JUDGMENT of Mr. Justice Garrett Sheehan delivered on the 1st day of July,
2008
1. Introduction
1.1 The respondent in these judicial separation proceedings which were
issued on the 16th November, 2007, and served on him on the 29th
November, 2007, issued a notice of motion on the 4th March, 2008
seeking an order in the following terms: -
1. An order staying the above application.
2. An order directing the determination, by way of a preliminary issue, of
the entitlement and/or competence of this Honourable Court to consider
the above entitled application and/or to make any determination thereon
on the basis that this Honourable Court lacks jurisdiction to make any
determination relating to the marriage and the marriage breakdown of the
parties hereto.
3. Further or in the alternative a declaration that this Honourable Court
lacks in law, jurisdiction and competence to determine the matter in
issue between the parties on the grounds of the domicile and permanent
and habitual residence of all the parties in the jurisdiction of the State
of Florida in the United States of America, or otherwise by reason of
their permanent residence and/or domicile outside the jurisdiction of this
Honourable Court in the United States of America.
4. Such further or other order or direction as this Honourable Court shall
deem meet.
2. Background
2.1 The applicant and the respondent met each other in Dublin in 1996
and commenced their relationship shortly thereafter. The applicant was
then working and the respondent was also working.
2.2 The parties went to the United States of America in 1999 to get
married. On the 3rd November, 1999, they entered into a pre-nuptial
agreement in the State of Illinois and were married the next day in
Florida.
2.3 Although born in the United States of America the applicant was
brought up in Ireland. She is a citizen of Ireland and a citizen of the
United States of America.
2.4 The respondent is a citizen of the United States of America.
2.5 There are two children of the marriage, namely J. who was born in
March, 2003 in the United States of America and D. born in March, 2006
in the United States of America.
2.6 Both children are citizens of the United States of America.
2.7 Following their marriage in November, 1999, the parties returned to
Ireland for a short time and then moved to Chicago. After some time they
moved to Wisconsin, where they purchased a property.
2.8 In January, 2004, the parties purchased a property in the west of
Ireland where they resided as a family from October, 2004 to March,
2005. They then went to Florida where they remained until May, 2005.
They purchased a property in Florida but only remained one day after
moving in. They then moved to Wisconsin where they remained until
September, 2005. The family then moved to Florida where they remained
until May, 2006. Between May and August, 2006 they divided their time
between Chicago and Florida. In August, 2006 they returned to the home
they had purchased in Ireland. The applicant has been residing there with
the two children since that time. The respondent resided there for some
time, and spent some time in an Irish Rehabilitation Centre for people
with alcohol problems. The applicant subsequently became involved with
a third party. According to her affidavit this relationship commenced in
April, 2007 and ended in June, 2007.
2.9 The respondent issued proceedings pursuant to the Guardianship of
Infants Act 1964, in the District Court in May, 2007 and at the same time
issued a summons for a barring order and a safety order. In September,
2007 following receipt of a psychologist's report in relation to the welfare
of the children, these proceedings were adjourned by consent for a period
of six months on consent. The principal terms of the consent were that
the parties were to have joint custody of the children with the applicant
being the primary carer. The respondent was to leave the family home.
The children were to reside with the applicant in the family home and the
respondent was to have overnight access with the children every Monday
and Wednesday, as well as on alternate weekends. It was agreed that
neither of the children would be moved out of the jurisdiction during the
six month period.
2.10 On the 16th November, 2007, the applicant issued the proceedings
that are before this Court in which she claimed, inter alia, a decree of
judicial separation, custody of the children and various financial reliefs.
The respondent was served personally with these proceedings on the 29th
November, 2007, and he then instituted divorce proceedings in the State
of Florida on the 3rd December, 2007, which were served on the applicant
on the 9th February, 2008.
3. Submissions
3.1 On behalf of the respondent, Mr. Durcan submitted that the court's
jurisdiction in these proceedings could only arise if one of the conditions
set out in Article 3 of Council Regulation (EC) No. 2201/2003 concerning
jurisdiction and the recognition and enforcement of judgments in
matrimonial matters and the matters of parental responsibility, repealing
Regulation (EC) No. 1347/2000, otherwise referred to as Brussels II bis
was satisfied, and this only gave the court jurisdiction in relation to legal
separation. He submitted that Article 8 under the said regulation was the
basis of jurisdiction regarding parental responsibility.
3.2 He submitted that the court when considering where the habitual
residence of each of the parties lay would be assisted by the judgment
of Munby J., in Marinos v. Marinos [2007] EWHC 2047 (Fam), approved
judgment delivered, 3rd September, 2007.
