O'D (Sj) v O'D (P.C)

• Jurisdiction: Ireland
• Judge: Mr. Justice Abbott
• Judgment Date: 26 May 2008
• Neutral Citation: [2008] IEHC 468
• Docket Number: [2000 No. 100 M]
• Court: High Court
• Date: 26 May 2008

O'D (S J) v O'D (P C)

FAMILY LAW

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

IN THE MATTER OF THE FAMILY LAW ACT 1995

AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964

AND IN THE MATTER OF T. C. O'D AND P. J. O'D MINORS

BETWEEN

S. J. O'D

APPLICANT

AND

P. C. O'D

RESPONDENT

[2008] IEHC 468

[No. 100 M/2000]

THE HIGH COURT

FAMILY LAW

Children

Guardianship - Access application by respondent father - Section 47 assessment - Children's social, moral and educational development - Interests of children - Informal method of talking with children - Age and maturity of children - Principles of fair trial and natural justice - Whether applicant alienating children from respondent - Whether equal treatment - Whether correct amount of weight given to children's wishes - Judicial Separation and Family Law Reform Act 1989 (No 6) - Family Law Act 1995 (No 26), s 47 - Guardianship of Infants Act 1964 (No 7) - Council Regulation (EC) 2201/2003 - Access granted (2000/100M - Abbott J - 26/5/2008) [2008] IEHC 468

O'D v O'D

Facts: The separation proceedings in question had been superseded by divorce proceedings and related to guardianship issues regarding two minor children. The respondent sought that the matter be re-entered to regulate access to be enjoyed by the respondent to the children, seeking an order that the children be assessed by a senior clinical psychologist and an order permitting the respondent to give oral evidence at the hearing of the application. The respondent father averred that there were significant difficulties and disputes in respect of access to his children. The applicant denied that she had frustrated or hindered access. The Court had sought to speak with the children outside any formal legal procedure.

Held by Abbott J. that an order would be made that the respondent would collect the children on Friday and return them on Monday, that midterm breaks were to be alternated, that the Easter access break was to be alternated, a minimum of four weeks' notice had to be given when booking a summer holiday, that Christmas access had to be divided into two equal periods of time. The Court had found the children to be well-adjusted upon discussions with them.

Reporter: E.F.

FAMILY LAW ACT 1995 S47

EEC REG 1347/2000

1 JUDGMENT of Mr. Justice Abbott delivered on the 26th day of May, 2008

2 1. The above entitled proceedings are judicial separation proceedings which have been superseded by divorce proceedings between the parties in which this Court gave judgment in 2006, as hereinafter appears, but the proceedings continue to have effect insofar as they relate to guardianship issues regarding the two minor children, G. a daughter of the parties who was born on the 2 ^nd March, 1995, now thirteen years old, and P. a son of the parties who was born on the 8 ^th August, 1996, who is now twelve years old.

3 2. The respondent father by way of notice of motion dated the 16 ^th November, 2007, sought that the matter be re-entered for the purpose of:

4 1. Regulating the access to be enjoyed by the respondent to the children.

5 2. An order pursuant to s. 47 of the Family Law Act 1995 (hereinafter to be referred to as a "s. 47 report"), directing that an assessment of the applicant, respondent and of the children be carried out by a named senior clinical psychiatrist, having regard to the access to be enjoyed by the respondent to the children.

6 3. An order permitting the respondent to give oral evidence at the hearing of this application.

7 3. The application was grounded on the affidavit of the respondent sworn on the 16 ^th November, 2007.

8 4. In this, his affidavit, the respondent avers to the ages of the children and the fact that in the course of the litigation, assessments had been carried out by Dr. Gerard Byrne, consultant psychiatrist, on a number of occasions as follows:-

9 · - the 27 ^th April 2001;

10 · - the 24 ^th June, 2003;

11 · - the 22 ^nd June, 2004;

12 · - the 22 ^nd November, 2005;

13 · - the 10 ^th July, 2007.

