S85 H -v- H & another [2015] IESC 85 (26 November 2015)

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Cite as: [2015] IESC 85

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H -v- H & another
Neutral Citation:
[2015] IESC 85
Supreme Court Record Number:
High Court Record Number:
Date of Delivery:
Supreme Court
Composition of Court:
Denham C.J., Dunne J., Charleton J.
Judgment by:
Charleton J.
Appeal dismissed
Judgments by
Link to Judgment
Charleton J.
Denham C.J., Dunne J.

An Chúirt Uachtarach

The Supreme Court

Denham CJ
Dunne J
Charleton J

Record number 2009/35M

Appeal number 207/2011


J M H (Husband)


K H (Wife)


Notice Party

Judgment of Mr Justice Charleton delivered on Thursday the 26th day of November 2015

1. This appeal comes before the Court in circumstances where it is the 83rd occasion when a court process has been accessed in relation to the breakup of the marriage of the parties JMH, the husband and appellant, and KH, the wife and respondent, and questions relating to the custody of their three children. This has become vexatious and insupportable. Immediately in focus is a notice of appeal by the husband, dated 16th May 2011, against an order of MacMenamin J made in the High Court of 11th May 2011. Before turning to that notice of appeal and the judgement of the High Court, some background to the case is helpful.

2. JMH and KH were married and there are three children of that marriage, who will be called for these purposes D, S and K, now aged respectively 21 years, 16 years and 15 years old. There is another child of the wife who was born later. The notice party is the father. He has not taken part in this appeal or in any relevant hearing before the High Court. The marriage of JMH and KH split up in 2001. The normally unhappy circumstance of family breakdown has been compounded by difficult circumstances but this is not been made easier by a pervasive suspicion on the part of the husband in relation to the new partner of his former wife, the fact of her divorce from him and his applying to the High Court outside of time for an order extending the time within which to appeal that decree.

3. In circumstances where the parties had at that stage already been, at the least, some 8 times before the Circuit Court, and 20 times before the District Court, the husband initiated a case in the High Court by special summons dated 22nd of May 2009. Those proceedings bore the record number 2009/11600P. The order of MacMenamin J of 11th May 2010 followed on a comprehensive hearing of the circumstances. It would appear that the husband was not represented, but the wife was represented by a solicitor. Affidavits were filed in the ordinary way. Concerns from the husband about the safety of his children and the dangers that might be posed by the new partner of the wife and his wider family were reflected in certain orders made and in the recital of particular undertakings to the High Court on that occasion. These included an undertaking by the wife KH not to have that new partner in what was previously the family home of the husband and wife and to ensure that a relative of a new partner would be discouraged from driving about the children of the marriage. Reference was also made in the order to access to another child who was not the child of JMH and KH. It was ordered by the High Court that:

      [The new partner] be restrained from attending in or about the H family home and is further restrained from having any contact whatsoever with the H children.

      … that JMH [husband] and KH [wife] be restrained from informing the children about matters transpiring between them.

4. The High Court further directed “that divorce proceedings be issued in the Circuit Court in” the Munster area and that the solicitor for the wife should write to Accord in order “to request the services of a mediator to act between the parties … and any other issues to be dealt with through the mediator.” Accord is a professional mediation service. The reference in the order to the husband and wife keeping silent about the matters at issue between them refers to unsavoury issues which, whether true or not, would be unsuitable for young ears. Divorce proceedings were issued in the Circuit but much later. The initiation of divorce proceedings could not come as a surprise to the husband. That order was endorsed with the penal endorsement and was served by the husband on the wife on 12th July 2010.

5. Within a year a new set of proceedings, bearing the record number above, were initiated by the husband in the High Court. A notice of motion dated 13th April 2011 sought “full custody and control of our children”; attachment and committal of the wife for contempt of the previous High Court order; an order that the new partner of the wife should “permanently stay away from the [husband]” and the children; a reference of the case to social services because the children were alleged to be “at high risk and danger presently until they are removed from the situation with immediate effect”; a similar reference to the gardaí; amendment of the previous High Court order to include the direction to the wife “not to conspire with another to cause [JMH] harm”; and further and other relief. Two days later another motion was issued by the husband specifically seeking that the wife “be heard and to show cause as to why you should not be attached and committed to jail for failure to abide by” the previous order.

6. On this motion affidavits were exchanged between the parties. The husband alleged that the new partner of the wife KH was unsavoury and that his cousins had engaged in various criminal activities and, consequently, that the children were at risk. The wife replied detailing that she had her new partner within the house at her request because “on numerous occasions the [husband] has followed me around my locality at any time of day and night.” She also said that she was not advised as to the consequences of breaking the High Court order in question. Exhibited in her affidavit was a note from the local Garda station which indicated that a complaint had been made of some kind and also a medical report stating that she was in good physical and mental health and that the doctor had seen “nothing in her behaviour or in the care of her children which would lead me to suspect any problem.” The circumstances are somewhat confused because of the fact that by this stage both husband and wife were representing themselves. The contempt motion apparently came on in April 2011 before Irvine J who, knowing that MacMenamin J had made the order in respect of which committal was sought and had previously heard the parties, referred the matter to him. The case came on for hearing on the 10th May 2011. The High Court decision, from which this is an appeal, altered the existing situation. MacMenamin J ordered:

      1. These proceedings herein be and are hereby remitted to the Circuit Court on the matter to be further prosecuted before that Court within one week of the date of this Order

      2. The Order made by this Court hearing on the 11th day of May 2010 do stand discharged

      3. Any person or persons having notice of the making of this Order be restrained from watching the setting placing in fear any of the parties herein.

