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GAZETTE
MARCH 1981
Plaintiff never sought her return. The
Court was satisfied that some
mention or requests for the return of
the child were made by the Plaintiff
and that they were refused or
avoided.
Evidence was heard from two
child psychiatrists as to the wishes of
the child. Doctor O'D, concluded
that the true wishes of the child were
to be living in Dublin with the Plain-
tiff whereas Dr. C, concluded that
the child would prefer to live with the
grandparents in Cork. The Court
attached more weight to Dr. O'D's
evidence and opinioned that Dr. C
had earlier reached a series of con-
clusions that were unwarranted on
the information then available to him.
In relation to the stability of the
Plaintiff and her canonical husband
"P", Dr. C expressed the view that
both persons were unstable and ex-
pressed a gloomy view with regard to
the possibility of the continuance of
this marriage.
Dr. McC, a third doctor, on the
other hand, was of the opinion that
the Plaintiff and "P" had reached a
measure of stability and that their
marriage had as good a chance as
any other marriage of being suc-
cessful. The Court attached more
weight to Dr. McC's evidence.
The Court was impressed with
evidence of the child's school
teachers and was very impressed with
the grandmother and with the grand-
mother's son who took a very keen
interest in the child.
Held
(per Finlay P.):
1. That the material welfare of the
child would be better served if
the child remained in Cork with
her grandparents.
2. That to place the child in the
custody of the mother (i.e. the
Plaintiff) had got in it an element
of risk due to the possibility of
the mother suffering a recur-
rence of a mental disorder and
due to the possibility of her
(canonical) "marriage" breaking
down.
3. That to place the child in the cus-
tody of the mother was bound to
cause the child to have problems
relating to its identity because of
the situation arising from the
canonical annulment.
4. That to place the child with the
grandparents also carried with it
an element of risk due to the fact
that the grandparents could die
before the child had become in-
dependent and also due to the
fact that the child might have
problems in its development
when the child realised that it
had a mother who was not
looking after it.
5. That notwithstanding the loving
care of the grandmother she
could not be a substitute mother
figure for the care of a mother.
6. That notwithstanding the real
risks attached to the Plaintiff's
relationship with "P" and not-
withstanding that material affairs
might deteriorate very rapidly,
that the welfare of the child
would best be served by being
brought up within the ambit of
that relationship because there
was a reasonable chance of that
relationship succeeding even
though it was not a full chance.
7. That the balance of the welfare
of the child would be that
it should on a probationary
basis and subject to significant
precautions and checks be re-
turned to the custody of her
mother and that the grand-
parents should have access to her
for lengthy periods.
0*N v. 0*B and Others
High
Court (per Finlay P.) 22 Jan. 1980
— unreported.
FAMILY LAW — WIFE'S RIGHT
TO MAINTENANCE
If a wife had not "just cause" for
leaving the family home, she was not
entitled to maintenance under the
Family
Law
(Maintenance
of
Spouses and Chidren) Act 1976, and
husband could not be barred from
family home.
The Plaintiff and the Defendant were
a young married couple whose family
home was vested jointly in them. The
property had been purchased for
£8,100 of which £6,000 was raised
by a mortgage and the balance was
largely contributed by the parties
prior to their marriage. It was de-
cided by the Court as a matter of fact
that the family home was owned
legally and beneficially by the parties
in equal shares. Difficulties arose in
the marriage and ultimately the wife,
who claimed that she was frightened
by her husband's conduct, left the
family home, shortly thereafter dis-
covering that she was pregnant. The
husband, who claimed that he was
shattered by her leaving, had been of
the opinion that after initial difficul-
ties the parties to the marriage had
been reconciled, and that it was a
matter of surprise to him that in
November 1978 the wife had left the
matrimonial home.
In May 1979, the wife gave birth
to a child and the Court found again
as a matter of fact that the wife de-
liberately embarked on a course of
excluding her husband from all con-
tact with the child. Both parties
having accepted that the marriage
had irretrievably broken down at the
time the case was heard, the hus-
band did concede that the wife should
have the custody of the child, but the
wife was insisting that the access to
the child should take place in her
presence. The Court could see no
justification for this and ruled that
appropriate arrangements must be
made to grant the husband reason-
able access.
In the course of his judgment, Bar-
rington J., considered in detail the
conflicting evidence surrounding the
circumstances of the wife's departure
from the family home. In the course
of this consideration, Barrington J.
stated:
"When parties marry they marry
for better or for worse. This, as I
understand it, includes accepting
quirks and difficulties in the character
of the other marriage partner.
To establish "just cause" for
leaving the matrimonial home the
partner who has left must establish
some form of serious misconduct on
the part of the other partner. Such
conduct must, as Lord Asquith said:
" . . . exceed in gravity such
behaviour, vexatious and trying
though it may be, as every spouse
bargains to endure when accepting
the other "for better or worse." The
ordinary wear and tear of conjugal
life does not in itself suffice." (Buchler
v. Buchler 1947 1 A.E.R. P319 at
326).
After weighing up the respective
conflicting testimonies of the wit-
nesses, Barrington J. concluded that
the husband was not a violent and
vicious man, although he might have
been excitable and difficult, and he
also concluded that the husband did
not suffer from any psychiatric
disorder. In the circumstances he de-
cided that the wife did not have 'just
cause' for leaving the matrimonial
home. Having decided this, he ruled
that the wife had been guilty of
desertion and that the Court was de-
vi