Sunday 18 August 2019

High Court is not the place for 'petty squabbles' between parents - judge

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Aodhan O'Faolain

A High Court judge has said publicly funded court time should not be improperly used to resolve “petty squabbles” between warring parents in hearings involving “enormous” costs.

It is “ironic” that “tens of thousands of Euro” costs of a hearing about whether a father could take his young children away for one weekend here would cover the cost of an annual holiday for years to come for families on the national average income, Mr Justice Michael Twomey said.

While the couple involved are well-off professionals who can afford such costs, that is not the issue as the same legal issues apply to all litigants irrespective of their means, he said.

The issue is “proper” use of court time and resources and whether this family law dispute deserved almost a full day hearing in the High Court, a court funded by the taxpayer.

The answer to that is a “resounding no”, regardless of how strongly the parties feel.

He was giving judgment on a case involving a couple who continue to live with their young children in the same house pending judicial separation proceedings.  They are essentially living separate lives and communicate about the children via email or text, the judge said.

The mother objected to the father taking the children for a weekend to a holiday home in Ireland owned by a relative of his. She alleged he had an alcohol problem and was referred for treatment after drinking excessively over an 18 month period.

The man said he had had an alcohol problem in the past but has addressed that via a treatment programme and is now a social drinker. He exhibited letters from his GP and a consultant psychiatrist stating they did not consider he has an alcohol problem at this time.

The judge said the man has sole control of the children for a number of hours at the weekends when he brings them for activities or outings but has only had them overnight once on his own when the mother was away for work reasons.

The court had to treat the material from the GP and psychiatrist with caution as the hearing was on the basis of sworn statements with no oral evidence or opportunity to cross-examine in circumstances where the mother claimed the father continues to drink to excess, he said.

A parent has a right to have access to their child, a child has a corresponding right to have access to their parent and overnight access was an integral part of that, he said.

In this case, it would be difficult for the children to have a normal carefree relationship with their father without overnight access outside the “stilted confines” of this particular home, he said.

In all the circumstances, including conflicting evidence about the alcohol issue, he would permit the weekend trip on the father’s undertaking not to drink alcohol over the weekend and to have his relative present. The man had indicated he had no issues with giving undertakings, he noted.

A final issue, which the court could not ignore, was the costs of this case, the judge said.

While he was not saying either parent was wrong to feel strongly concerning the welfare of the children, resolution of this dispute should not have involved extensive correspondence, eight affidavits and almost a day in the High Court.

It was likely both parents had some responsibility for the failure to resolve it without a court hearing, he said.

For reasons including a mediation was held which failed to resolve the matter, there was no reason to believe the lawyers involved had any responsibility for the matter going to court, he said.

He had previously recommended lawyers in family law disputes try and save parties from their own “unreasonableness”, the judge noted.

As it may be unreasonable to expect beneficiaries of a system “to be willing or able to change it”, it may be “more realistic” for the courts to ensure court resources are not unnecessarily wasted on inappropriate applications.

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