C.K. v C.K.; Re P.K. and C.K.

• Jurisdiction: Ireland
• Judge: Mrs. Justice Denham
• Judgment Date: 01 January 1994
• Court: High Court
• Docket Number: 818 Sp. Ct. 6/1992,[1992 No. 818 Sp. Ct. 6]
• Date: 01 January 1994

1993 WJSC-HC 762

THE HIGH COURT

818 Sp. Ct. 6/1992

K (C) v. K (C)

IN THE MATTER OF THE CHILD ABDUCTION AND ENFORCEMENT OF CUSTODY ORDERS ACT, 1991

AND IN THE MATTER OF P.K. AND C.K., INFANTS

BETWEEN

C. K.

PLAINTIFF

AND

C. K.

DEFENDANT

Citations:

CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991 S6

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 13(b)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 20

CHILDRENS ACT 1908 PART II

CHILDRENS ACT 1908 PART IV

GUARDIANSHIP OF INFANTS ACT 1964 S3

D (A D) V D (P J) UNREP BLAYNEY 7.2.86 1987/2/371

ADOPTION (NO 2) BILL 1987 1989 ILRM 266

BURKE V AG & ANOR 1972 IR 36

D & D, STATE V G & ORS 1990 ILRM 10

F V F 1987 ILRM 1

DPP V QUILLIGAN 1987 ILRM 606

SAUNDERS V MIDLAND HEALTH BOARD UNREP SUPREME 23.6.87

R (L) V R (D) UNREP COSTELLO 2.4.92 1992/4/936

S, IN RE 1991 2 FLR 1

W (P) V W (A) UNREP ELLIS 21.4.80 1980/10/1862

NORTHAMPTON CO COUNCIL V F & F 1982 ILRM 164

N A MINOR, IN RE (ABDUCTION) 1991 1 FLR 413

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 1

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 2

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 3

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 4

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 12

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 13

LECKINGER V CUTTRISS UNREP BLAYNEY 9.7.92

V V B (A MINOR)(ABDUCTION) 1991 1 FLR 266

A (A MINOR)(ABDUCTION), IN RE 1988 1 FLR 365

CHILDRENS ACT 1980 PART III

G (R) V G (B) UNREP COSTELLO 12.11.92

A (M) V R (P) UNREP FLOOD 23.7.92 1992/10/2911

G V BORD UCHTALA 1980 IR 32

J H, IN RE 1985 IR 375

CONSTITUTION ART 40.3.1

MAGEE V AG 1974 IR 284

W V W UNREP LARDNER 19.2.92 1992/13/4346

F V F UNREP CARNEY 24.11.92

R (A MINOR)(ABDUCTION), IN RE 1992 1 FLR 105

K V W & ORS 1990 ILRM 121

Synopsis:

INFANTS

Protection

Child - Residence - Abduction - Father's initiative - Wife - Consent - Absence - Family resident in Australia - Child brought to Ireland by father - Mother seeking return of child to Australia - Oral evidence of parties - Child interviewed by judge - Child Abduction and Enforcement of Custody Orders Act, 1991, ss. 6, 7; 1st schedule, articles 3, 12, 13, 20 - (1992/818 Sp - Denham J. - 27/11/92) - [1994] 1 I.R. 250 - [1993] ILRM 534

|K. v. K.|

1 Judgment of Mrs. Justice Denham delivered the 27th of November 1992

2 The Plaintiff wife in this action seeks an Order under Part II of the Child Abduction and Enforcement of Custody Orders Act, 1991 for the return forthwith of the infants P. and C. to the Commonwealth of Australia.

3 This case raises some very important issues, but also it is an extremely urgent matter of its very nature. Consequently I am giving my decision in that time frame, so that the children who are innocent parties in this action will not be harmed by delays caused by the legal process.

FAMILY HISTORY

4 The Plaintiff, Defendant and two children in issue are Irish citizens. The Plaintiff and Defendant were married in March 1981 in Dublin. The two children are children of the marriage. P. was born in December 1985 and C. was born in February 1988. The Plaintiff and Defendant lived and worked in Ireland. However, they decided to go and live in Australia which they did in February 1989. They planned to stay in Australia until their eldest child would finish primary school, and then return to Ireland to enable him to attend secondary school in Ireland, in about 1996.

5 In Australia the Plaintiff and Defendant have residency status and both initially got employment as sales representatives. In January 1990 they purchased a home at Lawlor Park, Sidney, and the children went to the local pre-school and St. Bernadette's Primary School respectively.

6 In 1991 the Defendant returned home for three weeks owing to the death of his father. He had not settled well in Australia and the Plaintiff felt he might settle back if he had a visit to Ireland.

