High Court: No costs ordered in family law dispute

Andrew McKeown BL

About this case:

• Citation:
  [2020] IEHC 579
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Max Barrett

Background

Ms Y sought costs. The court heard from both her and Mr X, and though his submissions were more concerned with the substance of the principal judgment, the judge said that he would deal with all points raised as a courtesy.

Counsel for Mr X, relying on the judgment of Mr Justice Liam McKechnie in BD v JD [2005] IEHC 154, argued that it has long been accepted that in family law proceedings, a court should be slow to award costs to one party against the other. That judgment provides that if the conduct of the parties merit the making of a costs order, one can be made, but the assumption is against costs.

Mr X argued that he does not have enough by way of access to the child, Z, and he wants greater access. The judge said that this seemed to offer a reasonable basis to come to court. Though Mr X might have waited for the coming divorce proceedings in which to ventilate these issues, there was no obligation on him to do so.

Counsel for X referred to the judgment of Mr Justice John Jordan in BC v PK [2020] IEHC 432 where he said that any suggestion of a standing protocol against awarding costs in family law proceedings is a myth. Mr Justice Barrett said that he saw no departure in BC from the decision in BD.

The court disagreed with Mr X’s characterisation of the reasons why the appeal failed. He said that it was commonly agreed between the parents that Z was thriving under the access regime ordered by the Circuit Court. Their disagreement was on what constituted the best interests of the child, with Mr X wanting 50/50 access at some future time, but not now. Ms Y’s overriding preference was that there would be no change to the existing regime. In all those circumstances, the court considered by reference to the factors identified in statute that custody was best left as is. The application was decided as it was for all the reasons stated in the principal judgment, following a holistic consideration, in accordance, with statute of a wide variety of factors.

The court noted that Mr X may have had a stronger case if some expert evidence had been made available to the court, but noted that “it would depend on what an expert made of what he proposed.” The judge said that a party could not complain if they are not given the benefit of a report that they never sought to produce. The court did not consider it necessary exercise its discretion to commission a report under the Family Law Act 1995 s.47 (as amended).

The judge stressed that the principal judgment never stated, and should not be read to suggest, that there is any legal or procedural requirement that a psychological report should always be available in access or custody disputes.

On the point of the court declining to utilise its discretion to direct a s.47 report, the judge said that obtaining such a report would have been challenging, given that in the witness box, Mr X went from seeking 50/50 custody at some point in the future, without any detail as to how that staggered increase would take place. The report would, therefore, have to consider the “shifting sands”. Even if that difficulty could have been overcome, the court had to consider in this regard whether it was in the best interests of Z “to further protract the within acrimonious application”. It found that it was not.

Mr Justice Barrett said that the court had heard and read all of the evidence before it, and that ultimately it is for the parties to make their case, and not for the court to intervene and indicate what evidence might be provided. “Who”, he asked, “is a judge in any event to advise/indicate how a party might better make a case? That is something a party and any (if any) advisors that s/he has are best placed to decide upon.”

The judge said that if the court considered that it could not properly proceed on the evidence before it, it would have told the parties. Had the court considered that it could not properly proceed to judgment on the evidence before it, it would have so advised the parties, and if the court had considered that its s.47 discretion ought to be invoked, it would have invoked it.

Counsel for X argued that Ms Y, in suggesting that overnight access should be offered to Mr X, implicitly acknowledged that the Circuit Court’s order was excessively restrictive of Z’s contact with Mr X. The judge did not accept this logic. He said that such an offer did not necessarily involved any such implied acknowledgment. It could have merely reflected a desire to bring to an end an antagonistic situations which a mother considers is not in the interests of her child “whether directly, or because of the stresses it was raising for her.”

Conclusion

The judge said that he would make no order of costs in the case.