G(B) v G(M)

 
FREE EXCERPT

1999 WJSC-CC 2969

THE CIRCUIT FAMILY COURT

Record No. 320/93
G(B) v. G(M)
DUBLIN CIRCUIT
COUNTY OF THE CITY OF DUBLIN
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989

BETWEEN:

(B) G.
APPLICANT;
-and-
(M) G.
RESPONDENT.

Citations:

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S17

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2(1)(e)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2(1)(f)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S16(a)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S11

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S16(g)

D (JP) V G (M) 1991 ILRM 217, 1991 11 FAM LJ 11

W V W 1970 1 AER 1157

S V MCC 1970 1 AER 1162

S V S 1970 3 AER 107

F (A MINOR), IN RE 1993 3 AER 596

STATUS OF CHILDREN ACT 1987 S37

STATUS OF CHILDREN ACT 1987 S38(1)

CONSTITUTION ART 34.1

CONSTITUTION ART 38.1

CONSTITUTION ART 40.3

S (A) V B (R) & ORS 1984 ILRM 66

RUSSELL V RUSSELL 1897 AC 395

S V S 1983 IR 68

HAUGHEY, IN RE 1971 IR 217

STATUS OF CHILDREN ACT 1987 S38

STATUS OF CHILDREN ACT 1987 S39

STATUS OF CHILDREN ACT 1987 S42

STATUS OF CHILDREN ACT 1987 S38(2)

SUCCESSION ACT 1965

GUARDIANSHIP OF INFANTS ACT 1964 S11(1)

GUARDIANSHIP OF INFANTS ACT 1964 S11

GUARDIANSHIP OF INFANTS ACT 1964 S3

Words & Phrases:

CEF

Subject Headings:

*

1

RULING BY JUDGE CATHERINE McGUINNESSGIVEN THE 30th day of NOVEMBER, 1994

2

This is an application pursuant to the Judicial Separation and Family Law Reform Act, 1989in which the Applicant seeks a decree of judicial separation on the grounds of adultery and also an Order under Section 17 of the said Act in regard to the rights of the Respondent under the Succession Act, 1965. The Respondent counter claims for a decree of judicial separation pursuant to Section 2(1)(e) and (f) of the Act grounding her claim on length of separation and on physical, verbal and sexual assault by the Applicant. She also seeks a Section 17 Order and an Order pursuant to Section 16(a) granting her sole right of residence with the two children in the family home to the exclusion of the Applicant. Neither party seeks an Order pursuant to the Guardianship of Infants Act concerning the custody of the children or access to them.

3

The parties married on 29th October 1987. The family home is rented accommodation in which the husband has neither legal nor beneficial interest. There are two children E who is a child of the Respondent wife born prior to the marriage and of whom the husband is not the father and S born on 29 January, 1989 In his application, the Applicant husband claims that he does not believe that he is the father of S. It appears that the husband left the family home to take up employment in Jersey either in the last week of March or the first week of April, 1988. Some time later the wife contacted him and informed him that she was pregnant and he returned to the family home at the beginning of August, 1988. As I have said the child S was born on 29 January 1989.

4

The Applicant sought an Order under Section 11 of the 1989 Act which deals with interim orders directing blood tests to establish the paternity of the child S. This was refused by His Honour Judge Smith on 29 November, 1993. The matter was appealed to the High Court and was heard there by Geoghegan J. who dismissed the appeal. While no written judgement was given in the High Court, I was assured by both Counsel appearing before me that the Learned High Court judge expressed the opinion that he was dismissing the appeal on account of the fact that no issue as regards the child's paternity appeared on the pleadings and that if the pleadings were amended a further application could be made at the trial of the action in this court.

5

When the matter was listed before me in this court on 29th November, 1994, Counsel for the Applicant husband sought to amend the pleadings so as to include a claim for an Order pursuant to Section 16(g) of the 1989 Act for an Order determining whether or not the Applicant is the father of the infant S. and such further or other directions as to the welfare of the infant as the Court shall deem fit. It was also sought to insert at the end of paragraph 3 of the Applicant's application the sentence "It is in the best interests of S that it is established whether or not the Applicant is his father". The solicitor for the Applicant had given notice of the proposed amendments to the solicitor for the Respondent by letter dated 9 November 1994 and this letter was produced to me.

6

Counsel for the wife opposed this amendment on the grounds that the Applicant husband was relying on the presumption that he was joint guardian of the infant Sean in order to acquire locus standi under the Guardianship of Infants Act while at the same time seeking to deny paternity and thus his actual status as guardian. Counsel for the husband claimed that the present situation was that the husband by way of legal presumption was a joint guardian and therefore had locus standi to apply under the Guardianship of Infants Act and that he sought the ascertainment of the child's paternity in the interests of the child's own welfare. She referred me to the High Court case of J.P.D. v. M.G. reported at [l991] 11 FAM LJ. In that case the paternity of the two children of the marriage was in issue and the Plaintiff father sought Orders pursuant to the Guardianship of Infants Act, 1964. The wife in that case contended that the Plaintiff husband was not in fact the father of the two children and therefore was not a guardian of the children under the terms of the Guardianship of Infants Act and that he therefore lacked locus standi to seek orders under that Act. In his judgement Lavan, J. held that the Plaintiff was the legal father for the purposes of the proceedings due to the presumption of paternity and presumption of legitimacy since the children had been born during the course of the marriage.

7

I accept that the situation is somewhat different here, as in the J.P.D. v. M.G. case, the Plaintiff father sought to establish his paternity, whereas in this case the Applicant husband is questioning the paternity of the child. However, somewhat reluctantly I permitted the amendment of the pleadings largely because to refuse would in all probability lead to a fresh set of proceedings being issued in regard to Sean's paternity with consequent additional stress and expense to all parties. Since the Respondent had been put on notice of the proposed amendment of the pleadings by the letter dated 9th November 1994 I dispensed with the need for service of the amended pleadings.

8

With regard to the substance of the claim for an Order determining the paternity of the child S and consequently for a preliminary order directing blood tests, Counsel for both parties referred me to both Irish and English authorities which I refer to below. The relevant statutory provisions are as follows:

9

Section 16 of the Judicial Separation and Family Law Reform Act, 1989

"16. On granting a decree of judicial separation or at any time thereafter, the Court may on application to it by either spouse make any one or more of the following orders…

(g) an Order under Section 11 of the Guardianship of Infants Act, 1964concerning any dependent child of the family".

10

Section 3 of the Guardianship of Infants Act, 1964reads as follows:

"Where in any proceedings before any court the custody, guardianship or upbringing of an infant or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof is in question, the Court in deciding that question shall regard the welfare of the infant as the first and paramount consideration."

11

Section 11(1) of the Act reads as follows:

"Any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant and the court may make such order as it thinks proper".

12

Section 38(1) of the Status of Children Act, 1987provides:

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