H. v H
| Jurisdiction | Ireland |
| Judge | PARKE. |
| Judgment Date | 04 February 1976 |
| Neutral Citation | 1975 WJSC-HC 1022 |
| Court | High Court |
| Date | 04 February 1976 |
1975 WJSC-HC 1022
HIGH COURT
PARKE. J. delivered the 4th day of February 1976
In this case the plaintiff and the defendant were married on the 21st June 1971 in Dublin according to the rites of the Roman Catholic Church. Both were, and possibly still are, members of that Church although the degree to which either now practises religion is extremely doubtful. There is one child of the marriage, George, who is the subject matter of these proceedings and who was born on 4th October 1973.
Although it is clear that there was no express agreement between the parents as to the religious upbringing of the child it is equally clear from the evidence of both of them that it was impliedly agreed. that the children of the marriage would be brought up as Roman Catholics. To quote from the words of Davitt, P. in Re May 92 I.L.T.R. 1 at p. 5;
"It was taken as a matter of course that in accordance with their duty they would rear any children of the marriage as Catholics."
This intention was put into effect by having George baptised as a Catholic although his youth has prevented any further steps being taken in that direction. It seems to me therefore, that the only .way in which the fact, of this case. Differ those in Re May is that in the latter case the parties had been married for upwards of ten year, and had therefore an opportunity to further the religious education of their children. I do not think that this. affects, the principles, to be applied in such cases
Before considering these principles it is necessary to outline briefly the circumstances which give rise to the present proceedings.
It appears that both before and after the marriage the defendant drank to excess, a fact which was well know to the plaintiff prior to her marriage It also appears that after marriage the defendant continued to drink heavily and this is prime cause of complaint by the plaintiff who says that, as a consequence, she was frequently and violently assaulted and beaten by him. On the other hand the plaintiff herself seems, at least on occasions, to drink to excess and in the only specific incident, in respect of which I have the benefit of the evidence of an Independent witness, she appears to have been principally to blame as a result of becoming extremely intoxicated. This episode occurred before the birth of George. I am satisfied, both on the plaintiff's evidence and that of her doctor that subsequently, the defendant committed a very serious assault on her during her pregnancy.
There is, as might be expected, a considerable conflict of testimony as to-the conduct of the parties during the first three years of their marriage. In particular there is a conflict as to the extent of the husband's drinking, the times of which he habitually returned home at night and especially as to the degree of fatherly care and affection which he displayed towards George.
There is another matter which I believe had a significant and unfortunate effect on the marriage. The plaintiff is the owner and manager of a hairdressing salon and is, and at all times was, better off financially than the defendant who is a bar-man in his father's licensed premises. His present salary is £50 per week and he must obviously have been paid much less at the time of the marriage. The result was that the plaintiff almost exclusively provided and furnished the matrimonial home, paid the greater part of the out-goings and expenses and provided one and for a period two motor oars. The husband did not impress me as being either a stable personality or possessed of much strength of character and probably reacted unfavourably to the disadvantageous position in which he found himself in this respect.
In the circumstances it is difficult to make an accurate forecast as to the future of the marriage. The most serious of the assaults complained of and the only one supported by medical testimony occurred more than three years ago. Neither then nor at any time until the happening of the event to which I will later refer does there seem to have been any real thought of separation. The plaintiff's brother-in-law (who seems to have done all in his power to help the parties) describes them as a couple who had very many violent rows but who were genuinely affectionate towards one another and on very good terms between their quarrels. I believe that had no untoward event intervened to interrupt its natural course this marriage, like so many of such unions would have had many and violent storms but probably would never have actually foundered.
However this was not to be. In 1974 the wife went on a holiday to Tenerife unaccompanied by her husband and there she made the acquaintance of a Mr. G. He is an Englishman residing in a large English city where he holds a highly paid and responsible public position. He is an active member of the Jewish community in which he lives, adhering to the Reformed Branch of that religion. when he met the plaintiff he was married with one son but living apart from his wife with whom the son resided being regularly visited by his father. I am told that shortly before the hearing of these proceedings a decree nisi of divorce had been granted to Mrs. G. in proceedings based on either desertion or separation for more than three years. No allegations of marital misconduct of any kind appears to have been made against either party. It is expected that the decree will shortly be made absolute
.I have had the benefit of seeing Mr G. in the witness box and hearing his evidence which was frankly and convincingly given. He impressed me as a man of integrity, of sincere and strongly felt religious convictions, deeply affectionate towards the plaintiff and able and anxious to make a permanent home for her and for George. I judge him to have the qualities which would make him a good father.
But whatever qualities are possessed by Mr. G. his meeting with the plaintiff was disastrous for the marriage. The acquaintance progressed very rapidly and before the holiday was over they had agreed to meet in England. The plaintiff was to attend some kind of hairdressing conference or convention in a town near the city in which Mr G. lived and they took advantage of this to meet and apparently spent the week-end together. This was the first of many such meetings accomplished for several months without the knowledge of the defendant who was unaware of Mr. O's. existence. These meetings with one exception appear to have taken place in England the plaintiff explaining her absence on grounds of professional commitments. The meetings have continued and I am told that the plaintiff visited the defendant in England in the week immediately prior to the hearing before me.
The exception was a meeting In an Irish seaside resort and I gather (although I do not find the evidence very clear on this point) that it was in or about the time of this meeting, early In the summer of 1975, that the defendant discovered what was going on as the result of overhearing a telephone conversation. He subsequently (by what means I do not know) obtained possession of two letters from Mr. G. addressed to the plaintiff which have, been tendered in evidence. The admissibility of these letters was strenuously challenged by Mr. Dempsey on behalf of the plaintiff but it seemed to me, that as the plaintiff not only disclosed her association with Mr. G. but in effect makes it the whole basis of her claim for custody of George out of the jurisdiction, she should not be allowed to object to the nature of that association being examined. Mr. Smyth for the defendant also contended that they were relevant on the issue of the Plaintiff's suitability to have custody. I accordingly admitted the letters but in the result I consider that their evidential value, in helping me to decide this case, is insignificant. If two comparatively young married people decide on the strength of a short holiday acquaintance to separate from their respective spouses and to live together in what they both describe as a permanent association and in the meantime spend regular week-ends together, I do not think that many people versed in the ways of the world would imagine that the relationship was platonic, letters or no letters.
It is not difficult to imagine the defendant's state of mind when he made such a shattering discovery. At the best of times he was addicted to drink and to violence towards his wife who alleges that his conduct now became such that she was in real fear for her life. She says that he threatened to kill her and he admits that when she told him that she wanted to take George to England to live with her and Mr. G. he said that he. would "shoot them both". I am now satisfied that although there seemed to have been some confusion on this point in some people's minds that when he used the word "both", he meant the plaintiff and Mr. G. and that he never at any time threatened any kind of violence towards George. The plaintiff's brother-in-law to whom the defendant repeated the threat took it seriously. The defendant says that he only made it to frighten the plaintiff sufficiently to deter her from carrying out her intention. I am satisfied that the defendant would never have carried .out such a threat if he was sober but, I cannot predict what he might have done if drunk.
However, given the defendant's character and temperament such a reaction appears entirely predictable and I am not disposed to attach as much importance to the episode as I am urged to do by Mr. Dempsey.
It must also be said in his favour that from...
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