SP v UG

• Jurisdiction: Ireland
• Judge: Mr. Justice Henry Abbott
• Judgment Date: 10 June 2016
• Neutral Citation: [2016] IEHC 693
• Date: 10 June 2016
• Court: High Court
• Docket Number: [2015 No. 21 CAF] [2015 No. 9 CAF]

[2016] IEHC 693

HIGH COURT

Abbott J.

[2015 No. 21 CAF]

[2015 No. 9 CAF]

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

AND IN THE MATTER OF THE FAMILY LAW ACT 1995

CIRCUIT COURT APPEAL No. 1982/007

BETWEEN

S.P.

APPLICANT

AND

U.G.

RESPONDENT

Family – The Family Law Act 1995 – Judicial Separation – Vacation of Isaac Wunder order – Avoidance of vexatious litigation

Facts: The applicant had filed an appeal against the order of the President of the Circuit Court for refusing to vacate the Isaac Wunder order made against the applicant to the effect that the respondent could not file any application in any Court without leave of the President of the Circuit Court. The applicant contended that the said order was contrary to the established constitutional principles of right to access of courts and European Convention on Human Rights. The respondent argued that since the applicant had made an earlier application, which was dismissed by the High Court, the applicant was precluded by making the present appeal on the basis of res judicata.

Mr. Justice Henry Abbott allowed the appeal filed by the applicant in part. The Court held that it would vary the Isaac Wunder order to the effect of granting liberty to the parties to proceed with their divorce proceedings. The Court also held that the parties were at liberty to present any matter before the Court in relation to access and custody of the children that could be litigated fairly and meaningfully. The Court observed that the Isaac Wunder orders were granted to avoid wasting the resources of the Court in vexatious litigation and those orders did not operate as absolute bar to the litigation.

JUDGMENT of Mr. Justice Henry Abbott delivered on the 10th day of June, 2016

1 The applicant in this appeal seeks an order reversing the order of the President of the Circuit Court, refusing to vacate the Isaac Wunder order granted by Her Honour Judge Heneghan in the Circuit Court on 23rd February, 2011.

Terms of the Order

2 The relevant part of the order states at para. 7 as follows:-

‘The court does make an Isaac Wunder order against the respondent that he cannot apply to make application to any court, District Court, Circuit or High without leave of the President of the Circuit Court.’

Background

3 The applicant and the respondent were married to each other and have obtained a decree of judicial separation. The proceedings seeking judicial separation issued on 24th January, 2007, and as indicated by a schedule of dates of appearances prepared by the applicant at the request of the court during the course of case management of this matter and other related matters there followed between January, 2007 and July, 2014 about 96 court applications, the respondent and the applicant initiating such applications at different times. It is fair to say that the vast majority of applications related to matters of custody and access to the children of marriage who lived with the respondent after the separation especially when they moved away from the city to a rural location.

History of Isaac Wunder Order

4 The Isaac Wunder order itself has been subject to a number of applications. Suffice to say that most importantly, the High Court refused an application for certiorari in respect of the said Isaac Wunder order on 27th July, 2012. The said application had been made in respect of other matters arising from an order of Judge Reynolds in the Circuit Court but these matters do not concern this judgment. Of importance is the last recital in the order of the High Court (Hogan J.) dated 27th July, 2012, as follows:-

‘…an on hearing the said applicant in person and counsel for the notice party (the wife) and they indicating to the court that an application was made to the President of the Circuit Court on 25th July, 2012, seeking the lifting of the said Isaac Wunder order made in the Circuit Court and that application was refused and it appearing by reason of the existence of the Isaac Wunder order that the court has no jurisdiction in the matter where the applicant did not have leave pursuant to the terms of that order and in these circumstances it would appear that leave was improvidently granted.’

5 It was ordered that the judicial review proceedings do stand dismissed as having been irregularly commenced. It appears that as a prelude to the making of the order on 27th July, 2012, Hogan J. instructed the applicant to apply to the then President of the Circuit Court, Mr. Justice Matthew Deery, for leave to bring the judicial review proceedings against the Isaac Wunder order. It appears that Deery J. took the view the Circuit Court had no jurisdiction in the matter and did not act.

6 The applicant subsequently applied to the successor of Deery J., Mr. Justice Raymond Goarke, President of the Circuit Court and he refused to grant leave. This refusal of the President of the Circuit Court for leave appears to have been made by order dated 25th July, 2012.

7 The applicant again applied to the President of the Circuit Court to have the said Isaac Wunder order vacated on 18th March, 2015, and on the same date, the said application was refused and it is in respect of that order that the instant appeal arises.

Preliminary Points

8 Counsel for the respondent raised two points which should be dealt with as preliminary points before dealing with the substance of the appeal. Firstly, he submitted that the High Court sitting as an appellate court dealing with this appeal did not have jurisdiction to vacate, reverse or in any way deal with the order of the President of the Circuit Court by reason of the fact that the President of the Circuit Court is ex officio, a judge of the High Court and that the order of the President of the Circuit Court is, therefore, an order of the High Court.

9 I indicated a view during the course of the hearing of the appeal that notwithstanding that the President of the Circuit Court is, in fact ex officio a judge of the High Court, as provided by statute, the order made by the President of the Circuit Court in this case is an order of the Circuit Court. I confirm this view. If an order of the President of the Circuit Court is to be taken as an order of the High Court then it would only be in circumstances where the President of the High Court assigned a High Court case to the President of the Circuit Court, and the President of the Circuit Court agreed to sit in his capacity as ex officio High Court judge to hear that case.

10 It is accepted that there was no such assignment of the case by the President of the High Court, nor could there be one as the case had its origins in the Circuit Court, and was still pending the subject of originating application in the Circuit Court only.

11 The second preliminary point was that this Court is sitting as an appellate court from the Circuit Court and thus only having the jurisdiction of the Circuit Court, could not reverse or appeal the judgment of the High Court (Hogan J.) upon which the order of 27th July, 2012, in the judicial review proceedings is based.

12 Counsel for the respondent could be concerned about this aspect by reasons of the arguments of counsel for the applicant who argued that Hogan J. erred in law in instructing the parties to the judicial review to seek the liberty of the President of the Circuit Court to bring the judicial review application against the background of an existing Isaac Wunder order.

13 While I note these criticisms, it is not for this Court as an appellate court to make any determination in relation to same. It is for this Court to note that the decision of the High Court in the judicial review proceedings (however arrived at) was not to set aside the Isaac Wunder order and it is entirely within the jurisdiction of this Court to accept the Isaac Wunder order is still in existence following the judicial review proceedings and to deal with the matter on the basis that it is a subsisting order of the President of the Circuit Court. It is thus for this Court to consider the appeal on its merits on the same basis as considered by the President of the Circuit Court and to reach a judgment. Accordingly, that ground of...