7 In mid-1991 the relationship between the Plaintiff and the Defendant deteriorated. In January 1992 the Plaintiff was promoted. Her career has blossomed and she is doing very well taking home $550 Australian dollars per week. Unfortunately the Defendant was not so lucky. While he has had two sales representatives jobs he was unable to pursue a career of his original choice as a sales representative but has taken up driving a taxi, which became a permanent job early this year. It has meant long hours, 60 to 70 hours work per week, which also have not been very financially remunerative.

8 The Plaintiff has travelled in her job to conferences and meetings. Since 1989 she has been on five such conferences of approximately one week each. She also went on a trip to Hong Kong which was a prize she won for her success in her job, the Defendant went with her on that holiday.

9 The major financial support of the family has been the Plaintiff. She was contributing $550 Australian dollars per week to the home this year. The Defendant has not been contributing to the payment of the mortgage and was contributing $60 to $100 Australian dollars per week to the household.

10 In February 1992 the Plaintiff told the Defendant of her friendship with G.W.. In June 1992 the Defendant by agreement left the family home and went to live with his brother and family in Sidney. The Plaintiff considered that this was a permanent situation, but she did allow the Defendant to believe that it was a trial separation. He was then still hopeful of a reconciliation. The children were left with the Plaintiff in the family home. The Defendant had access to the children easily and as he wished. In fact because of circumstances he did not take overnight access until the end of September 1992.

11 In August 1992 the Defendant applied to the Australian Courts for a Custody Order which was to be heard on the 8th of September 1992. He did this to try and show the Plaintiff that he had rights to the children too and to let her imagine what his position was just visiting the children. On the 4th of September he told the Plaintiff that the application was withdrawn. There are no civil proceedings pending in Australia.

12 The friendship between the Plaintiff and G.W. developed. Over June, July and August 1992 he visited the Plaintiff's home regularly. He stayed overnight on one occasion, and P. saw someone in the bed with his mother and later asked his father if he had been home and in bed with the Plaintiff.

13 G.W. is married with three children and I accept the Plaintiff's evidence that it is planned that he will divorce his wife, that the Plaintiff divorce the Defendant, and that then the Plaintiff and G.W. will marry.

14 In September 1992 the Plaintiff told the Defendant that she was going to divorce him and marry G.W. and that G.W. was going to live with her and the two children in the family home from the end of September. The Defendant was upset at this proposed divorce. He was and is concerned at the children living in the house with their mother and G.W. as "a live-in lover". He feels he knows nothing of this man, although they have known each other socially for over a year. He felt he could not offer the children a home in Australia. On the 14th September 1992 he paid a deposit on tickets back to Ireland for himself and the two children. He planned to take the children overnight on the 30th September 1992. On that day with no notice to the Plaintiff he and the children flew to Ireland. On her return from work on the 1st October 1992 the Plaintiff expected the children to be returned, they were not, she got worried and ultimately discovered from the Defendant's brother that the Defendant had gone to Dublin, which was confirmed by the police.

15 She discovered two envelopes in the front of her car, one contained car keys and the other a note. The note said:-

"Dear C. ,"

16 I've tore up pages of explanations for what I've done. I think you will be fully aware of my reasons so there is no necessity to bore you with further details. I am sorry our lives have turned out like this. Nothing will convince me that we could not have worked things out but you obviously have had other plans. Whatever you decide to do I wish you good luck but I am sorry I can't say the same for you and G.

17 You will know where to contact me.

18 Love

19 C."

20 The Defendant is living with his mother in Dublin with the two children, they are going to school locally. He is unemployed.

21 The Plaintiff has arranged leave from her job to come to Ireland to make this application. Her leave has had to be extended because of the time this case has taken to get on and because of the length of the hearing. She is concerned that if she applies for further leave that it will endanger her job. The Plaintiff wishes to return to Australia with the two children, to return them to their previous routine, to the pre-school for C. and to St. Bernadette's Primary School for P.. She indicates that she will be unable to pay the mortgage but plans to rent a house in the same locality. She plans to return to her job.

22 The Defendant plans to stay in Ireland. If the Plaintiff's case succeeds he may return to Australia. He has two brothers in Sidney at present. The Defendant did the necessary paperwork on leaving Australia with the two children to ensure that he and the children could re-enter Australia.

23 In this case I had the benefit of the Affidavits of the Plaintiff and the Defendant and their cross-examinations. In addition, as an exercise of my discretion, I allowed some additional oral evidence from the Plaintiff and the Defendant given with the view to the Counsel for the Defendant arguing the "welfare of the children"...