Supreme Court of Ireland Decisions

S. (A.) v B. (R.) [2001] IESC 106 (19 December 2001)

THE SUPREME COURT

68 & 76 & 77/01

Keane C.J.

Denham J.

MurphyJ.

BETWEEN/

A.S. (OTHERWISE A. B.)

APPELLANT/RESPONDENT

And

R.B.

RESPONDENT/PETITIONER

JUDGMENT delivered the 19th day of December, 2001 by Keane C.J.

Introduction.

There are before the court appeals arising out of three separate sets of proceedings. The first were commenced by way of petition by R. B (hereafter "the husband") claiming a decree of nullity in respect his marriage to A. S (hereafter "the wife"). Such a decree was granted by the High Court (Lavan J) on the 28th February of this year. The second are proceedings brought pursuant to the Guardianship of Infants Act, 1964 by the husband against the wife in respect of their two children. The High Court on the 28th February also made an order giving the custody of the younger of the two children to the husband, the older child at this stage being no longer a minor. The third set of

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proceedings were brought by the husband against the wife pursuant to s.36 of the Family Law Act, 1995 and the Domestic Violence Act, 1996. The only application made in those proceedings which now is in issue was for costs on the wife's behalf, an application which was refused by the High Court (Lavan J).While notices of appeal in respect of all three sets of proceedings were served on behalf of the wife, the written and oral submissions of the parties dealt almost entirely with two issues, both arising out of the nullity proceedings. The first was whether those proceedings had been conducted by the learned High Court judge in breach of the fair procedures to which the wife was entitled and, accordingly, whether the order of the High Court should be set aside and the proceedings remitted to the High Court for a new hearing. The second was whether, assuming the first ground were decided against the wife, the learned High Court judge was correct in law in granting a decree of nullity.

The salient facts, insofar as they are not in dispute, can be summarised as follows. The wife was born on January 5th 1952 in what was then the Federal Republic of Germany, ("West Germany"). The family came to live in Ireland in 1962, when the wife was 10 years old, in circumstances which will be considered in more detail at a later stage. With the exception of two periods in1963 and 1964, she has resided in Ireland since then.

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On the 19th July, 1976, the wife was married in Ireland to W. S (who was subsequently joined as a notice party in the nullity proceedings and will henceforth be so described) according to the rites of the Church of Ireland. He was born on November 10th 1949 in West Germany and arrived in Ireland in 1955 with his parents. Apart from a period spent in West Germany of approximately 10 months in 1971, he has resided in this jurisdiction since his arrival in 1955 and in 1967 became an Irish citizen. On the 13th March 1985, the District Court of Schoneberg, Brandenberg, Germany, on the petition of the wife, which was not contested by the notice party, dissolved the marriage entered into between them.

On the 31^St October 1986, the wife was married to the husband in a civil ceremony at Bad Nauheim in West Germany. The husband is an Irish citizen whose domicile, it is agreed, has always been Irish. The ground on which the decree of nullity was granted by the learned High Court judge was that the decree of dissolution of the marriage between the wife and the notice party granted by the German court was not capable of being recognised in Irish law since, as it was held, neither of the parties was domiciled in Germany at the time it was granted and that, accordingly, the marriage entered into in Bad Nauheim between the husband and the wife was not a valid marriage in Irish law.

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There were two children of the marriage, Ro. born on the 19th February 1981 and Ru. born on the 4th December 1987. Unhappy differences arose between the husband and wife which resulted in these three sets of proceedings.

It is convenient first to set out the history of the proceedings in the High Court and the submissions of the parties as to the issue of fair procedures generally.

The Proceedings in the High Court.

When the petition in the nullity proceedings was served on the wife, an appearance was entered on her behalf. On the 22nd March 1999, a notice of change of solicitors was filed on her behalf and the new solicitors instructed senior and junior counsel to act for her. On the 11th June 1999, the proceedings were listed for hearing in the High Court on the 6th December1999 together with the proceedings under the Guardianship of Infants Act, 1964 and the proceedings issued pursuant to the Family Home Protection Act, 1976 and the Domestic Violence Act, 1996.

Thereafter, the proceedings were adjourned from time to time principally, it would seem, because it was stated on behalf of the wife that she was not well enough to attend court. Difficulties also arose because of the unavailability of a judge to hear the proceedings. The nullity proceedings ultimately came on for

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hearing before Lavan J on the 21st June, when the wife was represented by the same senior and junior counsel. On that day and the following day, the court heard evidence from the notice party, who was cross-examined by senior counsel on behalf of the wife. On the following day, the court heard evidence from a German lawyer as to the jurisdiction of the German court to grant the divorce and also from Ms. C.M., a sister of the wife. At the end of that day's hearing, the learned trial judge indicated that the notice party, who had not at that stage been joined in the proceedings, should be made a party. The further hearing was then adjourned to enable the notice party to consider the extent, if any, to which he wished to participate in the proceedings. They came before the High Court for mention again on the 18th July 2000 and 13th September 2000:

on both occasions the wife was represented by the same senior and junior counsel. On 16th October 2000, the husband's solicitors were informed by another firm of solicitors that they had been instructed to act on behalf of the wife. On the 23rd October 2000, the proceedings came before Lavan J again for mention, on which day he said that all three sets of proceedings would now be listed for 18th December in order to enable them to be concluded. (It should be pointed out in passing that other proceedings, which are not the subject of this appeal, were also before the High Court at that time which had been instituted by the wife against the husband claiming a judicial separation and that, in respect of those proceedings alone, a notice of change of solicitors was filed on the 9th November 2000 by the solicitors now acting for the wife.

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Those proceedings were adjourned generally by consent pending the determination of the nullity proceedings.)

On 1st December 2000, a member of the firm of solicitors now acting on behalf of the wife applied to Lavan J for an adjournment of the three sets of proceedings listed for hearing on the 18th December on the ground that the papers in the case had not been transmitted to them by the former solicitors, which application was refused.

The hearing of the case, accordingly, began before Lavan J. on the 18th December. There was no stenographer's transcript available of what transpired before the learned trial judge commenced hearing evidence, but a memorandum of what happened was agreed between the parties and was available to this court. Mr. Eoin McGonigal SC., told the court that the papers from the former solicitors had only been received by the solicitors now acting on the 15th December. He said that he had studied the papers over the weekend, but had only met his client that morning and was not in a position properly to deal with the case or fully to advise his client. He accordingly applied for a further adjournment and for the fixing of a new date for them to be heard. He was informed by the learned trial judge that the case would have to proceed that morning.

