Neutral Citation: [2016] IEHC 571
THE HIGH COURT
FAMILY LAW
[2014 No. 54 M.]
IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989
AND IN THE MATTER OF THE FAMILY LAW ACT 1995
BETWEEN
N.K.
APPLICANT
RESPONDENT
JUDGMENT of Ms. Justice Bronagh O’Hanlon delivered on the 29th day of July, 2016
1. This Court directed service of a notice of motion to come before this Court on the 26th July, 2016 at 9am as a matter of urgency. In this notice of motion the respondent sought:-
1. an order directing the applicant to comply with the order of this Court of 12th August, 2015 as it relates to the primary care and access arrangements for the dependent children;
2. an order pursuant to s. 6 of the Family Law Act 1995 and s. 11 of the Guardianship of Infants Act 1964 (as amended) directing the applicant to forthwith vacate the family home at B., Co. G. for the purposes of giving effect to the said order and in particular and without prejudice to the generality of the foregoing, in order to enable the children to reside in the primary care of the respondent in the family home.
3. In the alternative and without prejudice to the foregoing the respondent sought such orders pursuant to s. 6 of the Family Law Act 1995 and the Domestic Violence Acts 1996-2002 (as amended) as the safety and/or welfare of the respondent and/or the dependent children require including a barring order against the applicant;
4. Such further orders and or directions pursuant to s. 6 of the Family Law Act 1995 and s. 11 of the Guardianship of Infants Act 1964 (as amended) as are necessary to ensure the welfare and or best interests of the dependent children whether pursuant to s. 31 of the Guardianship of Infants Act 1964 (as amended) by the Child and Family Relationships Act 2015 or otherwise as well as such further and other orders as this honourable Court shall deem meet and costs.
This Court deems service of that notice of motion good. It is set out in the grounding affidavit to the said notice of motion that the parties were lawfully married to one another on 2nd April, 1995 in Pakistan.
2. There are three children of the marriage namely M. born on the 6th day of July, 1996, U. born on the 18th January, 1998 and H. born on 9th December, 2000. All of the children remain dependent within the meaning of the 1995 Act. It is common case that M. has just completed his first year in third level education in Dublin. He has arrangements made for him including employment in Dublin during the summer and has accommodation there. U. is autistic and is incapable of caring for himself independently of his parents at this time.
3. There are two reports from Dr. Geraldine Curtin PHd M Psych. SCBA Hons (D Psychotherapy) who is a consultant clinical psychologist. The first report referred to hereinafter as the 2015 report set out as its recommendations the following:
1. Dr. Curtin respectfully recommended to the court that both parents are loving and affectionate parents and both should play a significant role in their children’s upbringing and care through a joint custody arrangement. Mrs. K.’s parenting capacity is currently under utilised and she presents as an insightful, caring and capable parent available to take primary care and responsibility for U. and H.
2. Dr. Curtin suggests that predictability, security and consistency are important for the children particularly in the coming year (i.e. 2015-2016) because it is their first year of separation and they did not have any of these necessary parenting qualities. Dr, Curtin found there was a marked lack of planning in this crisis separation. She found that it is in the best interests of the children if possible that they remain in the schools in which they are currently settled and have regular access with their father. The mother needs to be able to acquire appropriate accommodation within driving distance to the school, appropriate transport and means to meet the everyday financial needs to of the dependent children U. and H. Dr. Curtin opined that it was imperative that there was no significant disparity between the living arrangements of both parents. Availing of their mother’s capacity to effectively parent them should not result in any deterioration of these adolescent boys’ living and social conditions. It would be in the children’s best interests if arrangements are put in place prior to the commencement of the new school year (i.e. September, 2015).
3. Dr. Curtin respectfully suggested that the children have access to their father overnight each Wednesday from end of school or pre-arranged time in keeping with his work commitments providing a minimum of 24 hour notice of changes. The father to have access every second weekend from end of school Friday to the start of school Monday. Both parents were to avail of three weeks holidays each year to be advised eight weeks in advance and that Christmas, Easter and Eid holidays are shared arrangements to be agreed eight weeks in advance and she respectfully recommended that phone contact with the non-care taking parent, (i.e. the parent the children are not with) is limited to once per day.
