The Gazette 1976

J UNE /J U LY 1976

GAZETTE

plaintiff progressed rapidly, and they often arranged to meet for weekends in England without defen- dant's knowledge. One of these meetings in the summer of 1975 was in an Irish seaside resort, which the defendant discovered. Being ad- dicted to drink and violence towards his wife, he threatened to shoot both her and Mr. G. In October 1975 proceedings were instituted by the plaintiff claiming interim custody of the child, and injunctions against the defendant. On 9 October 1975 Kenny J. made an order giving sole custody of the child to the plaintiff until further order. The case now made by the plain- tiff is that, by reason of his drunken conduct and the inadequacy of his financial resources, the defendant lias forfeited the right to the custody of his child, or to the control of his education. She asks for the custody of the son, so that she can take him to the home which she and Mr. G. intend to set up in England; she is even anxious to adopt the Jewish faith, and intends to bring up her son as a Jew. In this situation, the right of the child to have access to his father, as laid down in M. v. M. — (1972) 2 All ER — received no consideration whatsoever. This is a very novel claim in the Irish Courts which operate under a Constitution laying such special emphasis on the institution of the family. The para- mount consideration is the welfare of the child. Normally a child of tender years should be entrusted to the custody of his mother, unless she has so gravely failed in her moral duty as to forfeit this right. If the prime issue is one of custody, it is impossible to resolve it without tak- ing into account the whole picture presented by the parties — see unre- ported Supreme Court judgments of O'Shea v. O'Shea (5 April 1974) and Keogh v. Keogh (31 July 1974). As regards religious welfare, Da- vitt P. in Re May (1958) stated that an agreement was to be inferred on the marriage of two persons both practising the same religion that any children of the marriage would be brought up in that religion. Accord- ingly, the plaintiff has no right whatsoever to change the religion of the child against the wishes of the defendant. In custody cases, the Court is not to prefer one religion against another. But the social welfare of the child should ensure making him a better member of the society in which he will live. If he were brought up in the Jewish faith, he would not be a member of the Jew- ish race, and would thus be an alien.

to sustain a contempt charge, there must be wilful or inexcusable de- fault. The following ingredients are accordingly necessary to sustain the charge : (1) the overt act of failing to obey a Court order; and (2) Mens rea, a guilty intent which precludes a lawful or innocent reason for the action. If guilty, a defendant can be sentenced to an indefinite term of imprisonment. Accordingly, the fail- ure to obey a Court order is a crime, which cannot be deemed a minor offence. It follows that the issue whether or not a person is guilty of such contempt comes within Art. 38 (5) of the Constitution and must be determined by a jury. The case is referred back, in order that Counsel may have an opportunity of consid- ering the matter. The plaintiff wife and defendant husband were married in a Catholic church in Dublin in June 1971 and an only child, a son, was born in October 1973. The plaintiff is the owner and manager of a hairdres- sing salon, and has been at all times better off than her husband, who is a barman in his father's licensed premises, and who is earning £50 per week. The plaintiff provided and furnished the matrimonial home, paid the greater part of the outgoings and provided a motor car. The degree to which either plaintiff or defendant now practises their religion is doubtful, but in accor- dance with Re May (1958) 92 I.L.T.R., it was impliedly agreed that any children should be brought up as Catholics. Even before the marriage, the defendant drank to excess, and the plaintiff was aware of it; this con- tinued after the marriage, with the result that the plaintiff was fre- quently violently assaulted and beaten, even after pregnancy. Evid- ence was given that strangely, though they had many rows, they were on very good terms between quarrels. In 1974 the plaintiff went alone on a holiday to Tenneriffe, and she met a rich English Jewish business- man, Mr. G., and became enam- oured of him. Mr. G. was married with one son, but Mrs. G. had obtained a decree nisi at this time on the ground of her husband's desertion. This acquaintance with McEnroe v. Leonard — unreported — Parke J. — 9 December 1975. Due to mother's adultery, custody of three-year-old son awarded to father.

While a Court is not a Court of morals, in general it will not grant custody to a parent who has aban- doned the matrimonial home and lives in an adulterous establishment. Under Irish law, no lawful union can take place between the plaintiff and Mr. G. during defendant's life- time. Adultery is even prohibited under Jewish law. The intellectual and physical welfare of the child would be as good, if not better, if he went to England. The defendant's parents live in a large house over the father's licensed premises, and they are willing to offer accommodation to him and his son. The son will be looked after by his grandmother, who, though less educated, would be a better example than his mother, who, by her con- duct, has deprived herself of the custody of her son. Accordingly the custody of the child will be awarded to the defendant, and Kenny J.'s order will be varied. The mother can apply subsequently to have access to the child. H. v. H. — Parke J. — unreported — 4th February 1976. A Compulsory Purchase Order made by a local authority must relate strictly to lands acquired by that authority and by no other authority. Appeal from Kenny J.'s decision, which quashed this Compulsory Purchase Order, that the lands now being acquired compulsorily were partly for the needs of Dublin Cor- poration, and partly for the needs of Dublin County Council for housing purposes. If the Corporation had wished to acquire lands in Dublin County Council for Corporation housing purposes, the Order would have been valid. The documentary and oral evidence fully support the inference which Kenny J. drew that the lands were required partly for Corporation housing purposes, and partly for County Council purposes. There was no evidence to support a finding that a possible alternative purpose of the acquisition was to satisfy only the housing needs of Dublin Corporation. The legal representative of Dublin Corporation attempted to argue before the Inspector that it was inherent in the purpose of acquisition that Dublin Corporation would be enabled, if they so decided, to hand over part of the lands to Dublin County Council for housing purposes. The objectors at the inquiry contended that the Minister would have no power, in view of the evidence, to

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