domestic violence (even where no actual violence ensues) is always unacceptable.”

5 If Mr B found something that his wife said was of a nature to set off his temper, then the appropriate course of action for him to take was to head out on a walk, take a cold shower, or take himself to his parents' house for the night, basically whatever it took to ‘cool down’. There is no excuse for domestic violence.

6 Throughout the proceedings, Mr B talked incredibly quickly, almost frenetically, all the time aiming complaints and insults galore at Ms A. He has run through five solicitors in the course of these proceedings, a statistic that is telling, regardless of whether they came off record or he dismissed them. He had an Isaac Wunder order issue against him at one point. He complains that he was once the victim of a particular tort, and he has good complaint in this regard, though he did sue over the tort and was successful, receiving substantial damages and an apology; however difficult it may be, Mr B needs, if the court might respectfully observe, to draw a line under this episode which he referred to again and again in his submissions.

7 Mr B has, regrettably, taken in the past to posting the details of his marital woes and his intentions concerning these proceedings on social media. Some of the posts seem threatening, some seem infused with a conspiracy theory that would be offensive to the court if it was not so silly, and some use language that is choice. His posting of these details has been mortifying for his ex-wife and – were they to discover that these posts issued (assuming they have not already discovered) – would be most embarrassing for his children. Before he takes to social media again, the court would respectfully urge Mr B to think of the impact of his actions for his children.

8 There was a period when texts were being sent by Mr B to his children, which they found disturbing. For example, a supposed ‘Happy New Year’ message sent by Mr B to a daughter promised that he would be making all sorts of trouble in the year ahead. Fortunately, it appears from the evidence that the sending of such messages has now stopped. However, relations between Mr B and his children are fraught, Ms A averring, inter alia, as follows:

“I say that our children suffer stress and anxiety…[owing] to the respondent's behaviour. They have come home from access on numerous occasions in a distressed state where the respondent has told them [that] they are only ‘pawns in a game’, he is going to sell their home and he doesn't care where they live…”.

9 The evidence in the pleadings is oftentimes harrowing to read. One daughter vividly captures an almost non-stop rant by Mr B that occurred on a post-separation outing to a park by her, Mr B, and one of her brothers. The rant began on the drive to the park, continued throughout the time in the park, and lasted for much of the drive home. The daughter describes how, in the park, her brother, clearly a considerate fellow, would kick their football ahead, it seems so that she could run after it and escape, if only for a few moments. In the end, the daughter hid behind a tree to cry. When she eventually returned to the others, her father was still ranting. She screamed at him to stop, started crying hysterically, began to shake, and felt like she could not breathe. Her father's response when she said that she could not breathe was the strikingly selfish observation, “ Welcome to my world”. In the end, it seems Mr B only stopped ranting (and thereafter sat in stony silence for the rest of the journey) because the daughter on the way home gave every indication that she was about to jump from the moving car. Her account is but one among many pieces of evidence in the pleadings that give an arresting sense of how utterly intolerable Mr B's behaviour has been, how deleterious a presence he is for his children, and how his behaviour and demeanour in court were no aberration, but consistent with a longstanding and continuing pattern of impossible behaviour that is patently damaging to Ms A and her children, as it would be to any wife and child/ren.

10 Mr B insists that Ms A, one of her in-laws (a retired Garda), some State officials and even one of his own onetime solicitors are all in some sort of great conspiracy against him. In deciding this appeal, the court does not have to rule on whether or not this great conspiracy of individuals wishing to ‘do Mr B down’ in fact exists – albeit that the court may have an instinctive sense as to where the truth of matters may lie.

11 Mr B asserts that he is a reasonable man and that the court was not getting the true measure of his ex-wife – a lady who, notably, did not once respond in kind to the vitriol that he heaped on her and hers in court, who broke down crying several times under the pressure of Mr B's onslaught in court (which was almost overwhelming in its vigour and pace), and who impressed the court as a woman who is, frankly (and understandably) worn out by Mr B. A man who behaves in as unpleasant and unyielding a manner as Mr B did in court will inevitably face an uphill struggle in establishing that actually he is a reasonable man – and Mr B did not triumph in that struggle. In passing, the court cannot but note that it was deeply unimpressed that when Ms A broke down in tears, Mr B's response more than once was to call out “Crocodile tears!”. They were not ‘crocodile tears’. They were the inevitable consequence of his appalling behaviour.

12 On Day 2 of the hearing, the court was treated to some recordings that Mr B had made of Ms A in her home and by which he hoped to show how unreasonable she can be. In fact, the recordings, to the extent that they were audible and comprehensible, revealed a woman who was, at worst, cross at the moment when the...