4. Dr. Curtin recommended to the court to take very serious view and whatever action is available to ensure the access system is complied with. Her view was that time was now critical for these emotionally vulnerable adolescents.
5. Dr. Curtin recommended to the court that the father needed to be appraised of the emotional damage likely to result from the present unhealthy child alienation type dynamic he has unwittingly promoted. Dr. Curtin recommended that the father be asked to engage in some personal counselling to help him come to terms with the end of his marriage and advises that he engages with a professional who is aware of the cultural factors with which he has to contend in the context of this situation.
6. In view of the very significant power imbalance and dynamic evident from this assessment that these parents may need to engage with mediation to address ongoing parenting decisions. There are no indications from this assessment that these parents can engage constructively to address parenting decisions within a reasonable timeframe for these adolescents. It is clear according to Dr. Curtin that extended family cannot fulfil this role.
7. Dr. Curtin felt that the family should seek professional services outside of the father’s professional catchment area to afford him a level of personal privacy and this would ensure professional objectivity for his wife and children. She acknowledged that the father is a medical person very well known professionally connected who holds a significant level of professional responsibility and power within his local area.
8. Dr. Curtin suggests that the mother seek professional support and counselling to help her come to terms with the end of her marriage, to address issues that arose within the marriage and avail of emotional support perhaps with a counsellor who is familiar with the cultural factors that underline or accentuate these issues. This is particularly important for the mother whose main supports are her immediate family who have helped her to establish and maintain effective boundaries but that this is unsustainable in the long term. Appropriate and specific boundaries are required for example in relation to picking up and dropping children for access. This should be agreed in advance as specified by the mother who may choose to drop and pick up the children herself or have the hand over in a public area and it is critical that all handovers are timely and conflict free.
9. Paragraph nine of Dr. Curtin’s report suggests that if the report is made available, that only a summary of the main findings be made available to the parents and her reasoning for this was that there was a danger that the children’s reports may impact on the parents perceptions and reactions to the children who may be asked to account for their reports.
10. Dr. Curtin suggested that the situation be reviewed in one year or prior if there was no decrease in conflict or access is not complied with and while it was in the interest of the children to remain in their school where they are settled this is only an advantage to tem if the level of conflict decreases substantially and they are allowed to move in an orderly, timely and conflict free manner between the homes of their parents. The advantages of remaining in their schools would be severely undermined if the level of conflict is not addressed or reduced considerably. If not then Dr. Curtin respectfully suggests that serious consideration be given to moving to boys to school in town G. The family already own and have lived in a house there and there is appropriate schooling comparable to their current arrangement where both boys are in the same secondary school although U needs a specialised setting within the main stream. Such a move would need to be planned to coincide with a natural break during school where the boys could be prepared and moved in a pre-planned manner.
Despite the work done by Dr. Curtin at that juncture and despite consent terms being agreed by the parties and ruled before Mr. Justice Barton in a vacation sitting in September, 2015, neither the consent order nor the recommendations were implemented.
4. The second report of Dr. Curtin is dated 29th June, 2016. This report arose because this Court previously requested in December, 2015 that Dr. Curtin meet the parties to discuss the factual contents of the s. 47 report. In this regard, Dr. Curtin notes that such a report is not generally released to parents as this affords the children a voice and a necessary level of confidentiality to inform the court of their situation. The children in this assessment particularly needed this freedom and in affording them this they were very open and honest in informing the court of their individual predicaments in the context of the position they find themselves in, in this particularly acrimonious, complex and difficult separation and this was made all the more complex by the lack of understanding of what Dr. Curtin sees as their highly qualified and professionally successful father of their need to speak and that their views inform the recommendations to the court.
5. An issue arose in relation to these reports in that the father was most unhappy with the assessments and this Court originally directed that the contents of the report would not be shown to the parties in order to protect the children but that rather a summary would be given. However, on further consideration of the matter, this Court allowed the legal advisors to take the parties through their respective reports in full. For the sake of completeness and to reassure the parties that they would have an opportunity to fully consider the matters themselves and this was done.
