X (D) v Judge Buttimer

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 25 April 2012
• Neutral Citation: [2012] IEHC 175
• Court: High Court
• Date: 25 April 2012

[2012] IEHC 175

THE HIGH COURT

[No. 952 JR/2011]

X (D) v Judge Buttimer

BETWEEN/

D.X.

APPLICANT

AND

HER HONOUR JUDGE OLIVE BUTTIMER

RESPONDENT

AND

M.Y.

NOTICE PARTY

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S3

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S2(1)(F)

FAMILY LAW ACT 1995 S15(1)

CIVIL LIABILITY & COURTS ACT 2004 S40(5)

CONSTITUTION ART 34.1

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S34

CONSTITUTION ART 40.3.1

CONSTITUTION ART 41

CONSTITUTION ART 42.5

TESCO IRL LTD v MCGRATH UNREP MORRIS 14.6.1999 1999/24/7784

M (R) v M (D) 2000 3 IR 373 2001 2 ILRM 369 2000/12/4590

CIVIL LIABILITY & COURTS ACT 2004 S40(4)

JUDICIAL SEPARATION & FAMILY LAW REFORM ACT 1989 S33(1)

D (R) v DISTRICT JUDGE MCGUINNESS 1999 2 IR 411 1999 1 ILRM 549 2000/19/7175

DOMESTIC VIOLENCE ACT 1996 S16

CONSTITUTION ART 40.1

D (M) (A MINOR) v IRELAND & ORS UNREP SUPREME 23.2.2012 2012 IESC 10

CIVIL LIABILITY & COURTS ACT 2004 S40(8)

FAMILY LAW ACT 1995 S15

GILL v DISTRICT JUSTICE CONNELLAN 1987 IR 541 1988 ILRM 448 1987/6/1683

E (C) v MIN FOR JUSTICE & ORS UNREP HOGAN 11.1.2012 2012 IEHC 3

FAMILY LAW

Practice and procedure

Judicial separation - In camera rule - Public administration of justice - Judicial review - Presence of friend in family law proceedings - Whether trial judge correct in excluding friend where defendant legally represented - Whether defendant dependent on assistance of friend - Whether error affected validity of order - Whether trial judge erred in permitting presence of affected third party - Sale of property - Pre-requisites to order for sale - Whether court erred in ordering sale of property - Whether error more appropriate for appeal than judicial review - Tesco Ireland Ltd v McGrath (Unrep, Morris P, 14/6/1999); RM v DM [2000] IEHC 140, [2000] 3 IR 373; RD v McGuinness [1999] 2 IR 411 and MD (a minor) v Ireland [2012] IESC 10, [2012] 1 IR 697 considered - Gill v Connellan [1987] IR 541 and CE v Minister for Justice [2012] IEHC 3, (Unrep, Hogan J, 11/1/12) followed - Judicial Separation and Family Law Reform Act 1989 (No 6), ss 2 & 3 - Family Law Act 1995 (No 26), s 15 - Civil Liability and Courts Act 2004 (No 31), s 40 - Domestic Violence Act 1996 (No 1), s 16 - Constitution of Ireland 1937, Articles 34, 40, 41 & 42 - Declaration granted, certiorari refused (2011/952JR - Hogan J - 25/4/2012) [2012] IEHC 175

X(D) v Judge Buttimer

1 1. In these judicial review proceedings the applicant (whom I shall describe as "Mr. X.") moves the Court for an order of certiorari to quash a decree of judicial separation in respect of the applicant's marriage to the notice party (whom I shall describe as Ms. Y.) on 12 ^th April, 1991, granted by the respondent, Her Honour Judge Buttimer, on the 8 ^th June, 2011, pursuant to s. 3 of the Judicial Separation and Family Law Reform Act 1989 ("the Act of 1989"). The decree was granted pursuant to s. 2(1)(f) of the Act of 1989, namely, that the Court satisfied that in all the circumstances "a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application". I should say that the applicant has appealed Judge Buttimer's decision to the High Court, but that that appeal has been stayed pending the outcome of these judicial review proceedings.

2 2. The order made by Judge Buttimer also provided for the sale of the parties' family home (which I will describe as "Z House"), along with an immediately adjacent property (which I will describe as "Y Lodge"). That House is quite substantial and the parties live apart - albeit with some difficulty - under the same roof. The notice party's sister. Ms. T., lives in Y Lodge. This property was entirely rebuilt and refurbished over a decade ago and since then the property has been used by Ms. T. and, prior to her death in 2006, by her mother, Ms. I. Ms. Y and Ms. T. are the registered owners of Y Lodge. Both Mr. X and Ms. Y. represented themselves in person, save that Mr. X. was also assisted by his friend, Ms. S. While the Court would, of course, have jurisdiction to direct the sale of property (other than the family home) such as the Lodge where "either of the spouses has a beneficial interest", this is contingent on the court having first made a secured periodical payments order, a lump sum order or a property adjustment order: see s. 15(1) of the Family Law Act 1995. Judged by the terms of the order actually made, it is not clear to me that the judge had, in fact, made an order of the kind (such as, for example, a lump sum order) which is deemed by the sub-section to be an essential prerequisite to the exercise of that jurisdiction to direct sale of property not comprising the family home.

