PMcG v AF
| Jurisdiction | Ireland |
| Judge | Mr. Justice Declan Budd |
| Judgment Date | 28 January 2000 |
| Neutral Citation | [2000] IEHC 11 |
| Court | High Court |
| Docket Number | No 54M/1996 |
| Date | 28 January 2000 |
[2000] IEHC 11
THE HIGH COURT
BETWEEN
AND
Citations:
MCGEE V AG 1974 IR 284
KENNEDY & ARNOLD V AG 1987 IR 587, 1988 ILRM 472
TRIMBOLE V GOV OF MOUNTJOY PRISON 1985 IR 567
AG, PEOPLE V O'BRIEN 1965 IR 142
HILDEBRAND V HILDEBRAND 1992 1 FLR 244
S (J) V S (C) (ORSE CT) 1997 2 IR 506
D V C 1984 ILRM 173
J (RS) V J (JS) 1982 ILRM 263
F (U) (ORSE UC) V C (J) 1991 2 IR 330, 1991 ILRM 79
RSC O.70 r32
MATRIMONIAL CAUSES & MARRIAGE LAW (IRL) AMDT ACT 1870 S23
MATRIMONIAL CAUSES & MARRIAGE LAW (IRL) AMDT ACT 1870 S24
MATRIMONIAL CAUSES & MARRIAGE LAW (IRL) AMDT ACT 1870 S25
MATRIMONIAL CAUSES & MARRIAGE LAW (IRL) AMDT ACT 1871 S8
MATRIMONIAL CAUSES & MARRIAGE LAW (IRL) AMDT ACT 1871 S10
RSC O.70 PART IX
RSC 1986 SI 15/1986 APPENDIX L FORM 8
RSC 1986 SI 15/1986 APPENDIX L FORM 9
D (C) V D (E) UNREP HENCHY 21.6.1971
T (KW) V T (DA) 1992 2 IR 11
O'R V B 1995 2 ILRM 57
MATRIMONIAL CAUSES & MARRIAGE LAW (IRL) AMDT ACT 1871 S6
MATRIMONIAL CAUSES & MARRIAGE LAW (IRL) AMDT ACT 1871 S19
CHADDOCK V CHADDOCK EX-PARTE VERAX 1860 29 LJ PM & A 55, 6 JUR (NS) 348
DIVORCE & MATRIMONIAL CAUSES ACT 1857 S27
DIVORCE & MATRIMONIAL CAUSES ACT 1857 S28
Y V Y 1860 1 SW & TR 598, 8 WR 273
THOMPSON V THOMPSON 1961 105 SJ 108
FAMILY LAW ACT 1995 S38
FAMILY LAW ACT 1995 S47
FAMILY LAW ACT 1995 S47(6)
SHATTER FAMILY LAW (1997) 215
RSC O.70 r30
T (R) V P (V) 1990 1 IR 545
R V TURNER 1975 QB 834
F V F 1990 1 IR 348
ENGLISH EXPORTERS (LONDON) LTD V ELDONWALL LTD 1973 1 CH 415
MAPP V GILHOOLEY 1991 2 IR 253
WRIGHT V DOE 1838 4 BING NC 489
MATRIMONIAL CAUSES & MARRIAGE LAW (IRL) AMDT ACT 1870 S13
CIRCUIT COURT RULES (NO 1) 1997 (JUDICIAL SEPARATION & FAMILY LAW REFORM ACT
1989 & FAMILY LAW (DIVORCE) ACT 1996) SI 84/1997
CCR O.78 r24
CCR O.78 r24(d)
FAMILY LAW ACT 1995 S47(1)
Synopsis
Family Law
Family; nullity; powers and duties of medical inspector appointed in respect of nullity petition; respondent's diary removed surreptitiously by petitioner and without former's consent; whether inspector could view diary of respondent; whether inspector entitled to interview third-party informants who may have information which would assist the inspector in undertaking a psychiatric examination.
Held: Medical inspector should prepare report without recourse to diary in the absence of a future discovery motion; inspector's report to be confined to an assessment on the basis of interviews with the parties to proceedings; if both parties were to consent to the medical inspector interviewing third-party informants, then the Court might sanction such an interview in particular circumstances.
McG. v. F. - High Court: Budd J. - 28/01/2000
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.
JUDGMENT of Mr. Justice Declan Budd delivered on the 28th day of January 2000.