6. Dr. Curtin adopted both her reports as evidence on 26th July, 2016. She indicated that she was very concerned that there was a serious deterioration in the social contact of the children and that H. in particular had completely restricted social contact outside of school. She found him quite expressive when he wrote and he was quite clear when he spoke with her. He was found to have significant deficit expressing language relative to his receptive language however. She described him as a child of average ability and she found that she could talk with him giving him a chance to write and use simple language with him. H. had had problems from 2012 on, sleeping with day dreams and matters such as that. H. had friends in town B. but then the parties moved to town G. and then back to town B. where he was reunited with his friends.
7. Dr. Curtin described him as quite sensitive and felt that he had begun to withdraw and that the change of school and travel by taxi to and from school were matters which added great complexity to the lives of the children. H. is the person she felt was most impacted in the family by the fact that the marriage fell apart in 2011. Her evidence was that the father had told her that he was going to divorce and marry an educated woman to rear the children. Dr. Curtin’s understanding was that there had been a long history of conflict in the marriage and that H. in particular finds conflict really difficult and he is able to express that. When he was twelve years old he had grinds but he disliked intensely the teacher giving the grinds discussing him with his mother and he gets really angry if you discuss him and he viewed his mother as causing trouble and felt on that basis it was right not to talk with her but she found that he did feel forgiveness in his heart and that he did look forward to reuniting with his mother and each forgiving the other. U. had no contact with his mother from February.
8. The doctor’s view was that the children should move freely between two households, there had been no access in the previous month and U. is now living with the mother with regular and consistent access with the father. The allegation was made that there were breaches of the Christmas access by the respondent in Christmas 2015 regarding U. Dr. Curtin is strongly of the view that she felt H. had gotten some information from his father and has little experience with his mother in the last year and that time would tell what impact this would have but that the research shows that the emotional toll on a child in these circumstances is quite severe. H. felt that his father agreed with him that the grinds he were getting were useless but H. agrees with the grinds on another level according to his father. He had an English and Maths grind. Dr. Curtin felt that the father was emotionally neglectful of H. in that the father was taking H’s side against the mother. H’s perception is that the father agrees with him regarding grinds and is against the mother. Her understanding was that H. was that they were irregular and happened when H. wanted them, in other words that there was a lack of a common approach with H. which is very necessary for a boy of this age. She felt that H. was being placated a bit and that it was not for his own good, she felt that H. was caught in the marital conflict and in brief she felt it necessary to look at the position the child is in. She said the child is caught in marital conflict, he is withdrawn, he stayed with the father to complete a psychological assessment but there were lots of missed appointments for psychological assessments. She felt essentially that he needs to know his mother, she felt that the children were not at the centre of any discussions in this separation.
9. In 2014, the mother moved to town G. and the recommendation in the 2015 report was that she and the children move back to town B. and that there be joint custody with day to day care and control to the mother. While Dr. Curtin has recommended a Wednesday evening access the mother who is heard briefly indicated that this causes problems for U. who is autistic in that the father starts texting him on a Tuesday evening confusing him regarding the access and that to her mind it would be better if there were not any access on a Wednesday.
10. Dr. Curtin says that the father’s work rota has changed since she last saw him and that the mother does not work outside of the home but is very respectful of the father and his professional role and his elevated position in society. From August to November, 2015, the mother did not return to town B., the son H. remained with his father.
11. Dr. Curtin felt that the situation of the children was well up there in terms of severity and that the structure of the children’s lives must support access.