14 5. He avers that judgment was given by this Court in divorce proceedings between the parties on the 29 ^th November, 2006, and the divorce decree was perfected on the 2 ^nd March, 2007. The parties had separated in or about August, 1999, and the respondent father avers that there have always been significant difficulties and disputes in respect of the access which he enjoys to the children of the marriage, and that these have intensified since the hearing of the divorce action in July, 2006. He complains that there have been ongoing obstacles and difficulties put in his way and that he had to fight tenaciously to be allowed any type of reasonable access to the children. In an attempt to resolve these matters, the last s. 47 report was commissioned from Dr. Byrne. The respondent deals with correspondence between the solicitors of the parties following this report in 2007, in which the respondent alleges he sought to have access arranged in accordance with the report. In para. 9 of the affidavit, he draws particular attention to the fact that prior to the swearing of the affidavit, he had not seen G. for a period of eight weeks and had not seen P. for a period of five weeks. He complains that the applicant mother decides entirely of her own volition whether or not he is to see his children, and that when he is discussing matters with his children they are reluctant to do so without first referring to the applicant, who he claims is effectively in the background monitoring their telephone calls with him. He alleges that as a result of what is transpiring, the applicant is alienating the children from him, whether this is being done subconsciously or not, he does not know. He expressed concern about one of the children being in the care of a non family member while the applicant mother was in Germany and that G., in the past, had been taken out of religion class, and that he would have no alternative but to apply to have court assistance in relation to these matters. He complained that access had been interfered with in the mid-term break between the 27 ^th October and the 3 ^rd November, 2007. In addition to interference with his weekend access he had difficulty getting information in relation to the whereabouts of the children and arrangements for them on this weekend. He suggested that Christmas access should be alternated amongst the parents, so that the children are with one parent for the first half of the Christmas holidays, being approximately eight days, and with the other parent for the second half of the Christmas holidays with the periods alternated each year.

15 6. He further avers and suggests that Dr. Byrne's intervention in the case "has run its course" and that he does "not believe that any further intervention by him can be of any benefit to either the applicant, myself or to the children of the marriage". He avers that in order to avoid constant dispute on facts between the applicant and himself, it would be preferable to have a new assessment carried out by another specialist in the area of family therapy and assessment. He suggests a name of a suitability qualified person as "an honest effort to resolve issues" and to "break the log jam". He complained of a lack of consultation in relation to the purchase of orthotic treatment and its use, and also of lavish buying by the applicant mother of items refused to the children by the respondent, which he claimed undermined his relationship with the children and any sense of parental control that he had in respect of the children.

16 7. He says that in respect of the divorce proceedings, he has never discussed these or any related matters with the children, even though they have asked questions. However, he says that it is obvious from his conversations with the children that they are fully aware of much of what has transpired in these proceedings and this is interfering with his relationship with the children which he would otherwise consider to be a good relationship, notwithstanding what he alleges are the applicant's serious and consistent efforts to undermine the relationship and to bring a halt to it. He seeks the assistance of the court in all the matters of access and says that his concern is for the welfare of the children and the continuing development of his relationship with them. He complains that the applicant seems determined not to engage in any constructive dialogue on the issue, whether it is in relation to his access to the children or in relation to the children's social, moral and educational development, medical issues or other pertinent issues concerning the children. He says that he finds this most frustrating and distressing, more from the point of view of the children than himself.

8. The Applicant's replying Affidavit

17 2 8.1 The applicant filed an affidavit in reply, sworn on the 11 ^th December, 2007. The applicant denies that she has frustrated or hindered access. She claims that she has done her utmost to facilitate access by the respondent to the children but that he continuously finds fault and seeks to dictate unreasonable terms in respect of the access, and that he does not comply with the terms of access as recommended by Dr. Byrne. She refers to the five assessments of the children by Dr. Byrne and then in paras. 7-11 deals with the various assessments and reports of Dr. Byrne and the difficulties associated therewith presented by the respondent. She says that she received Dr. Byrne's final report on 10 ^th July, 2007 and that she has been willing to abide by the recommendations therein and has been doing so. She complains that whereas in the past Dr. Byrne recommended that G. should not be forced to go on access with her father, as is alleged can be seen from the correspondence exhibited in the...