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Mr. McGonigal said that the solicitors who had been acting were insisting on the discharge of their costs, in the sum of £200,000, before they would release the papers. In response to a query from him, the trial judge was then informed that the solicitors now appearing had been consulted in early October. The trial judge pointed out that no notice of change of solicitors had been served in any of the proceedings before him and that he was concerned by the fact that the former solicitors were still the solicitors on record in the case. He indicated to Mr. McGonigal that, while he was not intending to reflect in any way on the latter's professional conduct, a question arose as to whether he had locus standi to appear in the case. He also said that he was very concerned with the situation, having regard to the nature of the case, its importance to the parties and the fact that he himself had spent a considerable time - some five hours - reading the papers and acquainting himself with it. The trial judge said that he was particularly concerned with the wife's situation and understood her difficulties.

Mr. McGonigal said that the case had to be given further consideration by him at this stage and that it might be that some of the witnesses who had already given evidence would have to be recalled. He emphasised, however, that he was not in a position to deal with the case that morning.

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The trial judge, having again expressed concern as to the locus standi of the lawyers now appearing for the wife, asked Mr. Alan Shatter, solicitor, who was appearing for the husband, when he had first heard from the new solicitors about the application for an adjournment. Mr. Shatter said that on the 16th October 2000 he had been informed by those solicitors that they were going to represent the wife. However, he said that the first time he was aware that there was going to be an application to adjourn the proceedings was when the application was made by Mr. McGonigal that morning. Mr. Shatter went on to summarise the sequence of events already recorded in this judgment and said that matters had reached the stage where it was reasonable to conclude that the wife was "abusing the court process". Mr. Shatter said that, provided the case went on that day, he was happy to accept an undertaking from the new solicitors to file notices of change of solicitor.

The trial judge then said that, if the adjournment were to be granted, it would have to be on stringent conditions i.e., that the costs of all the proceedings to date would be the responsibility of the wife. In the alternative, the wife could proceed on her own without representation.

The trial judge then said that he would rise for approximately ten minutes and would hear what the wife had to say herself. Mr. McGonigal having expressed concern as to the unprotected position in which that would place the

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wife, the trial judge observed that the current circumstances were of her making. When the court reconvened after ten minutes, the trial judge requested the wife to enter the witness box. (Thereafter a transcript of the evidence was available.)

The wife having been sworn, she confirmed that she was seeking an adjournment of the case and was asked by the trial judge as to when she had decided to change solicitors and said that it had been sometime in September. She said that she had not received any advice as to the wisdom or otherwise of changing her lawyers in the middle of a case. When asked whether she would conduct the case herself, she said that it was "too complex" for her to do that. Cross-examined by Mr. Shatter, she agreed that this was the third set of lawyers whom she had chosen to represent her.

The wife having left the witness box, the trial judge then addressed her as follows:

"The options are, it seems to me, to proceed with the case and you can represent yourself. You have indicated clearly that you were dissatisfied with the two teams and you now have a third team, you are embarrassed by the fact that procedurally they are not before the court.

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"I am aware of the history and aware of the fact that the case was to be heard on 6th December 1999. The difficulty that your application creates for the court is obvious. There are thousands of people wanting to get their cases tried and to get a date."

"The options are that I adjourn with costs thrown away and with a peremptory listing noting that I cannot make it peremptory because I cannot anticipate problems that might arise in the future or I can proceed with the case, you being without legal representation. Do you understand that, Mrs. B? ".

"Mrs. B: Yes.

"Judge: You are the person who has taken all the decisions that have left the court in this predicament. You are the person carrying the responsibility. I can adjourn with costs thrown away on a peremptory basis or I can proceed.

"I will have to hear Mr. Shatter now. Is there any alternative to me? ".

Mr. Shatter then indicated to the trial judge that his preference would be to proceed that day.

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The trial judge then said he would give the wife the opportunity of speaking to her counsel and solicitors so that they could explain to her the significance of what he had been saying and pointed out that he was talking about "formidable costs". He said that the option was that he adjourned the case on the basis of all costs incurred to date by the husband and no order in relation to the wife's costs incurred to date. While he indicated that he would be prepared to discharge himself from the case and put it in for the next available list, he acceded to an application by Mr. Shatter that he should retain seisin of the case, since he had already heard two days' evidence.

The trial judge was then informed by Mr. McGonigal that the wife was going on with the case on her own.

The trial judge then heard evidence from the husband. So much of his evidence as related to the nullity proceedings will be referred to in more detail at a later point. At this stage, it is sufficient to note that, when his direct evidence concluded, the trial judge informed the wife that she had the right to cross-examine her husband on the evidence he had given. The transcript continued as follows:

"[Trial Judge] : Now Mrs. B, you have the right to cross-examine your husband on the evidence that he has given.

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"Mrs. B.: My Lord I don't accept and I don't agree with a lot of what my husband has said. However, I am here put in a position by the court where I have no legal representation."

"[Trial Judge]: No, please don't special plea this court. You are placed in a position you yourself have created. I can understand you challenge his evidence, I will accept that and you can then give me your own evidence. Is there any specific points you wish to put to him?

"Mrs. B: Without my legal representation I am not in a position to do this. I am not a lawyer, I am a mother.

"[Trial Judge]: Speeches are not permitted on cross-examination, if you have questions to put to the witness you may put them otherwise you can give me your evidence in due course.

"Mrs. B: Jam not able to cross-examine the witness, I am just not able to.

"[Trial Judge]: Very well."

The wife then gave evidence and said at the outset

"I have never done this before and I might require some guidance in the matter from your lordship."

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She then proceeded to give evidence as to here early life. At an early point in her cross-examination, the trial judge intervened by asking her questions which were clearly relevant to the issue as to domicile which arose in the proceedings. I think it is a reasonable summary of the questions which he asked that they were those which would have been put to her in the normal way during her direct examination, although it is right to say that he reminded her at one point that she should not be making speeches to the court at this point in the case.

At the end of her evidence, the trial judge said that he would rise for twenty minutes in order to enable the wife to ascertain whether she had any papers relating to three issues which she had referred to in the course of her evidence relating to her marriage to the husband. On being recalled, she furnished the trial judge with some documents and then called her mother, Mrs. J. S. to give evidence. As in the case of the wife, much of her relatively short evidence was given in the form of answers to questions put to her by the trial judge. The transcript then continues

"[Trial Judge]: Any other questions you want to ask of your mother?

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"The wife: Again, my lord, as I said this whole thing had taken me totally by surprise. The fact that I do not have any lawyers to ask the question that should be asked.