3.3 Mr. Durcan further submitted that the evidence did not establish
compliance with Article 3 of Council Regulation (EC) No. 2201/2003 and
therefore the court had no jurisdiction. He submitted that if the court
found it had jurisdiction then the principle of forum non conveniens arose
and that Florida was the proper venue for dealing with the case.
3.4 He submitted that the jurisdictional rules in regard to the making of
ancillary financial relief orders for a spouse were to be found in Council
Regulation (EC) No. 44/2001 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters, otherwise
referred to as Brussels I. Counsel argued that Articles 2, 4 and 5(ii) of
that Regulation were the basis for such jurisdictional rules. He submitted
that on the facts of this case no jurisdiction could arise under Articles 2
or 5 as the respondent was not domiciled in a Member State and that
the matter fell within Article 4(i) of Council Regulation (EC) No. 44/2001
and that jurisdiction was therefore determined by the national law of
the Member State. He submitted that ss. 31(ii) and (iv) of the Judicial
Separation and Family Law Reform Act 1989, were the relevant statutory
provisions, the latter subsections providing that the jurisdiction shall only
be exercisable where either of the spouses are domiciled in the State on
the date of the application commencing the proceedings or is ordinarily
resident in the State throughout the period of one year ending on that
date.
3.5 He submitted that the proper venue for hearing ancillary relief
matters was Florida.
3.6 Mr. Durcan submitted that the court should not apply the judgment
of the European Court of Justice in Case C-281/02 Andrew Owusu v.
N. B. Jackson trading as’Villa Holidays Bal-Inn Villas' & Ors) [2005]
E.C.R. I-01383 to this case as he maintained it only applied in cases
which derived jurisdiction under Article 2 of Council Regulation (EC)
No. 44/2001. In this particular case the court held that the doctrine of
forum non conveniens could no longer be applied in cases which derived
jurisdiction under Article 2 of the Brussels Convention.
3.7 Ms. Brown on behalf of the applicant also submitted that the courts'
jurisdiction in legal separation and parental responsibility was governed
by Council Regulation (EC) No. 2201/2003. She submitted that the
Irish courts had exclusive jurisdiction if Article 3 of the said Regulation
was satisfied. She submitted that the evidence clearly demonstrated
compliance with Article 3. She submitted that the principle forum non
conveniens did not survive Brussels II bis. She further submitted that
if the court took the view that the principle of forum non conveniens
did apply then the applicant had not established that Florida was the
appropriate venue for the hearing and the case should proceed in Ireland.
3.8 Ms. Brown also submitted that the jurisdiction for the making
of ancillary financial relief orders for a spouse arose under Council
Regulation (EC) No. 44/2001.
4. Applicable Legislation
1. Council Regulation (EC) No. 2201/2003.
2. Council Regulation (EC) No. 44/2001.
3. Judicial Separation and Family Law Reform Act 1989.
4.1 Chapter 2 of Council Regulations (EC) No. 2201/2003 reads as
follows: -
JURISDICTION
SECTION 1
Divorce, legal separation and marriage annulment
Article 3
General jurisdiction
1. In matters relating to divorce, legal separation or marriage annulment,
jurisdiction shall lie with the courts of the Member State.
(a) in whose territory:
- the spouses are habitually resident, or
- the spouses were last habitually resident, insofar as one of them still
resides there, or
- the respondent is habitually resident, or
- in the event of a joint application either of the spouses is habitually
resident, or
- the applicant is habitually resident if he or she resided there for at least
a year immediately before the application was made, or
- the applicant is habitually resident if he or she resided there for at least
six months immediately before the application was made and is either
a national of the Member State in question or, in the case of the United
Kingdom and Ireland, has his or her 'domicile' there;
(b) of the nationality of both spouses or, in the case of the United
Kingdom and Ireland, of the 'domicile' of both spouses.
2. For the purpose of this Regulation, 'domicile' shall have the same
meaning as it has under the legal systems of the United Kingdom and
Ireland.
SECTION 2
Parental responsibility
ARTICLE 8
General jurisdiction
1. The courts of a Member State shall have jurisdiction in matters of
parental responsibility over a child who is habitually resident in that
Member State at the time the court is seised.
2. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.
Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters.
CHAPTER II
JURISDICTION
SECTION 1
General provisions
Article 4
1. If the defendant is not domiciled in a Member State, the jurisdiction of
the courts if each Member State shall, subject to Articles 22 and 23, be
determined by the law of that Member State.
2. As against such a defendant, any person domiciled in a Member State
may, whatever his nationality, avail himself in that State of the rules of
jurisdiction there in force, and in particular those specified in Annex I, in
the same way as the nationals of that State.
