K.P. v L.P.

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Allen
• Judgment Date: 21 March 2024
• Neutral Citation: [2024] IECA 63
• Docket Number: Appeal Number: 2023 266

In the Mater of the Family Law (Divorce) Act, 1996

As Amended by the Family Law Act, 2019

Between/

K.P.

Applicant/Appellant

and

L.P.

Respondent/Respondent

[2024] IECA 63

Whelan J.

Allen J.

Meenan J.

Appeal Number: 2023 266

THE COURT OF APPEAL

CIVIL

Enforcement order – Access – Family therapy – Appellant seeking an enforcement order in respect of an order providing for access by the appellant to the parties’ eldest child – Whether the respondent was responsible for the breakdown of contact between the parties’ eldest child and the appellant

Facts: The appellant father appealed to the Court of Appeal against the judgment of the High Court (Jordan J) delivered on 26th June, 2023 and consequent order made on 6th July, 2023, refusing an application by the father for an enforcement order in respect of a High Court order providing for access by the father to the parties’ eldest child. By notice of appeal filed on 16th October, 2023 the father appealed against the judgment and order of the High Court on 27 grounds which, in the written submissions, were grouped into three main themes: (a) the allocation of responsibility for the failure of access; (b) the suitability of the assessor and the deference to her evidence; and (c) the family therapy order and its supervision. The respondent mother opposed the father’s appeal on all grounds and cross-appealed against so much of the order of 6th July, 2023 as directed that the parties attend family therapy “on the basis that such an order could only be made as part of an enforcement order pursuant to s. 18A(4)(c) of the Guardianship of Infants Act, 1964.”

Held by Allen J that the father’s application to the High Court for the enforcement of the custody order was unfocussed. Given that it was issued by the father pro se, Allen J found that this was understandable. Allen J found it regrettable that it was not later recast and argued in the statutory framework. Allen J noted that, having heard the oral testimony of the parties and the court appointed expert and carefully reviewed the oral, affidavit and documentary evidence, the High Court judge was not persuaded that it was the mother who was responsible for the breakdown of contact between the parties’ eldest child and her father. Allen J found that the judge’s conclusion was based on a reasoned analysis of the evidence and findings of fact which might have been difficult to upset on appeal but against which there was no appeal. Allen J noted that, as the trial judge was required by the Constitution and by law, he gave directions for an expert report of the views of the child. Allen J noted that there was an oblique attack on the expertise and experience of the court appointed expert but there was no challenge to the trial judge’s conclusion that the views of the child as expressed in the expert’s report were the authentic views of the child. Allen J noted that, as the trial judge was required by the Constitution and by law, he gave due weight to that view, having regard to the age and maturity of the child. Allen J noted that, as the trial judge was expressly asked by the mother and at least implicitly asked by the father, he made an order that the family therapy to which the parties had agreed should continue.

Allen J found no error and dismissed the appeal and cross appeal. It seemed to Allen J, provisionally, that as the mother had been entirely successful in resisting the appeal, she was entitled to an order for her costs. Allen J found that, while it was not obvious that the cross appeal added anything to the costs, that may be a matter for the legal costs adjudicator. In principle, and again provisionally, it seemed to Allen J that the father was entitled to the costs of the cross appeal.

Appeal and cross appeal dismissed.

NO FURTHER REDACTION NEEDED

JUDGMENT of Mr. Justice Allen delivered on the 21 ^st day of March, 2024

Introduction

1 . This is an appeal against the judgment of the High Court (Jordan J.) delivered on 26 ^th June, 2023 and consequent order made on 6 ^th July, 2023, refusing an application by the appellant (“the father”) for an enforcement order in respect of a High Court order providing for access by the father to the parties' eldest child.

Background

2 . The appellant (“the husband”) and the respondent (“the wife”) were married in the mid 2000's and lived together until the late 2010's when, unhappy differences having arisen, they separated. There are four children of the marriage the eldest of whom, a girl, Child A, was born in 2009 and the youngest some years later.

