A.B. v C.D.

• Jurisdiction: Ireland
• Judge: Mr. Justice Henry Abbott
• Judgment Date: 26 July 2011
• Neutral Citation: [2011] IEHC 543
• Court: High Court
• Docket Number: [2008 No. 265 C.A]
• Date: 26 July 2011

[2011] IEHC 543

THE HIGH COURT ( ) CIRCUIT COUNTY OF ( )

[2008 No. 265 C.A]

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. B.

APPLICANT

AND

C. D.

RESPONDENT/APPELLANT

Family - Children - Welfare of children - Access to and custody of children -Orders regulating access and custody -Appeal by father in relation to orders - S 47 Family Law Act 1995.

Facts: The appellant father and the respondent mother had been married with three children. Due to difficulties in the marriage, the parents had separated and a dispute arose over access to and custody of the children. The Circuit Court in 2008 had made a number of orders regulating the case of the children, and the father now sought to appeal the orders made by the Circuit Court.

Held by Abbott J, that the litigation between the parents had been destructive and profligate in nature. Expert evidence had been provided by a number of parties, as well as a guardian ad litem. Considering the large amount of written and oral evidence in the case, the Court was satisfied that whilst the father was clearly not without fault in the matter the mother had alienated the children from contact with their father. In addition, the mother had set out to undermine and marginalise any expert who she considered was giving evidence unfavourable to her. In the case of the youngest child of the parents, the Court felt the drastic step of a change of primary care from the mother to the father was necessary. The elder children were to remain in the primary care of their mother.

Following the making of the orders, Abbot J reflected on what steps could have been taken earlier in the case to prevent or reduce the length of such destructive and lengthy litigation. Leave to seek judicial review was therefore refused. Abbot J then proceeded to summarise the principles relating to s 47 of the Family Law Act 1995.

Mr. Justice Henry Abbott

JUDGMENT of Mr. Justice Henry Abbott delivered on the 26th day of July, 2011

1 1. This appeal has been taken by the respondent father against five orders made in the Circuit Court from the 17th June, 2008, to the 22nd October, 2008. These orders all dealt with the welfare of the three children of the marriage of the applicant mother and respondent father. The applicant and the respondent are referred to herein as A.B. and C.D. respectively for the purpose of protection of anonymity and active promotion of the in-camera rule, and they shall hereinafter for the purpose of convenience and clarity be referred to as mother and father respectively.

2 History of the Marriage

3 2. The mother and the father were married abroad in 1990. They remained abroad for a number of years, coming back to Ireland in the mid nineties. The three children were born in 1995, 1998 and 2000 respectively. When the parties returned from abroad each of them obtained professional employment and by the time these proceedings were initiated in 2002, the father was employed in location No.1, which is in the region of 80 to 90 miles from the family home and the mother was employed at location No.3, a comparatively easy commute from the family home. The history of the relationship was a happy one in the early years and it appears from the s. 47 reports that the children were planned and desired. The mother left the family home with the three children on or around the 19th March, 2002, after the occurrence of unhappy differences and stayed away from the family home from the 19th March, 2002, to May, 2002, living not too far from location No.2. Thereafter the mother continued to reside in the family home and the father resided in rented accommodation nearby.

4 3. The first resort of the parties to legal proceedings was made by the mother, where it appears she obtained an interim barring order in the District Court on the 23rd May, 2002. This barring order was never made permanent, but in any event, its necessity abated by reason of the fact that the mother went back to the family home with the three children almost immediately. While the District Court did not play any significant part in the background of these proceedings it is worth noting, for the purpose of further attention in this judgment, that the District Court ordered a psychiatric examination of the father, on the application of the mother. This examination did not reveal any mental deficiency on the part of the father, but associated with it was the emergence of a interfering behaviour of the mother with the psychiatrist involved which regrettably proved to be an unchecked cloud over all subsequent proceedings.

