N.K. v S.K.

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 17 January 2017
• Neutral Citation: [2017] IECA 1
• Date: 17 January 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 1 No. 2016/431

BETWEEN/

N.K.

APPLICANT/APPELLANT

AND

S.K.

RESPONDENT/RESPONDENT

[2017] IECA 1

Neutral Citation Number: [2017] IECA 1

No. 2016/431

THE COURT OF APPEAL

Interim orders – Custody – Exclusion from family home – Appellant seeking the exclusion of the respondent from the family home – Whether High Court had jurisdiction to make an order excluding the respondent from the family home

Facts: The High Court (O'Hanlon J), on 29th July 2016, granted interim custody of teenage boys, U and H (then aged 18 and 15 respectively) to the appellant wife and made an order pursuant to s. 11(1) of the Guardianship of Infants Act 1964 on an interim basis requiring the respondent husband to leave the family home pending the determination of judicial separation proceedings ([2016] IEHC 572). The husband appealed to the Court of Appeal against that decision contending, first, that the High Court had no jurisdiction to make a custody order in respect of U (as he was of full age) and, second, that the Court had no jurisdiction to make an order excluding him from the family home in accordance with s. 11 of the 1964 Act. The first issue raised by the husband was whether the trial judge had pre-judged the matter by reason of certain comments which she made in the course of the hearing.

Held by Hogan J that the trial judge did not pre-judge the outcome of the proceedings by reason of the comments which she made; even if there had been an application for recusal, which there was not, there was no basis upon which the trial judge ought to have recused herself. Hogan J held that there was no basis upon which the High Court judge could have made the custody order which she did in respect of U given that he had already attained his full age some six months earlier. Hogan J held that there was no general jurisdiction based on s. 11 of the 1964 Act to make an order which has the effect of excluding the husband from the family home; this conclusion remained unaffected by a consideration of the provisions of Article 42A.4 of the Constitution, since it was clear that the legislation enacted by the Oireachtas to give effect to these constitutional provisions (namely, the amendment of 1964 Act by the Children and Family Relationships Act 2015) has not conferred such a power. Hogan J held that any jurisdiction to exclude a spouse from a family home has heretofore been expressly conferred by statute (i.e., either the 1996 Act or s. 10(1)(a) of the Family Law Act 1995). Hogan J held that any such statutory jurisdiction has been heretofore confined to cases of actual or potential misconduct on the part of the spouse in question or following the making of relevant property orders following the granting of a judicial separation or divorce. In these circumstances, Hogan J held that the question of any inherent jurisdiction on the part of the High Court to make an order excluding the husband from the family home simply does not arise.

Hogan J held that the interim orders awarding custody in respect of U and excluding the husband from the family home were made without jurisdiction and must accordingly be set aside.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 17th day of January 2017

1 This is an appeal taken by the respondent husband against the decision of the High Court (O'Hanlon J.) delivered on 29th July 2016 whereby she (i) granted interim custody of teenage boys, U. and H. (then aged 18 and 15 respectively) to the wife and (ii) made an order pursuant to s. 11(1) of the Guardianship of Infants Act ('the 1964 Act') on an interim basis requiring the husband to leave the family home pending the determination of now pending judicial separation proceedings: see NK v. SK [2016] IEHC 572.

2 The appeal in these otherwise routine family law proceedings immediately raises two issues of considerable importance. First, does the Court have a jurisdiction to make an order for custody in respect of an admittedly young adult, but who has nonetheless attained his majority? Second, does the Court have a jurisdiction under s. 11(1) of the 1964 Act which is separate from and outside of the ambit of the Domestic Violence Act 1996 (as amended) ('the 1996 Act') to exclude a spouse from a dwelling which they own?

Background facts

3 Before considering these weighty questions, it is necessary first to consider the background facts. The couple were married on 2nd April 1995 and there are three children of the marriage, namely, M., born on 6th day of July 1996, U., born on 18th January 1998 and H., born on 9th December 2000. I propose for convenience to refer to them as 'the wife' and 'the husband' respectively.