"[Trial Judge]: You have said that on a number of occasions. You have had two teams of lawyers whom you have discharged. That is cutting no ice. If you have any further questions that are relevant to the issue you may ask them of your mother, otherwise you might save her the embarrassment of sitting in the witness box.

"The wife: No further questions."

Mrs. J. S. was then cross-examined by Mr. Shatter and was asked a number of questions by the trial judge.

The wife having indicated that she would not be calling any further witnesses, the trial judge said that at that stage he would hear submissions on the issue that arose in the nullity proceedings. Having heard submissions from Mr. Shatter, the trial judge asked the wife as to whether she wished to make submissions. The transcript continues:

"The wife: My lord, I really don't know what's going in here at the moment, as I said, lam not a legal person, and this court has refused me legal representation. Jam basically out manoeuvred because I don 't have the money to continue, so that's why I am in

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this situation, but I have some papers that 1 would like to submit to your lordship.

"[Trial Judge]: What are they? I am not accepting any documents that have not been the subject matter of this case. The evidence is over, you can make your submission. Who prepared that document before you?

"The wife: My previous lawyers.

"[Trial Judge]: Who are they?

"The wife: Ms. Clissmann, I think.

"[Trial Judge]: Whom you have discharged?

"The wife: Yes.

"[Trial Judge]: What are they? Read them out to me."

"The wife: There is a nullity petition.

"[Trial Judge]: Yes, go ahead

"The wife: There is a Commission of European Communities, the Brussels Convention which is coming into force at the ... March 2001

"[Trial Judge]: Yes

"The wife: The rest, my lord, I don't know what it is. There is a judgment from McGuinness J and some other legal

"[Trial Judge]: Authorities?

"The wife: Authorities, yes

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"[Trial Judge]: Very well, I don't require them. Thank you."

The trial judge then indicated that he would reserve his judgment on the nullity issue and asked what the position was in relation to the other proceedings listed for that day. Ru. was at that stage, and had been for some time, in the custody of the husband and Mr. Shatter informed the trial judge that he did not know whether the wife was contesting the question of custody. In relation to the question of access by the wife, he referred inter alia to evidence from two doctors as to the desirability of access by the wife. Mr. Shatter said that the issues in the third set of proceedings did not really arise at this stage, provided there was an undertaking by the wife not to enter the husband's home. He said that one of the doctors was available to give evidence in relation to access to Ru. and that it might be of help at this stage if the wife would indicate to the court what her view was of those proceedings. The transcript continues

"[Trial Judge]: Now, Mrs. B.

"The wife: I am just too distressed to make any decision at the moment.

"[Trial Judge]: Well, it is just unfortunate that you were not distressed for the last six months. You took up an hour of the court 's time today and seventeen days ago, tried to prevent this case being heard in accordance with the directions of the

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President of the High Court. You have heard Mr. Shatter in relation to Ru 's welfare, you have heard what he said. Do you have a view about this case? Do you want to fight it?

"The wife: I don 't know.

"[Trial Judge]: I do want to hear Dr. Cummiskey.

"Mr. Shatter - Yes my lord.

"[Trial Judge]: Ru. is 13 years of age?

"Mr. Shatter: He is indeed my lord.

"[Trial Judge]: I have said this time and again, while you are part of the problem you may if you wish be part of the solution, this is an ongoing problem, Ru is entitled to the parenthood of both parents but on the basis of medical advice. I will afford you the opportunity of comporting yourself I will take this matter up, the guardianship matter, at 11 o 'clock tomorrow, do you understand that? In the meantime, I think it is about time, Mrs. B, that in the interests of Ru. you take this opportunity of speaking to your husband about the test that this court by law must apply, which is to take the paramount welfare of the [infant] and deal with it on that basis and that is how it is going to be dealt with tomorrow.

"You might save yourself much distress if you took the time this afternoon discussing it with your husband. It is a matter for you".

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When the hearing resumed the following day, Mr. McGonigal informed the court that notice of change of solicitor had now been served in relation to all three proceedings. The trial judge having indicated that the nullity proceedings had concluded, Mr. McGonigal said he had an application to make in relation to those proceedings. The trial judge said that the case had concluded, that he had reserved his judgment and that he would not entertain any application. He then invited Mr. Shatter to open the Guardianship of Infant Act proceedings.

Mr. McGonigal then made two further applications to the trial judge, first for an adjournment of the Guardianship of Infant Act proceedings, on the basis that his side were not in possession of the full papers and were therefore not in a position to advise or properly to represent the wife. He said that he understood that there was an interim custody order in existence and that, subject to what he described as "appropriate access over the next period of time" he was happy that the interim custody order should stand pending the adjourned hearing. He also submitted that the adjournment should be until such time as the court decided the nullity proceedings. The second application was that the trial judge should recuse himself from the proceedings on four grounds:

(1) What he described as the unsatisfactory nature of the hearing the day before;

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(2) What he described as the denial by the court to his client of legal representation;

(3) What he described as the refusal to accept "written opinions, judgments and community regulations from Mrs. B. When she handed then to you";

(4) The refusal by the trial judge of the application of an adjournment save on what he described as "impossible onerous terms".

The trial judge then asked Mr. Shatter to respond to the application for an adjournment and the latter again referred to the previous history of the matter and said it was still not clear whether the custody issue was being contested. The trial judge invited Mr. McGonigal to reply to Mr. Shatter's submissions and, in response to a question from the trial judge, Mr. McGonigal said that he was not in a position to say whether he was contesting custody.

The transcript then proceeds as follows:

"[Trial Judge]:…the application for an adjournment of these sets of proceedings is refused. The record stands for itself. This case was specially fixed at the direction of the President of the High Court at least eight weeks ago and was listed daily for the last two weeks. It was indicated to [new solicitor for the wife]

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eighteen days ago that no application for an adjournment could be considered. I am concerned for the mental welfare of the 13 year old. The doctor who has interviewed the child is in court. As of 4.00 yesterday afternoon, it was confirmed that the case was proceeding today. The case proceeds.

"Mr. McGonigal: in those circumstances, my lord, I am asking for leave to withdraw because I am not in a position to continue."

[Trial Judge]: Of course, I fully respect and understand the situation that your client has placed the legal team in.

Mr. McGonigal: I beg your pardon, my lord, my client is not placing me in any difficulty, it is the court that has placed me in these difficulties and I want to make that absolutely clear on the record.

[Trial Judge]: You may withdraw

[Mr. McGonigal]: I want to make that absolutely clear.

[Trial Judge]: You may withdraw and conclude the prevarication that has continued as of today and yesterday. I shall arise and allow you withdraw."

