P. v Q

• Jurisdiction: Ireland
• Judgment Date: 05 July 2012
• Date: 05 July 2012
• Docket Number: [2012 No. 18 CAF.]
• Court: High Court

P. v. Q.

P.

Applicant

and

Q.

Respondent

[2012] IEHC 593,

[2012 No. 18 CAF.]

High Court

Constitutional law - Right to privacy - Discovery - Sexual activity - Welfare of child - Health and safety of parent - Whether welfare of child affected - European Convention on Human Rights 1950, article 8.

Practice and procedure - Family law proceedings - In camera proceedings - Discovery - Illegally obtained evidence - Whether privacy breached illegally - Whether evidence admissible.

The respondent was directed by the Circuit Court to discover email and mobile phone accounts in the course of family law proceedings. These documents were sought as evidence of the respondent's sexual activity which the applicant alleged affected her ability to care for their child. The respondent appealed this order to the High Court on the basis that she had a constitutionally protected right to privacy and that any sexual activity that she had engaged in had not interfered in any way with the child's welfare.

Held by the High Court (M. White J.), in affirming the order of the Circuit Court subject to additional conditions, 1, that the court must respect the right of an adult whose marriage had irretrievably broken down to engage in consensual sexual activity in private. Moral repugnance of certain types of sexual activity should not, of itself, be a ground for any restriction on custody or access to a child of the marriage, unless it was demonstrably shown that this activity affected the welfare of the child. The court must also consider the health and safety of the parent.

• G. v. An Bord Uchtála [1980] I.R. 32 andKennedy v. Ireland [1987] I.R. 587 considered.

2. That disclosure of material to a court in the administration of justice applied equally to in camera proceedings as in other proceedings. To permit otherwise could routinely deprive a court in matrimonial proceedings of proper disclosure were parties to be permitted to rely on privacy rights.

Compagnie Financiare du Pacifique v. Peruvian Guano Co.[1882] 11 Q.B.D. 55, M. O'R. v. C.L.(Unreported, Supreme Court, 9th November, 1998) andF.P. v. S.P. (Medical examiner: Discovery) [2002] 4 I.R. 280 considered.

3. That a court should always be reluctant to admit evidence or approve discovery which was tainted with illegality but that was not to say that on all occasions where illegality was suspected or found, the evidence so obtained would not be admissible. This was particularly so when dealing with the welfare of a child.

Cases mentioned in this report:-

Compagnie Financiare du Pacifique v. Peruvian Guano Co. [1882] 11 Q.B.D. 55.

G. v. An Bord Uchtála [1980] I.R. 32; (1980) 113 I.L.T.R. 25.

Kennedy v. Ireland [1987] I.R. 587; [1988] I.L.R.M. 472.

M. O'R. v. C.L. (Unreported, Supreme Court, 9th November, 1998).

F.P. v. S.P. (Medical examiner: Discovery) [2002] 4 I.R. 280.

R. v. Brown [1993] 2 All E.R. 75.

Sterling-Winthrop Group Ltd. v. Farbenfabriken Bayer A.G.[1967] I.R. 97.

Appeal from the Circuit Court

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

The respondent issued a notice of appeal on the 28th February, 2012, from the judgment of the Circuit Court delivered on the 20th February, 2012, in which discovery of certain documents were granted.

The appeal came on for hearing before the High Court (M. White J.) on the 21st June, 2012.

Cur. adv. vult.

M. White J. 5th July, 2012

[1] This is an appeal from an interim order of the Circuit Court of the 20th February, 2012, which directed the respondent to discover all e-mail accounts held by her and the mobile phone numbers (provider O2), United Kingdom sim card mobile number, United States sim card mobile number (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 20th February, 2012.

[2] The parties were married on the 28th December, 1992. They have one child aged 14 who was born on the 5th 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, United States of America and lived there for a number of years before moving to California where they lived for six years. The parties moved to Dublin in August, 2007, when the applicant commenced a contract with a company based in Ireland.

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

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

[5] In his affidavit of the 30th 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] Subsequently he retained the services of a computer expert, who accessed the sites the respondent was using.

[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...