M.P. v A.P. (Practice: in camera)

• Jurisdiction: Ireland
• Judgment Date: 26 June 1996
• Date: 26 June 1996
• Docket Number: [1991 No. 683 Sp]
• Court: High Court

High Court

[1991 No. 683 Sp]

M.P. v. A.P. (Practice: in camera)

In the matter of the Judicial Separation and Family Law Reform Act, 1989, and in the matter of the Guardianship of Infants Act

1964.

M.P.

Plaintiff

and

A.P.

Defendant

John Connolly

Applicant

Cases mentioned in this report:—

In re Kennedy & McCann [1976] I.R. 382.

Marrinan v. Vibart [1963] 1 Q.B. 528; [1963] 3 W.L.R. 912; [1963] 3 All E.R. 380.

R. v. Gray [1900] 2 Q.B. 36.

S. (P.S.) v. Independent Newspapers (Ireland) Ltd. (Unreported, High Court, Budd J., 22nd May, 1995).

Watson v. M'Ewan, Watson v. Jones [1905] A.C. 480; [1905] W.N. 130.

Practice and procedure - Family law - Proceedings to be heard "otherwise than in public" - Expert witness - Complaint to third party in respect of expert's conduct - Whether complaint breached in camera nature of proceedings - Whether complaint a contempt of court - Whether court entitled to rule on question of contempt of court - Whether protection of witness from civil proceedings in respect of evidence given extends to immunity from professional disciplinary proceedings - Guardianship of Infants Act, 1964 (No. 7), s. 11 - Judicial Separation and Family Law Reform Act, 1989 (No. 6), ss. 34, 40.

Application for directions.

The facts have been summarised in the headnote and are fully set out in the judgment of Laffoy J., infra.

By order of the High Court (Budd J.) of the 10th November, 1993, it was ordered that the plaintiff and defendant should have joint custody of the children of their marriage and that they should have access in accordance with an agreement that they had reached by consent. Paragraph 9 of the consent provided that "[i]n the event of any disagreement in regard to the running of access arrangements, the first recourse by both parties will be a joint meeting with Dr. John Connolly to enable an agreed settlement to be developed."

Further to a report furnished to the plaintiff by the applicant in respect of the proceedings, the defendant, in his capacity as a client of the applicant, made a complaint to the Psychological Society of Ireland of which the applicant was a member. The applicant was asked by the Society to comment upon the defendant's complaint.

By motion on notice dated the 24th July, 1995, the applicant sought directions from the High Court whether he was at liberty to enter into discussions with the Society concerning the matter, having regard to the in camera rules in matrimonial proceedings and the privilege attaching to his advices and evidence.

By motion on notice dated the 26th March, 1996, the applicant re-entered the earlier motion and further sought the directions of the High Court whether the defendant was entitled to maintain the complaint to the Society in light of the privileges attaching to the applicant as a witness in respect of the correspondence and advices, the subject matter of the complaint.

The application was heard by the High Court (Laffoy J.) on the 5th and 6th June, 1996.

Section 34 of the Judicial Separation and Family Law Reform Act, 1989, provides that proceedings taken under the Act shall be heard otherwise than in public.

Section 40 of the Act inserts in s. 11 of the Guardianship of Infants Act, 1964, the following:—

"(5) The court may, of its own motion or on an application under this section, . . . procure a report from such person as it may nominate on any question affecting the welfare of the infant."

The plaintiff and defendant, a wife and husband respectively, obtained a decree of judicial separation in May, 1992, at which time they agreed custody and access terms in respect of the children of the marriage. Disputes arose between the plaintiff and the defendant and the matter of custody and access was re-opened before the High Court; ultimately, in November, 1993, a settlement was reached in the terms of a consent between the parties which recited, inter alia, at paragraph 9 thereof that "in the event of any disagreement in regard to the running of access arrangements, the first recourse by both parties will be a joint meeting with [the applicant] to enable an agreed settlement to be developed." The consent was received as part of the order of the High Court.

In June, 1994, further disputes having arisen the defendant applied to the High Court for the attachment and committal of the plaintiff for alleged breaches of paragraph 9 of the consent. At the request of the plaintiff's solicitors, the applicant dealt in writing with certain factual matters contained in the affidavit grounding the defendant's application; in addition, the applicant expressed a view in respect of the issue of access that was favourable to the plaintiff and criticised the defendant's capacity to act as a parent to the children.

The applicant's letter came to the attention of the defendant who wrote to the applicant asking that certain alleged factual inaccuracies be corrected and inviting the applicant to revise the conclusions which he had reached. The applicant did not accede to the defendant's requests and, following further correspondence, the defendant in his capacity as a client of the applicant made a complaint to the Psychological Society of Ireland ("the Society") of which the applicant was a member, requesting that it investigate whether the applicant had acted fairly, reasonably and professionally in his dealings with the plaintiff and the defendant. The applicant was asked by the Society to comment on the defendant's complaints and applied to the High Court for directions whether he was at liberty to discuss the matter with the Society and whether the defendant was entitled to maintain his complaint having regard to the in camera rules of the court in matrimonial proceedings and in light of the privileges attaching to the applicant as a potential witness in respect of the correspondence and advices.

For the applicant it was contended that he was entitled to declaratory relief to the effect that he ought not deal with the complaint as that would involve a breach of privilege and publication of matters the subject of in camera proceedings, contrary to s. 34 of the Judicial Separation and Family Law Reform Act, 1989. The applicant submitted that his role, by virtue of paragraph 9 of the consent, was similar to the role of an expert appointed under s. 40 of the Act of 1989. Counsel for the plaintiff contended that any dissemination of information to third parties relevant to the issues in the proceedings breached the in camera rules and constituted a contempt of court. It was further contended that s. 34 of the Act of 1989 was mandatory and afforded a court no discretion to permit any disclosure of information of the proceedings to third parties. For the defendant it was submitted that the applicant's position was one of a mediator and not analogous to that of an expert engaged pursuant to s. 40 of the Act of 1989. Further, it was contended that the only issue which the court had jurisdiction to deal with was whether there had been a breach of the in camera rules and it was argued that not all such breaches constituted a contempt of court.

Held by Laffoy J., in giving directions, 1, that s. 34 of the Act of 1989, was mandatory; in making the complaint to the Society, the defendant divulged to the public confidential matters arising out of proceedings taken under that Act and, accordingly, contravened that section.

2. That the court had an inherent jurisdiction to take whatever steps were necessary on its own motion to ensure...