When the hearing resumed Mr. Shatter said that he was still in the difficulty that he did not know whether the custody issue was being contested.

The transcript went on

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[Trial Judge]: you may deal with it on the basis that it is contested, isn't that so Mrs. B.?

The wife: My Lord again what happened there today I need legal advice. I ask you once again could I adjourn the case?

[Trial Judge]: Mrs. B. Please listen to me. Are you contesting the issue of the custody of your child?

The wife: I need the adjournment of this case. I have no legal advice. It is too much.

[Trial Judge]: You may now proceed and call your evidence."

Dr. Helen Cummiskey, a psychiatrist, was then called and gave evidence as to what she considered would be most in the interests of Ru. so far as the question of custody and access was concerned. At the conclusion of her evidence when the trial judge indicated to Mrs. B that she could cross-examine, the transcript continues

"I contest the facts and conclusions of Dr. Cummiskey 's report. The assessment I think is over a year old. She has not seen the child, at least I have not been informed if you have seen Ru. in the meantime. I want to ask for a new assessment by an independent psychologist, not a psychiatrist. It is absolutely ridiculous to deprive me of my son, Ru. The reason I am here is because I am very well aware of what my child is going through. Can Dr.

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Cummiskey explain to me why the child still has eye tics in the presence of his father not only when I am with him but also in the company of other people? KP., just to go on record, contacted me on numerous occasions saying she wanted to leave the employment. It was through my intervention that she stayed in the household for the husband to provide continuity for my child. I think it is absolutely outrageous what is happening in this court. My Lord I am absolutely horrified. I want my child. I think it is just horrendous what is happening to him. (Mrs. B. breaks down)

[Trial Judge]: Have you questions for Dr. Cummiskey? The wife. No, I am not able. I am not qualified, I am not a qualified barrister to go on with this.

[Trial Judge]: You have no questions for Dr. Cummiskey?

The wife: I am not qualified to cross-examine her. I am not qualified to do that.

[Trial Judge]: Very well"

The husband then gave evidence at some length as to various difficulties that had arisen between himself and his wife since their separation. The husband was then cross-examined by the wife and, not surprisingly, as frequently happens in such cases, much of the cross-examination was taken up

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by the wife effectively giving evidence rather than asking questions. The wife having expressed strong objection to the retention of one of the doctors (Dr.O'D) who had examined Ru., the transcript went on

"[Trial Judge] Does the child need help?

The wife: Yes he does, Yes.

[Trial Judge]: In your view?

The wife: My Lord, he needs a mother, he needs a mother.

[Trial Judge]: Why did you interfere with the arrangements with Dr. O'D?

The wife: I didn't interfere with the arrangements but I mean shouldn't I have been informed?

[Trial Judge]: Did you cause your solicitors to write a letter as your husband has stated?

The wife: MyLord…

[Trial Judge]: Did you?

The wife: Because I think I should…

[Trial Judge]: Did you? Did you?

The wife: Yes, I probably did.

[Trial Judge]: It is not 'probably'. The answer is yes.

The wife: No, I mentioned it to my lawyers, whether they wrote a letter or not I am not aware. I don't know.

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[Trial Judge]: Just one moment Mrs. B. Just one moment. Are you telling me that you do not know if you instructed your solicitors?

The wife: That is possible my lord.

[Trial Judge]: You don't know?

The wife: My lord, I got proceedings served on me every day of the week practically. It is quite possible, I gave a lot of instructions.

[Trial Judge]: I hope the record will show that you are a very able advocate, well able to exhibit a very ignorant (sic) approach to this court. Now I am asking you a specific question concerning the welfare of your 13 year old child. Are you telling me that you do not remember instructing your solicitors to object to the therapy he was undergoing?

The wife: I have no recollection of instructing my solicitors, that is the honest to God truth. The other thing is all I am saying I was not informed that this man was engaged, is that correct? I don't know … In my opinion I don't know, that is all that I am saying. I would like to…

[Trial Judge]: You do not have to.

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The wife: I was also not informed when my son got sick and was in hospital, I was not informed about that either. I have nothing further to say.

(The wife breaks down)."

The trial judge then having indicated that he would direct the attendance of Dr O'D, since his letter had indicated that he would prefer not to give evidence unless the court directed his attendance, Mr. Shatter said he would not be calling any further evidence. As to the elder son, he said that he was in a position to give evidence and he was available if the trial judge required to hear him. The trial judge indicated that he would like Ro. to attend. The trial judge also said that he would like to see Ru. in his chambers. Having fixed a time at which that was to happen, the trial judge inquired from the wife whether she wished to give evidence. She having said that she did not think she was able to, the trial judge said he would consider the position at 2 o'clock.

When the hearing resumed, the trial judge was told that Ro. was in the precincts of the court and the trial judge said that, while he did not require him to give evidence, he would see him in his chambers. After he had seen Ro. in his chambers, the trial judge addressed himself to the wife as follows

"Mrs.B. You understand the reason I am seeing both children in chambers, Mrs. B. you understand that?

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The wife: Yes my lord?

[Trial Judge]: It is that neither child should be asked to or required to give evidence against either parent. Now it is time that you have to come into the witness box and discuss with me the issue of custody and access for the little boy, unless you have a view already as to what I should do in the custody issue. Mrs. B., Do you? Mrs. B. You are not sworn. You may be seated. You can compose yourself but this is a stage where the court has to look after the paramount welfare of Ru. and that requires your clear attention to the problems in the case and I want you to adopt a view as to assisting the court in arriving at a solution whereby Ru's best interests are looked after …

The trial judge then said he would rise for five minutes to 'allow the witness to compose herself'.

After the adjournment, the wife was again sworn and was asked a number of questions by the trial judge as to what her view was as to his staying in the custody of his father and as to whether it was desirable that she should have access to him. The transcript went on

"[Trial Judge]: ... If you agree that you will leave him free for the next number of months we can review this, you understand. Would

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you be free to say that you will not demand to see him unless he wishes to see you for the next six months?

The wife: Are you suggesting I have no contact with my child at all, my lord?

[Trial Judge]: What I am suggesting is that you do not insist on contact. I mean now is the time to discuss it with me. I have to form a view as to what is in his best interest. He is 13 years of age. He is at a crucial stage in his life. He is starting off second level education. He needs to do well in school, depending on what career he finally decides on when he is 18 or 19. Surely what we want to do is to calm all the problems down and seek to re-establish a relationship as mother and son. Surely that is what we want to do.

[Trial Judge]: You understand, Mrs. B. That when there is no compulsion on him he will feel freer.

