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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A.B. -v- C.D. [2014] IEHC 450 (08 October 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H450.html Cite as: [2014] IEHC 450 |
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Judgment Title: A.B. -v- C.D. Neutral Citation: [2014] IEHC 450 High Court Record Number: 2012 97 CAF & 2012 98 CAF Date of Delivery: 08/10/2014 Court: High Court Composition of Court: Judgment by: Keane J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 450 THE HIGH COURT FAMILY LAW [2012 No. 97 and No. 98 CAF] IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989 AND IN THE MATTER OF THE FAMILY LAW ACT 1995 BETWEEN A.B. APPLICANT/RESPONDENT AND
C.D. RESPONDENT/APPELLANT JUDGMENT of Mr. Justice Keane delivered on the 8th October 2014 Introduction 2. Although judgment has already been given in the appeal and Orders have long since been made, the father now brings two further applications before the Court. The first, the subject of a motion dated the 12th July 2013, seeks, in essence, to set aside the Order of Abbott J. made on the 28th February 2013 on the ground of bias. It would appear that, immediately upon being apprised that the father is alleging bias, Abbott J. recused himself from the case, with the result that the application ultimately came before me, in conjunction with the father's second application. In the second application, brought by motion dated the 21st November 2013, the father seeks to amend, correct or supplement the terms of the judgment delivered by Abbott J. on the 1ih July 2013. The background 4. To place the two applications now before me in their proper context, it is necessary to consider the judgments already delivered by Abbott J. in relation to each of those two Circuit Court appeals. The first judgment 6. In seeking custody of Edward, the father relied upon welfare reports procured by the Court, pursuant to the terms of s. 47 of the Family Law Act 1995, from a particular expert child psychiatrist retained by agreement between the parties. That expert concluded that the two older children were significantly distanced and alienated from the father, but the alienation of Edward might yet be arrested or prevented if he were moved into the father's custody, since the expert found the father to be willing and capable in every sense of providing good parental care to the child. Both parties impressed that expert as caring, intelligent and thoughtful in their consideration of the children's needs. Nevertheless, having noted that the atmosphere in the parties' relationship was highly toxic, the expert also concluded that it was these increased levels of parental conflict that had been particularly burdensome for all three children. 7. Another expert, who conducted a separate assessment of the children's welfare, found no evidence to contradict the assessment of the expert just mentioned that the three children were all alienated from the father. It is a further doleful reflection on the intense and protracted nature of the litigation between the parties that the experts just referred to are described in the judgment as expert No. 7 and expert No. 8, respectively. Expert No. 8 recommended a finding of chronic alienation of the children from the father but expressed the view that the lapse of time that had already occurred militated against any solution that would help the children to re-establish their bond with the father in the short or medium term. 8. Expert No. 7 gave evidence that alienation of a child from one parent by the other parent cuts that child off from the positive resource that the relevant parent represents. His evidence was that the relationship between Edward and his father is "strongly not expendable" in this case "because I have seen too many children go across the period of their life cycle, into later adolescence and young adulthood, and the consequences in marriage and so on and for their own parenting, so that the long term...short term and long term problems are significant." 9. At the conclusion of the appeal, Abbott J. made orders on the 5th November 2009 transferring custody of Edward from the mother to the father. An attempt was made to effect that transfer at a neutral venue on the 6th November 2009 but Edward and his two sisters became physically obstructive and the attempt was abandoned. The Court made further orders on the 12th November 2009 on foot of which Edward was successfully transferred into the father's custody. 10. The Court adjourned the appeal in order to keep the situation under review. Abbott J. subsequently concluded that, regrettably, the mother had breached her obligation to co-operate with the process of Edward's settling into the custody of the father. The mother apologised to the Court and gave an undertaking to co-operate with its orders in future. Abbott J. also concluded, having elicited the views of the children directly, that they continued to be alienated from the father by the mother. Accordingly, although Edward expressed the wish to live with his mother and although the Court acknowledged that due weight must be given to that wish, the Court concluded that Edward's wishes could not be considered determinative of the appeal and must not be allowed to change the fundamental approach of the Court - i.e. that the welfare of the child is the first and paramount consideration. 11. The Court made final orders on the appeal on the 21st July 2010 confirming that Edward was to remain in the primary custody of his father. 