By Order of the Master of the High Court made on 14th May, 1997 Dr. Gerard Byrne was appointed as medical inspector for the purposes of this petition for nullity of marriage. The directions of the court have been sought because of controversy as to the scope of the powers and duties of the medical inspector and in particular in respect of conflicts as to whether the inspector may view (i) a video of the wedding, and (ii) the contents of a 1993 diary, the property of the Respondent, which was removed from her home by the Petitioner. Thirdly directions are sought on the question as to whether the medical inspector should, or is entitled to, interview third-party informants who may have information which might assist the medical inspector, an experienced consultant psychiatrist, in respect of his diagnosis of the state of mind of the parties around the time of the ceremony of marriage in September 1993.
In this contested nullity application it may be helpful if I set out a brief history of how this motion for directions has come before this court. The petition was presented on 1st October, 1996 in respect of the alleged marriage which took place on 25th September, 1993. There are no children of the marriage. Dr. Gerard Byrne was appointed as medical inspector by Order of the Master made on 14th May, 1997. The Respondent attended for interview with Dr. Byrne on 13th August, 1997 and on 26th August, 1997. The Petitioner then attended on Dr. Byrne on 23rd September, 1997 and on 6th January, 1998. According to the Petitioner in his Affidavit sworn on 10th March, 1998 at paragraph 4, he advised Dr. Byrne that, in relation to certain matters, there were persons other than the parties who had information and knowledge relevant to the relationship between the parties and it was his opinion, which he expressed to Dr. Byrne, that it would be important that Dr. Byrne speak with these people. He listed these people as four friends of himself, the Petitioner, and his brother. At paragraph 5 of this Affidavit he said that he had come into possession of a diary written by the Respondent in which there are entries in her handwriting very relevant to the issues and that he came into possession of this when he found it on the kitchen work top in the family home towards the end of September 1996. In a replying Affidavit sworn on 31st March, 1998 the Respondent questioned the relevance of the third-party informants. It was clear from the sequence of interviews that Dr. Byrne had interviewed her twice before he interviewed the Petitioner from whom he became aware of the Petitioner's belief that these persons might have information of relevance. As for the diary, the Respondent only became aware that her diary was missing when she received a copy of the Petitioner's Affidavit sworn on 10th March, 1998 and then searched the box containing her private and personal possessions and discovered that the 1993 diary was missing from the box which she kept in a wardrobe in her bedroom in the family home. She says that it was not possible that the Petitioner could have found the diary on the kitchen work top in the family home as it could only have been taken by extraction from the box and she regarded the removal and retention of her diary as amounting to a theft of her personal property and seeks the return thereof and any copies made of the contents of her personal diary.
By Order of the Master made on 14th May, 1997 Dr. Gerard Byrne was appointed to carry out a psychiatric rather than a physical examination of the Petitioner and 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. It was also Ordered that the Petitioner and Respondent and their respective Solicitors and the psychiatrist so appointed should attend at the agreed time and place in order that the Petitioner and Respondent may then and there be identified as the parties in this cause to be examined. By the same Order the Master fixed the issues to be tried as to whether the Petitioner or the Respondent lacked the capacity to enter into and/or sustain a normal life-long marital relationship with the other party by reason of his or her state of mind, mental condition or emotional and psychological development at the date of the ceremony of marriage or by reason of his or her state of mind, mental condition or emotional and psychological development at the date of the ceremony of marriage and whether the Petitioner gave a full free and informed consent to the said marriage and such other issues as to the court shall seem fit. Thus the psyche of each of the parties at the time of the marriage is much in issue.
In view of the suggestion that Dr. Byrne should interview five third-party informants and also the suggestion that the medical inspector should view entries made by the Respondent in her handwriting in her diary made in the year of the wedding ceremony, it was thought prudent that directions should be sought from the High Court. A motion dated 11th March, 1998 was issued seeking directions from the court. This motion came before the High Court on 24th April, 1998. Neither party has furnished a copy of the Order made on that day but my understanding is that the court declined to make any specific order but indicated that the interviewing of third-party informants could lead to difficulties. In the ensuing months issues crystallised in correspondence between the Solicitors. It became clear that the medical inspector felt that interviews with third-party informants, who had known the parties at the time of the marriage, could assist him in forming an opinion as to whether either party was suffering from a personality disorder at that time. The Petitioner had supplied the medical inspector with the names and addresses of five prospective third-party informants. The Respondent's Solicitor contended that such interviews would involve stepping outside the scope of the order made by the Master of the High Court as this was confined to the conduct of an examination of each of the parties and the preparation of a report based on such examination. By letter dated 11th August, 1998 Dr. Byrne wrote to the Respondent's Solicitor saying that he intended to proceed with interviews with the five third-party informants as interviews with informants are a standard practice in carrying out a psychiatric assessment when a personality disorder is suspected. He also said that he intended to view the wedding video and invited an application to court for clarification if there was objection to his taking these courses of action.
As for the objection to the medical inspector viewing the wedding video, I am happy...
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