4 M. is currently in his second year in third level education and does not live with either of his parents, save at weekends and in vacation. Although he remains financially dependent on his parents, he is now aged 20. His circumstances do not require to be further considered so far as the present application under the 1964 Act is concerned.

5 The second child, U., is now aged 18. It is common case that U. is autistic and is incapable of caring for himself independently of his parents at this time. U. is, however, currently in his 5th year in a mainstream secondary school, albeit that he is in a special class. So far as can be judged in the absence of a medical report, however, U.'s disability is a mild to moderate one.

6 The third child, H., is just 16 years of age and he is currently at school. No appeal has been taken in respect of the order for custody which was made in respect of him.

7 The family certainly enjoyed a privileged and affluent lifestyle, with the couple jointly owning four properties. The husband is well known in his own professional circle and he holds a very responsible position. Although the wife gave up her own career upon marriage and, in many respects, sacrificed that career for her husband and the children.

8 The trial judge had available to her two reports from a Dr. Gerardine Curtin, a consultant clinical psychologist. The first report was prepared in 2015 and the second report was prepared just before the hearing in the High Court in July 2015. Dr. Curtin reported that both husband and wife are loving and affectionate parents and that both should play a significant role in their children's upbringing and care through a joint custody arrangement. She concluded that Ms. K.'s parenting capacity is currently under utilised and that she was an insightful, caring and capable parent available to take primary care and responsibility for U. and H. I propose to return later to a consideration of the implications of Dr. Curtin's reports.

9 There are three family properties relevant to these proceedings, two situated at X and the other at Y. One may travel by car from X to Y in about 50 minutes. For convenience, I propose to describe the two properties at X as 'House 1' and 'House 2' respectively. As it happens, the family originally lived in House 2 before moving to House 1.

10 It would appear that the family relationship has been breaking down for some time, but matters came to a head in 2014. On 9th July 2014 the wife sought and obtained ex parte a barring order from the District Court pursuant to s. 4 of the Domestic Violence Act 1996 (as amended)('the 1996 Act') on the grounds that, as she alleged in the summons: 'He gets aggressive, got me by the neck. Keeps threatening me and scaring me.'

11 It is important to stress, however, that there has never been at any stage a judicial finding in respect of this allegation. As a result of that order the husband was obliged to leave House 1 and he resided for a week in a local hotel. He contended that the wife had no justification for making this application. The matter returned to the District Court on 17th July 2014. On that date the parties arrived at a settlement and the barring order application under the 1996 Act was struck out by consent, so that the District Court never got to pronounce on the merits of the wife's domestic violence claim. As a result of that settlement it was agreed that the husband should return to the family home at House 1 and that the wife should reside at Y. It was further agreed that U. should stay with the husband at House 1 from Friday to Monday, but that he should otherwise reside with the wife. H. continued to reside with the husband in House 1.

12 On the 15th July 2014 the present proceedings were issued in the High Court by the husband. In those proceedings he sought a decree of judicial separation pursuant to the Judicial Separation and Family Law Reform Act 1989, order relating to custody and access in respect of U. and H. and other consequential orders, including property adjustment orders. By an affidavit filed in February 2015 the wife counter-claimed for similar reliefs and detailed what she said was the husband's unreasonable and dictatorial behaviour towards herself and the other family members.

13 In the course of these proceedings the High Court directed a psychologist, Dr. Geraldine Curtin, to prepare a report pursuant to s. 47 of the Family Law Act 1995 in respect of U. and H. Dr. Curtin completed her report in July 2015, but although it contained a specific direction that the full contents of that report were not to be released to the parties, the parties' respective legal advisers were allowed to summarise her recommendations. One of those recommendations was to the effect that it would be preferable if U. and H. were to remain at their school at X, although it was essential that they be allowed to move in an orderly, timely and conflict free fashion between the homes of their respective parents.

14 Although the wife first took up residence in the family property at Y, an application was brought by the wife in the legal vacation to the High Court in August 2015 for orders regarding custody and access to be regularised and to...