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Cite as: [2015] IECA 29
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Judgment
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THE COURT OF APPEAL Kelly J. Irvine J. Hogan J. Neutral Citation Number: [2015] IECA 29
Appeal No. 2015/01 In the matter of the Judicial Separation and Family Law Reform Act 1989 and
In the matter of the Family Law Act 1995
M.M. Applicant/Respondent and
G.M. Respondent/Appellant Judgment of Mr. Justice Kelly delivered on the 23rd day of February 2015 Introduction 2. The first is that which suspended overnight access being had by the parties’ two young children with GM. The second is that part of the order which directed that no further application was to be made to the High Court in respect of the two children either by way of enforcement or review before the 26th March, 2015. 3. In order to understand how that order came to be made it is necessary to sketch out briefly the background to this litigation. Litigation 5. MM is now in her 56th year whilst GM is in his 70th. 6. MM was previously married and had two children who are now adults. That marriage ended in divorce in 1990. In the year following her divorce she had another child. MM is a grandmother since one of her daughters of the first marriage has a child. 7. GM was also married before. That marriage ended in divorce. He has one daughter by that marriage who is now in her forties. Thus, neither MM or GM are devoid of experience in rearing children. 8. These proceedings commenced in 2010. MM sought a judicial separation and ancillary relief. GM also instituted proceedings for a declaration of nullity or in the alternative judicial separation and ancillary relief. 9. It is fair to say that since the institution of these proceedings the parties have expended huge amounts of time, effort and money in litigating practically every issue that one could think of in a matrimonial dispute. Practically all of these matters have been dealt with by Michael White J. who has had seisin of the case since March 2012. 10. The original trial before him lasted fourteen days and there have been numerous applications which have been back before him and at least one other judge on many occasions since. 11. In April 2013, Michael White J. delivered a judgment running to some 259 paragraphs excluding the nine schedules appended to it. It dealt comprehensively with the matters in dispute. One of those matters was custody and access for the two young children of the marriage. The judge laid out what he described as a road map for custody and access in respect of those children. 12. The same judge delivered another judgment on the 19th March, 2014, dealing inter alia with custody and access of the children. 13. In the meantime an appeal had been taken to the Supreme Court in respect of a lump sum order which had been made in April 2013. In November, 2013, the Supreme Court directed payment by GM of a lump sum of €1.8 million in two instalments of €1 million and €800,000 respectively pending appeal. 14. The question of custody and access was back before the High Court again in December 2014 and it gave rise to the order which is now under appeal. This Appeal 16. The judge has heard a huge amount of evidence, and in particular from MM and GM, an advantage which this Court does not have. In approaching this appeal, I bear in mind the views of the Supreme Court in S. v. S. (Unreported, 21st February, 1992) in dealing with an appeal against a custody order granted in favour of a father by the High Court, where it said:
Quite clearly, if any question of error in principle has occurred in the findings and decisions of the trial judge concerning the welfare of the children and the vital question as to in whose custody they should be placed, this Court must intervene. Since, however, this Court does not have the opportunity to view and hear the oral evidence of the parents or guardians concerned, it should in my view, in general, be slow to replace the decision of the judge who has had that opportunity.” 17. Just as the parties to this litigation contested financial matters, factual matters in relation to the nature of their relationship and the breakdown of that relationship, so they also contested issues concerning the parenting of the two young children. The conflicts and issues as to where the children would reside and whether there would be joint custody were resolved by orders made in the High Court. The result is that MM is the primary custodial parent and the children reside with her in Dublin. The High Court constructed what it described as access orders that were not “too intense”. In that regard, the High Court did not follow certain recommendations which were made by Prof. Sheehan who has been involved in this litigation for a long time and has played an important role in endeavouring to try and facilitate the custody and access regime in respect of the two children. GM does not live in this State and originally Prof. Sheehan was of the view that there should be more than a single visit a month by the children to the city where GM resides. The High Court took the view that that would be too much and instead put in place structured access arrangements which would involve two visits to Dublin every month by GM at which access could be enjoyed and one visit by the children to GM’s residence. That was the judge’s plan, but sadly it has never been realised. 