D.E. v C.D.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Bronagh O'Hanlon |
| Judgment Date | 10 July 2015 |
| Neutral Citation | [2015] IEHC 496 |
| Court | High Court |
| Docket Number | Record No: [2015/16CAF],[2015 No. 16 CAF] |
| Date | 10 July 2015 |
[2015] IEHC 496
THE HIGH COURT
FAMILY LAW
O'Hanlon J.
Record No: [2015/16CAF]
IN THE MATTER OF L.D., A MINOR
Family law Guardianship – Guardianship of Infants Act 1964 – Family Law Act 1995 – Stay on order of Circuit Court pending substantive appeal – S. 38 of the Courts of Justice Act 1936
Facts: The respondent/appellant sought an order for stay on the order of the Circuit Court directing the preparation of a social report under s.47 of the Family Law Act 1995 in order to ascertain the voice of the child, pending the substantive appeal of the judgment of the Circuit Court on foot of which the aforesaid order was made. The applicant contended that the Court had no jurisdiction to grant a stay since the proceedings in relation to the appeal were ongoing and that part-heard case would not be amenable to appeal.
Ms. Justice Bronagh O'Hanlon refused to grant a stay on the order of the Circuit Court. The Court held that it had jurisdiction to grant a stay on every judgment of the Circuit Court from which the impugned order emanated by virtue of s. 38 (1) of the Courts of Justice Act 1936. The Court before granting a stay must adopt a two-way approach. Firstly, the Court must assess whether the appeal that was to be filed was bona fide and if the answer was in the affirmative, the Court must assess where the balance of convenience leaned. The Court found that though the appeal was being perused for good reason on the ground that the respondent/appellant had abused their daughter, yet the balance of convenience favoured that the impugned order must be executed as it was made for the welfare of the child. The Court observed that the findings of the Court resting the premise that the sexual allegations against the appellant/respondent were untrue would not have any bearing on the recommendations of the social worker for grant of access of the child to the appellant/respondent as he would be more concerned with the welfare of the child.
The current application arises from proceedings that are extant before the Circuit Court, where D.E. (the applicant/respondent) is seeking numerous reliefs pursuant to the Guardianship of Infants Act 1964 in respect of the parties' child, L.D. In the Circuit Court proceedings, D.E. seeks the following reliefs:
(a). An order pursuant to section 6A of the Act of 1964, granting him guardianship of L.D.
(b). An order pursuant to section 11 of the Act of 1964, granting him access to L.D.
(c). If necessary and appropriate, an order pursuant to section 11 of the Act of 1964, granting the applicant custody of L.D.
During the course of the aforementioned proceedings, his Honour Judge Keenan Johnson of the Circuit Court heard evidence of allegations of sexual abuse perpetrated by D.E. upon L.D. These allegations formed C.D's (the respondent/appellant) substantive objection to D.E. having access to L.D. However, D.E. denies these allegations categorically.
In the Circuit Court, it was agreed that a social report, pursuant to s.47 of the Family Law Act 1995, be conducted so that the voice of the child could be ascertained and relayed to the Court on the issue of prospective access between the applicant/respondent and the child. However, the learned Circuit Court Judge decided to adjudicate on whether the sexual abuse as alleged occurred prior to appointing an appropriate expert to conduct the s.47 report. It seems that the learned Circuit Court Judge choose this course of action so as to ensure that any prospective s.47 report, carried out for the purposes of the Circuit Court proceedings, would be informed by the Court's adjudication on whether the alleged sexual abuse occurred.
On the 18th March, 2015, his Honour Judge Keenan Johnson, in a detailed and nuanced judgment, found that the aforementioned allegations of sexual abuse were untrue. In turn, the learned Circuit Court Judge directed the preparation of a s.47 report premised on the finding that the allegations of sexual abuse were untrue, and his observations on this point are noteworthy (at para.73 of the Circuit Court judgment):
'73. Accordingly, I am adjourning this matter to allow for the preparation of a s.47 report which will advise on the resumption of access. Such report is to be predicated on the basis that the allegations of abuse are not true. The author of the report must then look at access in terms of what is in the best interests of L.D. The court will look for guidance from the author of the report as to what steps need to be taken by L.D. and D.E. to re-establish access. The primary guiding principle behind the s.47 report should be that its recommendations reflect what is in the best interests of L.D., even if such recommendations are that access should not take place for the present.'
