X v Y

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 17 November 2020
• Neutral Citation: [2020] IEHC 579
• Docket Number: [2020 No. 3 CAF]
• Court: High Court
• Date: 17 November 2020

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989 AND IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN

X

APPELLANT

(FORMERLY RESPONDENT)

- AND -

Y(NO. 2)

RESPONDENT

(FORMERLY APPLICANT)

[2020] IEHC 579

Max Barrett

[2020 No. 3 CAF]

THE HIGH COURT

Costs – Access/custody – Conduct – Respondent seeking costs – Whether the appellant should pay the costs of the access/custody application

Facts: The respondent applied to the High Court seeking costs following on the judgment of the court in the substantive portion of the proceedings. The respondent contended that the appellant should pay the costs of the access/custody application that Barrett J had heard. The appellant contended that there should be no order as to costs.

Held by Barrett J that, having referred to a judgment given by McKechnie J of the Supreme Court in B.D. v J.D. [2005] IEHC 154, he did not see anything in the appellant’s case, or in his actions, or in his conduct during the proceedings, that would justify making an order as to costs against him. Barrett J noted that the appellant considered that he did not have enough by way of physical custody of the child and wanted, it seemed in good faith, to have greater access/custody. Those factors seemed to Barrett J to offer a perfectly reasonable basis on which to come to court and seek greater access/custody. Though the appellant might have waited for the divorce proceedings in which to ventilate those issues, Barrett J held that there was no obligation on him to do so.

Barrett J held that the court would make no order as to costs.

Application refused.

JUDGMENT of Mr Justice Max Barrett delivered on 17th November 2020.

1 This is an application for costs by Ms Y following on the judgment of the court in the substantive portion of these proceedings. The court has been provided with written submissions by both parties and gives its judgment by reference to same. Some of the points made for Mr X seemed more concerned with the substance of the principal judgment ( X v. Y [2020] IEHC 502) than with the issue of costs following on that judgment; however, as a courtesy, the court has sought briefly to address all the points raised.

2 The court accepts the proposition advanced by counsel for Mr X that, although by no means a licence to litigate without consequence, it has long been accepted that in family law litigation a court should be slow to award costs to one party against the other. The court was referred in this regard to the judgment of McKechnie J. in B.D. v. J.D. [2005] IEHC 154. There, McKechnie J. observes as follows, at para. 24:

“I do not believe that any category of family law case should as a matter of principle be exempt from these cost provisions. It cannot be right that litigation can be open ended without even the risk of any type of cost order…I cannot accept that a court should be powerless to award costs even where the case, or the parties to it or their conduct within the proceedings, merit the making of such an order. If that were so I firmly believe that both justice and the public would be ill served.”

3 In other words, if a case, or the parties, or the conduct of the parties merit the making of an order as to costs, such an order can be made. But if it does not the implicit assumption seems to be that no such order will typically be made in family law proceedings.

4 In the within proceedings, Mr X considers that at this time he does not have enough by way of access to/physical custody of Z and wants, it seems in good faith, to have greater access/custody. Those factors seem to the court to offer a reasonable basis on which to come to court and seek greater access/custody. Though Mr X might have waited for the coming divorce proceedings in which to ventilate these issues, there was no obligation on him to do so. The court therefore sees nothing in this case that requires an order for costs to be made against either party.

5 Mention was made by counsel for Mr X that “It is noted that more recently, Mr Justice Jordan has described any suggestion of a standing protocol against awarding costs in family law proceedings as a myth. [Footnote: B.C. v. P.K. [2020] IEHC 432; his comments are made in the context of a discussion of costs in misconceived interlocutory applications.]” The court sees no departure in B.C. from the decision in B.D. Jordan J. considered the application made by the husband in B.C. to be singularly unwise and made an order for costs against him. Jordan J. refers to B.D. in his judgment, clearly considered that what was before him in B.C. was, to draw on the above-quoted language in B.D., a case where “the case, or the parties to it or their conduct within the proceedings merit the making of…an order [of costs]” and proceeded accordingly.

6 Turning to the additional points raised by counsel for Mr X in his submissions, the court would respectfully observe as follows:

(i) the court does not propose to re-state its original judgment; however, it is not correct to state that “the primary, if not the only, basis upon which the appeal failed was that the Court felt constrained from implementing the proposal made to the Court by [Mr X] or [Ms Y] (or any versions thereof) in the absence of an expert report to assist the Court as to any psychological issues or ramifications which might ensue from such a step”. What presented before the court was a case in which (a) it was commonly agreed between the parents that Z was thriving under the access regime ordered by the Circuit Court, (b) it was not agreed between the parents what was in the best interests of the child, (c) Mr X seemed from his oral evidence to be unsure as to what exactly he wanted or when, apart from a 50/50 split of custody at some future time (see the quoted evidence at para.12 of the principal judgment) and so not quite now, (d) Ms Y's overriding preference was that there should be no change in the existing arrangements pending the substantive hearing of the divorce proceedings, (e) the court therefore had (i) diverging parental views as to where Z's best interests lay, (ii) zero independent evidence as to where Z's best interests lay, and (iii) a father who was unsure as to what exactly he wanted or when apart from a 50/50 split of custody to be arrived in some form of staggered way at some future time, all...