O'B v O'B

• Jurisdiction: Ireland
• Judge: GRIFFIN J.,McCARTHY J.,O'HIGGINS C.J.
• Judgment Date: 01 January 1984
• Neutral Citation: 1983 WJSC-SC 905
• Docket Number: [S.C. No. 181 of 1982],(181/1982)
• Court: Supreme Court
• Date: 01 January 1984

1983 WJSC-SC 905

THE SUPREME COURT

O'Higgins C.J.

Griffin J.

McCarthy J.

(181/1982)

O'B. v. O'B.

O B

Plaintiff/

Respondent

and

O B

Defendant/

Appellant

Subject Headings:

HUSBAND & WIFE: spouse

1 JUDGMENT delivered the 17th day of June 1983by O'HIGGINS C.J.

2 This appeal has been brought by the Defendant, who is the husband of the Plaintiff, against the making by Mr. Justice Costello in the High Court, of a barring order, on the application of the Plaintiff, prohibiting him from entering the family home at _____________, Co. Dublin. The order was made on the 23rd June 1982 and was associated with other orders providing for custody of and access to the two infant children of the marriage and also for maintenance. The ground of appeal on which most reliance was placed by Counsel on behalf of the Defendant was to the effect that neither the evidence before the learned trial Judge nor the facts as foundby him, constituted proper or sufficient ground for the making of a barring order. In addition it was argued that the evidence before the learned trial Judge established that an application by the Plaintiff (the wife) for a barring order based on similar grounds had been fully considered and adjudicated upon by Judge Clarke in the Circuit Court, on appeal from the District Court, and had been rejected by him. On this account it was submitted that this issue was res judicata and that the wife as Plaintiff could not renew her application in the High Court and that such should not have been entertained by the learned trial Judge.

3 Before considering these grounds of appeal it is necessary to refer to the statutory basis for the making of barring orders and to recent changes in the exercise of the jurisdiction. Having done so it will, I think, appear that this appeal probably constitutes the last occasion upon which this Court can consider the proper application of the statutory provisions tothe making of such orders. On the basis that this is so, this appeal is of particular importance.

4 The jurisdiction to make a barring order, excluding one spouse from the family home at the instance of the other, was conferred by Section 22 of the Family Law (Maintenance of Spouses and Children) Act 1976(the 1976 Act). This is a comprehensive statute concerned with many of the problems which arise from a broken or disturbed marriage. Section 22 is contained in Part IV, under the heading: "Miscellaneous". The power of barring a spouse which it confers is not expressly contemplated by the long title, and, as it is the only section which deals with the matter, the basis upon which the power is to be exercised must be gathered from the words of the Section only, without reference to any general intent of the statute. Section 22 provided in subsection (1) as follows:

"On application to it by either spouse, the Court may, if it is of opinion that there are reasonable grounds for believing that the safety or welfare of that spouse or of anydependent child of the family requires it, order that spouse, if he is residing at a place where the applicant spouse or that child resides, to leave that place, and, whether the other spouse is or is not residing at that place, prohibit him from entering that place until further order by the Court or until such other time as the Court shallspecify."

5 By subsection (4) the "Court" meant the High Court, the Circuit Court, or the District Court. The High Court was given jurisdiction in all cases, and no limit applied to the duration of the barring order it could make. The Circuit Court was given jurisdiction in all cases where the rateable valuation of the place concerned exceeded£100, and, again, no limit was applied to the duration of its order. The District Court was given jurisdiction irrespective of rateable valuation, but its orders were limited in the first instance to three months' duration. Under subsection (1) for the Court to act it was necessary to establish "that there are reasonable grounds for believing that the safety or welfare of that spouse (the applicant)or of any dependant child requires the" making of the barring order. The use of the word "safety" probably postulated a necessity to protect from actual or threatened physical violence emanating from the other spouse. The word "welfare" is not so easy to construe. I incline to the view that it was intended to provide for cases of neglect or fear or nervous injury brought about by the other spouse. In both situations, it seems to me, that it is the conduct of the accused spouse and its effect upon the other, or the children, which the Court had to consider. In his report to this Court, Mr. Justice Costello has indicated that it has been the practice to accord to the Section a very wide ambit, particularly in considering what is meant by "welfare". I am sure this has been a correct practice provided that what endangers the "welfare" being considered can be attributed to the conduct of the other spouse, whether that conduct consists of positive action or attitude or mere neglect. In other words, under Section 22 of the1976 Act, in my view, the Courts were required to look not only to the endangered safety or welfare of the applicant spouse or children, but also to the conduct of the other spouse, in order to see if such conduct caused the danger. It seems to me from his report that this also was the sense in which the learned trial Judge felt that the Section had to be interpreted and applied.

