A v B

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 12 February 2021
• Neutral Citation: [2021] IEHC 96
• Date: 12 February 2021
• Court: High Court
• Docket Number: [2020 No. 102 M]

In the Matter of the Judicial Separation and Family Law Reform Act 1989

And in the Matter of the Family Law Act 1995, as Amended by the Family Law (Divorce) Act 1996

Between

A

Applicant

and

B

Respondent

In the Matter of the Guardianship of Infants Act 1964, as Amended, (And in the Matter of the Children and Family Relationships Act 2015 and in the Matter of [Stated Names], Infants

Between

B

Applicant

and

A

Respondent

[2021] IEHC 96

[2020 No. 102 M]

[2020 No. 95 M]

THE HIGH COURT

JUDGMENT of Mr Justice Max Barrett delivered on 12th February 2021.

I Notices of Motion

i. Mr A's Notice of Motion

1 By notice of motion of 4th February 2021 in the first of the above-entitled proceedings, Mr A seeks, inter alia, the following reliefs:

“1. An Order, whether pursuant to Order 31, Rule 29 of the Rules of the Superior Courts or otherwise, directing the Commissioner of An Garda Síochána, his servants or agents, to make discovery on oath of all documents within his power, possession and/or procurement, within such time as may be fixed by Order of this Honourable Court, that falls within the following category of documents:-

All documents relating to and/or evidencing recordings of the Applicant in these proceedings (including but not limited to audio and video recordings, and to include the recordings themselves), which were created on, are being stored on and/or have been obtained from, any electronic device or devices which An Garda Síochána lawfully seized from the Respondent herein and which concern, relate to and/or are in connection with a criminal investigation of the said Applicant,

and

to make provision for the Applicant his servants or agents for the inspection and/or searching of facilities of the said electronic device or devices using such information and communications technology system which is either owned or operated by or on behalf of the Commissioner of An Garda Síochána, or as may be agreed between the parties.”

ii. Ms B's Notice of Motion

2 In her notice of motion, Ms B seeks, inter alia, the following reliefs:

“…a direction that:

(1) The recordings of the interaction between the Respondent and the children of the marriage…[made in] Autumn 2020 be furnished to [STATED NAME]…to facilitate [the]…Section 32 Assessment”.

II Background

3 The following summary of the facts have respectfully been extracted from the written submissions of counsel for Mr A:

“a. An audio recording (‘the recording’) of the Applicant was played to —- District Court on the 3rd November 2020 in the course of an ex parte application for an interim barring order and/or on the 10th November 2020, being the occasion of a contested application for a barring order. The Respondent contends that this recording is corroborative of her experience of the Applicant as being threatening to herself and the children.

b. The Applicant has appealed to the Circuit Family Court against the granting of the barring order. The Applicant apprehends that the Respondent will seek to introduce the recordings (and perhaps other materials, including audio or video recordings) into evidence at the hearing of the appeal.

c. The Applicant has heard a single recording only once, being in the District Court on the 10th November 2020. The Applicant is now represented by a different legal team, none of whom have heard the said recording. The Applicant has had no legal advice concerning the contents of the recording.

d. The Respondent has, in opposing the Applicant's efforts to have supervised and/or unsupervised access to his children, placed reliance not only on the fact of the Barring Order but also on the said recording and the further recordings.

e. The Applicant served a Notice to Produce in these proceedings relating to the recordings on or about the 16th December 2020….

f. The Respondent did not provide the recordings by reference to the Notice to Produce, but on the 18th January, while acknowledging the Applicant's entitlement to have a copy of the recordings, indicated that there were technical difficulties which prevented her solicitor from copying and sending the recording to the Applicant's solicitor. On this occasion, the Respondent's solicitor mentioned recordings in the plural.

g. Upon an application being made by counsel on behalf of the Applicant on the 19th January, a direction was made by [Barrett J.]…requiring the Respondent to furnish the Applicant with the recordings by close of business on the 22nd January.

h. Despite the fact that the Respondent did not contest the direction given by [Barrett J.]…the Applicant learned – for the first time – having received the Affidavit of Inspector F—- which was sworn on the 8th February 2021, that it was the Respondent who contacted the Gardaí on the 20th January – the day after the said direction was given – and she informed Detective D—- … that the Applicant ‘requested’ a copy of the recordings.

i. On the 22nd January, the Court gave liberty “to An Garda Síochána to make a submission regarding their holding of a mobile phone device belonging to the Respondent which said device contains recordings which [the] parties wish to access”, albeit with liberty to the Gardaí on the 2nd February to make representations concerning the meetings which were on the Respondent's phone.

