Man wins appeal over exclusion from his family home

A man who is separating from his wife has won his appeal against temporary High Court orders granting custody of his autistic son (18) to his wife and excluding the man from the family home.

There was no basis for the interim custody order of July 2016 because the son months earlier attained the full legal majority age of 18, the Court of Appeal ruled.

There was also no jurisdiction for a “far-reaching” order under the Guardianship of Infants Act 1964 excluding the man from the family home and permitting the wife, then living in another property owned by the couple, return to the family home, it held.

Ms Justice Bronagh O’Hanlon granted the exclusion order on foot of evidence from a clinical psychologist that, ideally, the couple’s two younger children, the autistic boy and a 16-year-old boy, should live with their mother, rather than their father, in the family home. The judge took the view the welfare of the two children required the exclusion order.

Nothing in the 1964 Act sanctions exclusion of a parent from the family home on the general ground a child’s best interests require it without any finding of actual parental misconduct or future threat to the safety or welfare of the wife and children, Mr Justice Gerard Hogan said in the three judge appeal court’s judgment.

While the wife took barring order proceedings in 2014 after alleging her husband got her “by the neck”, those were settled and struck out on consent in the District Court within days, with no findings of domestic violence against the man or that he posed a threat to the safety of the wife and children, he noted.

The judge rejected additional arguments that the High Court has inherent jurisdiction to exclude a spouse, who otherwise has a legal right to live in the family home, from the family home.

While rejecting the man’s claims Ms Justice O’Hanlon prejudged the matter, including by describing some of his lawyer’s arguments as “ridiculous”, Mr Justice Hogan ruled she failed to expressly identify the statutory criteria for her decision excluding the man and for not ascertaining the views of his youngest son regarding that exclusion.

Spouses may be excluded from the family home under the Domestic Violence Act and other legislation not relevant in this particular case given its facts, he stressed.

Adjourning the case to allow the sides consider the judgment, he urged that they try and resolve the issues between them without further expensive litigation.

The man and woman married about 20 years ago, enjoyed a “privileged and affluent lifestyle” . The oldest of their three children, an adult student, is not involved in the case.

The family relationship was breaking down for some time and matters came to a head in 2014, Mr Justice Hogan said. After the woman’s barring order proceedings ended within two weeks, the man returned to live in the family home with his youngest son while the wife moved out to another property of the couple.

The two younger children were to live with her during the week and with the man at weekends. The man claimed the youngest child did not wish to engage with her but she claimed that was due to pressure and negative influence by him over the boy.

The man took High Court judicial separation proceedings for various orders, including custody and access orders for the two younger children. The wife sought similar orders and alleged unreasonable behaviour by him.

A clinical psychologist favoured a joint custody arrangement, saying both are “caring and committed” parents who loved their children. The psychologist considered the man “a powerful and influential individual used to getting his own way” who effectively sought to alienate the mother from the children. The wife, a graduate who gave up her career on marriage, was in some respects, a “meek and submissive” spouse who needed to be more assertive, the psychologist considered.