7. In his judgement of that day, MacMenamin J recited the terms of the prior order. He noted that the proceedings had been protracted, though he declined from making any finding as to who was to blame, despite stating that he had strong suspicions. His previous order, the judge said, had been designed to see whether the parties divorcing each other and accessing professional mediation might in some way lessen the animosity that fuelled the proceedings. MacMenamin J characterised the case as lacking a concern for the children with a focus, instead, on the issues between the parties. He made it perfectly clear that any further applications should remain in the same jurisdiction and should not engage the trouble and expense of High Court proceedings:

      I am therefore ordering that this matter be remitted to the Circuit Court. I am ordering that all and any proceedings in this case should be brought to the Circuit Court. I am ordering that no proceedings or no further step in these proceedings will be taken in the High Court without application for leave brought to me. Such application would have be brought by way of affidavit and notice of motion, and such affidavit and notice of motion will have to indicate why the matter cannot be dealt with in the Circuit Court rather than in the High Court. Thus the intent behind the orders is that matters will be dealt with in a forum which will be convenient to the parties and in a situation where the Court will at all stages be familiar with the issues. Even in the last month and a half to two months this matter has been before two of my colleagues before coming back to me now to deal with the motion for contempt.
8. By that stage, the judge noted, divorce proceedings had yet to be issued before the Circuit Court in Munster. He urged that there should be finality to the matters because the “parties must put litigation behind them and get on with the rest of their lives.” The High Court vacated the undertakings noted in the order of 11th May 2010 and directed that any issue which concerned the safety of the children should be brought before the Circuit Court. This would, in any event, be part of the provision that is necessary on the divorce of husband and wife pursuant to Article 41.3.2º of the Constitution. The judge stated that there was to be “no violence, no threatened violence, and persons are not to engage in any form of harassment against the other.” He continued:
      I reiterate my concerns here that I think the children have been lost sight of. I think that this is in many ways the classical case where there has been a victory of form over substance. I do not intend therefore that this matter should come before this Court again. I do intend that it should be fully and finally ventilated in the Circuit Court and in the circumstances I would place the parties on notice that if there is any effort made to re-ignite High Court proceedings there is a risk of costs being applied against an unsuccessful party. … I would wish that there had been a mediator who could have got involved in the case. I would wish that the many health and care professionals who have been involved in this case could have been allowed and permitted to address all the issues. But it appears that, for some reason or other, that this has not happened. This concludes my judgement.
9. The husband initiated an appeal from that judgment and order, but not in proper form, on 16th May 2011. What is described as a notice of motion of appeal seeks that this Court: firstly, grant the husband “full custody and control of our children and access for [the wife] under supervision for the immediate future pending the outcome of the full hearing of my” appeal; that the order of the High Court of 10th May 2011 be vacated; that the order of the High Court of 11th May 2010 be reinstated; and a vague claim for further relief.

10. This appeal was not pursued in any timely way by the husband. Nor, apparently, did he initiate Circuit Court proceedings as the High Court had directed. The matter was allowed by him to lie for 4 years, this despite the alleged seriousness of the dangers to the children which he claims motivated him. With the changes to the appellate jurisdiction from orders of the High Court under Article 34 of the Constitution, the Chief Justice has required all cases which have not progressed to appear on a list and for the parties thereto to offer an explanation as to why appeals were not progressing. This case appeared on the list on 1st May 2015. An order was made that, unless the matter were progressed through the filing of the appropriate papers, the case should be struck out. Papers were then filed by JMH and that case was given a date for hearing; November 24th 2015. This judgment results from that hearing. In June of 2015, another case brought by the husband JMH against KH came on for hearing by way of an appeal to this Court. After hearing both parties, again unrepresented, that particular case was dismissed.

11. From the time of the order of MacMenamin J of 10th May 2011 a number of developments have occurred. The wife initiated divorce proceedings against her husband in the Circuit Court in Munster. The husband claims to have been unaware of those proceedings and acted before this Court and, more seriously, elsewhere as if this was an unforeseeable development. It is understood that the Circuit Court granted a decree of divorce under the relevant legislation enabling Article 41.3.2º of the Constitution on about 3rd June 2014. The wife, appearing on this appeal, could not have been expected to bring the relevant order with her since it did not, on the face of it, concern the husband’s contentions as ventilated in his notice of appeal and accompanying affidavit. The wife then wished to get married to her new partner. On 5th May 2015 this happened. It was not such a happy day, however, as the husband accepts that he turned up at the venue where that marriage was to be celebrated and denounced the legality of proceedings. His excuse for so acting was that, not having either turned up to or appealed the divorce proceedings before the Circuit Court, he had, he claimed, become aware of the divorce in consequence of an appearance before this Court, or otherwise, the sequence being unclear. He also claims to have sought before the High Court, thereafter, an extension of time within which to appeal the divorce decree. No order of the High Court was produced by the husband in that regard. The claimed logic behind the husband’s actions in disrupting the marriage was that as he had, according to himself, appealed the decree of divorce it was then invalid. No order was produced to this Court, however, indicating that any stay had been put by the High Court on the order of the Circuit Court divorcing the parties. Nor was any order produced to this Court from the High Court either indicating that there had been an appeal, or that an extension of time to appeal had been granted, or that he either sought on appeal or was granted any stay on the decree of divorce in the Circuit Court.

