Court grants safety order and maintenance while adjusting access to protect children's best interests.

DISTRICT COURT DISTRICT COURT AREA OF WEXFORD DISTRICT NO. 23 K.D.

APPLICANT

- AND - E.D.

RESPONDENT Judgment delivered by Judge Brian O’Shea at Wexford District Court on 9th day of November 2017

1. There are three applications before the court. The Applicant seeks a safety order and maintenance, while the Respondent seeks to regularise access. While K.D. is referred to as the Applicant she is also the Respondent to the access application, but for convenience the court will refer to K.D. as the Applicant and E.D. as the Respondent throughout.

2. At the core of these proceedings are two boys who are 12 and 10 years old. The parties are married and are guardians of both boys. At present the two boys reside with their mother in the Wexford area and attend a local school. The Respondent recently moved to an address that is approximately 500 metres from the Applicant. Until relatively recently matters had been either agreed or mediated, but arrangements broke down over a short period of time. Different motives have been suggested for this breakdown.

Irrespective of the reason for the breakdown the fact is that it has occurred.

Consequently the Applicant and the Respondent engaged experienced family law practitioner to look after their interests. The parties were legally represented throughout the proceedings.

3. The court has heard testimony from the Applicant who was cross-examined. The court has also heard from the Respondent, who was also cross-examined. Much of the evidence consisted of allegations and counter-allegations which were both denied. There was very little agreed between the parties, and certainly nothing of a material nature. It is certainly the case that both parents love their children, but it is also apparent that they sometimes fail to see with clarity what is in the children’s best interests because they mostly look through the prism of their own interests.

4. In relation to the application for a safety order, it is not in issue that the Applicant is a person entitled to apply for a safety order. She undoubtedly meets the criteria by virtue of subparagraph 2(1)(a)(i) of the Domestic Violence Act 1996, as amended. Subsection 2(2) of the 1996 Act dictates that in order to grant the relief sought the court would need to be the opinion that there are reasonable grounds for believing that the safety or welfare, physical and/or psychological, of the applicant or the dependent children requires the order. The fact that an order, if granted, would direct the Respondent thereto (in circumstances where they do not reside together) not to use or threaten to use violence against, molest or put in fear the Applicant, suggests that the court would at least require evidence of behaviour of that nature in order to ground the application at all. This court is of the opinion that it is a serious matter to grant a safety order, and it should not be done lightly, but it would also be a serious error not to grant the relief sought where it was clearly warranted.

5. The evidence offered in support of the application is that there is a history of violence perpetrated by the Respondent upon the Applicant. She alleges that before the parties were married the Respondent head-butted her on two separate occasions. She recounted an incident about three or four years ago where the Respondent pinned her by the throat and hit her across the face. The Applicant states that every argument involved fist banging and extreme rage on the part of the Respondent. She states that he has had numerous extra-marital sexual relationships and suffered from a gambling addiction. She testifies that in June 2016 the Respondent put his fist up to her face and told her “you are still my wife”. She further states that she became so afraid as a result of this incident that she changed the locks on the doors of the house. She states that she is “absolutely terrified” of the Respondent. She states that “when he hit me in the past it takes a long time for his temper to cool”. She expressed concern that there has been a recent escalation in his poor behaviour. It is fair to say that she did not resile from her original testimony under cross-examination.

6. The Respondent gave a different account of one of the alleged head-butting incidents which was significantly more benign that the content of the Applicant’s allegation. He gave no account of the second head-butting incident, nor was he asked by his legal representative to address it. He stated that he never hit his wife using his fists but that he did remove from his person and then throw a wet t-shirt at her and it hit her in the face and he was surprised that it hurt her to the extent that it did. He states that she had caused the t-shirt to become wet by throwing a quantity of water at him while he was asleep. He states that he apologised to her. He admits shouting “this is still my house”

at her face-to-face with a clenched fist by his side, but he denies raising his fist or shouting “you are still my wife”. He states that he was at times awkward but not violent, and that in any circumstances where he was shouting at his wife she too was shouting at him. This assertion was not put to the Applicant during the course of her crossexamination. There were other allegations and denials by both parties but nothing turns on any of them.

7. In relation to the maintenance application, the Applicant seeks €600 per month plus half of all vouched medical, dental, and educational costs. The court received into evidence statements of means completed by both parties. In both instances, the statements suggest that there is a deficiency between their net weekly income and the total weekly outgoings. Payments in varying sums were previously being made on an agreed basis but these became relatively intermittent and ceased altogether from August 2017.