12. Dr. Curtin was very convinced that the father does not want the children having contact with the mother and that her interviews with the children bore this out. She also felt that the son H. had been over-examined and H. himself would say he had a happy childhood and Dr. Curtin notes in this regard that he was in the care of his mother as a child. She says this young person faces another year of an intractable and difficult situation for the boy. The eldest boy is now in University and he did stay one night in a B&B during his leaving certificate examination. Dr. Curtin described him as a forthright young man not short of opinions and that she did observe a nice interaction between him and his mother. During the second time when she interviewed him they had come back from a holiday in Orlando and he asked to use Dr. Curtin’s phone so that he could speak with his mother. U. was engaging in rituals and touching walls and Dr. Curtin put this down to distress. Great concern was expressed by the doctor at the fact that his own father prescribed Zeroxat 40mg per day for U. who is autistic even though the family G.P. had prescribed 20mg and there was to have been a review in two weeks which didn’t occur apparently. She noted that this young person never had medication up until this point and Dr. Curtin feels she behaved responsibly in that she contacted Dr. McDonagh who was the mother’s G.P. who terminated the drug and who also spoke to the family doctor. Dr. Dolan changed the 40mg per day dose of Zeroxat back to 20mg per day. Dr. Curtin’s findings with regard to her present report was that there needed to be access by the mother to the family home and predictable access particularly with the son H. She described H. as a routine person who needed consistent reliable access. She described him as having a hope of a reconciliation in his heart with regards to his relationship with his mother. She described H. as being a biddable enough child who does suffer pain and she said he can’t form his own opinion of his mother as matters stand and that it is too much responsibility for him.
13. Dr. Curtin described the difficulty she and the father had with one another in terms of discussing, engaging and explaining. She found him vaguely intimidating. She felt she had been impartial and she felt she could see his fine qualities and she says he finds it difficult to have insight or empathy. She felt that the young man U., now 18, with autism needs order and routine.
14. Regarding an appointment which was made with Dr. Fitzgerald last week, Ms. Jackson put it to Dr. Curtin that what happened in fact was that the mother brought U. to Professor Fitzgerald’s home office but in fact in should have been to Blanchardstown Hospital and that when she got there the doctor said that it would be a stretch to say that the child was under his care that he may have seen him once before and there was an unwillingness to see him at that point. She accepted that the son M. was a reliable informant. She accepted that the children’s reports were consistent and forthright and that they were able to love both parents and to be realistic about them. She found the children very obedient to the father who told them to be honest and to tell the truth and she thinks he is a powerful person even with adults and they tend to comply with him. Regarding home life she pointed out that H. was refusing to bring friends home and she thought that the most therapeutic thing that could be done for them would be that the mother would be back in the home. She said there is a strong maternal bond even though there are no periods of no contact with the other person.
15. She felt that H. was socially embarrassed and that the three boys have witnessed a lot even regarding the car the mother had which was a 2012 Mercedes being down-graded when the parties separated and she says H. still sees his mother as part of his family unit and he drew the mother beside the father and him next placing himself at the centre of the family and she also stresses that H. cannot bear the conflict. The trip to Orlando last summer with their father was successful in that the boys like spending time together as brothers. They see H. as advantage by the father which is not necessarily a good thing and U. she pointed out insisted on bringing H. to England on holidays and would not go without the brothers. The use of a cleaner at a cost of €1500 per month she felt that this was an under utilisation of parental capacity and that it was an advantage for mother to mind the children and that mother would need to become a little more assertive, that she was very insightful regarding U. and H. and that she sought appropriate medical advice and behaved responsibly and that mother is very consistent in her reports to the doctor. She found at p. 3 in her first report that U. had no access to a phone and only a house keeper had the keys and that he doesn’t see H. because H’s bedroom door is locked.
16. Dr. Curtin recommended an active day with the mother for U. that he needed to develop a self-care programme and that all three of the children in this situation do not have freedom and that they need to have freedom.
17. Dr. Curtin was concerned that H. is suffering from pain, loneliness, distress in that he internalises and suffers pain and he feels that the lack of contact with his mother is very significant in this regard. She described him as having a primary relationship with his mother and that the father is a role model for him but that formatively he is young and emotionally he is young. Dr. Curtin referred to the fact that the mother’s 2012 Mercedes was taken away from her by the father “to teach her a lesson” and that this motor vehicle was the children were told it was initially with a garage and that this issue fought out in the presence or knowledge of the children and that it reduced the status of the mother, that the car itself was actually giving to the housekeeper and Dr. Curtin described this in the context of the children being privileged children where they were then obliged to travel by taxi and that it was not appropriate that it constituted a radical change in circumstances for them.
18. Dr. Curtin referred to the martial conflict and material goods issues being played out for what were very privileged children with property and wealth at the centre of the separation and clouding matters.