5 4. The father continued to work in location No.1 but his rented accommodation close to location No.2 enabled him to have access to the children. The Family Law Civil Bill was issued on the 3rd October, 2002, and in para. 8 thereof, the mother pleads the details of the unhappy differences between the parties as follows:-

‘The respondent (father) has behaved in such a way that the applicant (mother) cannot reasonably be expected to live with him. In particular, since in or about 2000, the respondent was withdrawn from the parties” relationship and from the family in general, frequently spending nights away from the family home and generally uncontactable by the applicant. In late 2000 the respondent started behaving in an aggressive manner towards the applicant and from about mid 2001 he became more and more abusive, both physically and verbally. In June, 2001 he threw the applicant and the children out of the house and they had to stay with the applicant”s father for a period of time. He was drinking late into the night and was verbally, physically and emotionally abusive towards the applicant. By this time the applicant was terrified of the respondent and feared for her own and the children”s personal safety. Following a violent incident in the family home in February, 2002 the applicant requested the respondent to leave the home on a temporary basis while they sorted out the issues between them but the respondent threatened to kill her. He threatened to take the children to Northern Ireland and leave them there so that the applicant would never see them again, and then threatened to kill both himself and the children.’

6 5. These allegations of violence have been denied by the father in pleadings and in evidence and throughout his reporting to the various experts retained in the case. The affidavit of welfare of the mother filed in conjunction with the Family Law Civil Bill and sworn on the 23rd September, 2002, states that the children then lived at location No.2 and that the father worked in location No.1. It also states that the mother lives on a ‘ fulltime basis with the children and there will not be any change in these arrangements’. Later, it is averred that when the parent is not there, the children are usually cared for by an extended family member or babysitter and during the school holidays the children are looked after by the mother and with occasional support from a family member or babysitter. The affidavit states that the father paid the sum of €1,600 towards child support for the months of May, June, July, August and September, 2002 and states finally that the father does see the children on a regular basis and in accordance with the access arrangements which have been put in place. The children did not have overnight access and it was not envisaged that there would be any change in these arrangements. A decree of judicial separation was granted on the 8th October, 2003. Around then the mother acquired another partner who was introduced to the children as a friend first, and no issue has arisen in respect of that transition. Much later, and before 2007, the father acquired a partner and ultimately commenced to reside with her in location No.1, but continued to occupy a rented property in location No.2 to facilitate access. These two partners shall be referred to as Sean (pet name ‘Seanie’) and Kathleen. The mother and father subsequently became divorced in the location No. 1 circuit jurisdiction and the applications in respect of which the appeals in this case are brought are based on the initial judicial separation proceedings in the Circuit of the County of location No.2. Both parties continued to be income earners, with the mother being in paid professional employment and the father sometimes in employment, sometimes in self-employment. An unhelpful aspect of the case is that since the youngest child, the boy Edward, came to live with the father as a result of court intervention, the father”s income has been curtailed by his involvement with Edward and hopefully this may change as things settle down. The employment of both parents, however, is reasonably recession proof. Like most other families, the equity of both parents may be taken as having been significantly diminished by the recession. As the history of the marriage has been punctuated, if not dominated, by an extraordinary number of court appearances, it is appropriate to chart the detail of court appearances with the various family developments and misfortunes associated therewith as follows.

7 History of Litigation

1. Following the Family Law Civil Bill initiated on 3rd October, 2002, the father”s notice of motion dated 18th December, 2002, was heard in an adjacent county on the 19th December, 2002, with agreed access and an order pursuant to s. 47 of the 1995 Act directing that expert No. 2, a Clinical Psychologist, make a report (on the welfare of the children). A Defence was filed with notice of trial in rapid succession on the 13th January, 2003, and the proceedings were adjourned on the 7th February in Circuit County Location No. 2 to the next sittings. On the 4th July, 2003, access to the father was granted in accordance with the written agreement and a further...