The wife: But there was no compulsion. I mean there is no compulsion on him ...

This dialogue continued for sometime between the trial judge and the wife, the wife having given no indication that she was agreeing to the trial judge's proposal. The transcript went on

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"... Well if that is the tenor of your evidence then it is patently clear that I have to see the boy and that is your choice.

The wife: Don't put that on me, my lord.

[Trial Judge]. That is your choice and tears are not going to solve the problem?

The wife: I am sorry, I do not mean to ...

[Trial Judge]: They are not going to solve the problem. You have to make your choice. If you are maintaining that course of action, I must see the child.

The wife: Can I have some minutes for a decision?

[Trial Judge]: You may. I suggest you go down and talk to your husband. You may find it very difficult. You would have no objections, Mr. Shatter, would you?

Mr. Shatter: I have no objections my lord

The hearing having been adjourned for a short time, the wife then gave her views then as to the trial judge:

"I have thought about the issues, O.K, and this is what I would like, which I think would be in Ru's best interests. I would like joint custody, but Ru. to reside with his father as he does at present. I am available for intensive therapy with Ru. and in order

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to save Ru. any further distress to be counselled by (Dr.) O'D. the person he already knows. I would like Ru. to be released one day a week so that I can build my relationship with him, give him the opportunity which I have not had for the last year, but if Ru. does not want to see me, well I would not force him to abide by that.

O.K."

The wife added that, since she had not seen Ru. last Christmas she would like to see him on Christmas Eve, when German people traditionally celebrated Christmas.

Mr. Shatter having indicated that he would not, in the circumstances, conduct any cross-examination, the trial judge said that he thought that he had to see Ru. in his chambers. The transcript went on

"Mrs B. It was my understanding I had to make that decision because it was either ... the way I understand it was that I had to make a decision on the custody side. I did so to save my son having to come up to the court.

[Trial Judge]: I understand that perfectly.

The wife: I really feel I am being hard done by .....'.

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[Trial Judge] You see this is a difficult case. It is a difficult case and having regard to finally understanding your position in relation to the case, it seems to me essential that I speak with Ru. I will see him in private and it will not be a traumatic occasion. Your eldest son survived it, I think quite well."

The hearing resumed the following day the trial judge having seen Ru. in his chambers. He then asked the wife, however, if she wished to call evidence. She repeated her desire to see Ru. over Christmas and have some access to him.

The trial judge then said that he was satisfied that the evidence was "coercive", in support of the husband having sole custody of the child. He described the question of access as "a most problematic matter" and that he proposed to consider the matter further and give a written judgment on access in the new term.

That written judgment was delivered by the trial judge on the 28th February, when he concluded that, in relation to access, Ru. should undergo counselling with a psychologist of his choice after Easter 2001, the wife to participate in the counselling as directed by the psychologist. He said the matter could be re-listed before him on 20th July 2001 when he expected a

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report from the psychologist together with his recommendations, at which stage he hoped to be in a position to make firm orders in relation to access. The hearing in July, however, was adjourned in view of the appeal pending in this court.

The Unfairness Issue.

Mr. McGonigal SC., and Mr. Mohan SC., on behalf of the wife submitted that the refusal by the learned trial judge to grant an adjournment of the proceedings on the 18th December 2000 save on terms that the wife pay the costs of the proceedings incurred up to that date was a denial of the wife's right to legal representation and to fair procedures, both of which were guaranteed by Article 40.3.1° of the Constitution. It was further submitted that what was described as the refusal of legal representation and the unfairness of the conduct of the hearing on that day violated the wife's rights under Article 6 of the European Convention for the Protection of Fundamental Rights and Freedoms. They cited in support the decision of this court in The State (Healy)-v- Donoghue [1976] IR 275 and of the European Court of Human Rights in Ireland -v-Airey [1979] 2 EHRR 305. They submitted that in circumstances where, as here the wife was already being required to pay a substantial sum in respect of costs in order to secure the papers from the solicitors previously acting for her, to require her to submit to a further order for the payment of all

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the costs incurred by the husband to date was effectively to make it impossible for her to proceed with the hearing with legal representation.

They further submitted that the transcript of the hearing indicated that it had not been conducted fairly by the trial judge. It was urged that he had not assisted or facilitated her to the extent that one would have expected, given her absence of legal representation and had wrongly refused to take from her copies of the legal authorities on which she wished to rely at the occlusion of the evidence. It was further submitted that he had browbeaten her during the hearing and had not treated her with the consideration which a lay litigant without legal representation was entitled to expect.

On behalf of the husband, Mr. Shatter submitted that, in the light of the earlier history of the matter including, in particular, the fact that this was the third team of lawyers which was now being retained on behalf of the wife, the numerous previous applications for adjournments and the fact that the wife and her present solicitors had both been aware since 1^st December that no application for a further adjournment would be entertained, the trial judge would have been perfectly entitled simply to refuse the adjournment sought on December 18th. In the event, he had given her an option to which, on one view, she was not entitled, i.e., an adjournment on terms that she pay the costs already incurred by the husband. That was entirely reasonable, he said,

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particularly in the light of the indication given by Mr. McGonigal that he might wish to examine again witnesses who had been called at the earlier hearing on the nullity issue. In those circumstances, the costs already incurred might properly be regarded as "costs thrown away".

Mr. Shatter further submitted that it was clear from the transcript that the trial judge made every effort to ensure that, despite the absence of legal representation, the wife's case was fully presented to the court. As to the submission that he should have received the documents which she endeavoured to hand in at the end of the evidence, he said it was by no means clear what these documents were they might well have contained opinions furnished to her by her lawyers which it would have been inappropriate for the judge to have any sight of.

On this issue, my conclusions are as follows.

Parties to litigation in our courts, whether it is civil or criminal, are entitled as a matter of constitutional right to fair procedures. They are also entitled, again as a matter of constitutional right, to access to the courts and it is a necessary corollary of that right that they may conduct litigation with or without legal representation as they choose. Save in special circumstances, which do not arise in these proceedings, the court has no function in relation to

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the representation of parties appearing before them. Nor is it necessary, in the context of the present case, to consider the State's obligations under the Constitution or international conventions to which it is a party to ensure that persons who cannot afford legal representation are given such assistance as is necessary in order to ensure that their rights under the Constitution and those conventions are protected.

The conduct of a case by a lay litigant naturally presents difficulties for a trial court. Professional advocates are familiar with the rules of procedure and practice which must be observed if the business of the courts is to be disposed of in as expeditious and economic a manner as is reconcilable with the requirements of justice. That is not necessarily the case with lay litigants. Advocates, moreover, arc expected to approach cases with a degree of professional detachment which assists in their expeditious and economic disposition: one cannot expect the same of lay litigants, least of all in family law cases.

