High Court 

SO'F v NO'F

1999/128 CA  

6 May 1999 

BUDD J: 

This application is by way of motion to extend the time to lodge an appeal against the Order made by his Honour Judge Buckley on the 15 March 1999: by which Order, he refused the respondent wife's application to have the ten-year-old dependant child to the parties, assessed by Dr Helen Cummiskey. 

The background to this application, in a nutshell, is that the parties were married on the 15 May 1986 and have one child NO'F whose date of birth is the 12 December 1988. The parties have resided separately since about April 1995. While NO'F resides with her mother's agreement, with the applicant at the family home in Celbridge; nevertheless, she sees and is with her mother regularly. On 23 October 1998, Judge Buckley made an Order appointing Dr Moya O'Byrne, consultant psychiatrist, to examine and assess NO'F. The respondent had initially sought an Order, pursuant to Section 47 of the Family Law Act, 1995, and had sought the appointment of Dr Helen Cummiskey. It is clear from the contents of the Affidavit, sworn on the 9 July 1998, that the concerns of the respondent in respect to the welfare of NOF were brought to the attention of the court. The applicant opposed the procuring of a report in a replying Affidavit, sworn on the 23 October 1998. The respondent averred to her continuing concern in a further Affidavit sworn on the 14 October 1998. On the 23 October 1998, Judge Buckley heard the motion and he made his Order for the procuring of a report from Dr Moya O'Byrne. Dr O'Byrne duly furnished her report dated 15 January of 1999. The respondent was and is unhappy with this report, particularly in respect of what she regards as omissions to deal with issues in respect of NO'F education and at the suitability of the respondent to have custody of NO'F. A motion was brought for the appointment of Dr Helen Cummiskey as a further assessor of NO'F, particularly in respect of the aspects which the respondent regarded as not having been dealt with by Dr O'Byrne. However, I note from the Affidavit of the respondent's solicitor, sworn on the 18 February 1999, that Dr O'Byrne's report was before the learned Circuit Court Judge and he must have been aware that NO'F has required remedial classes in respect of literacy. It is clear from the Affidavit sworn on the 16 April 1999 and the 27 April 1999, that the respondent did form a bona fide intention to appeal at once on the 15 March 1999 after Judge Buckley had made his Order and she so instructed her solicitor. Unfortunately, through an error, the notice was not lodged. It seems clear to me that the respondent satisfies the first two criteria set out in Eire Continental v Clonmel Foods [1955] IR 170. 

It is manifestly clear that the respondent did form an intention to appeal and that, while there was a solicitor's error in relation to not lodging the appeal, this has now been left behind because her evidence, which I accept in its totality, is quite clear that there was this error, that has been made perfectly clear and that aspect of the matter presents no difficulty to the court whatsoever. The decision of this court is based, not on those two hurdles which have been got over by the respondent in this application, but rather, on "the other circumstances," other than the lateness of the notice. 

The respondent feels strongly and may indeed have an arguable point, although I believe this to be rather doubtful, that there are relevant aspects which Dr O'Byrne did not consider. However, there are still circumstances in this case which militate against a further assessment and report, at this stage. First, Section 47 of the Family Law Act 1995 contemplates "a report in writing", there may be circumstances where a further report is necessary but, in my view, one of the purposes of the Act is to have an independent expert's report and to reduce the intrusion caused by more than one similar expert interviewing and reporting on the child. By "similar expert," I mean a person who has either expertise in psychology or psychiatry of one sort or another. Nevertheless, there may be circumstances where a further intrusion and report are justified, but it seems to me that this would be very much a matter for the learned Circuit Court Judge at a full hearing. 