12. In the perfectly understandable hope that the litigation between the parties had finally come to a close, Abbott J. included a section in the judgment he delivered on the 26th July 2011 entitled "Reflection", in which he posed the question, "what steps, if any, by way of court procedures could have been taken to avoid or, at least, reduce the extent of this profligate and destructive litigation?" 13. In addressing that question, Abbott J. identified two aspects of the litigation in particular that he felt had acted to the detriment of the parties and the children. The first was the mother's determination to query and undermine any expert who gave an opinion unfavourable to her position in the case. In that regard, I would add my own observation that it cannot have been entirely coincidental that, by the time final orders were made in the appeal, nine different experts had been involved in the proceedings. 14. The second such aspect of the case was the regrettable fact that, although a number of experts had reported to the court that the mother was guilty of alienating tendencies, no conclusion in that regard was ever formally put on record and, in consequence, no steps were taken to counteract the corrosive effect of those tendencies or to alert anyone subsequently dealing with the case to their existence. Abbott J. went on to recommend that the conclusions of a court concerning the matters canvassed in any s. 47 expert report should be clearly recorded. Specifically, in this case, Abbott J. accepted a submission made on behalf of the father that, whether by accident or design, the mother had developed a system of agreeing access arrangements to the children for the father whenever she was before the court only to obstruct or frustrate the operation of those orders in practice afterwards until brought before the court again, thereby causing continuing damage to the development of the relationship between the children and the father. 15. Abbott J. concluded his judgment with a consideration of the principles governing the procurement and use of s. 47 expert reports generally. The second judgment 17. That order of the Circuit Court arose in the following circumstances. On the morning of the 27th September 2012, while residing with the father, Edward left for school in the usual way. However, instead of going to school, Edward travelled to the mother's home in another part of the country, a considerable distance away. The mother refused to return Edward to the father's custody and further litigation in the Circuit Court then ensued, culminating in the order of the Circuit Court just described. 18. The second judgment records that it was represented by the mother's counsel that Edward "agreed with [the Circuit Court judge who heard the matter] that if he was allowed to stay with mother in her fulltime care, that he would cooperate with access for his father more or less on the basis of a reverse of roles between mother and father as compared with the order of [the High Court]." 19. Abbott J. states, at para. 7 of the second judgment, that he spoke to Edward in the court room without the presence of lawyers or parties in accordance with the procedure described in S. J.O'D v. P. C. O'D, 26 May 2008, High Court, Abbott J., unreported. The judgment records that Edward expressed the wish to remain at home with his mother and the belief that, if he were allowed to do so, his mother would abide by the access arrangements made for his father. 20. The findings at the conclusion of the judgment include the following:
2. Edward is now twelve and, although he arranged his escape contrary to the court order, he now by all accounts has matured and, indeed, he has taken possession of his own future by indicating his preferences through his own voice to two judges in succession. 3. Having regard to Edward's attitude and obvious maturity, it would appear that the care of his father and his second wife, while much criticised by Edward and mother, had obvious beneficial effects which were admitted all round. 4. Edward is now at a stage at twelve years and having regard to his maturity and his obvious commitment to work out his future while attending the B. school, must be allowed a degree of self determination and it is inappropriate for the court to interfere with the broad findings of the Circuit Court subject to details in relation to existing schooling as appear in the order hereunder. The first application
24. The concluding section of the second judgment is headed 'Findings' and contains 10 enumerated paragraphs. The last of those paragraphs states as follows:
26. As disclosed in the submissions filed in support of this first application, the father's principal argument is that the incident described by Abbott J. in his second judgment gives rise to a reasonable apprehension of bias such that the judgment and order of the Court should be set aside on the basis of the principle that justice should not only be done but should be seen to be done. The evidence 28. The father has exhibited to one of the affidavits that he has sworn in the application a copy of the Statement of the President of the High Court and the President of the Circuit Court of the 4th November 2013, concerning an urgent investigation they had conducted into a report in the Sunday Times Newspaper of the 3rd November 2013 that suggested that a judge of the Circuit Court had "tried to meddle in [a] family case." The father has done so for the purpose of submitting that the statement concerned amounts to a pre-judgment of the issue that he is seeking to have determined by this Court. In deference to that submission, I have not taken the contents of that statement into account in addressing either of the applications now before me. 29. Accordingly, the material before the Court in the present application comprises the affidavits exchanged, the two judgments of Abbott J., and the transcripts of the second and third days of the second appeal hearing before Abbott J. on the 13th and 28th February 2013, respectively. The facts 31. It is also plain from the terms of that judgment that the nature and consequence of the encounter were as follows. A Circuit Court judge asked Abbott J. whether it was a fact that Edward had been sent away to the primary care of the father. In response, Abbott J., who considered the question to be improper, replied that a judgment in the matter would be available in due course. That description of the relevant interaction is broadly reflected in the transcript of the second day of the appeal hearing on the 13th February 2013, which contains nothing to suggest any further or wider contact or discussion. 