McL v McL
| Jurisdiction | Ireland |
| Judge | Mr. Justice Twomey |
| Judgment Date | 09 November 2017 |
| Neutral Citation | [2017] IEHC 712 |
| Docket Number | [2016 No. 60M] |
| Court | High Court |
| Date | 09 November 2017 |
[2017] IEHC 712
THE HIGH COURT
FAMILY LAW
Twomey J.
[2016 No. 60M]
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT, 1989 AND IN THE MATTER OF THE FAMILY LAW ACT, 1995
Family – Judicial Separation and Family Law Reform Act, 1989 – Family Law Act, 1995 – Overnight access to children – Alcohol abuse – S. 11(3) of the Guardianship of Infants Act, 1964 – Meaning of term residing together
Facts: The key issue in the present proceedings pertained to the overnight access to the children of the parties. The father sought the access of the children overnight for a weekend while the mother had objected to that keeping in mind the alcohol abuse of the father. The mother further contended that the Court should not have made an order for access as such an order would be unenforceable under s. 11(2)(a) of the Guardianship of Infants Act, 1964 as the parties were ‘residing together’ within the meaning of s. 11(3) of the 1964 Act.
Mr. Justice Twomey granted an order for the overnight access to the father for taking the children to their grandfather's house subject to an undertaking being given by the father that he would not drink on that occasion and the grandfather of the children would remain present on that weekend. The Court observed that the parties were not ‘residing together’ within the meaning of s. 11(2)(a) as they were living their separate lives, though under the same roof. The Court noted that it would be in the best interests of the children if they were provided the company of both the parents.
This is an interlocutory hearing regarding whether a father (Mr. McL) is to be allowed to take his three young children away for a weekend. The children of the marriage are aged 6, 4 and 2. Mrs. Mc L claims that Mr. McL should not be permitted to do take the children away for the weekend, since he has an alcohol problem, while Mr. McL accepts that he used to have an alcohol problem but claims that this is no longer the case.
A secondary issue addressed in this case is the costs, not just to the parties, but also the cost to the State in the use of court resources, namely having almost a full day in the High Court spent on the issue of whether a father can take his children away for a weekend.
Mr. McL and Mrs. McL are two successful professionals. Mrs. McL has instituted judicial separation proceedings against Mr. McL which are expected to be heard within six months of today's date. The marriage difficulties came to a head in September 2015 and although the couple are currently living under the same roof, they are living separate lives in every sense of the word. They interact regarding the children by email or text or by the use of a calendar in the kitchen. It is anticipated that they will be living in separate homes within a matter of months.
While Mrs. McL has taken the children on her own on overnight trips and has had care of the children on her own in the family home, it is the case that Mr. McL has never had the children away on an overnight trip. In addition, he has only had the care of the children on his own overnight in the family home on one occasion. That was in November, 2016 when Mrs. McL was away on an overnight business trip.
Most weekends however, Mr. McL does have sole control over the children for a number of hours during the day e.g. when he brings his daughter swimming or when he brings all the children to the park or to local cafés for hot chocolate.
The matter has come before this court because Mrs. McL has refused to consent to Mr. McL taking the children away for a weekend to his father's holiday home about two hours' drive from the family home. Accordingly, Mr. McL brought a motion before this Court in which he seeks an order permitting him to take his children away for one weekend.
Mrs. McL objects to Mr. McL having sole control of the children overnight. She points out that between 2014 and 2016 he was drinking alcohol excessively for a period of some 18 months. His GP, Dr. O, referred him, and he was duly admitted, to a residential alcohol treatment programme for five weeks. In addition, in 2014 he was charged with drink driving but was not convicted even though he was over the drink driving limit.
Mr. McL accepts that he did have an alcohol problem at that time but he avers that he is now a social drinker and does not abuse alcohol and he produced in evidence a copy of a letter from Dr. O, who has been his GP for some 10 years. In that letter the GP stated that in his opinion Mr. McL has the necessary ability to have overnight access to his children and that he has successfully addressed his alcohol issues. He also states that:
‘I do not consider that he has an alcohol problem at this time, and provided that this continues he should have overnight access to his children.’
As this is an interlocutory hearing, evidence was only provided on affidavit and so it was not possible to cross examine the GP about his actual knowledge about Mr. McL's current relationship with alcohol, in light of Mrs. McL's claims that he continues to drink alcohol to excess.
Accordingly, while this letter is of some relevance in the light of the 10 year relationship between the GP and Mr. McL, it does have to be treated with caution, since the GP has to rely on the information that is provided to him by Mr. McL.
The same can be said of the contents of the Report of a Consultant Psychiatrist who was engaged by Mr. McL to provide an assessment of him regarding his ability to care for his children on his own overnight. The psychiatrist concludes in that Report that Mr McL:
‘has used alcohol in a harmful way in the context of a difficult social situation. He sought treatment appropriately and has responded and it no longer appears to be a problem. He does not have a mental health disorder and there does not appear to be a psychiatric reason why he would not be fit to take his children on a holiday.’
In summary therefore, the factual dispute between the parties is that Mrs. McL claims Mr. McL should not be permitted to have care of their children on his own overnight because she believes that Mr. McL continues to abuse alcohol and she points, for example, to an recent incident of him falling asleep on the couch when she said he had a smell of alcohol off his breath. Mr. McL for his part denies these claims and says that for example in relation to this incident that while he fell asleep on the couch and had drunk alcohol, he was not drunk and did not smell of alcohol. Furthermore, Mr. McL points out that he is holding down a very responsible and demanding position which would not be possible if Mrs. McL's claims were true.
A legal point was also made on behalf of Mrs. McL, regarding s. 11(3) of the Guardianship of Infants Act. That section states:
‘An order under this section may be made on the application of either parent notwithstanding that the parents are then residing together, but an order made under paragraph (a) of subsection (2) shall not be enforceable and no liability thereunder shall accrue while they reside together, and the order shall cease to have effect if for a period of three months after it is made they continue to reside together.’
Since there is a reference in that section to an order under s.11(2)(a), it is relevant to set out that section:
‘The court may by an order under this section –
(a) give such directions as it thinks proper regarding the custody of the child and the right of access to the child of each of his or her parents’
On this basis, Mrs. McL argues that an enforceable court order cannot be made regarding access or custody of their children because they continue to reside in the same house together. Accordingly, it is submitted on behalf of Mrs. McL that this Court should not make any order regarding the...
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