S. O'N v C.D.

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 26 July 2018
• Neutral Citation: [2018] IEHC 478
• Court: High Court
• Docket Number: [2017 No. 274 J.R.]
• Date: 26 July 2018

[2018] IEHC 478

THE HIGH COURT

JUDICIAL REVIEW

McDermott J.

[2017 No. 274 J.R.]

BETWEEN

S. O'N.

APPLICANT

AND

C. D.

RESPONDENTS

Judicial review – Certiorari – Divorce – Applicant seeking judicial review – Whether the trial judge acted in breach of the applicant's constitutional and natural law rights to fair procedures

Facts: The applicant applied to the High Court for judicial review by way of a telescoped hearing. He sought an order of certiorari quashing the order of His Honour Judge Keenan Johnson dated 9th March, 2017, granting a decree of divorce pursuant to the provisions of s. 5(1) of the Family Law (Divorce) Act 1996, and other ancillary orders. He also sought a stay on the order of the 9th March pending the determination of these proceedings. In his statement required to ground the application for judicial review, he advanced five grounds of review: 1) the trial judge acted in breach of the applicant's constitutional and natural law rights to fair procedures by failing observe the principle of audi alteram partem; 2) the judge acted in breach of fair procedures by allowing the respondent to introduce evidence, namely a draft settlement agreement deriving from previous mediation proceedings, which was likely to sway the judge in favour of the respondent's claim and which the judge ought to have known was inadmissible; 3) the order of 9th March was wrong on its face insofar as it states that the order was made by consent, which the applicant denied; 4) the judge misdirected himself as to the terms of ss. 20(1) and 20(2)(i) of the 1996 Act; 5) the judge failed to adhere to the provisions of ss. 5(2), 11(b) and 15(1)(f) of the 1996 Act.

Held by McDermott J that there was no breach of the applicant's right to fair procedures, in particular his right to be heard; the applicant participated in and received a full and fair hearing in respect of the issues that fell to be determined by the court. McDermott J held that the ultimate order made in respect of custody and access was by consent; there was no evidence to suggest that the trial judge considered, applied and/or adopted any draft agreement as alleged by the applicant. McDermott J held that leave to apply for judicial review should not be granted because the paragraphs in respect of periodic maintenance for the parties' child and the family home were not stated to be outside the consent given; if the applicant wished to have that aspect of the order amended he might make an application under the slip-rule. McDermott J was satisfied that the judge formed a clear view that it would not be unjust to disregard the conduct alleged by the applicant against the respondent; he was fully aware of its nature and extent as it was set out extensively in the pleadings and affidavits which he read. McDermott J held that it was clear that the judge believed the material to be irrelevant to the issues which he had to determine and that no injustice would be done by disregarding it; on the contrary it was clear from the transcript that he considered that the issue of fault which is so much focussed upon by the applicant was not a matter which he considered to be of assistance in determining the issues in the case. McDermott J held that the judge was entitled to take that view and acted within jurisdiction in so doing. McDermott J was satisfied having regard to the fact that the applicant consented to the terms of the custody and access terms which were ruled by the judge and became part of the order that there was no failure to engage the relevant statutory provisions relied upon. McDermott J held that that the applicant was precluded by his conduct from challenging that part of the order by way of judicial review. McDermott J was also satisfied that the applicant by his conduct in seeking by consent to have the pension adjustment order made in January 2018 approbated the order of the Circuit Court and clearly invoked the court's jurisdiction to do so within and under the terms of the order which he sought to challenge. McDermott J held that the applicant had thereby waived or abandoned his entitlement to and was precluded from obtaining relief by reason of that conduct.

McDermott J held that he would refuse the application.

Application refused.

JUDGMENT of Mr. Justice McDermott delivered on the 26th day of July, 2018

1 This is an application for judicial review by way of a telescoped hearing. The applicant seeks an order of certiorari quashing the Order of His Honour Judge Keenan Johnson dated 9th March, 2017, granting a decree of Divorce pursuant to the provisions of s. 5(1) of the Family Law (Divorce) Act 1996, and other ancillary orders. He also sought a stay on the Order of the 9th March pending the determination of these proceedings.