3 3. Mr. X. contends that the order is ultra vires in three separate respects. First, he maintains that Judge Buttimer acted contrary to fair procedures and in breach of s. 40(5) of the Civil Liability and Courts Act 2004 ("the Act of 2004") in failing to permit him to be attended in court by a friend of his, Ms. S., even though he was legally represented in those proceedings. Second, he says that Judge Buttimer wrongly permitted Ms. T. to be present for part of the judicial separation proceedings. Third, he contends that the order should not have directed the sale of both the lodge together with the house. We can now proceed to a consideration of these arguments in turn.

First issue: Whether Judge Buttimer acted ultra vires in refusing to permit Mr. X. to be assisted by a friend

4 4. Mr. X. was treated for cancer of the larynx in 1997 and, as a result, suffered a largnectomy. He can speak, but with considerable difficulty and he tires easily as a result. Furthermore, his speech cannot always be easily understood by those who are not familiar with his condition. Mr. X. sought to have Ms. S. admitted to the family law proceedings Circuit Court, but this was refused by the respondent following an objection in that behalf by counsel for the notice party, Ms. Y. In the present proceedings, as I have already noted, both Mr. X and Ms. Y appeared in person, with Mr. X. assisted by Ms. S.

5 5. Article 34.1 of the Constitution provides that justice is to be administered in public, save "in such special and limited cases as may be prescribed by law." If the proceedings were in open court, then there could be no possible justification for the exclusion of Ms. S. It is true, however, that s. 34 of the Act of 1989 provides that judicial separation proceedings "shall be heard otherwise than in public" and this section must be taken to constitute such a special and limited case for the purposes of Article 34.1.

6 6. The language of Article 34.1 nevertheless reflects the Constitution's preference for the open administration of justice and derogations from that rule must truly be confined to "special and limited cases prescribed by law" in the relatively narrow sense of that term. In the present case, the exception prescribed by s. 34 of the Act of 1989 must be taken as reflecting a desire by the Oireachtas to protect other constitutional values in the context of family law proceedings such as the right to privacy (Article 40.3.1), the authority of the family (Article 41) and the protection of the constitutional rights of children (Article 42.5). It is in that context that s. 34 of the Act of 1989 falls to be interpreted.

7 7. Experience had shown, however, that the mandatory nature of s. 34 of the Act of 1989 as originally enacted was capable of having unintended effects which were not altogether satisfactory. Thus, in Tesco (Ire.) Ltd v. McGrath, High Court, 14 ^th June 1999, Morris P. held that the effect of the prohibition was to preclude the release of court orders concerning the sale of property, even in those cases where these orders might well be critical so far as the title of third parties was concerned. Likewise, in RM v. DM [2000] IEHC 140, [2000] 3 I.R. 373 Murphy J. held that the section precluded the disclosure of pleadings captured by the in camera rule to professional disciplinary body which was examining a complaint against a legal representative.

8 8. Conscious of the fact that the wording of this statutory prohibition had consequences which were not merely unintended, but went further than was reasonably necessary to achieve the original statutory objectives, the Oireachtas concluded that the (apparently) unqualified nature of the prohibition should be diluted. Thus, for example, s. 40(4) of the Civil Liability and Courts Act 2004 ("the Act of 2004") now provides that the statutory prohibition should not permit the disclosure of the extracts from courts orders in family law proceedings to relevant third parties.

9 9. Section 40(5) of the Act of 2004 is in the same vein in that it provides:-

2 "(5) Nothing contained in a relevant enactment shall operate to prohibit a party to proceedings to which the enactment relates from being accompanied, in such proceedings, in court by another person subject to the approval of the court and any directions it may give in that behalf."

10 10. Legal proceedings are, of course, stressful occasions for the parties and this is especially true of family law proceedings. While it is true that the interests of most litigants are represented by legal professionals, many litigants nonetheless find the entire experience so daunting that they would wish to have the company of a friend to provide support and reassurance quite independently of legal advisers. This, in effect, is what s. 40(5) seeks to achieve. This provision complements s. 33(1) of the Act of 1989 which provides that:-

"Circuit Family Court proceedings shall be as informal as is practicable and consistent with the administration of justice."

11 11. The background to s. 40(5) can be traced to...