…

5. The Respondent, in defence of this application has relied at paragraph 23 of her Affidavit which was sworn on the 15th December 2020 on the unspecified and/or unparticularised recording offered in her evidence at [the] hearing of the Barring Order [application] as evidence of the Applicant's unsuitability to have supervised and/or unsupervised access with his children.

6. Additionally, the Respondent has averred to the existence of further or other ‘recordings’ – as yet unspecified and/or unparticularised…in defence to the Applicant's access application and to further underscore the appropriateness of her resistance to supervised and/or unsupervised access.

7. …[In] his affidavit sworn on 9th December 2020 for the purpose of grounding his application for access, the Applicant has particularised his concerns about the manner, context and/or motive by which the Respondent had…recorded him without his knowledge and consent inside the family home….

8. The Applicant apprehends and/or is seriously concerned that an effort might be made to play a recording or recordings to this Honourable Court, without his ever having had the benefit of being able to consider them in advance and to instruct his lawyers about them. This is…what occurred at the hearing of the Barring Order….

9. The Applicant also apprehends that continuous reference being made by the Respondent to unspecified recordings which are not particularised and not otherwise in evidence, creates an overhanging cloud of concern in the mind of the Court which may serve to undermine his efforts to persuade the Court to permit him to have further supervised or unsupervised access to the children.

[Court Note: The court respectfully considers this apprehension to be a misapprehension. Something is either in evidence or it is not. Part of the daily business of the courts is to separate evidential ‘wheat’ from non-evidential ‘chaff’. In all cases, admitted evidence will be considered, non-admitted/inadmissible evidence will not be considered, and bare averments as to non-admitted/inadmissible evidence will not advance one's case. These proceedings are no different from other cases in this regard.]

10. The Respondent has issued a Notice of Motion, in the context of her own legal proceedings…which is also returnable to 9th February seeking a direction to furnish the unspecified and unparticularised recordings to the Section 47/32 assessor, [Name Stated]….

11. Further, the Respondent has not grounded her application for the said direction on affidavit evidence. Order 70A, Rule 11 of the Rules of the Superior Courts require applications for directions in family law proceedings to be grounded on affidavit.”

[Court Note: As to this last point, the Rules are there to ensure that proceedings proceed as fairly as possible to all and that justice is despatched openly and efficiently. So the respondent needs to comply with the Rules. That said, the Rules are the servants of justice, not her master, in all the circumstances presenting the court does not see that anyone has been prejudiced by the above-mentioned omission; in particular all the relevant parties were on notice of the proceedings and knew what was in play. So beyond noting the important need ever to comply with the Rules the court considers that to be the end of matters so far as the above omission is concerned.]

III Grounding Affidavit in Discovery Application

4 Mr A's solicitor, in his grounding affidavit of 4th February 2021, avers, inter alia, as follows:

“2. I make this Affidavit on behalf of the Applicant to ground the within Notice of Motion which has been brought on behalf of the Applicant to seek for discovery to be made by or on behalf of the Commissioner of An Garda Síochána who is a non-party in these proceedings and pursuant to the direction made by [Barrett J]…on 2 February 2021….

4. On the 2 February 2021, having heard oral submissions from counsel on behalf of the Commissioner who confirmed that An Garda Síochána intend to assert investigative privilege over the said items or documents as more particularly described herein and in the notice of motion accompanying, and having heard further submissions for counsel on behalf of the parties, [Barrett J]…deemed it appropriate and directed the Applicant to bring the within application for non-party discovery concerning the said device or devices and recordings held by An Garda Síochána returnable to the 9th February 2021.

5. In the ordinary course, an application such as the within application would require that evidence is given by or on behalf of the Applicant to show that the...