The trial of cases involving lay litigants thus requires patience and understanding on the part of trial judges. They have to ensure, as best they can, that justice is not put at risk by the absence of expert legal representation on one side of the case. At the same time, they have to bear constantly in mind that the party with legal representation is not to be unfairly penalised because

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he or she is so represented. It can be difficult to achieve the balance which justice requires and the problem is generally at its most acute in family law cases such as the present.

The first objection taken on behalf of the wife to the conduct of the proceedings in High Court is the refusal by the High Court judge to grant an adjournment of the proceedings, save on terms that the wife paid the costs incurred to date.

The grant or refusal of an adjournment is essentially a matter within the discretion of a trial judge. I have not the slightest doubt that the trial judge would have been perfectly entitled in the present case to have simply refused the application for an adjournment without offering the alternative of an adjournment on terms. The proceedings had already been adjourned on a number of occasions and on the 23rd October, at which stage the third change of solicitors had already occurred, the wife was informed the proceedings would now be listed on the 18th December in order to enable them to be concluded. The application for yet another adjournment on the morning of the hearing was thus wholly without merit. The trial judge was perfectly entitled to insist on such an adjournment being granted only on strict terms as to the payment of costs already incurred and would, in my view, have been quite entitled to refuse the application without even offering such an alternative.

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The next objection was as to the alleged refusal by the trial judge to accept the documentary material which the wife proferred to him when he invited her to make submissions on the law at the end of the evidence in the nullity proceedings. During the course of argument in this case, Mr. McGonigal sought to place before the court the materials which, he said, the trial judge had declined to accept. Since there was no agreement between the parties as to what specific documents had been proferred to the trial judge by the wife, this court declined to read the documents proferred to the court on behalf of the wife during the course of the appeal. When he objected at the time of the hearing in the High Court to the trial judge's refusal to accept the documents, whatever they might have been, Mr. McGonigal referred to them as including "written opinions". It may be that the trial judge was concerned, and understandably so, that he should not have sight of any opinions furnished to the wife by her lawyers. It is sufficient to say that this court is satisfied that, so far as the nullity proceedings are concerned, its attention has been directed to all the leading authorities in this country and the United Kingdom on the matters in issue and that there is no substance in this ground of objection to the manner in which the trial was conducted in the High Court.

The next ground of objection was that the trial judge should have recused himself from the hearing when asked to do so by Mr. McGonigal in the High Court because of the manner in which he had conducted the trial up to that

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point. Since, however, for the reasons I have already given, there is no substance in those objections, the trial judge was correct, in my view, in declining to recuse himself from the further hearing.

There remains a general objection to the manner in which thereafter the trial judge conducted the proceedings. I have thought it appropriate in the context of this objection to set out, at what might seem to be almost excessive length, extracts from the transcripts in order to convey, as fairly as possible, the manner in which the trial was conducted, insofar as that can be done by the transcript alone. (It is, of course, notorious that a transcript will not always capture the nuances of evidence as it is given in the trial court.) It is undoubtedly the case that the trial judge on occasions expressed his frustration at the difficulties he was encountering because of what he saw as the refusal of the wife to accept that certain problems necessarily followed from the changes that she repeatedly made in her legal team. But the transcript also reflects his concern that her case should be fully heard and that she should not suffer any avoidable injustice because of the absence of legal representation on her side. In particular, the trial judge showed the most commendable patience and sensitivity in dealing with what is always a difficult area, i.e., the custody of, and access to, the minor child of the parties.

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I am satisfied that the trial judge conducted these difficult proceedings in an exemplary manner and that these grounds of appeal have no substance. I would have no hesitation in refusing the application that the proceedings be remitted to the High Court for a new trial on this ground.

The Facts as to the Nullity Issue

The wife's parents fled from East Germany to the West in the immediate aftermath of the Second World War. They settled for a while in West Germany, but because of the shortage of labour at that time, found it difficult to build up the craft business - one particularly associated with Germany - in which they were engaged. They then met an Irishman who suggested that they might consider transferring their business to this country. They arrived accordingly in 1962 with their five children, including the wife, who was then aged 10. She went first to the local national school for a year and then spent a further year in West Germany. Her father died suddenly in 1968 and was buried in Ireland. He had expressed a wish to be buried in the German military cemetery in the Dublin mountains but this was not possible because he had not been in military service. The wife's mother would like to have returned to Germany but this was not a practical proposition, since her home had been in what had become the German Democratic Republic. The political situation at the time made her return there very difficult and financial considerations also meant it was not possible for her to return to West Germany.

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The wife sat and passed the Intermediate Certificate in the local school and then went to a leading secondary school in Dublin and thereafter to university in Dublin. She graduated from there in 1973 with a degree in German, English and Economics.

Having spent about six months in the family business in the country, the wife obtained an apprenticeship as a trainee accountant in a firm in Dublin as a result of her friendship with the notice party. She lived with the notice party for about a year before they got married in 1976. At first they lived in rented accommodation in Dublin but later bought a house in the Dublin 4 area. They had one child, a son born in 1977. Unhappy differences arose between them arid she subsequently met and married the husband.

The wife was very anxious to have her marital situation regularised because she now had two sons by the husband. She was advised by the German Embassy to petition for a divorce in the District Court in Schoneberg. She said that the divorce proceedings in Germany were very straightforward: her husband was fully aware of them and indeed anxious that they should go through.

The expert legal evidence as to German law was that, where neither of the parties to a marriage was resident in Germany, a divorce could nonetheless

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be granted by the court in Schoneberg, if either of them was a German citizen. Although the notice party had become an Irish citizen in approximately the year 1967, the wife at all stages remained a German citizen. As already noted, she has resided cont~nuous1y in this country since she arrived here with her parents in 1962, apart from two relatively brief periods in 1963 and 1964.

The notice party was born in Altenberg in Germany on 10th November 1949. He came to Ireland when he was six years old with his parents. His father was an engineer who worked for a semi-State company in Ireland for three or four years after his arrival here and he then set up his own business in the same general field of activity. The family lived in rented accommodation for the first two years and then built a house in the midlands. The family paid fairly regular visits to Germany and his father was in regular contact with suppliers for his own business who were located in northern Germany or Holland. Although his father, at the date of the hearing in the High Court was aged 85 he still travelled to Germany at least once a year. Neither of his parents ever became Irish citizens, but the notice party did, since it was his understanding that this could be important if he wished to work in Ireland. He would have preferred to retain his German citizenship when he became an Irish citizenship, but knew that that was not possible.

