X v Y

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 09 October 2020
• Neutral Citation: [2020] IEHC 502
• Date: 09 October 2020
• Docket Number: [2020 No. 3 CAF]
• Court: High Court

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989 AND IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN

X

APPELLANT (FORMERLY RESPONDENT)

- AND -

Y

RESPONDENT (FORMERLY APPLICANT)

[2020] IEHC 502

Max Barrett

[2020 No. 3 CAF]

THE HIGH COURT

Access – Child – Best interests – Appellant seeking more access than the Circuit Court ordered – Whether the status quo was the course of action which represented the child’s best interests

Facts: The marriage between the parties had, for practical purposes, ended, even though in law it continued to exist. The couple were judicially separated, the appellant was in a new relationship, and divorce proceedings between the parties were due to come on for hearing. The parties had one child who was touching on three years old. Both parents agree that the child was thriving at pre-school and in life more generally. The two had joint custody of the child, who lived with the respondent, the appellant having such access as had been ordered by the Circuit Court. The appellant appealed to the High Court against that order. The essence of the application was that the appellant wanted much more access than the Circuit Court ordered. The nature of the appellant’s work was such that he was in a position where he believed that he could take the child for 50% of the time. The appellant furnished the court with a sample calendar of how this arrangement would work, and how, on a shifting basis, access could be arranged so that each of the parties gets access to the child for a near-mathematical 50% split of time.

Held by Barrett J that the court had divergent parental views and no independent evidence as to whether the alternative proposed arrangement (the 50/50 arrangement or even the alternative access arrangement proffered by the respondent) was in the best interests of the child. The court therefore inclined to the status quo as being the course of action which represented the child’s best interests, rather than an untested deviation from that status quo which may or may not be in his best interests, and where the court would essentially be proceeding blindly, for it could proceed only on what it saw in the evidence, and it saw nothing (for there was no other evidence) by which to gauge the parents’ doubtless well-intentioned but still mutually conflicting views on how access should proceed.

Barrett J affirmed the order of the Circuit Court.

Appeal dismissed.

JUDGMENT of Mr Justice Max Barrett delivered on 9th October 2020.

I. Introduction

1 Unfortunately, the marriage between Mr X and Ms Y has, for practical purposes, ended, even though in law it continues, for now, to exist. The couple are judicially separated, Mr X is in a new relationship, and divorce proceedings between Mr X and Ms Y are due to come on for hearing (there is disagreement between the parties as to how soon those proceedings will be heard). Mr X and Ms Y have one child (Z) who is touching on three years old. Both parents agree that Z is thriving at pre-school and in life more generally. The two have joint custody of Z, who lives with Ms Y, Mr X having such access as has been ordered by the Circuit Court. This is an appeal by Mr X against that order.

2 The essence of this application is that Mr X wants much more access than the Circuit Court ordered. The nature of Mr X's work is such that he is in a position where he believes that he could take Z for 50 per cent of the time. Mr X furnished the court with a sample calendar of how this arrangement would work, and how, on a shifting basis, access could be arranged so that each of Mr X and Ms Y gets access to Z for a near-mathematical 50% split of time.

3 Both parents gave evidence in the witness-box and each clearly sought to be honest in the evidence given. The court is grateful to them for that. It summarises that evidence later below.

II. Absence of Expert Evidence

4 A court of law proceeds on evidence. Mr X's application, with respect, appeared to the court to stand possessed of a notable evidential deficiency. Mr X was seeking that a very young child relatively swiftly be entrusted 50% of the time to him and 50% of the time to Ms Y. This revision of the existing custody arrangements would involve a sea-change in the current arrangements, yielding a scenario in which a very young child (not yet three years of age) would lose a proximate relationship to his mother for relatively protracted periods of time. Whether such an amended arrangement would be in the best interests of Z, whether the altered arrangements sought by Mr X should be effected quickly, slowly or at all, whether a lessening of maternal contact at this time could lead to an unhealthy cooling of relations between Z and Ms Y, how matters might best be structured so that Z enjoys the healthiest of relationships with both parents (an emotionally necessary end), are not matters in which a law-court is inherently expert. So it has greatly disadvantaged the court in adjudicating on the within application that it has had no expert evidence as to whether the 50/50 form of access proposed by Mr X is in Z's best interests. It is not of course mandatory that such evidence be provided but that it has not been provided has had consequences in terms of how the court has approached the consideration of where Z's best interests lie in the context of the application made by Mr X.