8. Evidence was received regarding various items of expenditure and it was suggested by both parties that savings could be made by the other. A particular bone of contention was the fact that the Respondent received a scrapage bonus of approximately €1,500 for a car that he traded against a new car which he purchased under a PCP scheme. The Applicant was the registered owner of the car and her permission was not sought for the transaction. There was however also evidence that the Respondent undertakes all of the driving and requires a car to go to work. It could reasonably be said however that a new car was an extravagance in all the circumstances.

9. The court also received evidence that the Respondent has recently moved from residing with an acquaintance who charged him no rent to a property that is much closer the Applicant’s home and the children’s school. This results in less driving for the Respondent. He states that he is paying rent to his mother to compensate her for the loss of interest on her investment in the property. It is noteworthy that the rent set out in his statement of means is far in excess of any interest that she could possibly be required to pay on any such investment.

10. The current access arrangement is that the Respondent takes the children every Tuesday and Thursday. He collects them from the childminder after work. He also takes them every second weekend, that is to say, he collects them from the childminder after work on Thursday and drops them back to the Applicant on Sunday about 1:00pm.

11. The Applicant complains that the Respondent does not keep to the arrangement and the number of mishaps in relation to the arrangement has become a source of concern. She further complains that he is giving instructions to the childminder that conflict with her instructions and that this is causing difficulties. The parties set out different causes for the breakdown in the access arrangements. The Applicant argues that the Respondent’s request for 50/50 access is so that he can avoid paying maintenance. The Respondent argues that once the family home was “signed over” to the Applicant she began inventing problems that did not exist up until that time. Other than going to credibility, it is not necessary for the court to adjudicate on such matters; the fact is that the access arrangement is broken down and must be regularised by the court. Finally, the Respondent is desirous of changing the days on which the children have access to him from Tuesday and Thursday to Monday and Wednesday. This suits his current work timetable as he has a free class on the following morning in each instance. This means that he would be in position to bring the children to school and then leave for work. At the moment the children are left alone for about 10 to 15 minutes between the time the Respondent leaves for work and the time the children go to school. This is not satisfactory as it is not in the best interests of the children to be left unsupervised in the house immediately before leaving for school.

12. In addition to all of the other legal matters that the court must consider, and has considered, section 31 of the Guardianship of Infants Act 1964 as inserted by section 9 of the Children and Family Relationships Act 2015 mandates that in deciding what is in the best interests of a child the court must have regard to all of the factors or circumstances that it regards as relevant to the particular child concerned and to his or her family.

These include, but are not limited to a significant number of matters set out at paragraphs (a) to (k) of subsection 31(2). One such important factor is the views of the child(ren) that are ascertainable. During the course of the instant proceedings the court inquired of both parents as to their views regarding the court discussing matters with the children in order to ascertain their views. It was suggested by the court that the boys would be interviewed together without either parent or solicitor present. The logic being that the boys would provide support for each other and could discuss matters without legal or parental intervention. Both parents and legal representatives agreed with this course. As this meeting took place the day after the parents gave their testimony both parents were required to undertake not to speak to the children about the evidence they had given or to try to influence them in terms of what they might say to the court regarding preference they might have. Both parents were warned by the court that any attempt to influence what the children might say could amount to contempt of court, with imprisonment as a potential sanction. It appeared to the court that both parents took the warning seriously and would be highly unlikely to breach their respective undertakings. Having spoken to the boys the court is satisfied that no such attempt was made.

13. Accordingly, the court met with both boys together in chambers. This was conducted in an informal way, but nonetheless in a manner that allowed the court to glean information that was relevant to its decision-making process. Both boys were well presented and neatly dressed. They were both comfortable in their surroundings, chatty but respectful, and very willing to discuss all of the matters that were raised by the court. They are evidently intelligent beyond their years and are able to articulate their views and opinions without any want of vocabulary. They have a greater insight into their parents’ circumstances than perhaps their parents realise. They are happy children and like engaging in activities such as hurling, football, boxing and drama. They have many friends in school and would not like to move to a different school, although the younger boy did indicate that many of his friends had moved to a different school and that he believed he would be equally content in that other school. They are both excited at the prospect of attending secondary school. They perceive that they have access to their parents on what they describe as a 60/40 basis, that is the Applicant and the Respondent respectively. They are both very satisfied with this arrangement. They would not like any change in the arrangement other than expressing a preference (as opposed to desire)

that they would leave for school before the Respondent on the days that they have access to him. Contrary to the Respondent’s evidence, they do not consider that any one parent is better than the other at helping them with homework. They do not have any preference for who brings them to their extra-curricular activities provided they get there.

