P. v Q

• Jurisdiction: Ireland
• Judge: White Michael J.
• Judgment Date: 05 July 2012
• Neutral Citation: [2012] IEHC 593
• Judgment citation (vLex): [2012] 7 JIC 0504
• Court: High Court
• Date: 05 July 2012

[2012] IEHC 593

THE HIGH COURT

[No. 18 CAF./2012]

P v Q

CIRCUIT APPEAL

CIRCUIT COURT RECORD NO. 001125/2011

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989

AND IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN/

P.

APPLICANT

AND

Q.

RESPONDENT

FAMILY LAW ACT 1995 S47

KENNEDY & ARNOLD v IRELAND & AG 1987 IR 587 1988 ILRM 472 1988/2/367

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

GUARDIANSHIP OF INFANTS ACT 1964 S3

G v BORD UCHTALA 1980 IR 32

O'REILLY v LAHART UNREP SUPREME 9.11.1998 1998/29/11674

P (F) v P (S) 2002 4 IR 280 2002/23/5893

FAMILY LAW ACT 1995 S16(2)(I)

CONSTITUTIONAL LAW

Personal rights

Right to privacy - Discovery - Sexual activity - Welfare of child - Health and safety of parent - Whether welfare of child affected - Practice and procedure - Family law proceedings - In camera proceedings - Discovery - Illegally obtained evidence - Whether privacy breached illegally - Whether evidence admissible - Compagnie Financiare du Pacifique v Peruvian Guano Co [1882] 11 QBD 55; G v An Bord Uchtála [1980] IR 32; Kennedy v Ireland [1987] IR 587; M O'R v CL (Unrep, SC, 9/11/1998); FP v. SP [2002] 4 IR 280; R v Brown [1993] 2 All ER 75 and Sterling-Winthrop Group Ltd v Farbenfabriken Bayer Aktiengesellschaft [1967] IR 97 considered - European Convention on Human Rights, article 8 - Circuit Court order to disclose material affirmed (2012/18CAF - White J - 5/7/2012) [2012] IEHC 593

P v Q

Facts: The applicant husband and respondent wife were married in 1992 and subsequently had one child. Following a breakdown in the marriage, proceedings were issued on the 29th July 2012 pursuant to the Judicial Separation and Family Law Reform Act 1989. The appellant moved out of the family home in January 2012. It was his claim that after becoming concerned about the sexual activity of the respondent, he hired a private investigator who reported that she was regularly meeting another male at hotels. He also hired a computer expert who alleged that the respondent was engaging in various sexual activities and then posting photographs and videos onto the internet. The applicant stated that this activity was affecting the respondent”s ability to be a mother to their child and that there was a risk that the child would be exposed to such activities. He sought sole custody.

The respondent contended that following the breakdown of the marriage, she only became involved with one male who she commenced a relationship with. She admitted that the pair had posted photographs and videos online but that they could not be identified and were put onto subscription based adult websites. She denied that this activity had affected her child”s welfare and averred that he was unaware that it was happening. On the 20 ^th February 2012, the Circuit Court made an interim order for discovery of respondent”s emails and content of her mobile phones for the prior 6 months. The respondent appealed this decision on the ground that it was in breach of her right to privacy enshrined under Article 8 of the European Convention on Human Rights.

Held by Michael White J that the welfare of the child of the marriage was the paramount consideration as set out in s. 3 the Guardianship of Infants Act 1964. However, it was not for the court to deny custody or access to a child where a parent engaged in morally questionable sexual activity, as long as it didn”t affect the child”s welfare. In the case where a person”s health and safety were under threat due to the type of activity involved in, this had the potential to affect the child if anything untoward happened to the parent.

In terms of discovery, it was held to be a principle of family proceedings that material was discoverable even where a party claimed it was a breach of their privacy rights, subject to the direction of the court. It was accepted that there appeared to be illegality in the applicant”s conduct when gaining the passwords to the sexually explicit sites of which the respondent was a member which would have been a breach of her privacy rights. Nevertheless, this did not mean that the information gathered wasn”t admissible in light of the fact the paramount consideration was the welfare of the child.