18. One of the difficulties that has manifested itself is a reluctance on the part of MM to tell the children that their parents are separated. The judge has been endeavouring to address that for a very long time and took the view that it had caused what he described as “huge problems for the children and has been very retrograde for their welfare”. It is difficult to understand MM’s attitude on this topic. The children are now of an age where they probably know of the separation. 19. The judge has endeavoured to try and impress on the parties the huge responsibility which they have to their children and in particular MM’s responsibility to facilitate access to the non custodial parent. She appears to have difficulty with this. Both parties have chosen not to listen to the court on occasions in relation to aspects of the welfare of the children. 20. In the plan of the judge, overnight access was to be enjoyed in Belfast by the children on a regular basis with their father. The first time that that was to occur was at the end of October 2014. It is fair to say that in anticipation of that, GM did all that was required of him by the judge including the provision of a nanny who would be present. The judge was impressed with this nanny and this arrangement was approved of by Prof. Sheehan. 21. The evidence given by the nanny was that the children were settling down well on the evening of 30th October 2014, when an engagement took place between MM and the nanny. The judge found that MM’s approach was as he put it “very disrespectful to” the nanny and she was very distressed as a result of that confrontation. The judge described it as entirely unacceptable behaviour on the part of MM to act in the way that she did. The net result of all of this was that the planned overnight access did not take place. Thus, the structure which the judge had attempted to put in place with a view to ensuring that the children’s right of access to their father would be enjoyed sensibly and sensitively was effectively brought to an end. They have not enjoyed overnight access with their father since. 22. It was in these circumstances that the matter came to be dealt with yet again in the High Court in December 2014. The December 2014 hearing 24. At the outset of his evidence, Prof. Sheehan indicated his view, as he put it, “we are actually moving backwards since the date of the attempted first overnight”. He spoke of the necessity of having to “stop the rot”. He told the court that GM was missing the children hugely and was extremely angry with MM whom he saw as alienating the children from him and playing a deliberate role in preventing them from meeting with him on their own. GM refused to speak to MM. The Professor expressed the view that it would be very helpful if both parties would meet directly with him for discussions. He thought that that would make enormous difference to the children and could be what he described as “a real building block in terms of turning the corner”. 25. He also expressed the view that MM was extremely tense, stressed, and agitated. He thought that she was on the verge of cracking up. She was felling “totally overwhelmed by the amount of legal proceedings and the way that that was distracting her from attending to the children”. 26. As to the children the Professor described the elder child as being “really weighed down by the conflict between her parents”. He said that she was regrouping under her mother in the face of the conflict. That did not surprise him, because usually as conflict between parents gets expressed more openly in front of children, the children will regroup under their primary carer. The Professor took the view that the children are terrified, but went on to say in very specific terms that they are not terrified of their father. He said they were “clearly not frightened of father” but were terrified of the conflict and that it (the conflict) had mounted. He then spoke of the responsibility on the parents to do something about the environment between them, so as to reduce the conflict for their children, because it was on the way to becoming an intolerable burden for them. As a result of all of this, the elder child was now saying negative things about GM. The elder child was demonstrating sleeplessness and was missing school. The younger child was also fearful. He actually said to the Professor at the conclusion of a meeting with him, “I want the war to end. I want peace”. That was said spontaneously by the child. It is a poignant commentary on what the unfortunate children have been experiencing. 27. The Professor then suggested to the judge that there would be a moratorium on what he described as “all the current orders for a period of time”. This would provide an opportunity for what he described as a “top priority intervention being the parents talking together with me for a couple of meetings”. He made it clear that he was not suggesting that there should be no access during this moratorium. He was happy once again to facilitate that process, but pointed out there was only so much that a facilitator could do and indeed only so much that a court could do. At the conclusion of this part of his testimony, he told the judge that both parents have a huge amount to offer the children. They were very different types of parents and he thought that things had been going moderately well. The question was of course whether MM had sabotaged the first overnight access that the court had directed. 28. There was a great deal more evidence given to the judge which it is neither necessary or indeed possible to reproduce in this judgment. It is clear however, that particularly as a result of the testimony given to him by Prof. Sheehan, the judge decided to make the two parts of the order which are the subject of this appeal. 