288 / 346
GAZETTE
SEPTEMBER1983
could offer, at least at the moment, was a caravan. She
added that she would not return to the matrimonial home
while her husband was there. Pennant J. found that Mrs.
Richards "had no reasonable grounds for refusing to
return to live in the same house as her husband "but that
the existing accommodation where she was then living
was overcrowded and not a fit home for the children".
The Judge felt constrained to follow
Samsons'
case rather
than
Myers'
case on the ground that the matrimonial
home "was a (council) house provided by the public as a
home for four people and that being so the public interest
is best met by installing their mother too and that
although it is unjust to the husband, it seems right to grant
the order sought in the interests of the children". The
Court of Appeal upheld that decision.
In the House of Lords there was a difference of opinion
between on the one hand Lord Brandon supported by
Lord Hailsham, Lord Diplock and Lord Bridge and on
the other hand Lord Scarman. Lord Brandon's view was
that the grounds for determining when an ouster order
should be granted are set out in Section 1 (3) of the
Matrimonial Homes Act 1967 and that each of the
grounds as set out there are of equal significance, without
any one ground being paramount to any other. Lord
Scarman was of the opinion that the application for an
ouster order could not be considered in isolation to the
question as to custody care and control of the children
and that as such the principal of paramountcy of the
welfare of the children as enshrined in the Guardianship
of Minors Act should have effect. However Lord
Scarman took the view that it had not been proved that
the children's welfare could be enhanced by having their
father removed from the family home and he allowed the
appeal on the facts.
Section 1(3) of the Matrimonial Homes Act 1967 reads
as follows:
"On application for an order under this section the
Court may make such order as it thinks just and
reasonable having regard to the conduct of the
spouses in relation to each other and otherwise, to
their respective needs and financial resources, to the
needs of any children, and to all the circumstahces
of the case."
On the basis that both the English High Court and the
Court of Appeal failed to have regard to one of the
matters which Section 1(3) of the 1967 Act required them
to have regard to, namely, the conduct of the wife in
refusing to return to the matrimonial home when there
were no reasonable grounds for such refusal, Lord
Brandon allowed the appeal.
In summary, prior to the decision of the House of
Lords in
Richards' case
there was confusion in this area of
the law as a consequence of conflicting Court of Appeal
decisions. As a result of this decision an English court in
determining whether an ouster order should be granted
must take into account the grounds for the making of
such an order as set out in Section 1(3) of the Matrimonial
Houses Act 1967 and the welfare of the children is not to
be a paramount consideration. The conduct of the parties
is a relevant factor and the granting of an ouster order
must be just and reasonable.
O'B -v- O'B
In the Irish case of
O'B
-v-
O'B
(17th June, 1983, S.C.
unreported) the parties were married in October 1972 and
280
had two children, one born in August 1973 and the other
in March 1976. Since 1979 the parties had not had sexual
relations and the husband had left the home in April 1979.
On 12th February, 1981, the wife obtained a barring order
in the District Court under Section 22 o f the Family Law
(Maintenance of Spouses and Children) Act 1976 ("the
1976 Act"). An appeal was brought to the Circuit Court
which was ultimately allowed in June 1981 and in the
meantime, the District Court order was discharged. On
23rd March, 1981, proceedings in the High Court by way
of Special Summons were issued by the wife which
included a claim for a barring order under Section 22 of
the 1976 Act.
Following the appeal to the Circuit Court in June 1981
the husband returned to the family home and the High
Court proceedings were adjourned generally and the
husband continued to live in the family home. In March,
1982, the High Court proceedings were reactivated and
the wife sought a barring order. The matter initially came
before the High Court by way of Motion in April 1982 but
a barring order was not granted then. The matter was
ultimately heard in the High Court (per Costello J.) in
June 1982. Costello J. accepted the wife's evidence and
resolved in her favour any conflict of evidence between *
her and the husband. On the appeal to the Supreme Court
against the High Court decision both O'Higgins C.J. and
McCarthy J. were of the opinion that Costello J. had
founded his decision on the basis that the parties were
incompatible and that the marriage had irretrievably
broken down.
Section 22 of the 1976 Act was the statutory provision
governing the granting of barring orders, but this
provision was superceded by Section 2 of the Family Law
(Protection of Spouses and Children) Act 1981 ("the 1981
Act") which Act came into operation on 24 July, 1981,
being one month after its passing. Section 17 of the 1981
Act repealed Section 22 of the 1976 Act but also provided
that an application to the High Court under Section 22
which had not been determined before the commence-
ment of the 1981 Act could be dealt with by the High
Court under the 1981 Act.
Section 2 of the 1981 Act provides in the same terms as
Section 22 of the 1976 Act for the making of barring
orders by the Court "if it is of the opinion that there are
reasonable grounds for believing that the safety and
welfare of the applicant spouse or any child so requires".
However, the long title of the 1981 Act indicates expressly
that the cause for the court application must be the
conduct of the other spouse. This is not the case with the
1976 Act.
According to O'Higgins C.J. the use of the "word
"safety" probably postulated a necessity to protect from
actual or threatened physical violence eminating from the
other spouse". The word "welfare", according to
O'Higgins C.J., "was intended to provide for cases of
neglect or fear or nervous injury brought about by the
other spouse". O'Higgins C.J. approved the sentiments of
Costello J. in the High Court who had stated that it has
been the practice to accord a very wide ambit to the
Section, particularly in considering what is meant by
"welfare". But O'Higgins C.J. made this approval subject
to the condition that "what endangers welfare must be
attributed to the conduct of the other spouse".
All three judges in the Supreme Court held that in order
for a barring order to be granted the applicant had to
show that the "safety or welfare" of the applicant spouse