B.P. v S.O.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Jordan |
| Judgment Date | 18 February 2021 |
| Neutral Citation | [2021] IEHC 851 |
| Docket Number | [2018 No. 15 M] |
| Court | High Court |
In the Matter of the Judicial Separation and Family Law Reform Act, 1989 and the Family Law Act, 1995
[2021] IEHC 851
[2018 No. 15 M]
THE HIGH COURT
FAMILY LAW
JUDGMENT of Mr. Justice Jordan delivered on the 18 th day of February, 2021
. When relationships flounder and fail one consequence can frequently be that sense and reason and objectivity, on the part of those involved, get lost along with the relationship. Often, one partner adopts a particularly unhealthy mindset. The knowledge of the good in the other is archived — and the relationship history can fall victim to distortion. A desire to emerge victorious and vindicated at the end of the dissolution can become omnipresent in every engagement necessary or created along the way. And good people let themselves down in the process. And so it is here.
. While this is a claim for a Decree of Judicial Separation and ancillary relief concerning the children of the marriage, financial provision and property issues it is an involved case with a long history. The evidence in the case spanned seven days and illustrated a couple unfortunately submerged in costly high conflict litigation. Counsel for the applicant indicated at the outset of the case that a really significant issue in the case was that there were allegations of quite a heightened severity and that they had to be resolved and that they were “a real issue in the case”. In particular, there were allegations that the applicant raped and sexually assaulted the respondent.
. After lunch on the first day counsel for the respondent indicated that the respondent was agreeable to add the following to an open offer made shortly before the hearing, in an effort to process the issues before the court:-
“ Open offer addendum.
(1) Not to rely on the allegations/averments that the B.P. sexually assaulted me including rape, in these proceedings or at all.
(2) S.O. accepts that there is a difference of opinion/averment as to what happened.
(3) S.O. accepts that B.P. did not intend to cause any harm to her.
(4) S.O. confirms that she will not discuss these allegations in any setting save for personal, private or confidential therapeutic environment.”
. It was also indicated to the court that the respondent would confirm the following two statements in evidence:-
“(1) I do not withdraw the allegations that B.P. did these things to me, but in the hope of reaching an agreement and in the interest of moving matters forward for everybody's sake, I am prepared to undertake not to pursue them in any legal forum.
(2) In the hope and context of an agreement being reached in respect of B.P.'s conduct towards the children in the past, I am agreeable not to pursue them with a third party such as Tusla, the CFA, the HSE and B.P.'s employer. I am also agreeable that if contacted by any such agency, that I will inform them that I do not wish them to be pursued. I very much hope that no issues as to unwanted behaviour by B.P. towards the children arises in future.”
. This offer will be returned to later. It was not acceptable to the applicant who denied the allegations and who naturally hoped to leave the court with his reputation unsullied.
. Given the polarization that exists it is necessary to provide some details of the evidence in the case to put in context the findings and decision of the court.
. The applicant and the respondent started dating in October 2009 and were married in 2010. At that time they were both working in the same professional setting. The applicant was working in a position in the same department in which the respondent was one of his superiors.
. In or about 2011 the applicant commenced an MBA and he spent two years in a research role and eventually ended up submitting and getting the degree in July of 2017.
. On his training scheme the applicant was due to go to Galway for the second year. He was to be in Cork from in or about 2010 to in or about 2011 — and then to Galway. The eldest son, Child X, was born in 2010 and the respondent insisted that the applicant did not go to Galway, but stay and do the research degree in Cork for the following two years.
. In or about 2014 the couple bought the current family home. It required extensive renovation and extension. These works were completed at significant cost in or about 2016. When it was purchased the couple paid a deposit of €80,000 of which the respondent put in €40,000 and the applicant's father gave him a gift of €40,000 towards it. The remaining outlay was financed by mortgage borrowing. There are in fact three mortgages attached to the house.