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Apart from two periods where he worked abroad for about 18 months, in London and in Germany, he had been continuously resident in Ireland since 1955. He qualified as an accountant in 1971 and he became a partner in a firm in Dublin. He then met the wife and married her. He said he did not regard himself as committed to living permanently in Ireland. He retained a number of connections with Germany and, as a result of a new business venture, he now went there every fortnight for two or three days. His company had plans to expand and he said that he might move to Germany within 12 months of the hearing in the High Court. He had subsequently become married to some else: his second wife was Irish. His evidence as to his future intentions was as follows:

"...The new business at the moment.... will mean probably living abroad because the centre of the business will be in central Europe, not in Ireland.

Q. I see?

A. So / am looking forward to that.

Q. Why do you say that you are looking forward to that?

A. It is a challenge and I like Germany. You know, I feel I do, as I said earlier, I am always a foreigner in Ireland I feel more at home in Germany.

Q. Has this been an ambition that you have had over the years that you would live in Germany?

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A. It has been, but I have never been able to implement ii until now.

Q. Can you tell his lordship where do you see yourself living out your years?

A. I don't know, but it could be Germany, I think.

As to his tax returns, the notice party said that both he and his father when dealing with the revenue indicated that they did not have an Irish domicile.

The evidence in the High Court was that both the wife and the third party spoke German in their homes, preferred to mix socially with other German nationals living in Ireland and kept up German customs, such as celebrating Christmas on Christmas Eve.

The Applicable Law.

We are not concerned in this case with the effect of the Domicile and Recognition of Foreign Divorces Act, 1986, since that Act was not in force at the time the divorce decree in issue in this case was granted. It is clear, accordingly, that whether that decree will be recognised in Ireland is to be determined in the light of the common law rules of Private International Law which were applicable at the time.

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The effect of those rules prior to the enactment of the Constitution is succinctly summarised by Professor William Binchy in Irish Conflicts of Law as follows:

"… The major principle of recognition was that divorces would be recognised when granted in the country of the spouses common domicile. The effect of the operation of the principle that a wife's domicile depended on that of her husband's domicile was that a divorce obtained by either spouse in the country of the husband's domicile would he recognised, regardless of the wife's place of residence or where she intended to have her permanent home.'

In C.M. -v- T.M. [1991] ILRM 268, it was held by the High Court (Barr J.) that the rule of the dependant domicile of a married woman ceased to he part of Irish law by virtue of Article 50 of the Constitution as being inconsistent with Article 40.1. That view was approved of by this court in W,-v- W [1993] 2 IR 477. It was also held by a majority of this court in that case that the common law rule to be applied to the period prior to the 2nd October 1986 was that a divorce would be recognised if granted by the court of a country in which either of the parties to the marriage was domiciled at the time of the proceedings for divorce. It was also accepted by the parties as being the applicable rule in the present case.

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The law as to the domicile of the wife and the third party in this case may be stated as follows. The domicile of a child under the age of majority is a domicile of dependency: i.e., it is, in general, determined by the domicile of the person upon whom the child is regarded by the law as being dependent. If at the time of his death in 1986, the wife's father had not acquired an Irish domicile and had retained his domicile of origin, i.e., a German domicile, the wife's domicile would also have remained a German domicile, if the domicile of origin of her mother had similarly not altered when the wife attained her majority (under the then law the age of 21) in 1973, the wife would, at that point, have retained her German domicile. Similarly, in the case of the notice party, if, at the date of his attaining his majority in 1970, the domicile of origin of his parents had not altered, the notice party would then have had a German domicile. It is also the law that either the wife or the notice party or both of them could have acquired a domicile of choice in Ireland after attaining their respective majorities. It is not in dispute that, prior to the arrival in Ireland of the parents of the wife and the notice party in 1952 and 1955 respectively, their parents had a German domicile of origin. The law as to the circumstances in which a domicile of origin will be held to have been replaced by a domicile of choice must next be considered.

The locus classicus in our law as to the acquisition of a domicile of choice is to be found in the decision of the high Court (Flood J.) in Re: Sillar,

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Hurley -v- Wimbush [1956] IR 344, in which the issue was as to whether a testator at the date of the making of his will and of his death had acquired an Irish domicile of choice.

The evidence was that the deceased was born in Shanghai in the year 1856 of English parents. He was brought to England in 1860 where he was educated and continued to reside until 1905, when he came to Ireland to assist in the management of a business during the last illness of his brother-in-law. After the death of his brother-in-law in the year 1905 he continued to manage the business and to reside in Ireland until the year 1941 when it was sold. After that the testator continued to reside in Co. Dublin until the date of his death in 1953. He never bought a house in this country but lived in rented property in Dalkey. After 1905 he had no residence in England. An Irish passport was issued to him in 1931 and renewed up to 1941. A F3ritish passport was issued on 13th November, 1946, valid to 1951. He was a member of some professional institutions and clubs both in Ireland and in England.

The testator's wife died in 1942 and he had occasion to make a statement as to domicile to the revenue authorities in connection with her estate. He referred to his wife's marriage to him, "a domiciled English man", in 1896 and his reasons for coming to Ireland. he said that it was his intention to remain in Ireland "only so long as might be necessary" and added:-

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"Although I have lived in Ireland since the year 1905 1 never purchased a residence in this country, any house in which I have lived being only rented, and I have not abandoned my English domicile. It has always been my intention, when circumstances permit, to return to live in England."

In his will, he described himself as "a British subject and domiciled in England".

There was evidence that the testator told a niece of his intention to "visit" England in 1947 or 1948 but was prevented by his health from doing so. He also said that he did not feel that he would travel any more and was better in his own home.

In the course of his judgment, Budd J cited the dictum of Lord Cranworth in Whicker -v- Hume, [28LJ] (Ch) 396 at p.400, that

"Domicile meant permanent home, and if that was not understood by itself no illustration would help to make it intelligible."

Budd J. commented that this simple and elementary proposition was sometimes in danger of being forgotten. He went on to cite the following statement of the law by Black J. in Re: Joyce, Corbet -v- Fagan, (1946) IR 277:

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"Now, whatever difference of view may be possible on any other aspect of the law of domicile, one principal at least is beyond doubt, namely, that the domicile of origin persists until it is proved to have been intentionally and voluntarily abandoned"

Having said that a domicile of choice was acquired by residence (factum) coupled with an intention to reside permanently or indefinitely (animus manendi), Budd J also cited the following passages from the speech of Lord Westbury in Udny -v- Udny (LR 1H.L. (Sc) 441):

"Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time ... It is true that residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicile is established."

