K (A) v K ( J)

 
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2004 WJSC-CC 5344

THE CIRCUIT FAMILY COURT

DUBLIN CIRCUIT

COUNTY OF THE CITY OF DUBLIN

Record No. 67/1995
K (A) v. K ( J)
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989 and SECTION 11 THEREOF

BETWEEN:

A. K.
APPLICANT:
-and-
J K
RESPONDENT.
JUDGEMENT DELIVERED BY
JUDGE CATHERINE McGUINNESS on 1st June 1995.
1

The proceedings before the Court take the form of an interim application for a Barring Order pursuant to Section 11 of the Judicial Separation and Family Law Reform Act, 1989, ;together with applications for further interim relief. The parties were married on 3 August 1974 and there are five children of the marriage ranging in age from 20 years to 4 years. There is also one pre-marital child aged 22 years who has always been treated as a child of the family. Three of the children are still dependent.

2

The family home is at ..........., Ballybrack, Co. Dublin and is held in the joint names of. the parties subject to a mortgage from Dublin County Council. The husband is at present unemployed. The wife is employed as a cleaner as she has been for long periods throughout the marriage.

3

In her affidavit grounding the Motion, the wife alleges continuous physical and mental ill-treatment, both of her and the children, by the husband. In the month of September, 1992 she left the family home with all the children and went to reside in England. She returned in October, 1994 with the three youngest children. She did not return to the family home but resided first with her mother and subsequently (and to the present) with her aunt in somewhat limited and unsuitable accommodation. On 15 February 1995 she issued proceedings for a judicial separation and on 23 March 1995 she issued the interim Motion which is at present before the court. The husband is living in the family home. In his affidavit, he denies all the misconduct alleged by the wife.

4

While she was in England, the wife petitioned for divorce on 15 September 1993. A decree nisi was granted by the English court on 14 January 1994 and a decree absolute on 11 March 1994. In her petition, the wife claims to be domiciled in England in order to ground the jurisdiction of the English court.

5

Counsel for the husband raised a preliminary issue in this court in regard to the divorce obtained by the wife. He submitted that the divorce obtained by the wife was grounded upon her domicile in the English jurisdiction and was therefore valid in Irish law in accordance with the Domicile and Recognition of Foreign Divorces Act, 1986 with the consequence that she could not rely on her marriage to bring proceedings under the 1989 Act or to bring barring order proceedings whether under the 1989 Act or the Family Law (Protection of Spouses and Children) Act, 1981.

6

I accepted that this matter must be dealt with as a preliminary issue as it went to the jurisdiction of the court. I therefore heard evidence from both parties as to the facts relevant to the wife's domicile in September, 1993 (the date of issue of the divorce proceedings). I also heard submissions as to the law governing the matter from both Counsel.

7

As far as the facts are concerned, Mrs. K gave evidence that on account of her husband's violence, she left the family home on 25 September, 1992 bringing five of the children with her. The child R stayed with her maternal grandmother until Christmas, 1992 in order to complete an educational course and then joined her mother in England. The wife first went to her sister who lived in Kent and spent a week-end there. She then went to the local homeless persons unit in W where she obtained temporary accommodation which was leased from a private owner by the local authority. For a period of about 11/2 years she and the children lived in this type of temporary accommodation - at first in a four bedroom house and subsequently in a three bedroom house. At the time of her first application for local authority accommodation, she filled in a form seeking permanent housing - putting her name on the local authority housing list. Her evidence is that this was a necessary part of obtaining the temporary accommodation. In or about the spring of 1994 she obtained this local authority housing in a four bedroom maisonette in............. In October, 1994 she returned to Ireland with the three younger children. At all times during her period in England, the wife lived on income support payments and was not in any employment.

8

In or about July, 1993 the wife sent the two children R and M (aged??? 18 and 17 at the time) back to Ireland in order to ask their father if he would be willing to move out of the family home so that she and the children might return to live there. They did not actually visit the family home but went to the husband's brother's house where they met their father. The husband in his evidence accepts that the children passed on his wife's request and that he refused to move out of the family home. R and M then returned to their mother in England.

9

After the children's return, the wife went to see her local M.P. and subsequently went to a solicitor for advice. Her evidence is that she believed she could "fight for her home" by taking legal action in England. In September, 1993 when she had been resident in England for one year, she issued a petition for divorce which she grounded on allegations very similar to those set out in her proceedings before this court. In the petition, it is stated at paragraph 3 that "the petitioner is domiciled in England and Wales". The petition is a pro forma document and the statement quoted is part of the original form, rather than a detail or particular typed in by the individual solicitor. In her evidence, the wife stated that she had no understanding of the word "domicile"; that her solicitor asked her where she was living and on hearing that she was in homeless persons' accommodation, asked her whether the local authority would be housing her. She replied in the affirmative. He then asked her how long she had been living in England and she gave this information. This evidence is of course to a large extent hearsay, but I have no real reason to doubt its veracity. While Mrs. K is, to judge by her evidence, an intelligent woman, she has not had the benefit of much education and I would accept that in September, 1993 she was unlikely to have understood the full import of the word "domicile".

10

The husband was served with the divorce petition. He filled in the requisite form indicating that he would defend the petition but took no further action and, as already stated, the decree nisi issued on 14 January, 1994 to be followed by the decree absolute on 11 March, 1994.

11

When the wife returned to Ireland in October, 1994 she enquired about obtaining legal aid to establish her rights in the family home. She was informed that there was a 9 month waiting list for an appointment with a solicitor. She then obtained employment as a cleaner and saved to accumulate the necessary legal fees to instruct a private solicitor. She asserts that she will not be returning to England.

12

While in England, she enrolled the younger children in the relevant schools. In her temporary accommodation she was on good terms with her neighbours, but in the later permanent accommodation she was unhappy. It was a somewhat rough housing estate where even quite young children were involved with drugs and she had fears for the welfare of her own children. During her time in England, she kept in touch by phone with her mother and sister in Dublin. Her mother also came over to stay with her. In England, her only relations were her sister in Kent and a brother in London. Prior to leaving England, she gave notice that she was going to vacate her house and she is no longer on the local authority housing list.

13

The husband in his evidence said that he did not know why his wife left the family home and that she and the children left when he was absent. He made enquiries from his wife's mother and was told "she's sick of you - she is going to England". When he visited the wife's mother's house, he was told that his wife was not coming back "under any circumstances". He accepted that the two children visited him at his brother's house but placed the visit in early September, 1993. According to him the children said that the wife "did not like England and wanted to come back", but would only do so if he left the family home. She would not return unless he left. He subsequently was served with the divorce papers. He also received the Statement of Arrangements (which was handed into court) in which details of the children's proposed schooling was set out. In regard to the child J, it is stated that he "is not yet of school age but will receive State education suitable to his abilities". He assumed that these were permanent plans for the...

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