. At the time the house was purchased the applicant was working in Kildare. He would stay with his father during the week and the couple were renting a house in Cork close to the respondent's parents' home. The third child was born in or about 2015. In or about 2015 the respondent terminated the tenancy in the rental house in Cork and moved with the children to her parents' house. She stayed with them until in or about 2016- and the applicant would stay there when in Cork. He spent two years working in Kildare and prior to that he had spent a year working in Galway. When in Galway he commuted daily except for the nights when he was working late or if the weather was terribly bad or if he was very tired. When working in in Kildare he would be there for the week and would get home at weekends if not working that weekend.
. The second two pregnancies were particularly difficult pregnancies and births for the respondent. She had a number of health problems during these pregnancies and was on sick leave at times. The respondent was throughout all this time holding down a demanding and responsible professional position.
. The demands of their respective jobs and a young family clearly took a toll on both parties and put pressure on their marriage.
. There were disagreements at an early stage following the marriage.
. When Child X was a few months old there was a disagreement concerning the church wedding. The civil wedding had taken place in or about 2010 and there was an agreement or an understanding that it would be followed by a subsequent church wedding. The respondent had some bereavements in her family in or about 2011 and the church wedding was deferred. Then, according to the applicant — and this does not appear to be in dispute — the respondent decided that she didn't want to have her church wedding. There was an argument and eventually the church wedding did take place in or about 2012.
. The applicant says that he had enormous reservations about doing his MBA in Cork. He felt that it would slow his career progression. He felt it wouldn't be necessary for the post that he was going to be looking for. He felt he wasn't a natural academic. And it involved a huge salary cut. He went from earning, around €100,000 per annum to €50,000 per annum. He didn't really want to do so. And his mentors were against it also. However, the respondent, according to the applicant, said that if he went to Galway and left her in Cork with a small child that the marriage wouldn't survive. According to the applicant the respondent basically put it on the line that if he didn't do his MBA in Cork that the marriage wouldn't survive. This Court accepts the applicant's evidence in this regard. It is a point of some small significance in supporting the court's view that the respondent was throughout the marriage very much in control of her situation in the marriage. But it should be added that insisting on the applicant staying in Cork was an understandable position for the respondent to adopt in circumstances where she too had a busy career and was entitled to have the support of her husband available to her and to their young child.
. Whilst living in the respondent's parents' house the couple (according to the applicant) had been sleeping separately most of the time and even in the previous property sleeping separately most of the time. They went back to sleeping together in the marital bed in September of 2016 when they moved into the new family home. Over the next few months, according to the applicant, the respondent made it clear that he was no longer welcome, and he ended up sleeping in Child X's bed most of the time. Initially it was because the children were in the bed with her but over time the applicant says that a lot of the time the respondent wouldn't want him to be anywhere near her and appeared to be “kind of disgusted” by him to some extent — and wanted him to keep away.
. There were other strains at the time in that the behaviour of Child X was becoming very difficult to manage. Both parents were struggling with it. He was acting out. This led to an episode in February of 2017 — the applicant thinks maybe the night of the 18 th or 19 th of February of 2017. At bedtime Child X became agitated and started hitting Child Y and Child Z and the applicant held him to stop him hitting Child Y and Child Z. The respondent emerged from the ensuite “to say that he was acting inappropriately and to get off Child X. And then she made a threat that she would contact Tusla and his colleague and mentor, S., in order to prevent him from getting a permanent job in Waterford if he didn't do what she said, which was to get out of the room and stay away from Child X ..”
. According to the applicant the respondent had not delivered such ultimatums previously although she would often joke that if he didn't behave himself he'd end up in a flat in Portlaoise visiting with the children at the weekend.
. It was difficult to cope with Child X's temper tantrums. According to the applicant:-
“We tried different things. Like, I tried stern discipline. It was a disaster, it just agitated him more. Tried placating. It didn't seem to work very well. In...
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