5. Decision
5.1 I hold that the applicant who is an Irish citizen as well as a citizen of
the United States of America was habitually resident in Ireland at the time
these proceedings were commenced and that she was also domiciled in
Ireland at that time. I hold that the children were also habitually resident
here and I further hold that the respondent was habitually resident in
Ireland when these proceedings commenced. I therefore hold that the
requirements of Article 3 of Council Regulation (EC) No. 2201/2003 have
been complied with.
5.2 In coming to these conclusions I have relied on the Supreme Court
judgment of Fennelly J. in S. v. S. [2004] IESC 95, and the judgment of
Munby J. in Marinos v. Marinos. In the course of his judgment Fennelly J.
cited with approval the judgment of McGuinness J. in C.M. v. Delegacion
Provincial de Malaga [1999] 2 IR 363, where the learned judge held at p.
381 that: -
"Having considered the various authorities opened to me by counsel, it
seems to me to be settled law in both England and Ireland that "habitual
residence" is not a term of art, but a matter of fact, to be decided on the
evidence in this particular case."
5.3 In Marinos v. Marinos, Munby J., reviewed the law relating to habitual
residence. Arising from this judgment a major factor to be taken into
account in deciding habitual residence arises from a consideration of
where a party's "centre of interest is located". I hold that an important
aspect of centre of interest is to be found in where a party's primary
responsibility lies.
5.4 In holding that the applicant's habitual residence is in Ireland I accept
her assertion that the parties intended to settle here and bring up the
children in Ireland.
5.5 In holding that the respondent's habitual residence was in Ireland on
the 16th November, 2007, notwithstanding his assertion to the contrary
and notwithstanding his peripatetic lifestyle I rely on the following facts: -
1. The respondent and the applicant purchased a substantial home in
Ireland in 2004.
2. The respondent instituted proceedings in Ireland under the
Guardianship of Infants Act 1964, which on the 16th November, 2007,
were still before the District Court, the respondent having agreed interim
terms with the applicant in relation to custody and access.
3. The respondent's primary responsibility on the 17th November, 2007,
was to his family and in particular to his two children. His primary
responsibility at that time was in exercising access twice a week and
every second weekend. These access arrangements included overnight
access. All this occurred in Ireland.
4. The respondent told the psychologist, Mr. Mullally, in the course of
being interviewed concerning the children's welfare in connection with the
proceedings in the District Court, that when he and the applicant returned
to Ireland in 2006 they had intended to settle here.
5. The respondent is a person of independent means who is not in
employment outside Ireland.
5.6 I hold that the above facts, and in particular that outlined at 3
above, far outweigh any considerations to be given to the respondent's
assertions that the primary residence of the family is in the United States
of America, that both he and the applicant and the children are citizens
of the United States of America, that they married in the United States of
America, entered into a pre-nuptial contract there, that most of the assets
are in the United States of America, and that he pays his taxes in Florida.
5.7 I hold that the doctrine of forum non conveniens, or forum conveniens
as it is also called, does not survive Brussels II bis.
5.8 Even if I am not bound by the judgment of the European Court of
Justice in Case C-281/02 Andrew Owusu v. N. B. Jackson trading as’Villa
Holidays Bal-Inn Villas' & Ors as Mr. Durcan has argued, I hold that that
judgment is applicable to this case.
5.9 Accordingly, in light of the above findings I hold that this Court
has exclusive jurisdiction in these proceedings insofar as they relate to
parental responsibility and judicial separation.
5.10 With regard to the final point of Mr. Durcan's submission that this
Court might stay these proceedings in whole or in part and on terms,
the only matter that remains to be considered is whether or not the
question of ancillary financial relief whose jurisdictional basis in this case
is under domestic legislation, is still subject to the doctrine of forum non
conveniens. In our law judicial separation is inextricably linked to "proper
provision" for dependant children and divorce under Article 41 of the
Constitution is also inextricably linked to "proper provision". It is difficult
to envisage how these matters can be properly separated. In the event
that given my earlier finding on forum non conveniens this doctrine is still
available to the respondent in relation to financial relief, then I further
hold that he has not established that Florida is a more appropriate venue
for this aspect of the case. Leaving aside the obvious expense of having
two jurisdictions involved it would be extremely disruptive for the children
if the mother was obliged to conduct part of her case in Florida. These
matters outweigh any considerations with regard to the interpretation of a
pre-nuptial agreement made in Wisconsin, property and tax matters being
United States of America related and the fact that all parties are citizens
of the United States of America. It is of course also relevant that I have
found that when the applicant instituted proceedings here the respondent
was also habitually resident here.