It was held that the activities of the respondent had the potential to have an effect on the child and the interim order for discovery should be affirmed. The content would be disclosed in in camera proceedings so as to protect the respondent”s privacy rights as far as possible. There would also be a number of conditions: the material could only be used to determine the welfare of the child, with any material that fell foul of this use being returned to the respondent. If there was any dispute at to the relevance of the material, the presiding judge of the Circuit Court would adjudicate.

Interim order affirmed.

1 1. This is an appeal from an interim order of the Circuit Court of the 20 ^th February, 2012, which directed the respondent to discover all e-mail accounts held by her and the mobile phone numbers xxxxxxxxx, (provider 02), UK sim card mobile number xxxxxxxx. US sim card mobile number xxxxxxxxx (provider T mobile), and in addition all text messages held in respect of the mobile phone accounts. The discovery period is six months prior to the order of the 20 ^th February, 2012.

2 2. The parties were married on the 28 ^th December, 1992. They have one child aged 14 who was born on the 5 ^th March, 1998. The applicant is a German citizen and the respondent is a United States citizen. The applicant is an engineer; the respondent is a full time homemaker. The parties met in North Carolina, U.S.A and lived there for a number of years before moving to California where they lived for 6 years. The parties moved to Dublin in August 2007, when the applicant commenced a contract with a company based in Ireland.

3 3. The applicant issued proceedings in the Circuit Court on the 29 ^th July, 2011, seeking a judicial separation and moved out of the family home in January 2012.

4 4. The background to the order of discovery is the disputed sexual activity of the respondent.

5 5. In his affidavit of the 3 0 ^th January, 2012, grounding the application for discovery the applicant avers that he became concerned that the respondent was involved in a third party relationship prior to the breakdown of the marriage. On further investigation it became clear that the respondent had been accessing different websites with a sexual content. He commissioned an investigator to carry out surveillance on the respondent, who reported that she was meeting a male regularly at two hotels and booking into a room at the hotels.

6 6. Subsequently he retained the services of a computer expert, who accessed the sites the respondent was using.

7 7. The respondent alleges that the passwords for her laptop computer and the access codes for the sites were kept in a locked safe, which the applicant must have accessed illegally.

8 8. The applicant alleges that the respondent has been accessing gay, kink, fetish, bondage and swinger websites, having sexual intercourse with either one or a number of gay men, then photographing and videotaping this activity and putting it up on a website. He alleges that this has become an obsessive and addictive activity on the part of the respondent, which severely affects her ability to care for the child. He is also concerned that the child has or may come into contact with explicit sexual material involving his mother.

9 9. In the respondent's affidavit sworn on the 20 ^th February, 2012, she avers that she became involved in a loving relationship which commenced after the breakdown of her marriage in November 2011. She withheld this information from the applicant because she feared for her physical safety. She denies that she has been engaged in multiple affairs, and avers that she has accessed legal adult sexual content websites in the privacy of her own home, which is viewed also by her partner.

10 10. She accepts that her partner and herself have an exhibitionist streak and have posted explicit pictures and comments of their time together but neither of them has ever posted their names nor could they have been identified. The sites on which the photos were posted were subscription only websites, protected by personal codes and passwords. She further denies that she is engaged in risky sexual behaviour, and claims she has had only one partner, who loves and respects her.

11 11. She denies that the activity has interfered in any way with the child's welfare and he has had no knowledge of this activity.

12 12. She is very upset about the allegation that the child is not her priority, as she avers his care has been the main focus of her life since his birth and the implication that she is a child abuser, has been deeply painful to her. She avers that she respects the applicant personally and as the father of her child, but that he has not reciprocated and believes that the application for sole custody is a desire on the applicant's part to hurt her, and not based on the needs or welfare of the child.

13 13. By separate order of the 20 ^th February, 2012, the Circuit Court pursuant to s. 47 of the Family Law Act 1995, appointed Professor Jim Sheehan to carry out an assessment. Professor Sheehan prepared a written report of the 8 ^th May, 2012 and gave preliminary evidence before the Circuit Court on the 9 ^th March, 2012.

14 14. Counsel on behalf of the respondent, has objected to the admissibility of this report, on the grounds that it was prepared subsequent to the order for discovery of the 20 ^th February, 2012 and should not form part of the...