19. Dr. Curtin recommended that there would be very limited contact with father for the initial couple of weeks after the readjustment as she saw it with mother being placed back in the family home. She suggested that the children could then have a holiday with their father in Ireland and she indicated that she believed that the mother would need support and guidance and that she would have to be assertive and that what the children needed that a structure would be laid down. In that regard she found it preferable that the father would explain this structure to the two younger sons and that what they needed protective shell.
20. Going forward Dr. Curtin advised that both parents should take decisions regarding the two boys regarding schooling, their medicine/medical care. Dr. Curtin described there being no equality in the relationship between the parents and that the mother had tenuously held on to her rights as a parent.
21. The court then heard the father who believed that the assessor had omitted a great deal which he had told her. He stressed that he believed he had never told the children anything against their mother. He described the children’s passports as having been hidden and that in August last year he had hoped that his wife would return to live adjacent to the family. He described his work as being a full-time consultant based in town B. and that there was nothing to rent in the area. He described the house which he built as being 45 seconds from a delivery ward and that there was a maternity review going on in the hospital at the moment. He said that the second property which the family had at 21 M.D. was available and was 3 miles from the house although he had a tenant in it at the moment and he suggested that his wife live there. He had not disclosed previously that this was rented to a Dr. M at a rent of €650.00 per month.
22. The doctor said that both M. and H. have mobile phones but that while U. has a mobile phone it is harder to regulate its use with him.
23. The father described himself as feeling sorry for H. that feels he would be good in a computer area and that he did not think that medical for example would be a suitable choice for him. He described U. as having a soft heart and loving temperament. His aspirations for H. would be that he would do computer science. H. himself would like to become a teacher. The father said he would like an end to the hostilities and that he had offered to do mediation and family therapy but that his wife wanted her brother-in-law to be the mediator. The finding of this Court is that there can be absolutely no doubt but that this has been a very very high conflict case indeed as between the parents and that there has been a high level of hostility. It is quite clear from the matters set out on affidavit and the findings of Dr. Curtin that the mother has been degraded by the father in the eyes of their sons and even though now U. is with his mother and there has been substantial compliance at this point with what the court has ordered however, it is absolutely without a doubt the case that there were problems before and in relation to the implementation of the order. While it is submitted on behalf of the father that he will have to look at him balance the situation if the mother moves back into the house into the family home. The father believes that he should be facilitated entirely by allowing him remain exclusively in the family home and that the mother should move to an alternative property number 21 but that is not what Dr. Curtin perceives to be the solution. Both she and the court in implementing her recommendations see it as essential in terms of the needs of the sons that they be placed at the centre of this. There is a constitutional imperative to hear their voice and that has been heard by Dr. Curtin and is reflected in her two reports fully.
24. The necessity to rectify the situation of the mother vis-à-vis the children, for the benefit and wellbeing of the sons of this marriage, clearly necessities as a matter of urgency that the mother be enabled to move back into the family home. That should happen today by 8.00pm this evening. The father may only remove his business attire and his personal belongings from the family home to facilitate the recommendations in this report. Any of his relatives who are staying in that house must remove themselves likewise by 8.00pm this evening. The mother is to be facilitated in moving back into the house.
The law
25. The respondent mother passed a motion to be brought at the direction of this Court, pursuant to s. 6 of the Family Law Act 1995 and s. 11 of the Guardianship of Infants Act 1964 directing the applicant to forthwith vacate the family home for the purposes and in order to enable the children to reside in the primary care of the respondent in the family home. Position of the mother is that the welfare issues in their own right including physical and psychological well being and the protection in terms of safety and psychological well being of these young people require that they be at the centre of the court’s directions in terms of accommodations arrangements to protect their welfare.
26. In the alternative, this Court is urged to use the power under s. 6 of the Family Law Act 1995 and the Domestic Violence Act 1996-2002 as amended as the safety and the welfare of the respondent and or the dependent children require including a barring order against the applicant. This is opposed of course by counsel on behalf of the applicant but counsel for the respondent highlights the issue of a barring order or protection order where there are reasonable grounds for the safety of any dependent person and argues that reasonable grounds for safety or welfare may reasonably require such an order in this case.
