McG v F

• Jurisdiction: Ireland
• Judge: Mrs. Justice Denham
• Judgment Date: 17 January 2001
• Neutral Citation: [2001] IESC 2
• Docket Number: [S.C. No. 174 of 2000]
• Court: Supreme Court
• Date: 17 January 2001

[2001] IESC 2

THE SUPREME COURT

Denham, J.

Murray, J.

Geoghegan, J.

174/00

McG v. F (ORSE McG)

BETWEEN

McG

PETITIONER/APPELLANT

AND

F(OTHERWISE McG)

RESPONDENT

Citations:

MCG (P) V F (A) UNREP BUDD 28.1.2000 1999/17/5283

EASTERN HEALTH BOARD V K (M) 1999 2 IR 99

MATRIMONIAL CAUSES & MARRIAGE LAW (IRL) AMDT ACT 1870

F (U) (ORSE C) V C (J) 1991 2 IR 330

Synopsis:

Nullity

Family; nullity suit; role of medical inspector; petitioner seeking a decree that marriage was null and void due to the fact that the parties lacked capacity to enter into and/or sustain a normal lifelong marital relationship; petitioner seeking directions in regard to the medical inspector; whether medical inspector has power to interview persons other than the parties for the purpose of his report to the court.

Held: Appeal dismissed.

McG. v. F. - Supreme Court: Denham J., Murray J., Geoghegan J. - 17/01/2001 - [2001] 1 IR 599 - [2001] 2 ILRM 326

The petitioner had sought the appointment of a medical inspector in regard to a nullity suit. Permission was however refused by the High Court (Budd J) for the medical inspector to interview anyone other than the parties themselves. The petitioner appealed this order. Denham J, delivering judgment, held that the order of the High Court was correct and dismissed the appeal.

1 Mrs. Justice Denhamdelivered on the 17th day of January, 2001.

1. Appeal

2 At issue on this appeal is the extent of the role of the medical inspector in a nullity suit. This is an appeal by the Petitioner/Appellant McG, hereinafter referred to as the Petitioner, from a judgment of the High Court (Budd J.) delivered on 28th January,2000.

2. Facts

3 The Petitioner presented a petition to the Central Office on 31st January, 1997 seeking a decree that the marriage celebrated between the Petitioner and Respondent is null and void. Itwas petitioned that the purported marriage between the parties is null, void and of no legal effect by reason of the fact that the Petitioner and Respondent lacked the capacity to enter into and/or sustain a normal lifelong marital relationship with each other as a result of their respective states of mind, mental conditions, emotional and psychological development at the date of the said marriage. The Respondent denied the allegations and in the formal Answer stated that the proceedings amount to an abuse of the processes of the Court by the Petitioner and involve his seeking to evade proceedings for judicial separation. The said separation proceedings, which had commenced in 1996, were adjourned subsequent to the extraction of the citation for nullity of the marriage. By Notice of Motion the Petitioner sought an order appointing medical inspectors to examine the parties pursuant to the Rules of the Superior Courts.

4 The Petitioner proposed and the Respondent concurred that Dr. Gerard Byrne, psychiatrist, be appointed medial inspector. The order of the Master of 14th May, 1997 stated:

"By Consent IT IS ORDERED that this Action shall be set down for trial before a Judge without a jury and be entered in the lists of trial with a lodgment of the proper documents in the Central Office and that the issues to be tried be:"

1. Whether the Petitioner lacked the capacity to enter into and/or sustain a normal lifelong marital relationship with the Respondent by reason of his state of mind mental condition or emotional and psychological development at the date of the ceremony of marriage or by reason of her state of mind mental condition or emotional and psychological development at the date of the ceremony of marriage.

2. Whether the Respondent lacked the capacity to enter into and/or sustain a normal lifelong marital relationship with the Petitioner by reason of her state of mind mental condition or emotional and psychological development at the date of the ceremony of marriage or by reason of his state of mind mental condition or emotional and psychological development at the date of the ceremony of marriage.

3. Whether the Petitioner gave a full free and informed consent to the said marriage.

4. Such other issues as to the Court shall seem fit.

5 And IT IS ORDERED that Dr. Gerard Byrne Psychiatrist be and he is hereby appointed to carry out a psychiatric rather than a physical examination of the Petitioner and also of the Respondent and to report in writing to the Court thereon the said examination to be carried out at such time and place as may be agreed between the parties and the Registrar of the Central Office.

6 And IT IS ORDERED that the said reports by the said Dr. Gerard Byrne be transmitted by him by registered post in a sealed envelope addressed to the Master of the High Court Four Courts Dublin 7.

7 And IT IS ORDERED that the said Petitioner and the Respondent and their respective Solicitors and Psychiatrist appointed as aforesaid do attend the aforementioned times and places in order that the said Petitioner and Respondent may then and there be identified as the parties in this cause to be examined as aforesaid.

8 And IT IS ORDERED that the Petitioner do pay the proper fees of said Medical Inspector and said Psychiatrist without prejudice as to the question of the ultimate liability in respect thereof."

9 The Petitioner and Respondent each attended with Dr. Byrne twice and separately. It transpired that during one of the interviews between the Petitioner and Dr. Byrne the Petitioner requested that Dr. Byrne speak to five persons outside the parties, four who were friends of the Petitioner and the fifth being the Petitioner's brother. The Petitioner by Notice of Motion dated 11th March 1998 sought directions of the High Court, in regard to the medical inspector appointed, including:

10 2 "2. If necessary, in particular, an Order granting liberty to the medical inspector to interview persons other than the parties hereto in order to assist him with his report to this HonourableCourt;

11 3. Further, an Order granting liberty to the Petitioner to disclose to the medical inspector diaries of the Respondent relevant to the matters at issue between the parties."

12 The Respondent objected strongly to non-parties being interviewed. Further, she alleged that her diary had been stolen by the Petitioner and should not be given to the medical inspector.

13 The matter came before Kinlen J. on 24th April, 1998. However, no order was made. During the summer of 1998 there was correspondence. Dr. Byrne indicated that he intended to interview persons other than the parties. Dr. Byrne stated that interviews with informants were a standard practice in carrying out a psychiatric assessment when a personality disorder was suspected. He stated that it was for this reason that he wished to interview the other persons. In February 1999 it was apparent that Dr. Byrne was intending to proceed with the interviews of the persons other than the parties. The Respondent issued a Motion, dated 19th February 1999, seeking directions in regard to the medical inspector appointed and

"An Order directing the medical inspector to carry out his duties within the remit of the Order of the Master of the High Court dated 14th day of May 1997 and to deliver to this Honourable Court a report based on his findings subsequent to his having interviewed the parties to this action, forthwith."

3. High Court

14 The issues relating to the ambit of the medical inspector's inquiry and the diary of the Respondent came before Budd J. Written submissions were ordered. The matter was heard on 23rd July and on 16th, 17th, 18th and 24th November, 1999. Judgment was delivered on 28th January, 2000. In a judgment setting out a thorough analysis of the law of nullity and the place of medical inspectors therein Budd J. held:

"Accordingly I have come to the conclusion that the medical inspector in the present case should operate within the terms of the Order of theMaster and should interview the parties and report without moving into...