B (A) v D (C)
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE MICHAEL WHITE |
| Judgment Date | 21 June 2013 |
| Neutral Citation | [2013] IEHC 638 |
| Court | High Court |
| Docket Number | [No. 5 M/2011] |
| Date | 21 June 2013 |
BETWEEN
AND
[2013] IEHC 638
THE HIGH COURT
FAMILY LAW
Children
Custody - Welfare - Marital difficulties - Behaviour of father - Whether allegations against father meeting standard of proof - Whether custody should vest in either party - Whether joint custody appropriate - Guardianship of Infants Act 1964 (No 7), ss 11 and 47 - Orders made (2011/5M - White J - 21/6/2013) [2013] IEHC 638
B(A) v D(C)
Facts: This case concerned an application pursuant to s. 11 of the Guardianship of Infants Act 1964, concerning the ongoing welfare of the two daughters of the parties. Both the applicant and the respondent sought sole custody and regulated access in respects of the parent not given custody. The applicant, an Irish citizen worked his family farm and was employed as an oil company driver. The respondent, who is English had resided in Ireland for a number of years and cared primarily for the couple"s daughters, aged seven and five. Initially the parties had a good relationship, but over a period of time difficulties arose in the marriage. The irretrievable breakdown of the marriage occurred as a result of an incident in the family home on the evening of the 11th September 2010 and early the following morning the 12th September whereby the applicant following an argument with the respondent became loud, threatening and abusive to such an extent that the respondent out of fear was forced to call An Garda Síochána. On the morning of the 12 th, a further incident occurred when the respondent"s mother became concerned that E.F. was watching inappropriate pornographic images on the television, and that applicant was present in the room when this was happening. Consequently, on the 20th September, 2010 having been informed of the incident on the 12 th September the respondent left the family home with the children and went to reside with her parents in the United Kingdom without the consent of the applicant. In the United Kingdom a complaint was made by the respondent to the authorities, alleging sexual abuse by the applicant of his eldest daughter E.F. The applicant commenced Hague Convention proceedings in the United Kingdom. On the 1st February, 2011, the respondent undertook to return to Ireland with the children subject to certain conditions. She returned to Ireland on the 19th February, 2011. The applicant vacated the family home and the respondent has been living there with the children since that date. The applicant did not have any access to the children from September 2010 to March 2011. Once access was established it was supervised from March 2011 to March 2012 when it became unsupervised.
Held by Justice Michael White that there had been escalating difficulties within the marriage. He reasoned that based on the evidence presented that the applicant had not been physically violent towards the respondent, but that on those occasions when he drank alcohol to excess he was likely to become difficult. The court further reasoned that the respondent was not tolerant of the applicant watching pornography and that she had not properly addressed the difficulties within her business which had caused frustration on the part of the applicant. Acknowledging that the duty of the court was to regard the welfare of the children as the first and paramount consideration before him, Justice White reasoned that whilst the respondent feared the applicant following his threatening behaviour on the 11 th & 12th Sept and the report from her parents that the applicant had watched porn in the presence of their eldest daughter, her decision to leave the jurisdiction was rash and inappropriate despite her concerns. Whilst the court acknowledges that the testimony and statements of E.F. were unusual disclosures for a child of that age, there was no evidence of sexual abuse. Nonetheless, because of the evidence of the respondents mother, the child interviews with police, and reassurances from the Detective Sergeant that the child was not coaxed, the court reasoned that there had not been a conspiracy as alleged by the applicant of the respondent and her father to deprive him of custody of the children by removal to England and the use of false allegations of sexual abuse to further that aim. Accepting the finings" of the relevant psychiatric reports on the children, Justice White determined that there should be a fresh start and that the destructive behaviour of both the applicant and respondent in terms of undermining each other etc. had to cease. In awarding joint custody, Justice White determined that the respective parties engage in a parenting programme, with the applicant being allowed overnight access.
1. This is an application pursuant to s. 11 of the Guardianship of Infants Act 1964, concerning the ongoing welfare of the two daughters of the parties. The duty of the court is to regard the welfare of the children as the first and paramount consideration.
2. The applicant is seeking a sole custody order and an order regulating access by the respondent.
3. The respondent seeks a sole custody order in respect of the children and also to have the applicant's access to the children regulated.
4. The application was heard on the 14 th, 15 th, 16 th, 17 th and 21 st January and continued on the 12 th and 13 th March when judgment was reserved. The Court has set out the list of witnesses in the schedule.
5. The applicant is Irish and works the family farm in partnership with his mother and is in employment working as an oil company driver. The respondent is English and has resided in Ireland for a number of years. She does not work outside the home at present. The parties married on the 12 th November, 2005. There are two children of the marriage E.F. born in 2006, now just short of her 7 th birthday and G.H. born in 2008, now aged 5.
6. The parties met in May 2005, the applicant moved into the respondent's residence very shortly thereafter. They subsequently built a new family home on lands on the applicant's family farm, and moved there in 2008.
7. Initially the parties had a good relationship. Unfortunately over a period of time difficulties arose in their marriage, the details of which are in dispute, and to which the court will return.
8. The irretrievable breakdown of the marriage occurred as a result of an incident in the family home on the evening of the 11 th September 2010 and early the following morning the 12 th September, 2010. On the 20 th September, 2010 the respondent left the family home with the children and went to reside with her parents in the United Kingdom. The children of the marriage were removed from the Republic of Ireland without the consent of the applicant. In the United Kingdom a complaint was made by the respondent to the authorities, alleging sexual abuse by the applicant of his eldest daughter E.F. Certain investigations were carried out in the United Kingdom, evidence of which was heard by the court.
9. The applicant commenced Hague Convention proceedings in the United Kingdom. On the 1 st February, 2011, the respondent undertook to return to Ireland with the children subject to certain conditions. She returned to Ireland on the 19 th February, 2011. The applicant vacated the family home and the respondent has been living there with the children since that date.
10. The applicant did not have any access to the children from September 2010 to March 2011. The access was supervised from March 2011 to March 2012 when it became unsupervised. At present the applicant has access to the children on three periods a week but does not exercise overnight access.
11. Both parties agree their relationship started well but difficulties emerged. The applicant accepted in evidence that prior to his marriage he had used sex chat lines as a form of escapism. He accepted he had recommenced this activity during the marriage. The respondent had discovered this and was very upset leading to a lot of arguments.
12. The applicant accepted he watched adult pornography on occasion but did not have any addiction to it. He stated that both himself and the respondent watched it together on occasion. The respondent gave evidence that the applicant watched pornography frequently and she watched on only one occasion and did not approve of it.
13. Both parties accepted there were difficulties during the pregnancies. The respondent was not well at times and this led to tensions between them. Subsequent to the birth of the children the respondent required medical treatment which impinged on her ability to have further children.
14. The applicant denied he had been physically abusive to the respondent or that he had threatened her. The respondent alleged that he had been verbally abusive to her on a number of occasions. In her direct evidence she did not refer to physical abuse, but has referred to it in some of the reports, and in cross examination.
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