29. In making the order under appeal, the judge made it clear that the regime directed by it was to be of short duration and that all access issues will be reviewed by him on the 26th March, 2015. M.M. G.M. 32. Whilst there is a wretched relationship between GM and MM which is adversely affecting the children, it has to be said that as a father there is nothing to be said against GM not having generous access to his children. The High Court has found that he loves his two children that he is not a threat to them in respect of any court welfare issues and that he is a decent man. He has been financially responsible towards them. He wishes to have contact with his children. It was in the context of this very difficult situation that the trial judge made the order which he did. The judgment
Now, it should be said that a matter of concern at all times for the court is the age of Mr. M and the time that it has taken to get the distance that we have. The judgment of the court was issued on the 25th April, 2013. The court allowed one year for the overnight access to be bedded in. There were difficulties which the court has outlined in relation to compliance with the court and engagement in the court’s advices and engagement with Prof. Sheehan. We then have had a further delay now and we are eighteen months out from the 25th April, 2013 and I make no apologies for trying to commence the overnight access in October 2014. Both (children) - (one) will be nine on the 9th February, 2015. (The other) is seven and three months. I mean they are both children now, which are - I mean they may be immature for their age, but certainly they are at an age now where they should be actively engaging with their father and should be well in the position to go on overnight access. But that be as it may, we are now in a situation where Prof. Sheehan has no doubt that these children are under very significant distress, that Mrs. M is under very significant distress and the court’s view, although it has not been set out in affidavit, I have no doubt that the absence of any contact with his children is causing Mr. M very significant distress and unfortunately the court has to go backways to forward. I have no other choice in relation to the matter. Mr. Hayden has made submissions to the court that the court does not have discretion to amend its order. That is certainly is not the case. Pursuant to the Guardianship of Infants Act 1964, in relation to any application before it, the court has discretion to try and deal with the issues that it confronts in relation to the welfare of the children. I was particularly concerned about Prof. Sheehan’s evidence that there should be a moratorium on access. I clarified that with him and he did not in fact mean that as such and in my view to try and bring the situation forward, I have to go back and I am going to have to suspend the overnight access for the foreseeable future. I do not want to in any way curtail the daily access. I am conscious that there may be ongoing difficulties about its fulfilment. I feel that just for the present, the Belfast access should perturb (sic) to one day, or Saturday, until hopefully we try and get it re-established. I feel strongly that there should be a litigation free period where the matter does not come back into court again for the benefit of the children. Obviously there are issues now coming up to Christmas which the court may have to try and deal with, but apart from that situation, I do not want it coming back into the court again. So, I want to be absolutely clear from the court’s perspective that I am very disappointed that this access has broken down. I am very disappointed that the court’s orders are not being complied with. I am very disappointed that overnight access did not take place. I do feel that there was a window of opportunity on the evening of the 30th October, 2014 and that it was lost. I feel that the children could well have stayed overnight that night and would have enjoyed it. The comments made by (one of the children) to Ms. B on the evening in question would indicate that (the children) feel some displeasure of their mother if they stayed overnight and again I am not blaming Mrs. M that she is consciously alienating the thing, but there is certainly an atmosphere there in relation to that particular issue and there are deep deep-seated issues there which this Court in many ways and I think this Court and Prof. Sheehan are challenged to the very limit to try and deal with them. The only thing I can say to Mr. M in relation to the issue if his belligerence continues, if he is still offensive to Mrs. M there will be consequences in the relationship with his children. I have no doubt about that. I know it is definitely affecting the children. I do not know whether he can change his behaviour or not, but I pointed out very carefully to him in the judgment of the 19th March, 2014 and I can do no more in relation to that and it is clearly having an impact on Mrs. M’s mental health at present, that type of relationship with Mr. M and there is no - the court never orders people to attend a - I don’t anyway - adults to have - I expect them to act responsibly to their children and that if the person who - the facilitator, who is trying his very best to facilitate access is trying to do something that they should follow his recommendations and Prof. Sheehan is quite clear that at tête-à-tête meeting between Mr. M and Mrs. M is something that is very constructive and useful for them.”