27. Counsel for the applicant refers to the restriction on the court legally and argues that a person cannot be excluded from the family home on an interim basis save for the use of barring legislation and that there is a contractual agreement that there is nothing to stop the mother other than her contractual agreement from going back into the family home and that she further argues in extremis that there are no circumstances which necessitate the father’s exclusion from the family home pending the full hearing. The father is staying in the family home with his sister and cousins until the 6th of August as these people are on holiday in his home and would vacate on that date to allow a two week period where there would be no contact between him and the children and he is willing to afford them the opportunity of travelling to Euro Disney if that can be organised. His aim then would be to have another property ready, number 21 which is three kilometres approximately from the family home and he suggests that the wife and children should move into that property pending a trial. Counsel for the applicant points out that s. 10(1)(a)(1) of the Family Law Act 1995 was a new relief giving an exclusion power but that it is not provided as an interlocutory relief and she further points out that this lady withdrew a protection order she was seeking and that there was no allegation of threatened violence in this case.
28. The response on this is to use the analogy of the dispensing with a consent to a passport application where counsel for the respondent argues that nowhere does the 1964 Act say that one can dispense with consents regarding passports and she says that s. 11 of the Guardianship of Infants Act gives a general provision and s. 11(2) is a specific provision where the court can at its own direction on welfare grounds make any order it thinks proper and she further points out that while a barring order attracts criminal sanction she says in this case the exercise of the power under s. 11 being a general provision the court is being asked to determine how the welfare issue should be addressed and she feels that such an exercise under s. 11 does not intrude on s. 11 subs. 1. So essentially, the argument on behalf of the mother is that the court has to have regard for the welfare of the children and counsel for the respondent further questions the voracity of the evidence of the father heard by this Court and questions whether there is a present desire to resolve matter given his approach and continues to argue that Dr. Curtin basing matters on welfare principles discusses what is needed on an interlocutory basis and that the court must therefore be guided in making the order by the evidence of the expert witness.
29. Counsel for the mother argues that the court can take into account the s. 47 reports and evidence of the assessor which included evidence of what is referred to as psychological abuse using the example of giving away the mother’s motor vehicle to the person who is a cleaner in the house effectively and the fact that during the s. 47 assessment one of the sons had to ask Dr. Curtin could he use her phone to telephone his mother. An additional reference then is made to the administration by the father of Zeroxat without reference to the mother to one of the children and the degree of concern that this has caused. It is argued therefore that the court has ample jurisdiction under s. 11 and that whether ample and reasonable grounds to have concerns for the safety and welfare of the family and clearly that the father admitted what he did in particular with regard to the medication.
30. In all the circumstances of this case this Court directs that on the 6th August at 5pm in the evening father is to have vacated the family home at that address and the mother is free to enter that property at 5.15pm on that evening where she is to remain pending a full hearing and determination of this Court. The two boys, U. and H. are to remain under her primary care and control in that property pending further determination of this Court following full hearing of this matter. There is to be no contact between the father and the children for a full three week period thereafter and that during the third week, if the holiday proposed by the father for the mother and the children to Euro Disney can take place, he is agreeable to funding same, although passports must now be sought as a matter of urgency since they are out of the date for the two boys, U. and H. There shall be no access by the father on Wednesday evening. There will be access by the father from 7pm Friday evening until 7pm Sunday evening every alternate weekend. Should the father wish to take a short holiday over the Halloween break when the two boys are off school, for a maximum one week period, same is acceptable to this Court. There must be joint consultation between the parents and agreement prior to any further medical interventions taking place. Both parties are to sit down with their two sons and the father is to set out the decision of this Court in a quiet and polite manner to them and in language they can understand. The two boys are to be at all times in the family home with their mother pending trial save for the access set out herein. The mother is to attend their school and to explain the situation to the principal. This Court lifts the in camera rule to allow the order of the court to be shown to the school authorities. The husband may, if he wishes, move into number 21, the alternate property owned by the parties, pending trial.
31. Stay refused.
32. Costs reserved.
