A v B

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 11 May 2023
• Neutral Citation: [2023] IEHC 254
• Court: High Court
• Docket Number: [2023 No. 1 CAT]

In the Matter of the Judicial Separation

And Family Law Reform Act 1989

and

In the Matter of the Family Law Act 1995

Between

A

Applicant/Respondent

and

B

Respondent/Appellant

[2023] IEHC 254

[2023 No. 1 CAT]

THE HIGH COURT

JUDGMENT of Mr Justice Max Barrett delivered on 11 ^th May 2023 .

A. Background

1 . In 1983, Ms A married Mr X, a man whom, she states, repeatedly beat her, sometimes in front of their infant child.

2 . In or around 1986, Ms A and Mr B formed a friendship. By 1987 this had developed into a serious romantic relationship. Mr B indicated that this would have been known to others. Certainly it was known to Mr X who, on occasion, attacked Mr B (then a very young man).

3 . Economically, the 1980s were not an easy time in Ireland. Mr B got some employment but his prospects were not great and he decided to leave. In 1988 he went to Country Q. He indicated in his evidence that his prime motivation in leaving was to get a job and to make some money (with a view to returning to Ireland to start a business, which – after some years – he eventually did). However, the antagonism being directed at him by Mr X was also a factor.

4 . In 1988, Ms A followed Mr B to Country Q. She left without her child and came back again, it seems to see if her marriage could be saved. But by July 1989 she had had enough. I took a note at the hearings of what Ms A said at this point in her evidence. She said, amongst other matters that “ I couldn't, couldn't stay” and that “ I was never, never coming back”.

5 . Life in Country Q went well. Both Ms A and Mr B are hard-working individuals. They both got jobs quickly. Ms A recalled in her evidence that she worked six days a week. Mr B indicated in his evidence that he sometimes worked seven days a week, sometimes doing double shifts. So it was hard going, but at least they were working, there was money coming in, they had friends and Ms A indicated a number of times in her evidence that it was a lovely time, save in one respect: she repeatedly pointed to her heart in her evidence and indicated that there was always a niggling there over the thought of the child that she had left back in Ireland.

6 . The child was looked after by his paternal grandmother (Mrs P) who came across in the descriptions of her by Ms A as a thoroughly good lady. The paternal grandfather (Mr P) also came across in the descriptions of him by Ms A as a gentleman. Ms A spoke to the child once a week by telephone (her face lit up in the witness-box as she described this). Ms A recalled that these calls were on a Monday evening. Mr B indicated in his evidence that he thought it was maybe another evening. Nothing turns on this.

7 . Ms A also took every opportunity that she could to visit Junior in Ireland. Mr X seems to have done what he could to frustrate these visits. Mrs P did what she could to facilitate them. But it was not easy. There were several such visits a year. More often than not Ms A came to Ireland by herself. Sometimes she came in the company of Mr B.

8 . Throughout this time, Mr X was an awkward and abrasive presence. Amongst other matters, he refused to allow the child to visit Ms A in Country Q. According to Ms A he did, however, indicate that when the child reached the age of 12 or 13 it would be for the child to decide with whom he wished to reside. It was not clear to me from the evidence whether Mr X would have been satisfied for the child to move to Country Q if the decision of the child was that he wished to live with Ms A.

9 . Over in Country Q, the material circumstances of Ms A and Mr B were continuously improving. They went from renting a room to renting a flat, and in time – I will come back to this – they went on to buy a house together. But if I stick with matters chronologically for now, in 1992 Mr P (unfortunately) passed away. He had always been nice to Ms A and she attended his funeral, flying back to Country Q on the evening of the funeral. I do attach some significance to the fact that Ms A returned to Country Q at this time. She was obviously satisfied to attend a funeral at which Mr X was also present, so her fear of him seems, to some extent, to have diminished, presumably because she was living in Country Q which was home at this time.

10 . In any event, back to Country Q, Ms A went. That was in October 1992. There, on 28 ^th July 1995, so almost three years later (and all the while living in Country Q) she presented a petition for divorce. On 5 ^th July 1996 she was granted a final and absolute divorce decree. Sometime around 1995 or 1996 Mrs P visited Ms A in Country Q. She came for a weekend and stayed for a week. She did not bring Junior as Mr X was still refusing to let the child leave Ireland. There is no significance to this visit, save that I have in my notes that Ms A indicated at this point in her evidence that “ That was my life. I was there to stay.”

11 . Sometime around 1995/1996 – neither Ms A nor Mr B were precise as to the date – they bought a house in Country Q. Mr B indicated that he was told by a co-worker that he was better to buy a house than to be paying rent especially as, such was the buoyant state of the housing market in Country Q at the time, he could expect that any house he bought would likely rise in value. He acted on this sensible advice (which proved, as matters turned out, to be very good advice).

12 . Mr B maintained that, so far as he was concerned, he bought this house as an investment property and that it remained his intention to return to Ireland and start a business here. This may have been his intention. However, I respectfully do not accept that the house he and Ms A bought and in which they lived as their family home was anything other than a family home. All of us when we buy a family home – if we are lucky enough to do so (and it is, sadly, a diminishing hope for many at this time) – expect that, all else being equal, chances are that over the 20–30 year lifespan of a mortgage the property we are buying will rise in value. However, that expectation does not suffice to turn a family home purchase into an investment property purchase. If that were the case there would be few if any family home purchases; they would all be investment property purchases. And though I have no evidence before me in this regard, I would be a little surprised if the lending institution which assisted in the purchase of the family home in Country Q was advised (or believed itself to be) assisting in anything other than a family home purchase, though again I have no evidence before me in this regard.

13 . In 1996 there was some notion of Mr B buying a house in Ireland. However, this fell through and never happened. However, in 1998 he did buy a house in Ireland and later renovated it. Ms A indicated that this was to be an investment property. However, I respectfully do not accept that this was so, for the very good reason offered by Mr B in his evidence. He indicated that he converted the box room of what was a three-bedroomed house into an en suite bathroom and he posed the question in his testimony why he would do that if he was going to rent it out, that he could ask for more rent if he was renting out a three-bedroomed house rather than a two-bedroomed house (with en suite).

14 . I find Mr B's evidence in this last regard to be convincing evidence that the house in Ireland was always intended to be the couple's family home and I am buttressed in this sense by what happened subsequently. The couple sold their home in Country Q, Ms A moved to the family home in Ireland in late-1998, Mr B had some work to finish in Country Q but by sometime in early-1999 he was back in Ireland and the two were ensconced in their family home. Since that time their lives have been in Ireland. Mr B set up a business here which is still going. Ms A worked separately for a time and then took a job as a secretary in her husband's business.

15 . Mr B also indicated in his evidence that there was often talk between himself and Ms A over the years about the prospect of moving back to Ireland. But while he may have been determined to return, the evidence before me does not suggest that Ms A shared that determination. She had decided back in July 1989, when she left Ireland, that “ I couldn't, couldn't stay” and that “ I was never, never coming back”. Just because, years later, she discussed the possibility of returning does not mean that she had resolved to do so, or was even teetering on abandoning (or even minded to abandon) her original resolution of July 1989. Spouses discuss...