On the 27th March, 2015, the respondent/appellant filed a notice of appeal seeking to appeal the judgment of the Circuit Court delivered on the 18th March, 2015. On foot of this judgment, the Circuit Court issued an order directing the appointment of Mr. Robert Foley to conduct a s.47 assessment in respect of L.D. for the purposes of preparing a social report for the Court. This order is dated the 18th May, 2015.
On the 18th May, 2015, the respondent/appellant applied for a stay on the aforesaid order pending the appeal of the Circuit Court judgment. However, the Circuit Court refused the respondent/appellant's application for a stay.
On the 22nd May, 2015, the respondent/appellant filed a notice of appeal outlining her intention to appeal the decision of the Circuit Court to decline a stay on its order appointing Mr. Robert Foley to produce a social report on L.D pursuant to s.47 of the Family Law Act 1995.
The current application arises from the respondent/appellant's notice of motion dated the 22nd May, 2015, seeking a stay on the order of Circuit Court dated the 18th May, 2015, pending the substantive appeal of the Circuit Court judgment. This Court heard this motion on the 26th June, 2015 and on the 3rd July, 2015. The Court requested written submissions from both parties, and it has considered these submissions extensively.
Two issues arise from the current application. The first issue pertains to whether this Court has jurisdiction to grant a stay on the aforementioned Circuit Court order where the substantive proceedings are extant before the Circuit Court. In summation, the applicant/respondent adopts the position that this Court does not have jurisdiction to hear that substantive appeal of the Circuit Court judgment and in turn, this Court does not have jurisdiction to impose a stay on the Circuit Court order pending that substantive appeal. The respondent/appellant counters this proposition. If this Court is to decide that it has jurisdiction in regard to the first issue, the Court must decide the second issue of whether a stay should be imposed on the Circuit Court order dated the 18th May, 2015 pending the substantive appeal of the Circuit Court judgment.
From the outset, it is important to note that the respondent/appellant does not object to a s.47 report being conducted. Rather, the respondent/appellant objects to the premise upon which the report is to be conducted.
On the issue of whether this Court has jurisdiction to hear the substantive appeal of the Circuit Court judgment of the 18th March, 2015, and in turn grant a stay on the Circuit Court order, counsel for the respondent/appellant directed the Court to s.38 of the Courts of Justice Act 1936 which states;
'38. An appeal shall lie from every judgment or order (other than judgments and orders in respect of which it is declared by this Part of this Act that no appeal shall lie therefrom and judgments and orders in respect of which other provision in relation to appeals is made by this Part of this Act) of the Circuit Court in a civil action or matter—
(a) where such judgment or order is given or made by a judge of the Circuit Court for the time being assigned to and sitting in the Dublin Circuit, to the High Court sitting in Dublin, and
(b) in every other case, to the High Court on Circuit sitting in the appeal town for the county or county borough in which the action or matter resulting in such judgment or order was heard and determined.
(2) Every appeal under the section shall be heard and determined by one judge of the High Court and shall be so heard by way of a rehearing of the action or matter in which the judgment or order the subject of such appeal was given or made.
(3) The judge hearing an appeal under this section may, if he so thinks proper on the application of any party to such appeal, refer any question of law arising in such appeal to the Supreme Court by way of case stated for the determination of the Supreme Court and may adjourn the pronouncement of his judgment or order on such appeal pending the determination of such case stated and, in particular, may so adjourn such pronouncement to Dublin and there pronounce his said judgment or order at any time after such determination.'
Counsel for the respondent/appellant referred to s.38(1) of the Courts of Justice Act 1936 and that the order of words contained in the statutory provision should be given their ordinary and natural meaning. In turn, the respondent/appellant submits that if the Court is to accede to interpreting s.38(1) of the Act of 1936 in a manner that gives the words contained therein their natural and ordinary meaning, it is axiomatic that every judgment or order (except for specific judgments and orders stipulated within part IV of the Act of 1936, of which no such judgment or orders arise in...
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