A v B

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 23 February 2021
• Neutral Citation: [2021] IEHC 119
• Docket Number: [2020 No. 102 M]
• Court: High Court

BETWEEN

A

APPLICANT

– AND –

B

RESPONDENT

BETWEEN

B

APPLICANT

– AND –

A

RESPONDENT

[2021] IEHC 119

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

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

[2020 No. 102 M]

[2020 No. 95 M]

THE HIGH COURT

Discovery – Relevance – Necessity – Applicant seeking discovery – Whether recordings were relevant

Facts: In the first of the proceedings, discovery of the form identified by the High Court at para. 1 of its previous judgment of 12th February 2021 ([2021] IEHC 96) was sought by the applicant (“Mr A”). In that regard, the court listened to and/or viewed all of the voice and video recordings on the USB stick received from An Garda Síochána on 19th February 2021. In the second of the proceedings, the applicant (“Ms B”), by notice of motion of 3rd February 2021, sought “a direction that...(1) the recordings of the interaction between the Respondent and the children of the marriage...be furnished to [STATED NAME] to facilitate her Section 32 assessment”. The court proposed treating this as an application for (i) discovery to Ms B by An Garda Síochána of the USB stick recordings, and (ii) a direction that the documents so discovered may be disclosed to the person appointed to be the s. 32 (and, as it happens, also the s. 47) assessor.

Held by Barrett J that, having listened to and/or viewed all of the recordings, the court was satisfied that all of the said recordings were relevant to the first of the proceedings. Barrett J considered that the proposed discovery was necessary in the first proceedings so as to allow for a fair disposal of same. Barrett J found that no issue as to proportionality presented. Barrett J held that these were proceedings to which s. 3(1) of the Guardianship of Infants Act 1964 applied. The court did not see that it could safely arrive at any conclusion other than that in this case the public interest in the proper administration of justice in a case concerning the safety and welfare of children outweighed the public interest in maintaining investigative privilege associated with the Gardaí investigating an alleged criminal offence, with the result that the discovery sought by Mr A should be ordered. For the same reasons, mutatis mutandis, identified above, the court was satisfied to order that the recordings aforesaid be discovered by An Garda Síochána to Ms B and her advisors.

Barrett J held that the court would, in the first proceedings: (i) order discovery by An Garda Síochána to Mr A of all of the recordings that it has heard and/or viewed; (ii) following any (if any) submissions that it may receive in that regard (the parties to advise the court within one week of this judgment whether they intend to make any such submissions), proceed to rule on whether the documents so discovered may be relied upon by Mr A in the second of the proceedings and/or the pending Circuit Court appeal against the barring order. Barrett J held that the court would, in the second proceedings: (iii) order discovery by An Garda Síochána to Ms B of all of the recordings that it has heard and/or viewed; (iv) following any (if any) submissions that it may receive in that regard (the parties to advise the court within one week of this judgment whether they intend to make any such submissions), make the same order in respect of Ms B in the second proceedings as may be made in respect of Mr A in the first proceedings under point (ii) above; (v) direct that either one week after discovery is made by An Garda Síochána (or after such other time as may be agreed in writing between the legal advisors to the parties to the second proceedings) the recordings so discovered by An Garda Síochána may be furnished to the s.32/47 assessor by the legal advisors to Ms B, this additional one-week timeframe (which is subject to written variation between the parties) being inbuilt by the court into the process so as to allow either party, having listened to and/or viewed the discovered recordings, to raise with the court any objection as regards the furnishing of any of the said recordings to the s.32/47 assessor; (vi) require that if any such objection as is referred to in the preceding point above is raised with the court (or an intention to raise such objection is flagged by one side to the other) the recordings are not to be disclosed to the s.32/47 assessor absent a further ruling by the court. Barrett J held that the court would, in both proceedings: (vii) following any (if any) submissions that it may receive in that regard (the parties to advise the court within one week of this judgment whether they intend to make any such submissions), order that, absent further contrary order by the court, none of the discovered recordings are at any time to be played by any of the parties or their advisors or the s.32/47 assessor to any of the children of Mr A and Ms B.

Discovery ordered.

JUDGMENT of Mr Justice Max Barrett delivered on 23rd February 2021.

I

Introduction

1 This is a supplementary judgment following on the court's judgment of 12th February in the above-entitled proceedings ( [2021] IEHC 96). Further to the order made pursuant to that judgment, the court, on 19th February 2021, received from An Garda Síochána a USB stick containing a copy of a variety of voice and video recordings, the originals of which are in the possession of An Garda Síochána. The court is grateful to An Garda Síochána for providing the USB stick so promptly.

Discovery

i. Introduction

II

2 In the first of the above-entitled proceedings, discovery of the form identified by the court at para.1 of its previous judgment has been sought by Mr A. In this regard, the court has now listened to and/or viewed all of the recordings on the USB stick.

ii. Relevance, Necessity, Proportionality

3 Having listened to and/or viewed all of the recordings, the court is satisfied that all of the said recordings are relevant to the first of the above-entitled proceedings. This is because they comprise evidence (I) as to the nature and substance of the relations between (1) Mr A and Ms B, and/or (2) each of Mr A and Ms B and one or more of their children, and/or (3) between the family as a whole, and (II) that otherwise is of relevance to determining issues of guardianship and/or the upbringing of and/or parental access to one or more of the children of the family by Mr A and/or Ms B. The court recalls the observation of Murray J. in Framus Ltd and Ors v. CRH and Ors. [2004] 2 I.R. 20, at p.38, that once relevance is established it will follow in most cases that discovery of relevant material is necessary. It considers that the proposed discovery is necessary in the first-entitled proceedings so as to allow for a fair disposal of same. No issue as to proportionality presents.

iii. Best Interests of Children

4 Most significantly, the court notes that all of the recordings that it has...