The Gazette 1977

GAZETTE

JULY

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 107

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