P (F) v P (S)

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 17 December 2002
• Neutral Citation: 2002 WJSC-HC 5893
• Court: High Court
• Docket Number: [2000 No. 3 M]
• Date: 17 December 2002

2002 WJSC-HC 5893

THE HIGH COURT

Rec. No. FL 3/2000

P (F) v. P (S)

Circuit Family Law

FAMILY LAW

EASTERN CIRCUIT CO. KILDARE

IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN

F P

APPLICANT

AND

S P

RESPONDENT

Citations:

FAMILY LAW ACT 1995

O'REILLY V LAHART UNREP SUPREME 9.11.1998 1998 29 11674

STERLING-WINTHROP GROUP LTD V FARBENFABRIKEN BAYER 1967 IR 97

COMPAGNIE FINANCIERE DU PACIFIQUE V PERUVIAN GUANO CO 11 QBD 55

S (J) V S (C) 1997 3 FAM LJ 78

RUSSELL V RUSSELL 1924 AC 687

S V S 1983 IR 68

J(S) V M(J) 1998 1 FAM LJ 9

W (W) V B (P) UNREP BARR 18.3.1999 1999 25 8018

MCG V F 2001 1 IR 599 2001 2 ILRM 326

Synopsis:

PRACTICE AND PROCEDURE

Discovery

Appointment of medical examiner - Role of medical examiner - Whether examiner should have access to medical/psychiatric records of respondent for purpose of preparing report in nullity petition - Whether examiner would be exposed to hearsay in such records (2000/3FL - O'Neill J - 17/12/02)

P(F) v P(S) - [2002] 4 IR 280

Facts: the applicant was granted an order by the Circuit Court that all medical/psychiatric records relating to the respondent prior to the marriage be furnished to the medical examiner appointed for the purposes of the applicant's nullity petition. The Circuit Court restricted the order to discovery to the medical examiner only and not to the applicant himself. The respondent appealed that order on the grounds that the medical examiner would be exposed to hearsay in the form of medical/psychiatric records prepared by other medical practitioners.

Held by O'Neill J in affirming the order of the Circuit Court that the applicant was entitled to discovery of the material encompassed in the order but without the restriction imposed, so that he could himself use the material either to advance his own case or damage the case of the respondent. However, in light of the fact that the applicant was satisfied with the restriction imposed by the Circuit Court, that restriction would not be interfered with.

1 O'Neill J.delivered the 17th day of December 2002.

2 This is an appeal taken by the Respondent against the order of the Circuit Court (His Honour Judge Groarke) made herein on the22 ^nd day of November 2000, whereby the Circuit Court ordered as follows:

3 2 "1. An order for discovery of, and full access to, any relevant medical/psychiatric records in respect of the Respondent herein, as required by the appointed medical examiner, Dr. J L Consultant Psychiatrist. Any such records to be made available to Dr.himself.

4 2. A list of medical doctors, psychiatrists, psychologists attended by the Respondent should be furnished to the Applicant.

5 The Applicant gave an undertaking not to make contact with any of the people on such list, save for the purpose of serving witness summonses in the event of the hearing of this case. Any breach of the undertaking would be deemed to be incontempt of court. Such list to be furnished within seven days. Mr. S, solicitor for the Respondent, should furnish to Dr. L a copy of the said list within seven days. Also a list of medical and psychiatric notes and records in possession of persons on aforesaid list be made available to Dr. L and then full discovery of records required to be made available to Dr. L. No such documentation/records to be made available to Mr. P. Liberty to apply. Allow seven days for a list of people to be furnished to Mr. P. Allow seven days for list of people to be furnished through Dr. L. Allow fourteen days draft for list of records to be furnished to Dr. L. Allow fourteen days thereafter for actual records to be discovered by Dr. L."

BACKGROUND

6 The Applicant by his civil bill issued on the 9 ^th February 2000 claims pursuant to the Family Law Act 1995an order of the Circuit Court declaring that the ceremony of marriage between the Applicant and the Respondent is null and void. His claim is made on the grounds that at the time of the said ceremony of marriage the Applicant and/or the Respondent lacked the capacity to enter into a normal functioning lifelong marriage having regard to their state of mind and/or mental condition and/or emotional development and/or personality disorder and/or psychiatric illness and further that the Applicant and/or the Respondent lacked the capacity to sustain such relationship with each other having regard to these factors and further or in the alternative that the ceremony of marriage between the Applicant and Respondent was null and void, ab initio, because the Applicant did not give the requisite full free and informed consent to the marriage.