Secondly, the hearing date in the Circuit Court is fixed for the 14 May 1999. If the time is extended to allow an appeal, this will inevitably force the postponement of this hearing. I have been informed that no appropriate consultant could report in such a short time, bearing in mind the need to interview the child and the parents, and perhaps other people with the agreement of both parties, that is in relation to the other people. It would be a matter of regret if the matter were put back causing further and prolonged stress and tension, as it would have to be for the purpose of a hearing of an appeal to the High Court, at this stage, not just in relation to the extension of time but in respect of the actual matter which is the substantial point, being the issue in relation to the obtaining of a further report or not. Besides, if the report of Dr O'Byrne is or was in any way deficient, then I have no doubt that the learned Circuit Court Judge will be open to persuasion that there is a need for a further or supplementary report, either from Dr O'Byrne or some other appropriate expert. It would obviously be much more practical to have Dr O'Byrne present in court, so that not only would the learned Circuit Court Judge have the benefit of having her report before him, but also Dr O'Byrne would be in court to deal with the matter of the concerns with regard to her qualifications, and the completeness of her interviews, and her attention to the matters which are causing anxiety to the respondent, the mother of the child. 

Thirdly, the respondent participated in the production of the report by Dr Moya O'Byrne. The respondent did not appeal the Order in respect of the appointment of Dr O'Byrne under Section 47, which was made on the 23 of October of 1998. This was, in reality, the critical time for an appeal rather than after receipt of a report with which the respondent has subsequently been unhappy. 

Fourthly, the concerns of the respondent can be made known at the hearing and I have no doubt that the learned Circuit Court Judge will take them into consideration. Furthermore, any Order which is made by the Circuit Court is subject to an appeal to the High Court and an interlocutory application can be made in the unlikely event that such a course seems advisable. 

These are four cogent submissions. It seems to me that the overall equity of the situation does not favour an extension of time. While NO'F is at present residing with her father, the applicant, and so the postponement of the hearing in the Circuit Court would mean that the present arrangements would continue with the child spending most of her time in the family home with her father but spending weekends and a considerable amount of time also with the mother; and although this is a family case and weight must be given to the concerns expressed by the respondent mother about the report; nevertheless, the delay and further intrusion into the child's life of a second assessment, at this stage, while it might help to allay the mother's concerns and might also increase the information before the court, nevertheless, while acknowledging the strength and eloquence of the submissions made on behalf of the respondent wife, it seems to me, after careful consideration and having read all the Affidavits which have been submitted, that this court should not extend the time an appeal; such an extension of time would inevitably involve the putting back of the hearing in the Circuit Court and it seems to me that it is preferable that the parties go before the Circuit Court on the day which has been appointed. If there are any deficiencies in the report which has been obtained, then the points in relation to that can be cogently made and, I have no doubt, will be given due weight and due consideration by the learned Circuit Court Judge. 

This is my view of the matter. If of course, the parties enter into discussions subsequent to this my judgement on this application, then, of course, this is up to them, if they decide that they want to ask the Circuit Court to put the matter back; but I was asked to give judgement since the matter hadn't been resolved, and that is what I have done. Now, are there any ancillary orders to be made on foot of that? 

MS BOUTIN, BL: I will be seeking my costs in relation to the application. I am very much in your Lordship's hands. 

MR JUSTICE BUDD: Either way, with a motion to extend time, the respondent applicant in that would usually end up having to pay the costs whichever way it goes. Would you like to say anything on the aspect of the costs? 

MS FARRELL: There is very little I can say, really. 

MR JUSTICE BUDD: There is this to be said, that this is a family law matter and while it would be very unusual for the High Court to reserve the matter of costs, it seems to me that, in this particular instance and in the circumstances, that it may be preferable that I should reserve the question of costs because a judge dealing with the entire matter and hearing the parties and having them present in court, it seems to me can deal with that aspect in the heel of the hunt. So, while the respondent mother has lost this application before me and normally an award of costs would follow and certainly, if she had won the application. I would have awarded costs in favour of the applicant husband, who is the respondent to this. I think that it is preferable at this stage that I should simply reserve costs to the trial judge, and by that I mean the learned Circuit Court Judge, whichever of them is dealing with this matter. Now, the reason why I asked for a stenographer, I realised having written out several pages myself, I would be probably reading it faster than you could take down, so we have a stenographer here. It occurs to me that you may want that because the matter is going back to the Circuit Court for hearing and I regret to say I don't think there is any appeal from my decision. It is a problem but there it is. I think you're stuck with it but, of course, you're entirely free to renew your applications at the start before the Circuit Court Judge, to let him know your client's worries about the psychiatrist's report as she sees it.