The learned judge also stressed that, while long residence was of great importance, it did not necessarily establish that the domicile of origin had been lost. He gave the example of the simple case of a person staying abroad for business reasons for a long period, but always with the intention of ultimately

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returning "home" to the country of his domicile of origin. It was also made clear in that decision that declarations by the person whose domicile is in issue are not necessarily conclusive as to what that domicile is.

Budd J summed up his conclusions on the law as follows:

"From a consideration of the case law it is clear that it is a question of fact to determine from a consideration of all the known circumstances in each case whether the proper inference is that the person in question has shown unmistakably by his conduct, viewed against the background of the surrounding circumstances, that he had formed at some time the settled purpose of residing indefinitely in the alleged domicile of choice. Put in more homely language, that he had determined to make his permanent home in such place. That involves, needless to say, an intention to abandon his former domicile. Where he has made a declaration touching on the matter it must be weighed with the rest of the evidence. Such a declaration may be a determining factor, but will not be permitted to prevail against established facts indicating more properly a contrary conclusion".

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The statement of the law in that case was approved of by Egan J, speaking for this court, in McC -v- McC [1996] 2 Family Law Journal p.68 at p.70.

Conclusions.

In his judgment, the learned High Court judge held that the parents of both the wife and the notice party abandoned their domicile of origin and acquired an Irish domicile of choice at some stage. While he makes no express finding that, in the case of both the wife and the notice party, their parents' domicile of origin had been abandoned at the time when they respectively reached the age of majority, I think it is to be inferred from his judgment that he had so decided. He went on to hold that neither the wife nor the third party had ever acquired a domicile of choice in Germany.

In the case of the wife, there can be little room for doubt that, at some stage prior to the death of her father in 1968, her parents had decided to live here indefinitely. They had built up a business here, they had brought their children with them, the latter were being educated in Ireland and going back to East Germany, where their home originally had been, was out of the question. That was also the position of the wife's mother after her husband died: while her preference would have been to return to her native country, she accepted that, in practical terms, it was not a realistic option. I am satisfied that there

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was evidence from which the trial judge was entitled to infer that the wife's parents had acquired an Irish domicile when she attained her majority in 1973.

Similarly, the trial judge was entitled to hold on the evidence that the parents of the notice party had at some stage abandoned their domicile of origin and acquired an Irish domicile and that this had happened prior to the notice party reaching his majority in 1970. They had built a house in the midlands and have never since then at any stage taken any steps to return to Germany to live there.

Even if it could be said, however, that the wife and the notice party retained their dependant domiciles of origin when they reached the age of majority in 1973 and 1970 respectively, I am satisfied that the only inference that could be drawn from the evidence was that by 1985, when the divorce was granted, that domicile had been abandoned. They had both been living in this country since their childhood, in the case of the notice party since he was 6 and in the case of the wife since she was 10 years old. They had been educated in this country, worked here, had bought a house here and had married and started a family. There is nothing to suggest that at any time they had ever intended to reside permanently in any place other than Ireland. If the test for establishing whether a person has acquired a domicile of choice in a particular place is whether he has fixed his sole or chief residence there with the intention of

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continuing to reside there for an unlimited time, to use the words of Lord Westbury in Udny -v- Udny, then there seems to me to be no reason to doubt that, assuming that they had not lost their domicile of origin when they respectively attained the age of majority, they had undoubtedly acquired a domicile of choice by the time of the divorce proceedings in 1986. The somewhat tentative suggestion in evidence by the notice party that he thought it possible, given the nature of his business, that he might return to live in Germany is of no assistance in determining his domicile in 1986.

The fact that all the parties concerned - the wife, the notice party, and their respective parents - treasured their links with their native country, spoke its language whenever they could, had close social relations with other Germans living in Ireland and observed the customs of their land of origin, is, as Budd J pointed out in Re Sillar, Hurley -v- Whinbush, entirely reconcilable with an intention to make Ireland their permanent home. The same can be said of the declarations as to their domicile made on different occasions by the notice party and his father for tax purposes.

I am satisfied that, on the established or admitted facts of this case, the only inference which could reasonably be drawn from the evidence was that, at the time of the German divorce, neither the wife nor the notice party was

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domiciled in Germany and that, accordingly, the divorce could not be recognised in Ireland.

While it was suggested in the written submissions that the husband, by his conduct at the time in encouraging and facilitating the divorce, was estopped from contesting the validity of his marriage, I do not think that that argument was seriously pressed during the oral submissions and, in my view, correctly so. It is clear from the judgment of Walsh J in this court in Gaffney-v- Gaffney [1975] IR 133 change a person's status where the status, as a matter of law, has not changed.

I am satisfied that the learned High Court judge was correct in granting a decree of nullity in this case and I would dismiss the appeal.

As to the Guardianship of Infant proceedings, the wife was not seriously contesting that the de facto custody of Ru. should be retained by the husband, although she was, at least in the High Court, urging that there should be joint custody de jure. The question of access was left unresolved pending the appeal to this court and should now, lithe parties cannot reach agreement, be determined by the High Court. The only matter on which this court was asked to rule was as to whether it was appropriate for Ro. to be seen by the trial judge in his chambers. While I can understand the approach adopted by the trial

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judge to this matter in proceedings of this nature, the fact remains that, as a matter of principle, the only evidence which a trial judge, in family law proceedings as in other proceedings, can receive is evidence on oath or affirmation given in the presence of both the parties or their legal representatives.

It has long been recognised that trial judges have a discretion as to whether they will interview children who are the subject of custody or access disputes in their chambers, since to invite them to give evidence in court in the presence of the parties or their legal representative would involve them in an unacceptable manner in the marital disputes of their parents. Depending on the age of the children concerned, such interviews may be of assistance to the trial judge in ascertaining where their own wishes lie and that would undoubtedly have been the case with Ru. in these proceedings. It is, however, sufficient to say, that while the objection to the trial judge having seen Ro. in his chambers was well founded, as there is no serious issue as to the legal custody of Ru. and the question of access, if it cannot he agreed, must be determined now in the High Court, no order is required in respect of the proceedings under the Guardianship of Infants Act.

I would dismiss the appeal in the nullity proceedings and hear counsel as to the question of costs in all three proceedings. I would also hear counsel on

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the question as to the how the remaining appeal on costs should be dealt with. The question of access to the minor child should be dealt with in the High Court if agreement cannot be reached.