32. Another significant fact is that the Court raised the matter of its own motion with the mother in the presence of the father when the mother was giving evidence in the course of the second appeal. The transcript discloses that the Court remonstrated with the mother during that exchange, and the second judgment describes the Court's view that what had occurred represented "the entirely improper interference of mother via political representative and judge." The mother's conduct is an issue to which I will return later in this judgment. The law
Fair hearing 36. In the affidavit that the father swore on the 8th July 2013 to ground the first application, he avers that the hearing took place over two days- the 13th and 14th February 2013- and that, since the matter at issue was not raised with the mother until "late on the final day of the hearing (the 14th February 2013)", he was deprived of any meaningful opportunity to consider its potential significance. In the same affidavit, the father avers that he was given no opportunity for an adjournment to allow him to consider the position. The father also avers as follows: "I say later on the 14th February 2013, Judge Abbott gave his decision...." In a further affidavit sworn on the 14th October 2013, the father averred that his application is "in respect of orders made on the 14th February 2013." In a further supplemental affidavit sworn on the 3rd December 2013, the father again averred that his appeal had been heard over two days (the 12th and 13th February 2013). 37. As has already been explained earlier in this judgment, in the context of an argument that the father wished to rely on concerning what he claimed had transpired on the second day of the hearing, I directed the father to take up a copy of the transcript for that day, which was then made available to the mother and the Court also. That transcript establishes that the second day of the appeal hearing was on the 13th February 2013 (and that, by implication, the first two days of the hearing took place on the 12th and 13th February 2013, rather than on the 13th and 14th February 2013). More significantly, the transcript establishes that the hearing did not conclude on the second day, directly contrary to what the father has averred. In the circumstances, I directed the production of a transcript in respect of the 28th February 2013. 38. That transcript discloses that the appeal resumed on that date and occupied the whole day, concluding late in the afternoon. It is instructive to note that the transcript of the hearing on the 28th February 2013 runs to 112 pages, whereas that of the hearing on the 13th February 2013 runs to only 61 pages. The transcript for the 28th February 2013 discloses that the father was permitted to open his case at length; that he then gave sworn evidence and was cross examined upon it; that the parties were then permitted to make submissions; and that the Court finally ruled on the appeal, rising at one point to permit the parties to work out the mechanics of a particular part of the proposed Order, before adjourning the matter to the 12th July 2013 for the purpose of any review of the operation of the order that might then be necessary. 39. It is difficult to imagine a situation more fundamentally at variance with the averments that the father has made than that disclosed by the transcripts that I have now seen. Those transcripts disclose that the father had an adjourned period of just over two weeks to consider the significance of the matter raised on the 13th February 2013 before the hearing of his appeal resumed on the 28th February 2013, and ample opportunity to make whatever application or submission he considered appropriate during the entire day between the resumption of the hearing and its conclusion. 40. I therefore reject the submission that the father was deprived of a fair or just hearing. Acquiescence or waiver 42. That issue is whether the father can be held to have waived any objection he might otherwise have been entitled to maintain in that regard by acquiescence. The rationale behind the doctrine of waiver was explained in the following way by Henchy J. in Corrigan v. Irish Land Commission [1977] I.R. 317 (at 326):
