The Gazette 1983

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