TK v FR

• Jurisdiction: Ireland
• Judge: Mr. Justice Henry Abbott
• Judgment Date: 24 May 2012
• Neutral Citation: [2012] IEHC 619
• Docket Number: [2011 No. 7 CAF]
• Court: High Court
• Date: 24 May 2012

[2012] IEHC 619

THE HIGH COURT

FAMILY LAW

Abbott J.

[2011 No. 7 CAF]

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989

AND IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN

T.K.

APPLICANT

AND

F.R.

RESPONDENT

Family – The Family Law Act 1995 – Custody of child – Appeal – Custody to mother – Tender age of child – Co-parenting – Joint custody – Welfare of child

Facts: Following the order for judicial separation granted by the Circuit Court to the applicant and the respondent granting joint custody of the dependent child to the parties and directing that the child should live with the applicant father with visitation rights to the mother, the respondent mother had challenged the aforesaid order on limited ground. The respondent sought orders to the effect that the primary place of residence of the child should be with the respondent with appropriate measures while the child would be in the custody of the father.

Ms. Justice Henry Abbott affirmed the order of the Circuit Court with some modifications. The Court granted an order that the primary residence of the child would be with the applicant/father provided that the applicant would keep full information about the visitors of the house and keep on informing the respondent about the same, and the respondent would have full participation in the decision-making process regarding the child's care and welfare. The Court granted an order for the assessment under s. 47 of the Family Law Act, 1995 to determine the desire of the child as to place of residence and separation anxiety. The Court observed that in modern times, a father was as capable of shouldering the parental responsibility as the mother and therefore, it was not necessary to conclude that the custody of a child would always rest with the mother except when the child was of an extremely tender age. The Court held that in cases of child custody, the Court must have regards to the conduct of the parties, their financial status, ability to provide a stable life to the child, past record of the relationship with the child and the professional advice tendered. The Court found that in the subject case, the conduct of the respondent in first hiding the incident regarding a spurious attack on her by the applicant and subsequently revealing it with the aim to deprive the applicant of the company of the child would undermine her credibility. The Court, despite recognizing certain behaviour issues with the applicant, held that it would be beneficial for the child to remain with the applicant as the child was well settled in the environment having friends and an excellent academic record.

Mr. Justice Henry Abbott

1 The applicant, who shall hereinafter be referred to as the father, and the respondent, who shall hereinafter be referred to as the mother, were married to each other on the 9th August, 2001. They had one child who was born on the 16th March, 2005, and they were separated in this jurisdiction by order of the Circuit Court dated the 2nd February, 2011.

2 This appeal has been brought by the mother and primarily relates to where the child shall attend school and with which parent she will reside while attending that same school in the context of what may ordinarily be described as a general co-parenting regime.

3 I shall deal with the technical description of the order's appeal later in this judgment.

4 When the mother and father were married in 2001, the father was commencing his professional career and the mother was completing her studies and residing in, what shall be referred to as, the first city. From the outset the parties had to take care and engage in considerable planning and discussion in relation to how the professional development and earning capacity of the two parties could be facilitated. The mother became pregnant in 2004 and from the date of the birth of the child, on the 16th March, 2005, the mother took care of the child; however, a central aspect of this case is that the father became progressively more involved with her care. As the parties accumulated qualifications and progressed their respective careers they moved to the second city from which the father operated from his centre of business. The mother obtained some employment therein but it was of a temporary nature and the nature of her chosen profession indicated that she should go abroad to broaden her experience and qualifications to employment in England.

5 The mother accepted employment in England on a one year contract on the 4th August, 2008. Her stay in England was marked at the end thereof by proceedings by the father to have the child returned by order of the court in the jurisdiction of England and Wales under the Hague Convention. The summary chronology of events prepared for the brief relating to the Hague proceedings illustrates, in shorthand form, an outline of the events which followed which form the factual basis from which the disputes in this appeal emerge:-

04.04.08	The mother accepts one year contract in England.
21.09.08	The child moves (the father claims temporarily) to England with the mother.
01.11.08 – 09.11.08	The child returns to Ireland for a visit.
07.12.08 – 16.01.09	The child returns to Ireland for a visit.
18.02.09	The mother emails to confirm the child's return to June 2009 (the father claims).
03.09	(The father claims) express agreement that the child will return to Ireland on 21st June, 2009.
24.04.09 – 26.04.09	The child returns to Ireland for a visit.
06.05.09 – 13.05.09	The child returns to Ireland for a visit.
04.06.09 – 07.06.09	The child returns to Ireland for a visit.
12.06.09	The mother issues Private Law Children Act application to the English court for residence and contact in the English County Court.
17.06.09	The mother telephoned the father to say that the marriage was over, that the child will not return to Ireland and, for the time being, that the child will stay with her in England.
18.06.09	The father telephoned the mother to confirm that he does not agree to the child remaining in England and informed the mother that he would institute Hague Convention proceedings.
19.06.09	A letter was sent by the mother's English solicitors serving Children Act papers on the father (in England).
19.06.09	The father applies to Irish Central Authority for the child's return.
25.06.09	London Central Authority allocate to panel solicitor.
26.06.09	Hague Convention ex-parte order.

6 The child was returned to Ireland on a consent order made before the court in the jurisdiction of England and Wales. While the husband has always referred to the failure of the mother to return the child as an abduction, she has claimed that her consent to the order was without any admission of abduction. The father has relied on the statements of the judge in the jurisdiction of England and Wales subsequent to the ruling of the settlement, that he would have found, in any event, that the child was in fact abducted. This Court places no reliance on the claimed statement of the English judge in relation to that aspect as it was made without any forensic examination of the subject; however, on the basis of evidence given by an independent witness called by the father, who was familiar with the arrangements for return of the child to the second city in Ireland, this Court finds that there was a failure by the mother to return the child and that, there was an abduction of the child. Notwithstanding such, many years after the event it is not helpful to the continued co-parenting of the child for the husband to be continuously revisiting this incident in any triumphalist fashion. Upon return of the child from London the parties lived with their child in the family home which by then was in the second city and this residence was brought to an abrupt end by a tragic altercation between the father and the mother which was captured by an audio recording by the mother and made available, on consent, for hearing by this Court for the first time in any proceedings. This incident (hereinafter referred to as the incident) occurred on the 30th August, 2009, and the court was furnished with a transcript of the audio recording of same which, subject to a few omissions, is an acceptable written record of the sounds that were to be heard on the occasion which regrettably included very frightened crying by the child. The incident and the written and audio recordings and the accounts thereof by the parties form a significant part of the evidence upon which the court may find facts relevant to the determination of this appeal. Prior to the incident the mother had applied to the Circuit Court by notice of motion dated the 13th August, 2009, and returnable for the 26th August, 2009, for an order (inter alia) for liberty to remove the child from Ireland to the jurisdiction of England and Wales. This notice of motion was grounded on an affidavit sworn on the 12th August, 2009, before the date of the incident, but it is noteworthy that the mother filed a supplemental affidavit dated the 28th September, 2009, after the incident yet making no mention at all of the incident, although she had recorded same and relied on same during the hearing on this appeal. In fact the first time when the incident was mentioned by her in any of the records of the proceedings was when she spoke to Dr. Gerard Byrne, who was the s. 47 assessor appointed by the court in Summer 2010. At no time during the many subsequent court hearings in relation to custody matters was the husband or his legal representatives told of the existence of the audio recording of the incident, nor was the audio recording produced to the court until it was produced to this High Court hearing the present appeal.

7 As a prelude to the motion seeking permission to remove the child to the jurisdiction of...