They confirm that they were left uncollected on a small number of occasions after games/matches, but they do not attach much importance to it and considered it was “no big deal”. They gave a very illuminating and frank view of what they considered to be in their best interests, albeit expressing an understanding that decisions were ultimately a matter for the court. They are very fond and appreciative of their childminder and consider it would be a huge inconvenience to them if she was not available to them.

They associate the Applicant with providing the essentials for them in terms of food, books, uniforms, and so on. They indicate that the Respondent would be much more likely to spoil them and takes them out to eat quite a lot, which they enjoy very much.

There is no doubt whatsoever that both boys love both parents dearly and unreservedly.

The left chambers appearing happy and content having taken the entire process in their stride.

14. The court’s decisions on all matters are based on an assessment of the evidence received to include the examination and cross-examination of the witnesses, the information obtained from the children, and the application of the relevant law to that evidence. The court has also had regard to the various arguments and submissions made by the respective legal representatives throughout the process.

15. Regarding the safety order application, as a matter of probability the court is of the opinion that that the more recent incidents occurred in the manner outlined to it by the Applicant. In the opinion of the court the testimony received from the Respondent in relation to the allegations amounted to an attempt to minimise the events and to give alternative accounts that do not have a ring of truth about them. On this issue, this court is of the opinion, based on reasonable grounds having heard and carefully considered all of the evidence, that the making of a safety order is necessary to ensure the safety of the Applicant. The court grants such an order for a period of 3 years. The court considers this to be a reasonable and proportionate order in all the circumstances.

16. In relation to the maintenance application, having reviewed the statements of means in detail, and in light of the evidence presented to the court, it is appropriate to make an order in favour of the Applicant in the sum of €500 per month. This sum will be paid into the Applicant’s account, that is to say, the same account to which the previous intermittent payments were made. The payments will commence on or before 9 December 2017. The childminder will be paid by the Applicant from this amount.

Additionally, it is also appropriate and fair to order that the Respondent will pay to the Applicant half of all vouched reasonable and necessary medical, dental and educational expenses in respect of both children. Some relatively small adjustments to the Respondent’s lifestyle, together with resisting the temptation to purchase unnecessary items for the children, the reduction in travel owing to his new address, and the possibility of taking on some small amount of additional summer work will enable him to meet the maintenance payments without undue hardship.

17. For the avoidance of doubt, the court directs that any argument that may arise between the parties regarding the enforceability of the apparent contract entered between the parties regarding the payment of a lump sum with or without interest, which was alluded to during these proceedings but not being part of these proceedings, shall not be utilised as a device to withhold payments mandated by this court’s order. Non-compliance with the court’s order may amount to contempt of court, with potential sanctions including imprisonment. In the event of any non-payment or a delay in the making of any such payment the Applicant has liberty to apply to the court for attachment of earnings at source.

18. Turning to the access arrangements. Although it will be a considerable source of inconvenience to the Applicant the court will change the access arrangements to ensure that the children are not left unsupervised prior to leaving for school. This is not to convenience the Respondent but rather to ensure the children’s safety. It is also in keeping with their wishes. From now onwards the children will have access to the Respondent every Monday and Wednesday. He will collect them from the childminder after work and ensure they are brought to school before he leaves for work. The children will have access to the Respondent every second weekend and to that end he will collect them from the childminder after work on Friday and drop them back to the Applicant on Sunday at 1:00pm. If there is any change in the Respondent’s work timetable that impacts on this arrangement he must immediately inform the Applicant and the matter should be re-entered before the court.

19. For the avoidance of doubt, when either or both of the children have an extra-curricular activity or activities the parent who they have access to during the currency of the activity shall be responsible for ensuring that the child(ren) are brought to and from that activity.

20. The court further directs, in the interests of certainty and the reduction in the possibility of confusion that the childminder will be paid by the Applicant only. She will take her work instructions from the Applicant only. If it is agreed between the parties that the Respondent has greater access during summer months, which shall be at the discretion of the Applicant, this will not affect the Applicant’s entitlement to engage the childminder in any manner she sees fit, without any interference by the Respondent. If the Respondent disobeys these directions it may amount to a contempt and the matter should be reentered.