S -v- S


by Cathal N. Young, O'Reilly & Co. Solicitors & Notaries Public in Dublin

1. This is an application on foot of a notice of motion returnable on the 17th December, 2010, on behalf of the applicant/respondent husband for an order (inter alia) granting directions as to the hearing of the appeal herein, including an urgent date for the hearing due to the welfare of the child named in the proceedings. The respondent/appellant wife resided in France and now in England, filed an affidavit in support of her appeal, and sent a number of emails to the court supporting her appeal and indicating variously that she is unable to attend the court by reason of her pregnancy and ill health and cannot afford to travel and, in later emails that she will be facing a committal to prison if she travels to Ireland. Although the motion was for directions and a grounding affidavit of the applicant/respondent’s husband’s solicitor grounding same dated the 19th December, 2010, sought “such orders and directions as may appear fit and meet in all the circumstances the matter as indicated by counsel for the husband became urgent in early January and he sought and obtained a pre-emptory adjournment to the 4th March, 2011, when the matter was heard on the 14th January, 2011”.

The Notice of Appeal

2. On the 15th October, 2009, the Circuit Court made an order in the above entitled proceedings in which the appellant/respondent (wife) was the respondent in proceedings by the husband claiming a judicial separation as follows:-

1. That the shares of the parties to the estate of the other has legal right hereunder the Succession Act be extinguished pursuant to s. 14 of the Family Law Act 1995.

2. That the parties are further precluded from making application under s. 15(A)(10) of the Family Law Act 1995 as inserted by s. 52(g) of the Family Law (Divorce) Act 1966.

3. An order for the attachment and committal of the respondent on account of her failure to comply with the orders of the Circuit Court, and in particular orders of Judge O’Sullivan of 12th March, 2010, and Judge McDonald dated the 29th July, 2010, respectively. Such attachment and committal ordered to be stayed pending further order of the court.

4. An order that the applicant to have sole custody of the child, such order to be stayed pending further order of the court and the child to continue to reside with the respondent in the meantime.

5. An order directing access to the child to his father the applicant as follows (details given).

6. Unless otherwise specified, the child will be brought to Dublin by the respondent or third party on her behalf and shall be returned by the applicant and collected by the respondent or her agent at Gatwick Airport, London on the return day.

7. That the court will require a s. 47 report to decide on the long term arrangements for custody and access, the existing report being regarded as insufficient for that purpose given the lack of proper contact between the applicant and Paddy James at a time when the report was carried out. The parties have agreed to appoint Professor Sheehan, subject to his time availability to report to the court and directs that he be given a copy of Dr. Byrne’s report.

8. The matter is adjourned to 29th November, for the purpose of updating the court regarding the s. 47 report and to fix or agree such further access as necessary pending the further hearing of this matter.

9. The remaining issues including those concerning the family home and maintenance be deferred to a later date.

10. Liberty to apply to the court at any time.

11. No order as to costs.

3. By notice of appeal dated the 20th October, 2010, the wife appealed against the whole of the above order.

4. It appears that the wife also appealed what she claimed was a further order of the Circuit Court made on the 22nd November, 2010, by notice of appeal dated the 22nd November, 2010. The wife subsequently swore an affidavit on the 23rd November, 2010, setting out the difficulties which she had with her pregnancy, the fact that she is a stay at home mother with zero income and that the husband did not take up the access which she offered for the child, which she claims was in accordance with Dr. Gerald Byrne’s recommendations and where she says that there were no changes in the child’s circumstances to warrant another s. 47 report. It appears that in fact the Circuit Court refrained from making any order on the 22nd November, 2010, as it considered in all the circumstances that as the matter was under appeal by the notice of appeal dated the 20th October, no further action should be taken notwithstanding that there was no stay on the order of the 15th October, 2010. She also took issue with the referral letter to Professor Sheehan for purpose of s. 47 report although she agreed to Professor Sheehan carrying out the report. The referral letter is unobjectionable.

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Reference Info: n/a | Ireland

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Cathal N. Young, O'Reilly & Co. Solicitors & Notaries Public in Dublin | Attorney Advertising

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