The Gazette 1974

access by the husband, who was to pay £1,040 per annum for their maintenance. The wife has since bought a bungalow and land of 11 acres near Naas. The husband and wife have sold the farm at Summer- hill, and he has bought another one at Enfield, which is not yet ready for occupation; meanwhile he lives in a flat in Dublin. Both the husband and wife are children of wealthy parents, accustomed to high stan- dards of living. The wife had in 1972 committed adultery with an employee, which the husband had detected, yet had returned to the matrimonial home from April to July, 1973 to resume residence only. The case was first listed before O'Keeffe P. in December, 1973, and the parties consented to the joint custody of the children, who were to be given in the care of the mother, subject to the father's access and other con- dition, and to the payment of the aforementioned sum of £1,040, payable monthly in respect of the children's maintenance. On 20 December 1973 the husband, through his solicitor, complained about the wife's failure to honour the arrangements; he also complained of the wife's association with Mr. X, and specifically that Mr. X was allowed to associate with the children. The letter required that such association should cease immediately. The association of Mr. X with the children was re- jected by the wife's solicitor on the 15th January, 1974. When the matter was listed before Kenny J. on 24 May 1974, the wife gave the following personal under- takings: (1) that Mr. X would not be allowed to take the children on outings, (2) that, if the children were in the house, Mr. X would only visit the wife between 8.30 p.m. and midnight, and would not engage in improper conduct. The evidence showed that there was a permanent adulterous relationship between the wife and Mr. X. In order to support this, the wife alleged that she had been seeking an annulment in the Eccles- iastical Courts, but had given no thought to the legal position. Thereupon Kenny J. gave custody of the children to the wife. The appeal was allowed, because the first and paramount consideration was the religious, moral, intellectual and social welfare of the children, which should be considered globally. The facts here warrant the order that the children be placed in the custody of their father, as the mother here has been so greatly wanting in her duty towards them. The marriage in this case has undoubtedly irretrievably broken down. Apart from the welfare of the children, there is no question of doing justice as between hus- band and wife. The difference lies in the social, moral and religious aspects of the children's welfare. The un- stable life of the mother is a manifest repudiation of the social and religious values with which the children should be inculcated. On the facts the permanent home of the children would be the husband's home. The rights of access should continue and the wife should have ample opportunity of seeing and caring for the children. In this case it is the wife who has broken up the family home. The appeal is accordingly allowed. [K. v. K.; Full Supreme Court; Separate judgments by FitzGerald C.J.; Walsh and Henchy JJ.; unreported; 31 July 1974.] Redemption price fixed by County Council in respect of purchase of cottage unenforceable, as wrong prin- ciples applied. The plaintiff is the registered owner of a cottage on Folio 50107, Co. Cork. The cottage was built subject

she had no intention of developing it. Kenny J. on 3 December 1973 refused to grant an injunction to re- strain the defendant's application as well as a man- datory injunction ordering her to withdraw it. (See January-February Gazette, 1974, p. 22). The defendant based her claim on the fact that in applications for development permission under Sections 25 and 26 of the Planning Act, 1963, reference was made to "the applicant" and not to the owner or occupier; the Court accepted this. The Defendant however went further and contended that, because no limiting qualifications are laid down by the relevant sections for an applicant, anyone can be an applicant for development per- mission. It was said that there was nothing to debar a pauper from making an application for permission for a multi-million pound development of a property which he has only read about in the newspaper. This proposition could lead to strange incongruities. It is clear that the powers given by the Act must be read as being exercizable in the interests of the Common good, as set out in the long title to the Act. Accordingly the Courts should lean against a construction which would make the exercise of those powers available to an individual for advancing a purely personal motive. The inequities and anomalies that would follow if there is to be an unrestricted right to apply for permission to develop another person's property is shown by the terms of many provissons in the Act. When these proceedings were taken on 12th Novem- ber 1973, the decisions of the planning authority were still being considered, and were only made on 27th November, 1973. On 30th November, 1973, the plaintiffs appealed, but the appeal had not yet been heard by the Minister and is still outstanding. Since the defendant ranks ao respondent in the appeal, she is no longer a moving party so She cannot be restrained in the pending proceedings by means of either the negative or mandatory injunction sought. In the present case, the defendant's application was invalid and should n ot have been entertained. If the Minister allows the appeal, it would negative the planning authority's decision on the ground of the defendant's lack "of standing. The Court would have decided the substantive point in favour of the plaintiffs, but, for the procedural reasons given, dismisses the appeal. [Frescati Estates Ltd. v. Walker; Full Supreme Court per Henchy J.; unreported; 30 July 1974.] Custody of two infants granted to father, in view of mother's association. The parents were married in October 1967. Two children were born of the marriage, a son (Stephen), now 5£ years and a daughter (Amanda), now 3£ years. They lived in Cashel until 1969, and then bought a farm at Summerhill, Co. Meath. Relations between the husband and wife became unhappy in 1970, and the wife left the home three times, but returned. She blames the irretrievable breakdown of the marriage on the husband's concentration on training horses; he blames it on her instability and emotional immaturity. The wife finally left the home in July, 1973, took the children with her and went to live with her parents in Donny- brook. When proceedings were taken by the wife for the custody of the children, a consent was signed in September, 1973, by the parties by which they agreed that they were to have joint custody, but the care of the children was to be given to the wife, subject to

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