A. O'M. v F. O'M

• Jurisdiction: Ireland
• Judge: Binchy J.
• Judgment Date: 2018
• Neutral Citation: [2018] IEHC 805
• Docket Number: RECORD NO. 2016/15M
• Court: High Court
• Date: 2018

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989 AND IN THE MATTER OF THE FAMILY LAW REFORM ACT 1995 AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964 (AS AMENDED)

BETWEEN

A. O'M.

APPLICANT

AND

F. O'M

RESPONDENT

[2018] IEHC 805

Binchy J.

RECORD NO. 2016/15M

THE HIGH COURT

FAMILY LAW

Judicial separation – Custody – Costs – Applicant seeking a decree of judicial separation – Whether the applicant should be granted an order for joint custody of the children

Facts: The applicant applied to the High Court seeking a decree of judicial separation pursuant s. 2(1)(a) and/or s. 2(1)(b) of the Judicial Separation and Family Law Reform Act 1989. The applicant sought orders as to the custody of the two children of the marriage. The applicant sought an order pursuant to s. 8 of the Family Law Act 1995 directing the respondent to pay the applicant such periodical and/or lump sums for her support and/or the support of the two dependent children as the court sees fit. The applicant sought an order pursuant to s. 14 of the 1989 Act, extinguishing the share to which the respondent would otherwise be entitled to in the estate of the applicant by virtue of the Succession Act 1965. The applicant sought orders as to costs.

Held by Binchy J that a decree should be granted pursuant to s. 2(1)(a) of the 1989 Act. Binchy J held that the applicant should be granted an order for joint custody of the two children and that she should have primary care of the two children. Binchy J held that it was appropriate to continue the order of the court previously made in respect of maintenance of the applicant and the children in the sum of €6,000 per month. Binchy J held that: the apartment in Dublin should be transferred into the sole name of the applicant and that the County Registrar of County Dublin should be directed to execute all such documents as are necessary to secure transfer; in the meantime all receipts of rental should continue to be paid to the credit of the mortgage account with Ulster Bank, which is in the sole name of the respondent, and the in camera rule shall be lifted for that purpose; the site in Northern Ireland should be transferred into the sole name of the applicant and the County Registrar for Dublin shall be directed in personam to execute such documentation in the name of the respondent, as is necessary to secure the transfer of this site; (4) all share options of the respondent that have not yet been exercised by the respondent should be transferred to the applicant to the intent that she shall be entitled to exercise those share options on the same terms as the respondent; and (5) any other monies retained on account of the respondent should be transferred to the applicant. Binchy J held that an order pursuant to s. 14 of the 1989 Act, extinguishing the share to which the respondent would otherwise be entitled to in the estate of the applicant by virtue of the Succession Act 1965, should clearly be made but, unusually, having had regard to the circumstances of these proceedings, Binchy J held that no corresponding order would be made as regards the entitlement of the respondent in the estate of the applicant.

Binchy J held that, having had regard to the refusal of the respondent to engage in these proceedings in any way which gave rise to very significant difficulties in relation to the service of the proceedings, the fact that the respondent made an application for the return of the children pursuant to the provisions of the Hague Convention, and later withdrew that, but only at the eleventh hour (the evidence established that the respondent incurred costs of the order of €70,000 in the Hague Convention proceedings) and that the applicant had incurred costs of the order of €125,000 including VAT in these proceedings, and the overall conduct of the applicant, he would make an order that the respondent should pay all costs incurred by the applicant in the conduct of these proceedings and also in the conduct of the application made by the respondent pursuant to the provisions of the Hague Convention when taxed and ascertained.

Judgment approved.

EX TEMPORE JUDGMENT of Mr. Justice Binchy delivered on the 14th day of December, 2018

1 In these proceedings the applicant seeks a decree of judicial separation pursuant s. 2(1)(a) and/or s. 2(1)(b) of the Judicial Separation and Family Law Reform Act 1989. The applicant has given me evidence as to the circumstances in which the marriage has broken down and I am satisfied that a decree should be granted. Having heard the evidence of the applicant I am satisfied that the decree should be given pursuant to s. 2(1)(a) of the Act.

2 The applicant seeks orders as to the custody of the two children of the marriage. A. was born on 2nd September, 2004, and F. was born on 15th November, 2006. Having heard the background to the breakdown of the marriage and the fact that the applicant left an Asian country, X., in April, 2016 and the fact that the respondent has, on the evidence of the applicant, completely disengaged from the family since that date and having regard to the reports furnished to the Court by a Dr. [ ] in March, 2017, I am fully satisfied that the applicant should be granted an order for joint custody of the two children and that she should have primary care of the two children. The only engagement on the part of the respondent in these proceedings in that regard was to make an application in November, 2016, which was withdrawn in March, 2017 seeking the return of the children to X. where they had been living with each of their parents until April, 2016. Since withdrawing that application however, the respondent has had no engagement at all with these proceedings and his engagement with the family has been very limited. He did have some engagement with his children by Skype for a period, but according to the applicant that engagement has now ceased.

3 It is clear from the reports of Dr. [ ] that the children have adjusted very well to their lives in Ireland and are happy and stable and this is confirmed by the applicant as of today also. The children clearly know their own minds and while I have considered whether or not I should hear the voice of the children directly in the context of the application before me today, I do not consider it necessary having regard to the report of Dr. [ ] of 1st March, 2017, and having regard to the evidence given to me today by the applicant. Nor do I think any practical purpose would be served by my interviewing the children now aged 14 and 12 years of age respectively in the context that their father has completely disengaged from these proceedings and indeed from the family and there is no order that this Court could make that would have any practical consequence even if I thought it was desirable to interview the children. I am satisfied I have met my statutory and constitutional obligations in this regard by considering the reports of Dr. [ ] and hearing from the applicant today.

4 The next relief sought by the applicant in these proceedings is an order pursuant to s. 8 of the Family Law Act 1995 directing the respondent to pay the applicant such periodical and/or lump sums for her support and/or the support of the two dependent children as to the court seeing fit. In...