The High Court has affirmed a judicial separation decree and ordered a temporary “nesting” arrangement for the children, under which they remain in the family home while their parents take turns caring for them there. The court also set out conditions for contact, responsibility for household and child-related costs, and a future sale or buyout of the home.
The appeal was heard de novo by Ms Justice Jackson in the Circuit Family Court Appeal in Dublin. In a judgment delivered on 23 November 2023, she affirmed the Circuit Family Court’s decree of judicial separation, dated 20 December 2022, under section 2(1)(f) of the Judicial Separation and Family Law Reform Act 1989. She said the evidence showed there had been no normal marital relationship for more than 12 months before proceedings began on 17 August 2021.
The parties have three children, two of them dependent. The judge ordered joint custody and a 9/5-day division of care under the nesting arrangement, to begin on 5 January 2024. It is to last no longer than the older dependent child’s completion of secondary education, expected in summer 2026. The judge said the arrangements should not be reviewed for at least 12 months after they begin. If the mother’s recovery continues positively and her time with the children increases at review, the judge said nesting should end and the new arrangements should take place in the mother’s home.
The mother’s contact with the minor children was made conditional on negative drug and alcohol test results being available three months in advance. The judgment directs testing every three months, beginning before the arrangements start, using poly-drug level 5 hair-follicle and alcohol tests. If the required negative results are unavailable, contact arrangements are to revert to the Circuit Family Court order of 20 December 2022. The judge said the mother could not be forced to test, but made the results a condition of the ordered contact arrangements.
The father was granted exclusive occupation of the family home until July 2026 or its sale, whichever is later, subject to the mother’s contact periods in the home. He must leave during those periods. He is to pay the mortgage, household expenses and the children’s day-to-day costs while they are in his care. The parents are to share educational, medical, dental and therapy expenses equally; the court made no maintenance order on that basis.
The home is to be put on the market on 1 July 2026, subject to adjustment if the older dependent child finishes secondary education earlier or later. Net equity is to be divided equally, with the father having the first option to buy the mother’s interest and the mother a second option if he does not. The judgment also indicates equalisation of spousal pension benefits and mutual financial orders. The parties were directed to agree a draft order; outstanding issues, including costs, were listed for mention on 1 December 2023. The judge indicated an intention to make no order for costs.