S v S
| Jurisdiction | Ireland |
| Judge | FINLAY C.J.,McCarthy J.,O'FLAHERTY J.,EGAN J. |
| Judgment Date | 21 February 1992 |
| Neutral Citation | 1998 WJSC-SC 11937 |
| Court | Supreme Court |
| Date | 21 February 1992 |
1998 WJSC-SC 11937
THE SUPREME COURT
Finlay C.J.
Hederman J.
McCarthy J.
O'Flaherty J.
Egan J.
BETWEEN
and
JUDGMENT delivered on the 21st day of February 1992by FINLAY C.J. [Hederman J. concurring.]
In this case proceedings were instituted in the High Court by the plaintiff who is the wife against the Defendant who is her husbandseeking
1. An Order for judicial separation.
2. An order granting to her custody of the three infant children of the marriage.
3. A property adjustment order to provide for her needs and those of the three children.
4. An order providing for the payment of maintenance for herself and the three children.
5. An order securing the payment of what she alleged she was due out of the family home.
6. An order granting her, pursuant to section 17 of the Act an extinguishment of her husband's rights under the Succession Act in herestate.
In reply the husband sought custody of the children and sought an order for judicial separation to be granted to him.
The case came before Morris J. in the High Court and was at hearing before him on oral evidence for a total of eight days.
On the 19th December 1991 he delivered a reserved judgment in the case and made the following orders.
2 ???
7. An order that the husband should pay to the wife her costs of theproceedings.
The wife has appealed to this court against the entire of that order save and except for the direction that she be paid maintenance in the weekly amount of £130 and the order that the husband should pay her costs.
By notice of cross appeal the husband appealed against so much of the order only as directed him to pay the costs of the wife.
Upon the matter being first opened before this court, it was directed by the court that the issue as to the custody of and access to the children should first be debated and decided by this court before any other aspects of the appeal and cross-appeal were dealt with.
The fundamental, relevant, undisputed facts out of which this matter arises may be stated as follows.
1. The parties, both of whom are of the Catholic religion, were married in 1973, when the wife wasapproximately twenty-five years of age and the husband approximately thirty-four years of age.
Three children, all girls, were born of the marriage and they are: the eldest, M., who is now thirteen years of age; the second eldest, G., who is now ten years of age; and the youngest, M., who is now seven years ofage.
In August 1988 the wife left the family home and took with her the three children, and she has not returned since that time to the familyhome.
Prior to the coming on for hearing of these proceedings at the end of July 1991, in the High Court, an agreed sum for maintenance had been paid by the husband to the wife pursuant to an order of the local District Court, in the area in which the parties reside, and agreed provisions with regard to access of the husband to the children were settled by that Court as well.
The husband did not at that time seek custody ofthe children. It would appear that these custody and access arrangements worked without serious disruption to the conclusion of four days' evidence in this case, and the adjournment of it at the commencementof the Lc vacation in 1991. From shortly after that time the father has not had any access to the children.
1. The orders in relation to the custody of the children and questions of access to them being made by the learned trial judge under the provisions of section 3 of the Act of 1989, and pursuant to section 11 of the Guardianship of Infants Act 1964, the Court in deciding those questions must have regard as the first and paramount consideration to the welfare of the infants which comprises the religious and moral, intellectual, physical and social welfare of them.
2. This being an appeal to the Supreme Court from the decision of a judge of the High Court sitting without a jury, and hearing oral evidence, this Court is bound bythe principles which have been laid down by it in respect to the ambit of such an appeal and which are most recently summarised in the judgment of McCarthy J. in Hay v. O'Grady (unreported, delivered the 4th day of February 1992).
In regarding as the first and paramount consideration the welfare of the infants as so defined, it is relevant to consider the judgment of Walsh J. in M. B. O'S. v. P. O. O'S., 1974 110 ILTR, where, at P. 61 he stated as follows:
"...... I think all the ingredients which the Act stipulates are to be considered; namely, the religious, moral, intellectual, physical and social welfare of the child are to be considered globally. This is not an appeal to be decided by the simple method of totting up the marks which may be awarded under each of the five headings. It is the totality of the picture presented which must beconsidered."
This view was affirmed and to an extent expanded by the judgment of Griffin J. delivered in this Court inthe case of McD. v. McD. 1980 114 ILTR which, though; dissenting judgment on other issues is, I think, clear in agreement with the main thrust of the other judgment on this particular question where he said, at p.79:
"Welfare" is defined by section 2 as comprising the religious and moral, intellectual, physical and social welfare of the infant. In considered the question of welfare, as the President pointed out in his judgment, a dominant position must not be given to any one of these categories, nor must there be an adding up of points under separate headings to create a balance, but the whole welfare so comprised globally must be looked at a decided by this Court in O'S.v. O'S. and K. v. ??? 114 ILTR 50. In such proceedings the conduct of the parents is relevant only in so far as it affects the welfare of the children within the definition of welfare in section 2. But the conduct of the parents isrelevant in so far as inferences can be drawn from it to show where the priorities of the parents lie in relation to the children, as this is an important factor to consider in relation to their welfare."
I would accept these views with regard to theinterpretation of the provisions for the regard being had as the first and paramount consideration to the welfare of the children in this case. So accepting these principles it is clear that while the only issue with which this judgment is dealing is the custody of the children and whilst there can be no question of that custody being awarded on the basis of reward or punishment to either of the parents, having regard to any view of the issues arising with regard to the judicial separation, it is inevitable that certain of the facts found and also of the conclusions reached by the learned trial judge in regard to the issues arising on the judicial separation, as distinct from the custody of the children, may become relevant to the welfare of the children in the manner aboveoutlined.
Having regard to the decision in Hay v. O'Grady it is clear that the Court is bound by the primary findings of fact which have been made by the learned trial judge upon the oral evidence before him if there is evidenceto support such findings. I am also satisfied that having regard to the principles laid down in that decision this is a case in which in many instances this Court should be particularly careful of reaching a different inference from the facts so found than that which was reached by the trial judge.
Quite clearly, if any question of error in principle has occurred in the findings and decisions of the trial judge concerning the welfare of the children and the vital question as to in whose custody they should be placed, this Court must intervene. Since, however, this Court does not have the opportunity to view and hear the oral evidence of the parents or guardians concerned, it should in my view, in general, be slow to replace the decision of a judge who has had that opportunity.
In the course of his judgment the learned trial judge stated his appraisal of the two parents of thesechildren, having regard to the evidence which he had heard from them and all the other evidence which he had heard in the case. This was stated with regard, firstly, to the husband, in the following paragraphs.
"With regard to the husband I have formed the following views of him. I believe that he is a thrifty, hardworking, responsible, retiring man. He is a non-drinker and a non-smoker. His interests are his farm and his work and to a far lesser extent GAA administration activities, and in the past, political activities. He is not one interested in socialising. He believes strongly in traditional values and in his religion. I believe that in this, in as much as he may be criticised in being strict, this strictness relates to instilling into the children the virtues of honesty and decency."
On the negative side I believe that it could be said of him, in so far as the children are concerned, that he may find it difficult to relate to them in children, childy (sic) matters."
Dealing with his impression of the wife, who gave evidence over extended periods also in the case, the learned trial judge stated asfollows.
"With regard to the wife, I have formed the following opinion: I believe that she is concerned with enjoying her life to the full in: far as it relates to social activities, golf clubs, public houses, the choral society and to socialising generally. She enjoys company, she is bitterly disappointed about the life that her marriage gives her and desperately wants to get away from that life and the life that it offers her, and she is anxious to get into a life which offers her more activity and...
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