Court of Appeal: Father successful in overturning order excluding him from family home

About this case:

• Judgment:
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In the Court of Appeal, the husband appealed against the decision of Ms Justice Bronagh O’Hanlon in the High Court whereby she:

In a unanimous judgment of the three-judge Court of Appeal, Mr Justice Gerard Hogan stated that the case raised two issues of considerable importance:

Background

The couple were married in April 1995 have three children, M (20) U (18) and H (16). The Court heard that the middle child, “U”, is autistic and incapable of caring for himself independently of his parents.

In 2014, the wife sought and obtained ex parte a barring order against her husband from the District Court pursuant to s. 4 of the Domestic Violence Act 1996 alleging that “He gets aggressive, got me by the neck. Keeps threatening me and scaring me.”

Mr Justice Hogan emphasised that there had “never been at any stage a judicial finding in respect of this allegation”, and the parties arrived at a settlement and the barring order application under the Domestic Violence Act 1996 was struck out by consent

As a result of that settlement it was agreed that the husband should return to the family home, and that “U” should stay with him from Friday to Monday, but that he should otherwise reside with the wife.

High Court

In July 2014, proceedings were issued in the High Court by the husband, who 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.

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”.

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.

Justice Hogan said it was important to stress that at no stage was any evidence led of actual or threatened violence or other conduct on the part of the husband such as would have entitled the Court to make an order under s. 3(2)(a) of the Domestic Violence Act 1996 barring the husband from the family home on the basis that it was of opinion that “there are reasonable grounds for believing that the safety or welfare” of the wife and the children so required.

In the High Court, Ms Justice Bronagh O’Hanlon took the view that because the welfare of U and H. required it, she could direct the husband to leave the family home and permit the wife, U, and H to reside there instead of him. In addition, Justice O’Hanlon made an interim order awarding the wife custody of U. and H., with certain access rights granted to the father.

Court of Appeal

The father appealed the High Court’s decision, contending:

In the Court of Appeal, Justice Hogan considered firstly whether the trial judge pre-judged the outcome by reason of her comments during the course of the hearing; and whether the trial judge ought to have recused herself.

Considering Garda Commissioner v. Penfield Enterprises Ltd. IECA 141 and O’Callaghan v. Mahon IESC 17, 2 I.R. 514; and contrasting Maher v. Kennedy IEHC 307, Justice Hogan was satisfied that the trial judge here had been careful to state that she would only vary the earlier consent order “on evidence and proven case.”

Justice Hogan then turned to the question of whether the Court has jurisdiction to make a custody order under the 1964 Act in respect of a child who has attained his or her majority. Considering the Age of Majority Act 1985, the phrase “full age” is to be understood as referring to a person who has attained their 18th birthday.

Justice Hogan said that it was also clear that the Guardianship of Infants Act 1964 allows the court to make custody orders in respect of children only; and therefore the custody order which was made in respect of “U” was made without jurisdiction and must be set aside.

Finally, Justice Hogan turned to consider whether the High Court had jurisdiction to exclude a spouse from the family home under the 1964 Act. Describing Justice O’Hanlon’s reasons for this conclusion as “rather pithy”, Justice Hogan emphasised that a mandatory exclusion order from a property owned or partly owned by a spouse was a matter of profound significance engaging the constitutional rights of the party affected.

Justice Hogan was satisfied that any jurisdiction to exclude a spouse from a family home had been expressly conferred by statute, and that in the circumstances of the particular case, there was no inherent jurisdiction on the part of the High Court to make an order excluding the husband from the family home.

Accordingly, Justice Hogan concluded that the interim orders awarding custody in respect of U. and excluding the husband from the family home were made without jurisdiction and must be set aside.