R v R

 
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AN CHUIRT TEAGHLAIGH CHUARDA

THE CIRCUIT FAMILY COURT

Record No. 2002/1897

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989
IN THE MATTER OF THE FAMILY LAW ACT 1995
IN THE MATTER OF THE DOMESTIC VIOLENCE ACT 1996
BETWEEN:
R
Applicant
-AND-
R
Respondent
Abstract:

Family law - Judicial separation - Adequate and reasonable provision - Gross and obvious misconduct - Family Law Act 1995, s. 16 - Judicial Separation and Family Law Reform Act 1989

1

Judgment of His Honour Judge Bryan McMahon delivered 18th of January, 2005, at Circuit Family Court, Dublin.

2

The applicant wife (hereafter A(W)) in these proceedings seeks a decree of judicial separation pursuant to section 2(1)(b) and/ or section 2(1)(f) and section 3 of the Judicial Separation and Family Law Reform Act,1989 and ancillary orders relating to property, maintenance and custody of the only dependent child in the marriage.

3

The case was heard over five days and the court heard evidence not only from the parties themselves, but also from the children of the marriage who were then independent, from various third parties and from an expert on pensions. Suffice to say, that the proceedings were hotly-contested between the parties especially in relation to the allegation the applicant made of serious and long-standing abuse.

4

Background.

5

The parties were married in January, 1974. There is no dispute as to the fact that the marriage has now broken down and that there has been no normal marital relations between the parties for at least one year prior to the issuing of these proceedings. It is also clear from the evidence that there is no reasonable prospect of reconciliation between the parties. The respective solicitors have lodged the relevant certificates in accordance with the provisions of sections 5 and 6 of the Act of 1989. The statutory conditions for judicial separation being present, the main focus was on whether the order should be made under s.2(1)(b) instead of s.2(1)(f) of the Act of 1989 and what ancillary orders were appropriate in the circumstances.

6

The respondent husband (hereafter R(H)) is a Garda Inspector and works in Dublin. The A(W) is a homemaker and runs a B&B from the family home in a county town about an hours drive from Dublin. She also does some part-time teaching for the Department of Education, but this employment is not permanent. There are four children (all boys) from the marriage, two of whom are independent and living away from home. Another son who is 27 years of age is also independent and working, but

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still lives in the family home with his mother. C, the only dependent child, is now about 13 years of age and also lives in the family home with his mother.

8

The R(H) has given undertakings to the court to stay away from the family home. These undertakings were given some time ago when the A(W) commenced proceedings for a barring order/protection order. The R(H) emphasises, however, that although he gave undertakings, no court orders were made in respect of these matters. It is clear, however, that the undertakings were given in response to imminent proceedings taken by the A(W) when the R(H) gave them.

9

The Property, Income and Assets of the Parties.

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The Family Home.

11

The family home is valued by agreement at Eur650,000. There is an outstanding mortgage of Eur21,671 which gives an equity of redemption in the property of some Eur628,329.

12

Bank accounts and savings.

13

The Following are the relevant bank accounts held by the parties:

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1. First Active account in the joint names of the parties in credit to the amount of Eur89,500.

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2. First Active account in the sole name of the A(W) in credit in a sum of approximately Eur20,100.

16

3. Bank of Ireland account in the sole name of the A(W) in credit to the sum of Eur5,844

17

4. A small account and shares in the name of the R(H) with the Garda Credit Union in the amount of Eur5200 in total.

18

Pension.

19

The R(H) has been a member of An Garda Siochana since 1973 and has more than 30 years’ service. He is entitled to retire now on full pension benefits, but he may stay on in the force until he reaches the age of 57. If he chooses to stay on, however, his benefits do not markedly improve.

20

Life assurance policies.

21

One life assurance policy is in existence for which the R(H) pays the annual premium. This policy is a life policy and on the death of the insured, R(H), yields a benefit of a Eur150,000.

22

Income.

23

The R(H)’s income is fully contained in the P.60 Tax Form submitted to court. In this connection I am satisfied that this represents the entire income of the R(H). Suggestions that the R(H) got extra payment for weekend duty at Croke Park which did not appear in the P 60 were not borne out by the evidence. The R(H)’s salary is Eur58,417 per annum. The A(W)’s income is noted below.

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Background and History of the Marriage.

25

When the parties entered into the married state in 1974, the evidence was that they both contemplated what was a fairly traditional type of arrangement at the time: the R(H) was to be the breadwinner and the A(W) was to be the homemaker. She was to bear children, run a home and provide a stable domestic base for the R(H) who was just starting out on his career. They were both very young: she was barely 19 years of age and he was only 21. Like many a young couple they were full of hope and the adventure on which they embarked was a joint one, to the success of which each was to contribute equally in different ways. In so far as they thought about it at all, it was an equal and joint venture to support each other and raise and provide for any children that might result from the marriage.

26

The evidence is that the R(H) applied himself well in his job and advanced over the years to the rank of inspector. In recent times, he has been put in charge of a special task of responsibility which meant that, at the time of the hearing, he was based in Dublin and away from the family home. The uncontradicted evidence was that the R(H) applied all his earnings to discharge the family expenses, to the improvement of the family home and to the education of the children. He is a non-smoker, a moderate drinker and has no expensive personal hobbies. The A(W) too, in recent years, contributed to the family income by commencing a bed-and-breakfast business in the extensive family home and more recently by taking a teacher training course and getting some employment outside the family home as a temporary substitute teacher. The income generated from these sources was, however, modest.

27

In normal circumstances, where a breakdown occurs in such a situation, one would be disposed as a starting point to consider dividing the assets accumulated during the marriage on a more or less equal basis bearing in mind the provisions of section 16 of the Family Law Act, 1995, which obliges the court to make “adequate and reasonable” provision for the spouses and any dependent children.

28

In this case, however, counsel for the A(W) advances the case that such a division would be inappropriate given the conduct of the R(H) throughout the marriage. The A(W) alleges that the conduct of the husband over long periods in the marriage was “obvious and gross” and must feature prominently in the court’s decision relating to the proper ancillary orders warranted by the facts of this case. The R(H) denied any such misconduct, and apart from the normal ups and downs between married couples, and the verbal exchanges that are common enough between married people, he asserts that there was no abusive behaviour to his wife or to the children which might justify differentiation by the court when considering appropriate ancillary orders. In short, the R(H) says if there was bad conduct on his part, it was not sufficient to be classified as “obvious and gross” as required by Irish jurisprudence.

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Factual issues for determination.

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This, therefore, is the first factual issue I must determine. Was the R(H) abusive in the marriage and, if so, over what period of time did this continue. Following on from this, was the conduct “obvious and gross” in the legal sense and as set out in

D.T v. C.T
31

[2002] 3 I.R. 334 (especially at p.370 where Keane C.J. adopts Denning M.R.’s position inWachtel v. Wachtel [1973] Fam. 72, at p.90), so that the

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court should have regard to it in considering what orders and what terms are proper, bearing in mind the provisions of section 16 of the Act of 1995.

33

In response to these allegations, the R(H) asserted that the A(W) had a drink problem since 1999 or thereabouts, and that the acknowledged affair which the A(W) accepted she had with the R(H)’s best friend and colleague in the force, commenced in or about 1999, long before the marriage was over, and was still ongoing at the time of the hearing. The A(W) applicant wife said that this affair only started in March 2003, and lasted only for six months, and that this was long after the marriage had ended. It is further acknowledged by the R(H) that in very recent times he has entered into a relationship with a woman friend, but this it is accepted, is a recent development for him.

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The evidence.

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The A(W) gave evidence that the abuse by the R(H) commenced during...

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