6 I have, of necessity, been referring to Section 22 of the 1976 Act and to the manner of its application, in the past tense. I have done so because this Section has been repealed by Section 17 of the Family Law (Protection of Spouses and Children) Act 1981(the 1981 Act). Under this "1981 Act" the jurisdiction to make barring orders is confined to the Circuit and District Courts, with the District Court order having an initial duration of twelve months and the Circuit Court order, in the exercise of that Court's initial jurisdiction, being open as to duration. In repealing Section 22 of the 1976 Act, Section 17 of the 1981 Actprovided in subsection (3) as follows:

"(3) An application made to the High Court under the said Section 22 and not determined before the commencement of this Act, may be dealt with by that Court under this Act."

7 The 1981 Act came into operation on the 24th July 1981. The application for the order sought in these proceedings was then pending before the High Court and was in fact heard by Mr. Justice Costello on the 23rd June 1982. The application was, therefore, made during the period of transition, but fell to be considered and dealt with by the High Court, as provided for in Section 17(3) "under this Act", i.e. under the 1981 Act.

8 I note from his report to this Court that Mr. Justice Costello regarded the application which he had to deal with in these proceedings, as one to be dealt with under the 1976 Act. While in this respect he was incorrect, this fact does not seem to me to be material because the principles which he sought to apply were those which, in my view, oughttobe applied under the 1981 Act. Section 2 of the 1981 Act provides in the same terms as Section 22 of the 1976 Act for the making of a barring order by the Court "if it is of opinion that there are reasonable grounds for believing that the safety or welfare of the (applicant) spouse or any child so requires." In this Act, however, the long title indicates expressly that the cause of the trouble must be the conduct of the other spouse. This long title is in the followingterms:

"An Act to make further provision for the protection of a spouse and any children whose safety or welfare requires it, because of the conduct of the other spouse, and to provide for other connectedmatters."

9 It is clear, therefore, that in order to justify the making of a barring order under the 1981 Act there must be something in the conduct of the spouse concerned which endangers the safety or welfare of the other members of the family. Once a barring order is made the barred spouse commits an offence and may be imprisoned for sixmonths if he or she contravenes its terms. Further, a barring order, if made by the Circuit Court or by the High Court in pursuance of its transitional jurisdiction, can be without limit as to duration (subject to an application to discharge the order when the necessity for its continuance no longer exists - see Section 11). These consequences indicate that the making of such an order requires serious misconduct on the part of the offending spouse - something wilful and avoidable which causes, or is likely to cause, hurt or harm, not as a single occurrence but as something which is continuing or repetitive in its nature. Violence or threats of violence may clearly invoke the jurisdiction. However, when one enters the area of tension or of mere disharmony in the home, even if clear incompatibility between the two spouses is established, can the existence of such a situation justify one spouse in barring the other merely because the situation would be much easier if only one spouse lived in the house? Or can the fact that the marriage has broken down - even irretrievably -justify the removal from the home of one of the spouses because it is difficult for both to live in the same house? In my view, none of these situations, taken alone, justify the making of a barring order. It must be remembered that a judicial separation could not be decreed on such grounds. In my view, neither should a barring order. I am fortified in this view by a consideration of Section 11 of the 1976 Act which envisages the Court discharging a barring order when satisfied that the safety or welfare of the "spouse or child for whose protection the order was made does not require that the order should continue in force." It seems to me that this Section indicates that the barring order, which is contemplated...