35. As is clear from those parts of the judgment from which I have quoted the High Court judge was faced with a very difficult situation. The access arrangements which he had attempted to implement had collapsed. The children were extremely distressed as indeed were both parents. The judge was extremely mindful of the entitlement of the children to access including overnight access with their father. However, in the circumstances with which he was confronted, he was of the view that the only thing that he could do in order to provide a period of respite was not to proceed with overnight access for a period of some months. The hope was that the parents would show a greater sense of responsibility than they have to date and agree to meet with Prof. Sheehan so that whatever their differences as between themselves as adults they might respect the entitlements of their children. 36. The judge was also of opinion that a respite in the litigation war would also be beneficial. Hence he made the order under appeal. Overnight access 38. In these circumstances and bearing in mind the disadvantages which an appellate court has - an arid transcript with no viva voce evidence -, I do not believe that this Court ought to intervene and alter in any way the directions given by the judge concerning overnight access. 39. It is clear from the terms of his judgment that the judge is acutely aware of the entitlement of these children to generous access with their father and I have no doubt but that he will give effect to that at the earliest opportunity. 40. Without in any way trespassing upon the jurisdiction of the trial judge when the matter comes before him next month it would seem appropriate that consideration be given to the question of more generous overnight access being granted with GM than was originally contemplated so as to compensate the children for the loss of appropriate access that they have suffered to date. Restriction 42. I have great sympathy and quite understand why the judge decided to make this order. He rightly said that there was no benefit being gleaned by this case, as he put it “coming into this Court week in week out”. He hoped to achieve a period of respite from the litigation war, so that the parents might stand back and realise the damage that was being done to the welfare of their children. He also hoped, as is clear from the transcript, that the exchanges of solicitors’ correspondence which were precursors to such applications might also come to a halt. Indeed he made it clear that both solicitors and counsel have a duty to the court in relation to the welfare of the children. He went so far as to demand compliance with that duty. He spoke about these letters as meaning “absolute and utter nonsense” as far as he was concerned. Immediately after that he made it clear that he wished access to happen and that he wanted to see GM seeing his children. 43. Whilst I understand and indeed sympathise with the position of the trial judge in making this part of the order, I regret to say that I do not believe that it can stand. 44. As I have already pointed out s. 11 of the Guardianship of Infants Act 1964, confers the widest possible powers upon the court when it comes to dealing with the welfare of infants. That is as it must be. 45. If this part of the order is read literally it constitutes a denial of access to the courts on a most important question, namely, infant welfare. Such denial is not in conformity with constitutional norms. 46. A literal reading of the order would be impermissible from a constitutional point of view. Such an interpretation would, to use the words of Ryan J. in Quinn and Others v. Irish Bank Resolution Corporation Limited and Others [2013] IEHC 116,:
48. I have no doubt, but that if an urgent matter pertaining to the welfare of the children arose, no judge would construe the order literally. Rather it would be construed in accordance with constitutional norms and thus would be ignored. Thus, the order really serves no purpose. Well intentioned as it was, this part of the order of the High Court must be set aside and the appeal allowed in respect of it. Result 50. Insofar as the High Court order purports to prohibit applications by way of enforcement or review in respect of the welfare of these infants it should, in my view, be set aside. Note: A separate concurring judgment was delivered by Hogan J. Irvine J. agreed with both judgments. 1. I agree with the judgment which has just been delivered by Kelly J. and I gratefully adopt the very helpful statement of facts which he has just set out. This concurring judgment deals only with the question of overnight access.
2. At the outset of this judgment it is only appropriate that I should join with Kelly J. in acknowledging the immense patience and diligence of the trial judge, White J., who has displayed conspicuous fairness and insight in dealing with this most difficult of cases.
3. The essential background to the present appeal is as follows: the father, GM, has been endeavouring to have overnight access to his two children who are now aged 9 and 7 respectively. The children’s mother, MM, is the primary guardian and they reside with her. The formal statutory jurisdiction of the Court to resolve matters of this kind derives from s. 11(1) of the Guardianship of Infants Act 1964 (“the 1964 Act”) (as amended) which provides that any guardian “may apply to the court for its direction on any question affecting the welfare of the child and the court may make such order as it thinks proper.” Section 3(1) of the 1964 Act then provides that in the resolution of any such question of guardianship, the court “shall regard the welfare of the child as the first and paramount consideration”.
4. The jurisdiction contained in the 1964 Act must, of course, be viewed through the prism of Article 41 and 42 of the Constitution. It is clear from the very wording of these provisions that the Constitution presupposes a marriage of equals with both parents having an equal claim in respect of the upbringing of their children. Article 42.1 of the Constitution provides:
7. It is a matter of the deepest and most profound regret that the bitter and internecine battle which has been fought relentlessly and in an uncompromising fashion by both parents has so deeply affected the children. It is, regrettably, impossible to avoid the conclusion that the happiness and general welfare of the children has been grievously affected by sustained parental conflict. Viewed objectively, there is doubtless considerable fault on both sides. Judged by the evidence of Professor Sheehan and the findings which were made by White J., it would seem that the father is almost contemptuous of the mother and cannot bring himself to speak a civil word to her. For her part, the mother seems determined to ensure that the children’s access to their father is curtailed to the minimum, probably in the hope that he will remain (or become) a distant and aloof figure in their lives.
