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

Facts The appeal was brought by GM who sought to challenge the High Court order made on 12 th December 2014 by Michael White J. It was ordered that overnight access of two young children with their father, GM, would be suspended for a period of time and 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 26 th March 2015. The couple married abroad in September 2006. They had two children who are now aged 9 and 7. Proceedings commenced in 2010. MM sought judicial separation and ancillary relief. GM instituted proceedings for a declaration of nullity, or in the alternative, judicial separation and ancillary relief. The main issue in contention was that of custody and access. The case involved lengthy litigation and the judge endeavoured to ensure the welfare of the infants was of paramount consideration. The Court made MM the primary custodial parent and the children would reside with her in Dublin. The judge put in place structured access arrangements which would involve two visits to Dublin every month by GM and one visit by the children to GM”s Belfast residence, however this plan was never realised. MM was uncooperative with the judge”s order in relation to overnight access. She failed in her obligation to facilitate access to GM, the non-custodial parent. The judge was of the view that the only thing he could do in order to provide a period of respite was not to proceed with overnight access for a few months in the hope that the parents would show a greater sense of responsibility. He also thought a period of respite in terms of the ongoing litigation war would be beneficial to the parties and to the children.

Held The judge was entitled to make an order curtailing overnight access. Section 11 Guardianship of Infants Act 1964 provides the widest powers to the Court to make orders as it thinks proper on questions affecting the welfare of an infant. Thus, the judge did not believe the Court ought to intervene and alter in any way the directions given by the judge concerning overnight access. However, the judge went on to say the latter part of the order could not stand as preventing further applications to the Court would constitute a denial of access to the Courts on an important question, namely, infant welfare. Such denial was not in conformity with constitutional norms.

-The judge declined to interfere with the High Court order in respect of the suspension of overnight access. The order purporting to prohibit further applications by way of enforcement or review in respect of the welfare of the infants was to be set aside.


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...

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