5 It does not, with respect, suffice in this regard for Mr X to invoke the helpful judgment of Hogan J. in MM v. GM [2015] IECA 29, including but not limited to Hogan J.'s observations at paras. 4-7 and 14 thereof. This is because the court has to apply the principles identified, inter alia, in MM, by reference to the specific facts at hand, and it must, pursuant to s. 3 of the Guardianship of Infants Act 1964 (considered later below), “regard the best interests of the child as the paramount consideration” in its task. So although the court of course accepts (it is required to accept) the legal precepts and principles identified by Hogan J. in MM, those precepts and principles fall to be applied in the real-life context of each particular case; here, that real-life context is that the court has been confronted with (a) evidence of what access Mr X (in good faith) personally believes is in Z's best interests and why, (b) evidence of what access Ms Y (in good faith) personally believes is in Z's best interests and why, (c) some disagreement, even a degree of acrimony, between both parties on certain points, and also (d) a striking (and notable) commonality of evidence between both parents that Z is thriving under the access regime ordered by the Circuit Court.

6 Much the same points fall to be made, mutatis mutandis, as were made in the preceding two paragraphs, in respect of the proposed revised access schedule that Ms Y has advanced in the course of these proceedings, subject to the overriding observation that the court's decided impression was that Ms Y's proposed revised access arrangements were more an effort at seeming reasonableness than the product of a hard-held belief that access arrangements should be varied at this time. Certainly, her counsel referred more than once in all the submissions received to if the court was minded to vary the arrangements at all, a form of submission which did not suggest there to be much conviction on Ms Y's side that there should be a variation at this time.

7 It follows from all of the above that if (as is the case), (a) it is agreed between Mr X and Ms Y that Z is thriving in the access regime ordered by the Circuit Court, and (b) the court is faced with (i) divergent parental views and (ii) no independent evidence, as to whether an alternative proposed arrangement is in the best interests of the child, then, all else being equal, likely any judge would incline to the status quo as being the course of action which represents the thriving child's best interests, rather than an untested deviation from that status quo which may or may not be in the child's best interests, and where the court would essentially be proceeding blindly, for it can proceed only on what it sees in the evidence, and here it sees nothing by which to gauge the parents' well-intentioned but still mutually conflicting respective views on how access should proceed at this time.

8 One point, however, that the court would make in passing is that access is not a percentages process. The court suspects that even in marriages or relationships that endure through to the point in time when children of that union have attained adulthood, the number of such spouses/partners who can look back on a strict 50/50 split in terms of time spent with those children is low, if indeed such a union has ever existed; and here, of course, there is disunion, which brings its own challenges.

9 The court does not understand Hogan J. when he points to “both parents having equal claim in respect of the upbringing of their children” in MM, op. cit., para.4, to be positing 50/50 access as an ideal; rather he is referring to an equality of input into that upbringing. This reading seems borne out when one has regard to para.6 of MM, in which Hogan J. speaks of “both parents would, in principle, at least, [being] … the joint decisionmakers in respect of … upbringing”. And even when he refers, in para.6, to “children [being] entitled to the care, company and support of both parents” and to their being “equally entitled, where at all possible, to have a meaningful relationship with both … parents”, Hogan J. never posits a 50/50 access split as a general ideal or as a starting-point from which to commence or as an end-point at which to aim.

10 Here, Ms Y at all times in her evidence has fully and, it seems to the court, genuinely accepted that Z is, to borrow from the above-quoted wording of Hogan J., “entitled to the care, company and support of both parents” and to Z's being...