The Gazette 1981

MARCH 1981

GAZETTE

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-

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. 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 0*N v. 0*B and Others

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

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