44. Instead, the father filed further written submissions without the leave of the Court just prior to the conclusion of the hearing of the present application. In those written submissions, he seeks to make a significantly different case in relation to bias. The father asserts that there was a relevant circumstance that he did not have knowledge of on the 28th February 2013. That circumstance is that, at a time prior to making the declaration required of a judge appointed under the Constitution, Abbott J. was himself a political representative with the same party political affiliation in the same constituency as the political representative concerned. The father, in effect, submits that that circumstance, either on its own or in conjunction with the other circumstances already considered, is sufficient to establish objective bias. 45. In my view, there are three problems with that submission, quite apart from the irregular manner in which it was raised. The first is that the circumstance concerned is not, in fact, relevant to the matters upon which the father had previously relied in seeking to establish objective bias- i.e. that during the hearing of the father's appeal, and in his judgment, the judge had reprimanded the mother for her role in what the judge perceived to be an improper enquiry that had been made of him by another judge some time previously on behalf of the mother at the behest of a political representative, which enquiry had been rebuffed. In circumstances where the relevant enquiry had been curtly dealt with, and its occurrence deprecated by Abbott J., the nature of any prior public association between that judge and the political representative concerned does not seem to me to be either relevant or material to the claim of objective bias originally advanced. The father now seeks to link the two matters in a way that suggests that he would see no difficulty, or less difficulty, with any perceived interference in the case, as long as came from someone with whom the Court did not have any prior public association, however innocuous. That cannot be correct. Since the only proper and appropriate course is to reject and condemn any perceived interference in the judicial process in every case, the presence or absence of a prior public association between the actors concerned cannot be considered a relevant circumstance in that regard. 46. The second problem is that, if the particular circumstance now relied upon is instead asserted as a separate and freestanding basis for seeking to establish objective bias, I do not believe that it is capable of satisfying the appropriate test. That is to say, I do not accept that a reasonable person could have a reasonable apprehension that the father did not receive a fair hearing because of a past public association between the Court and a political representative whose perceived representations on behalf of the mother through an intermediary in relation to earlier proceedings between the same parties had been both spurned and deprecated by the Court. 47. The third problem is that the past public association that the father now seeks to rely upon is, and was at all material times, a matter of public record. Even allowing for the father's status as a litigant in person and his assertion in submissions, though not in evidence, that he was born outside the jurisdiction and worked abroad for several years, the circumstance concerned was at all times capable of being ascertained by the most obvious and rudimentary enquiry. Accordingly, it seems to me that, even if the father's averment that he did not become aware of the relevant circumstance until after the appeal hearing is correct, that circumstance is nevertheless one of which the father could simply and readily have apprised himself before the 28th February 2013, insofar as he had any genuine concern about the matters that were raised in open court on the 13th February 2013. The fact, if it is a fact, that the father did not make any such rudimentary enquiry prior to the 28th February 2013, strongly suggests an intention on the part of the father at the time to refrain from raising any issue of that kind in the hope of a favourable decision on appeal, while seeking to reserve to himself the right to make a complaint subsequently should the decision turn out to be unfavourable to his interests. 48. For each of the reasons set out above, I am satisfied that the alternative claim of objective bias put forward by the father must also fail, and that the father must, in any event, be deemed to have waived his entitlement to assert any objection in respect of either such claim. Breach of the in camera rule 50. The father now seeks, as one of the reliefs claimed in his first application, an order that there has been a breach of the in camera rule in the context of the matters of which he complains. 51. The mother has sworn two replying affidavits in response to the father's first application. In her first affidavit, sworn on the 30th July 2013, the mother avers that, on the 6th November 2009, she telephoned the political representative concerned and made an appointment to meet with that person on the 21st November 2009. It will be remembered, as the mother acknowledges, that Abbott J. had made orders on the 5th November 2009 transferring custody of Edward from the mother to the father. After an unsuccessful attempt was made to effect that transfer on the 6th November 2009, the matter came back before the Court on the 12th November 2009. Tellingly, the mother acknowledges that she was legally represented by solicitor and counsel on that date. The mother avers that Edward was transferred into the father's custody on the 20th November 2009. The mother accepts that she kept the appointment that she had made with the political representative concerned on the 21st November 2009. 52. The mother is adamant that she did not ask the political representative concerned to intervene or interfere in any way in the case, and that she was unaware of any such intervention until the matter was raised with her by Abbott J. on the 13th February 2013, over three years later. However, having read the transcript of the evidence given by the mother on the 13th February 2013, and the two affidavits that she has now sworn in this application, it remains entirely unclear to me what the mother's purpose was in meeting with the political representative concerned on the date in question, at a time when she clearly had access to the best available legal advice from the experienced and highly regarded solicitor and counsel who had represented her in court just over a week previously. 