M (M) v M (G)


[2015] IECA 29


Kelly J.

Irvine J.

Hogan J.

Appeal No. 01/2015
M (M) v M (G)
In the matter of the Judicial Separation and Family Law Reform Act 1989 and
In the matter of the Family Law Act 1995





1/2015 - Kelly Irvine Hogan - Court of Appeal - 23/2/2015 - 2015 IECA 29

Family law - Litigation - Judicial separation and ancillary relief - Custody and access - Appeal - Challenge to High Court order - Suspension of overnight access - Order purporting to prohibit further applications in respect of the children by way of enforcement or review - Welfare of children of paramount importance - Period of respite


1. This appeal is brought by GM against an order of Michael White J. made on the 12 th December, 2014. Two parts of that order are challenged.


2. The first is that which suspended overnight access being had by the parties' two young children with GM. The second is that part of the order which directed that no further application was to be made to the High Court in respect of the two children either by way of enforcement or review before the 26 th March, 2015.


3. In order to understand how that order came to be made it is necessary to sketch out briefly the background to this litigation.


4. MM and GM were married abroad in September, 2006. They have two children. One was bom in 2006 and is now nine years of age. The other was bom in 2007 and is now seven years of age.


5. MM is now in her 56 th year whilst GM is in his 70 th.


6. MM was previously married and had two children who are now adults. That marriage ended in divorce in 1990. In the year following her divorce she had another child. MM is a grandmother since one of her daughters of the first marriage has a child.


7. GM was also married before. That marriage ended in divorce. He has one daughter by that marriage who is now in her forties. Thus, neither MM or GM are devoid of experience in rearing children.


8. These proceedings commenced in 2010. MM sought a judicial separation and ancillary relief. GM also instituted proceedings for a declaration of nullity or in the alternative judicial separation and ancillary relief.


9. It is fair to say that since the institution of these proceedings the parties have expended huge amounts of time, effort and money in litigating practically every issue that one could think of in a matrimonial dispute. Practically all of these matters have been dealt with by Michael White J. who has had seisin of the case since March 2012.


10. The original trial before him lasted fourteen days and there have been numerous applications which have been back before him and at least one other judge on many occasions since.


11. In April 2013, Michael White J. delivered a judgment running to some 259 paragraphs excluding the nine schedules appended to it. It dealt comprehensively with the matters in dispute. One of those matters was custody and access for the two young children of the marriage. The judge laid out what he described as a road map for custody and access in respect of those children.


12. The same judge delivered another judgment on the 19 th March, 2014, dealing inter alia with custody and access of the children.


13. In the meantime an appeal had been taken to the Supreme Court in respect of a lump sum order which had been made in April 2013. In November, 2013, the Supreme Court directed payment by GM of a lump sum of €1.8 million in two instalments of €1 million and €800,000 respectively pending appeal.


14. The question of custody and access was back before the High Court again in December 2014 and it gave rise to the order which is now under appeal.

This Appeal

15. In preparing for this appeal and judgment, I have had to acquaint myself with what has gone on in the High Court between these parties during the course of this litigation. The parties are conducting a litigation war against each other. They are each, in their respective ways, extremely difficult people and I entirely agree with the High Court judge when he said that the court is "challenged to the very limit to try and deal with them". In that regard the High Court judge is to be complimented for the extraordinary patience and commitment that he has shown to this case. He has shown great skill in endeavouring to bring some order to the parties' fractious and fractured relationship. It is clear that throughout, despite all the difficulties with which he was confronted, the judge has endeavoured to ensure that the welfare of the infants is the first and paramount consideration to be borne in mind.


16. The judge has heard a huge amount of evidence, and in particular from MM and GM, an advantage which this Court does not have. In approaching this appeal, I bear in mind the views of the Supreme Court in S. v. S. (Unreported, 21 st February, 1992) in dealing with an appeal against a custody order granted in favour of a father by the High Court, where it said:

"Having regard to the decision in Hay v. O'Grady it is clear that the court is bound by the primary findings of fact, which have been made by the learned trial judge upon the oral evidence before him if there is evidence to support such findings. I am also satisfied that having regard to the principles laid down in that decision, this is a case in which in many instances this Court should be particularly careful of reaching a different inference from the facts so found than that which was reached by the trial judge."

Quite clearly, if any question of error in principle has occurred in the findings and decisions of the trial judge concerning the welfare of the children and the vital question as to in whose custody they should be placed, this Court must intervene. Since, however, this Court does not have the opportunity to view and hear the oral evidence of the parents or guardians concerned, it should in my view, in general, be slow to replace the decision of the judge who has had that opportunity."

The custody/access regime

17. Just as the parties to this litigation contested financial matters, factual matters in relation to the nature of their relationship and the breakdown of that relationship, so they also contested issues concerning the parenting of the two young children. The conflicts and issues as to where the children would reside and whether there would be joint custody were resolved by orders made in the High Court. The result is that MM is the primary custodial parent and the children reside with her in Dublin. The High Court constructed what it described as access orders that were not "too intense". In that regard, the High Court did not follow certain recommendations which were made by Prof. Sheehan who has been involved in this litigation for a long time and has played an important role in endeavouring to try and facilitate the custody and access regime in respect of the two children. GM does not live in this State and originally Prof. Sheehan was of the view that there should be more than a single visit a month by the children to the city where GM resides. The High Court took the view that that would be too much and instead put in place structured access arrangements which would involve two visits to Dublin every month by GM at which access could be enjoyed and one visit by the children to GM's residence. That was the judge's plan, but sadly it has never been realised.


18. One of the difficulties that has manifested itself is a reluctance on the part of MM to tell the children that their parents are separated. The judge has been endeavouring to address that for a very long time and took the view that it had caused what he described as "huge problems for the children and has been very retrograde for their welfare". It is difficult to understand MM's attitude on this topic. The children are now of an age where they probably know of the separation.


19. The judge has endeavoured to try and impress on the parties the huge responsibility which they have to their children and in particular MM's responsibility to facilitate access to the non custodial parent. She appears to have difficulty with this. Both parties have chosen not to listen to the court on occasions in relation to aspects of the welfare of the children.


20. In the plan of the judge, overnight access was to be enjoyed in Belfast by the children on a regular basis with their father. The first time that that was to occur was at the end of October 2014. It is fair to say that in anticipation of that, GM did all that was required of him by the judge including the provision of a nanny who would be present. The judge was impressed with this nanny and this arrangement was approved of by Prof. Sheehan.


21. The evidence given by the nanny was that the children were settling down well on the evening of 30 th October 2014, when an engagement took place between MM and the nanny...

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