3 . In the years immediately following the breakdown of the marriage there was protracted and bitter litigation in relation to the custody of and access to the children. In May, 2018, the wife commenced proceedings seeking a judicial separation and ancillary relief. In 2020 – the parties having in the meantime lived separate and apart for upwards of two years – it was agreed that the husband would issue divorce proceedings. That was duly done and the proceedings were determined by the High Court as an application for divorce.

4 . On 15 ^th December, 2020 the High Court (Faherty J.) delivered a carefully considered written judgment. At that time, Child A was not quite twelve years of age and the youngest was about six and a half.

5 . Faherty J. awarded joint custody to the parties, the children to reside with the mother. She ordained a very detailed regime for access by the father, setting out a four-week cycle which would see the children in the care of the father for the weekend for three of the four weeks of the cycle and midweek in the other week. Faherty J. made provision for bank holidays, school holidays, midterm breaks, and Christmas; specifying the times and places at which, and the parent by whom, the children were to be dropped and collected.

6 . For some reason the order of the High Court was not perfected until 27 ^th July, 2022 but the decision of the court as to custody and access was very clearly spelled out in the judgment and the regime was implemented reasonably satisfactory for about two and a half years. I do not overlook the father's averment that the mother leveraged the absence of a perfected court order in order to dictate and control access arrangements: but if there were difficulties from time to time, the directions of the court were broadly adhered to.

7 . In September, 2022 the regime broke down.

8 . Child A was due to spend the weekend of 17 ^th September, 2022 with her father. She was then aged about thirteen and a half. By the letter of the order she was to have been collected from school by her father but – perfectly sensibly and reasonably – it had been arranged that she would make her own way to her father's house. However, when she left school, Child A went to her mother's house and, regretfully, has not since then stayed with her father. Indeed since that time contact between Child A and the father had been almost exclusively by text message.

9 . The father blames the mother for the breakdown in the access arrangements. The mother maintains that Child A independently decided that she no longer wished to stay with her father, or, indeed, to have any in person contact with him.

10 . On 22 ^nd September, 2022 the father had had the mother served with a copy of the order of 27 ^th July, 2023 with a penal endorsement.

The High Court application

11 . By notice of motion issued on 24 ^th October, 2022 the father applied to the High Court for a variety of reliefs. Until shortly before then, the father had been legally represented but he issued the motion on his own behalf. He sought an order providing for “compensatory access” for the eight nights and nine days that – as of the date of issue of the motion – Child A was not in his care, proposing the dates in January, 2023 on which he would have that additional access. He sought an order requiring the mother to facilitate, encourage and support the children to have professional therapeutic support and an order requiring the mother to enrol in and attend a “Parenting when Separated” course and to abide its recommendations. And “further, and only in the event that the [mother] continues to frustrate contact between the [father] and the children” an order for the attachment and committal of the mother. The notice of motion did not identify the legal basis on which the several orders were sought.

12 . The father's application was grounded on a long affidavit the substance of which was that from August, 2022, the mother had persistently breached the perfected court order. He deposed that Child A was being manipulated, pressured and coerced by the mother into doing and saying what the mother wanted rather than what Child A herself wanted. By reference to the judgment of Faherty J., he asserted that the mother had exhibited a clear pattern of exaggerating and fomenting difficulties. And he deposed that the mother had “breached the court order by withholding [Child A] and her belongings.” On 9 ^th November, 2022 the father filed a supplemental affidavit, spelling out that he simply wanted the existing court order to be followed.

13 . On 17 ^th November, 2022 the mother swore a long replying affidavit in which she took issue with much of what the husband had said. The mother deposed that whenever difficulties arose with access, the father became hostile, defensive and offensive. The mother deposed that she had encouraged Child A to go to her father's house but that Child A had refused. The mother identified the triggering factor as the father's announcement to the children on 27 ^th August, 2022 of his intention to re-marry. The father's partner was the mother of small children who were staying in the father's house when the parties' children were there. Child A, said the mother, was twelve and a half years of age and she could not physically force the child to go to the father's...