7 On foot of a Notice of Motion, on the 19 ^th day of May 2000 the Circuit Court (His Honour Judge Groarke) made an order in the following terms

8 1. "That a medical/psychiatric examiner in respect of the Applicant and the Respondent herein be appointed pursuant to the application for a decree of nullity as filed by the Applicant herein on the 9 ^th February 2000 AND THE COURT DOTH HEREBY APPOINT Dr. JL of the Academic Centre of the Department of Psychiatry, James Connolly, Memorial Hospital Blanchardstown, Co. Dublin for thispurpose.

9 2. AND THE COURT DOTH MAKE AN ORDER for discovery of documents in the power control or procurement of the Respondent that is to say, that a list of medical doctors, psychiatrists and psychologists simpliciter attended by the Respondent should be furnished to the Applicant;AND

10 3. THE COURT DOTH MAKE no order in respect of paragraph 2, paragraph 4 and paragraph 5 of the Notice of Motion."

11 Upon the hearing of this appeal against the order of the Circuit Court made the 22 ^nd November 2000 it was at the outset clarified by Counsel for the Appellant/Respondent that the appeal was only against paragraph 1 of the order of the 22 ^nd November 2000 and such portion of paragraph 2 as required the disclosure or furnishing of medical and psychiatric notes of records. There was no objection to the furnishing of a list of medical doctors, psychiatrists and psychologists as had been ordered in paragraph 2 of the order of the 19 ^thMay 2000.

12 The Applicant who appeared in person as a lay litigant submitted asfollows:

13 1. That the documents sought to be discovered were manifestly relevant to the grounds upon which the decree of nullity was sought and hence thelearned Circuit Court Judge was correct to make the order appealed against. In this regard the Applicant relied upon the unreported judgment of the Supreme Court (O'Flaherty J.) delivered ex-tempore on the 9 ^th November 1998 which he submitted was directly on point. The following passage from the judgment of O'Flaherty J. being of particular relevance;

"It is so that over the last ten years or more the scope of the nullity jurisdiction of the courts has been expanded very much from the previous 100 years and it is in that context that this motion should be considered Both the Master and the High Court Judge permitted limited discovery in regard to any treatment and so forth that the Respondent might have received for seven years before the marriage. No medical documents coming into existence after the marriage were to be subject to the order. I think that really is to curtail the remedy of discovery and while family law matters have to be treated with special care and decorum, nonetheless the rules of court apply in family law matters as they do elsewhere. The law is not in doubt. It is old law as laid down in Compagnie Financiere du Pacifique -v- Peruvian GuanoCo. 11 Q.B.B. 55 which is being consistently followed by our courts. All documents relevant to matters in issue have to be disclosed To quote from the judgment of Bref L.J. which is reproduced in the judgment delivered by Kenny J. in Sterling-Wingthrop Group Limited -v- Farbenfabriken Bayer Aktiengesellschaft (1967) I.R.. 97; "it seems to me that every document relates to the matter in question in the action which not only would be evidence upon any issue, but also which it is reasonable to suppose, contains information whichmay, not which must, either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words "either directly or indirectly "because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these twoconsequences."

This is this situation. These medical reports may well support the case that we understand from Ms. Dunne that she will want to present namely there is no question of the Respondent suffering from any form of, to use a very neutral expression "deficit" emotional or otherwise, that would have called the legality of the marriage in question. It is, of course, the case that unhappy differences have arisen between the parties which may require separation but that is another day's work

I propose that there should simply be, substituting for what the Master did and what Kinlen J. affirmed, an order of discovery in the ordinary way which would require all relevant documents to be discovered and it is then for the Respondent's legal advisors - giving the matter the greatest care which they undoubtedly will do of course - to decide what should be disclosed and what should not."

14 2. He submitted that as the Circuit Court had jurisdiction to order the appointment of a medical/psychiatric examiner and as such appointment was not an infringement of the Respondent's constitutional right toprivacyor bodily...