53. In the submissions filed on behalf of the mother in response to the father's two applications, it is argued that, insofar as the mother approached the political representative concerned to obtain advice, there can have been no breach of the in camera rule. That argument is made by analogy with the position that pertains in the United Kingdom. There, under para. 1.3 of Practice Direction 14E, which supplements Part 14, rule 14.14(b) of the Family Procedure Rules 2010, a party to family law proceedings may communicate with "an elected representative or peer" without the permission of the court in order "to enable the elected representative or peer to give advice, investigate any complaint or raise any question of policy or procedure." 54. However, the mother's submissions on that point fail to disclose that, under the relevant provision, the only information that can be thus communicated between a party to family law proceedings and an elected representative or peer is "[t]he text or summary of the whole or part of a judgment given in the proceedings." In this case, final orders were not made on the first appeal until the 21st July 2010 and judgment was not delivered until the 26th July 2011. It is difficult, therefore, to see how, in the circumstances of the present case, the mother could avail of that specific exception to the application of the in camera rule, were it to apply in this jurisdiction. 55. It is perhaps fortunate for the mother therefore that I have concluded that it would not be appropriate for this Court to consider the issue of whether there has been a breach by her of the in camera rule. It is important to bear in mind that, in considering the specific interlocutory applications that are now before me, in circumstances where Abbott J. has already dealt with the substantive issues in the appeal itself, I must not be lured or lulled into purporting to act as a court of further appeal or of review in relation to any aspect of the judgment that has already been given. 56. The issue of the mother's apparent breach of the in camera rule was raised by the Court itself in the course of the appeal hearing and was addressed by the Court in that context. The Court made its disapproval of what had occurred plain and the mother tendered an apology. The father did not seek to make any submissions to the Court either at the time the matter was raised or subsequently on the 28th February 2013, when the father made extensive submissions to the Court on other issues. Accordingly, in my view this Court is now functus officio on that point. The second application 58. That application is grounded upon an affidavit of the father sworn on the 21st November 2014. In that affidavit, the father makes a number of complaints about the circumstances in which the second judgment was delivered on the 12th July 2013 and about the contents of that judgment. The father avers that he was not present when the judgment was delivered on that date and was not given an opportunity to address the contents of the judgment, in contrast to what had occurred in relation to the delivery of the judgment of Abbott J. in the first appeal. 59. In the course of the hearing before me, it became apparent that there might have been some confusion in court on the 12th July 2013. It will be remembered that, having made orders in the second appeal on the 28th February 2013, Abbott J. had adjourned it to the 12th July 2013 for the purpose of keeping those orders under review. Meanwhile, on the 8th July 2013, the father issued his application to have those orders set aside on grounds of objective bias. It appears that, when the Court was apprised on the 12th July 2013 that the father was seeking to have its orders overturned on grounds of objective bias, Abbott J. decided that he should recuse himself from the case with immediate effect and that another family law judge should thenceforth deal with the proceedings. It seems that, in the understandable - though mistaken - belief that nothing further was to occur before Abbott J. on that date, the father had left the Court before the formal judgment in the second appeal was handed down, although he did subsequently receive a copy of it. Having recused himself from the case in the face of the father's claim of objective bias, Abbott J. was obviously not in a position thereafter to consider any submissions that the father might wish to make concerning the judgment that had been delivered. 60. In consequence, the father has brought this second application. I do not know whether any court could properly or realistically entertain the extensive amendments or additions to its judgment that the father is seeking in respect of the judgment of Abbott J. in this case. It is certainly clear that I cannot entertain any such application, as I did not hear the appeal in which the judgment concerned was given. Since I have rejected the father's claims of bias on the part of Abbott J., it may be that Abbott J. would be prepared to take seisin of the appeal again, not only for the purpose of keeping his orders of the 28th February 2013 under review, but also for the purpose of considering an application of the sort that the father now wishes to make. However, that is entirely a matter for Abbott J. in the first instance and I do not propose to make any order in that regard.
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