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GAZETTE
JULY
a boy aged 5 j and a girl aged 3{ years of age had been
placed in the custody of the mother, the Supreme Court
by a majority awarded custody to the father. The facts of
this case were as follows:
Both parties agreed in the proceedings that their
marriage had irretrievably broken down. Evidence was
given that a year prior to the parties separating, the wife
had committed "an act of adultery" with one of her
husband's employees and it was not alleged that this act
by the wife was a major factor in the breakdown of the
parties marriage. Upon the collapse of the marriage the
parties separated and agreed that the wife should retain
custody of their children. However, a short time later the
wife became friendly with a Mr. M. and it was established
in Court that M. and Mrs. K. had engaged in sexual
intercourse on many occasions in the latter's home after
the children had gone to bed. It was also established that
M. was well known to the children, was liked by them and
that they called him Uncle.There was no suggestion that
the wife's association with M commenced before Mr. and
Mrs. K separated. Awarding custody to the father Walsh,
J. stated that
"a removal of the children from the custody of their
mother at such an age would be justified only when it has
been found that the mother has been so greatly wanting in
her duty to her children that the removed would be
warranted." Having regard to the mother's behaviour he
felt such removal was justified. The life she was leading he
stated was "a manifest repudiation of the social and
religious values with which the children should be
inculcated and which she believes she can teach them,
while at the same time clearly repudiating them herself in
the sight of her own children"
Of particular interest is the fact that Henchy and Griffin
J.J. formed a majority in the previous case of
M&.O. 'S
v.
P.O.O.'S.,
in which a three man Supreme Court sat, but
delivered minority dissenting opinions in
EJC. v. MJC.
in
which a five-man Supreme Court sat. (Majority judgment
delivered by Fitzgerald C.J., Walsh and Budd JJ.).
One further Supreme Court Judgment that should be
mentioned is that delivered in the case of
W. v.W.
In this
case the Supreme Court affirmed a High Court Order to
transfer the custody of two boys aged 14 and 11 from
their father to their mother. Two years previously the
High Court had granted custody of the boys to their
father. However, it was established that while they were in
his custody the father had engaged in a sexual
relationship with another woman. It was stated that
"His misconduct would have a devastating effect on the
moral standards of the children at their present age".
Six months later however, the High Court transferred
custody back to the father. Contrary to the Order of the
High Court as affirmed by the Supreme Court, the boys
had returned to live with their father. Upon their being
interviewed by Kenny, J. they were adamant that they
wished to remain with him, and stated that if the Court
placed them in their mother's custody they would run
away. Stating that "When children of this age express a
strong preference for living with one of their parents, the
Court should give respect to it", Kenny, J. permitted
them to remain with him. On appeal this Order was
affirmed by the Supreme Court.
Adulterous relationship bar to custody
On the basis of the above authorities it seems that as
the law stands at present a spouse who commits adultery
while still living with the other spouse and who leaves the
family home to set up home with a third party has little or
no chance of obtaining a Court order of custody of his
children. If however, such a spouse ceases to be a party to
an adulterous relationship, his or her chances of obtaining
a grant of custody will greatly increase. That this is so is
clearly seen by the Judgment of the Supreme Court in
1970 in the case of
Cullen
v.
Cullen.
In this case a mother
whom the Court seem to regard as the party responsible
for the break up of the marriage was awarded custody
of her youngest child on condition and subject to the
understanding that the association with her former lover
was at an end.
A spouse whose marriage has broken down and who
does not become a party to an adulterous relationship
until sometime after he has separated from his spouse,
may be successful in an application for the custody of his
children. However, for the solicitor advising his client it is
impossible to predict with accuracy the likely outcome of
such proceedings, having regard to the varying judicial
opinions as to the damage likely to be done to the welfare
of a child if it is placed in the custody of an adulterous
parent. An important factor that will have considerable
influence on the decision of the Court in such
circumstances is whether or not the child or children in
respect of whom an order is sought have resided with the
adulterous spouse for a considerable period before the
dispute arises for determination by the Court.
Despite judicial assertions that the Court is concerned
with the behaviour of spouses as parents, and not their
behaviour as spouses in determining custody disputes, it
seems that the one circumstance in which a party's
behaviour as a spouse is likely to greatly jeopardize his
chances of an award of custody is that in which he or she
commits adultery. Other types of matrimonial
misbehaviour have not been subject to similar judicial
condemnation, or censure, and have not been held out as
constituting so great a danger to a child's welfare. Thus in
H.
v.
H.,
Parke, J., in the High Court granted custody to
a father whom he acknowledged frequently drank to
excess, was violent and unstable and who had viciously
assaulted his wife whilst she was pregnant. Subsequent to
being assaulted, the wife had formed a liaison with
another man, a Mr. G., and there was evidence that Mr.
G. and the wife intended to set up a permanent home
together in England.
Delivering judgment Parke, J. held Mr. G.'s meeting
with the wife to be "disastrous for the marriage" and
went on to state
"I believe that had no untoward event intervened to
interrupt its natural course (i.e. had Mrs. H. not met G)
this marriage, like so many of such unions, would have
had many violent storms, but probably would never had
foundered".
Whilst religious differences inevitably also influenced
the decision reached in this case, Parke J. made it quite
clear that even if such complications did not exist, he
would have awarded custody to the father.
He stated that "In general... the Courts will not grant
custody to a parent who has abandoned the matrimonial
home and lives in an adulterous establishment". The
reason being "the extremely bad moral example which
would be given to the child." Strangely whilst
condemning the mother for "abandoning" the
matrimonial home, he at no stage discussed the question
of whether Mrs. H was justified in leaving the family
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