8. As Kelly J. has recounted in his judgment, the present application is one which was originally brought by the father with a view to securing overnight access to his children. Although White J. had made an order on 24th October 2014 providing for overnight access at the father’s house in the presence of a nanny on the 30th October 2014 (and on 8th November 2014 and 6th December 2014), this never occurred. As Kelly J. has pointed out, the father took all appropriate steps in this regard and it appears from the evidence of the nanny (which White J. fully accepted) that the children were settled in and comfortable in the father’s house and were looking forward to an overnight stay on the first of these overnight access visits which had been scheduled for 30th October 2014. In his ruling White J. specifically found that the children “could well have stayed overnight that night” and that they “would have enjoyed it.”
9. The mother nevertheless took steps to ensure that this would not occur. She arrived at the father’s house, removed the children and - as White J. found - unfairly berated at some length the nanny who was present to supervise the overnight access visit. While the mother was doubtless understandably anxious for the children and concerned that they might be fretful or nervous about staying overnight in an environment to which they were unaccustomed, nevertheless no objective reason by way of justification of this conduct has been advanced by her. The steps which she took amounted, in effect, to the wrongful frustration of a court order.
10. It is, perhaps, not necessary to consider whether either parent can be said to have “failed” in their duty towards their children within the meaning of Article 42.5, although the wrongful and unilateral frustration of a court order might well be regarded as evidence of such parental failure. As this case, nevertheless, is one where the judicial branch of the State is obliged to resolve the dispute between the parents, then the principles contained in Article 42.5 can nonetheless be applied, if only by analogy:
12. As Article 42.5 itself tacitly acknowledges, decision-making by the State - rather than by parents - in matters of this kind is nearly always unsatisfactory. In matters of unavoidable parental conflict, the judicial branch of the State must, in the interests of the affected children, seek to repair and mitigate the damage caused by that conflict, at least to the limited extent that it can reasonably do so. Where it is possible and it is in the best interests of the children to do so, the Court must seek to respect and uphold the substance of the family life which, but for the parental conflict, the children would otherwise have enjoyed.
13. As I have already mentioned, it follows from the very language of Article 42.1 that one of those rights of the children which the judicial branch must uphold when exercising the jurisdiction conferred by Article 42.5 is the right of the children to the care and company of each parent, where this is judged objectively to be in their best interests to have such contact: see, e.g., Re JH [1985] I.R. 375, 394, per Finlay C.J. and N v. Health Service Executive [2006] IESC 60, [2006] 4 IR 470.
14. Overnight access with each of the parents must generally be regarded an integral feature of that right. It is that which conveys the essence of normal family living and is that which tends to separate out the normal, carefree element of family life from the somewhat stilted formality of a supervised access visit. The objection taken by the father that, without at least some, limited overnight access, the children can never really come to know their father or have a meaningful relationship with him is, I think, well taken. There must be a real danger that without such access the father will remain a remote figure, excluded from the lives of the children.
15. Here it must be recalled that Professor Sheehan found that the children had no fears of their father, that he loved them dearly and that he posed no threat to them. These are important findings, as were the facts otherwise, overnight access might well not at all be in the interests of the children. Professor Sheehan acknowledged that there was a danger that, absent such overnight access, the children might otherwise feel alienated from their father. It seems clear from the evidence of Professor Sheehan and the findings of White J. that the children felt not only distressed, but also compromised by the entire conflict. Specifically, they were anxious lest they would suffer their mother’s displeasure if they were to stay overnight with their father.
16. In the four or five months which have followed, there has been no overnight access with the father. This is a long time in the lives of these young children. It is true that in his ruling of 12th December 2014 White J. adjourned - for the most understandable of reasons - the matter to March 26th, 2015. I nevertheless confess to an anxiety that, by reason of the unilateral actions of the mother, the children were being denied the substance of one of aspect of their constitutional entitlements under Article 42.1, namely, the entitlement to the care and company of their father by the total denial of any overnight access, even if such access is quite properly limited and supervised. In the end, however, it is only because of the views of Professor Sheehan (who thought that it was interests of the children that such overnight access be paused briefly) and in deference to the immense knowledge and experience of this case which White J. has acquired, that I have agreed to allow this part of the order (i.e., adjourning the question of overnight access to 26th March 2015) stand.
17. However, like Kelly J., I am confident that at the resumed hearing White J. will uphold the substance of the children’s entitlement to overnight access with their father in a proportionate, regulated and supervised fashion should the evidence establish that it is objectively in their interests that they should have such overnight access.
18. It is for these reasons that I agreed with the judgment of Kelly J. and the order which he proposes.
Irvine J. agreed with the judgment of Hogan J.
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