Background

2 The parties to this application were married on 29th December, 2007. They have one child H. who was born on 13th February, 2009. C.D.'s daughter from a previous relationship S also resided with them. Unhappy differences arose in the marriage and the applicant left the family home in or about November 2011. The respondent issued judicial separation proceedings in Laois Circuit Court in January 2013. On 23rd February, 2016, a further civil bill was issued by C.D. seeking a Decree of Divorce, the couple at that stage having lived separate and apart for four of the previous five years from the date of the initiation of proceedings as required by the Family Law (Divorce) Act 1996. The parties attempted to reach an agreement by undertaking mediation but these efforts were unsuccessful and an order was made on 11th January, 2017 by her Honour Judge Flanagan directing that the proceedings be adjourned for hearing on a contested basis. In the interim, the applicant sought orders by way of judicial review directing the release of a s. 47 Report prepared by a Professor Sheehan and an order directing that Her Honour Judge Flanagan be recused from hearing the family law proceedings then pending. The applicant also obtained an order of certiorari quashing the decision of the Circuit Court dismissing his appeal against a barring order obtained against him by the respondent.

3 By Family Law Civil Bill dated 23rd January, 2013 the respondent in these proceedings, C.D. sought a decree of judicial separation under s. 3 of the Judicial Separation and Family Reform Act 1989 for various ancillary or related orders in respect of the family home, custody and access to their child H., maintenance, an order extinguishing the respondent's succession act rights in her estate, and various other reliefs including an order pursuant to s. 47 of the Act in respect of H. Affidavits of means and welfare were delivered in respect of H. and S. then aged twelve. The affidavit of means states that there was a joint mortgage in the sum €261,166.47 over the family home. An appearance was entered on 7th February, 2013. In his affidavit of means the respondent indicated that the family home was registered in the respondent's sole name and that the applicant and the respondent were joint mortgagees of the premises. The estimated value placed upon the family home by Mr. N. was €150,000.00. The mortgage was paid jointly by the couple.

4 S.O'N delivered a defence and counterclaim to the Family Law Civil Bill dated 21st February, 2013. While rejecting the basis for the judicial separation sought by C.D., he counterclaimed for a decree of judicial separation and sought custody of H. and access to S. He also sought an order pursuant to s. 10(1)(a)(ii) of the Family Law Act 1995 directing the sale of the family home and that the proceeds of sale or remaining debt after the discharge of the mortgages on the property be distributed equally between the parties.

5 On 18th April, 2013 when attending the Circuit Court in respect of a Barring Order Appeal by S.O'N. access terms were agreed between the parties following an allegation of breach by C.D. of access terms. By Notice of Motion dated 25th November 2013 returnable to 9th December S O'N sought custody of H. He claimed that C.D was in breach of the access agreement. C.D. claimed that she had sought changes in the terms of access and it was clear from the affidavits exchanged between the parties that each had an entirely different view of the behaviour of the other party towards each other and the children. Affidavits were exchanged outlining their respective grievances in considerable detail. In the concluding paragraph of his replying affidavit S.O'N indicated that he looked forward to the conclusion of the Circuit Court proceedings and the issuing of a decree of judicial separation and the probability of divorce at a future stage. He wished to finalise the details of his judicial separation by mutual consent including custody and access.

6 By order made 28th March, 2014 Her Honour Judge Flanagan directed that access be accorded to S.O'N with H. every Tuesday and Thursday between 5.00 and 8.00pm with SO'N to collect H. from the crèche at 5.00pm and C.D. to collect him from the SO'N's home at 8.00pm. Further access to SO'N was granted every Saturday from 10.00am until Sunday at 3.00pm until the final determination of the case. The matter was adjourned to Wednesday 2nd April, 2014 to allow time to agree an assessor for a s. 47 report.

7 On 2nd April, 2014 Her Honour Judge Flanagan directed the preparation of a s. 47 report by Professor James Sheehan in respect of all issues arising regarding access and custody to H. and directing that copies of all affidavits filed by the parties in relation to the issue of custody be forwarded to Professor Sheehan prior to the commencement of his assessment in May 2014. It was directed that the report be furnished to the Circuit Court office in Portlaoise and an application could then be made to the court concerning the release of same. On 7th November, 2014 the court directed the release of the s. 47 report dated 6th...