12. The husband complains that events since the order of MacMenamin J of 10th May 2011 have borne out the fears which he expressed before the High Court in both 2010 and 2011. On analysis, however, the only matter in respect of which any comment might be made is that one of the children of the marriage lost the final digit of their thumb in consequence of an accident at the family home formerly lived in by the husband and wife in consequence of the operation of a log-splitting machine. What this indicates is that an accident occurred and nothing more. The constant warfare between the parties, which, this Court is satisfied in consequence of the timing and sequence of events, is being maintained by the husband up to and into this appeal is of much greater immediate and present threat to the well-being of the children of the marriage. One of those children is now aged 21 and living abroad. Some form of property settlement has also been reached in relation to the former family home but the details of this are only vague. Despite that, on this appeal the husband JMH referred to it as “my home”.

13. What has emerged clearly on this appeal is that the former wife KH, who is the respondent, wishes to live an ordinary life free from the continual strain of court appearances. The former husband, JMH who is the appellant, has, on the other hand, so abused the processes of the court that his purpose in engaging in litigation has not emerged as being for the benefit of the children of his former marriage. Instead, his litigation activities have emerged as a consequence of an obsessive concentration on wrong that is more apparent than real. The circumstances under which validly married couple might face a late appeal claiming that the divorce of one of them was improperly granted are, perhaps absent fraud on the system by both or one or other of them, impossible to imagine. No decision is now to be made in that regard.

14. This appeal has been vexatious. Had the husband initiated Circuit Court proceedings in accordance with the order of MacMenamin J of 10th May 2011, none of the issues relating to child care, to his alleged unawareness of the divorce and the regrettable disruption of the marriage ceremony would have arisen. The timeline of this case indicates the utter futility of seeking orders from this Court in circumstances where events have moved on. Nor would it be reasonably possible to consider that what is involved on this appeal was in any way to any way genuine in circumstances where the imminent striking out of the appeal suddenly made issues which had not been pursued before any court a matter of extreme importance and urgency to the husband JMH. The former wife is entitled to be protected from further nonsensical proceedings. There is a right to litigate, but this is a right “to achieve by action in the courts the appropriate remedy upon proof of an actionable wrong causing damage or loss as recognised by law”; see Tuohy v Courtney [1994] 3 IR 1 at 45. There could be no right to use the court process for illegitimate reasons. Court proceedings are stressful, time-consuming and expensive. The courts have an inherent power to protect themselves, both for the benefit of the fostering of scarce resources and for the protection of litigants, against obviously wasteful and abusive proceedings. In Riordan v Ireland [2001] 3 IR 365, Keane CJ explained that, ultimately, an order can be made against a litigant restraining that party from initiating any proceedings without leave. At page 370 he explained:

      It is, however, the case that there is vested in this court, as there is in the High Court, an inherent jurisdiction to restrain the institution of proceedings by named persons in order to ensure that the process of the court is not abused by repeated attempts to reopen litigation or to pursue litigation which is plainly groundless and vexatious. The court is bound to uphold the rights of other citizens, including the right to be protected from unnecessary harassment and expense, rights which are enjoyed by the holders of public offices as well as by private citizens. This court would be failing in its duty, as would the High Court, if it allowed its processes to be repeatedly invoked in order to reopen issues already determined what pursue groundless and vexatious litigation.
15. Given that final orders are much less common in family proceedings than in other forms of litigation, the form of order restraining future litigation arising from the decisions of the former Supreme Court of Justice in Wunder v Irish Hospitals Trust (1940) Ltd (Supreme Court, 24 January 1967) will necessarily be rare. This case has, however, crossed that boundary.

16. There will be an order dismissing this appeal. There will be a further order staying all proceedings by JMH, the former husband in this case and the appellant, in relation to any family law issue which concerns KH, his former wife, or the children of their marriage. The possibility of a genuine issue arising cannot be totally ruled out. Furthermore, the right to litigate cannot be left extinguished and without the possibility of suspending such an order. Consequently, JMH, may by application grounded on a full affidavit explaining the necessity for any further litigation apply to the President of the relevant court, or to any judge nominated by him, for such limited relief as may be proven on that application to be necessary and not previously litigated. This judgment and order should be brought to the attention of the judge by JMH. There will be no need for KH to attend unless she wishes to.

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URL: http://www.bailii.org/ie/cases/IESC/2015/S85.html