M -v- Judge Ó Donnabháin
High Court
Judgment was given by Mr Justice O’Neill on March 24th, 2009
Judgment
The decision of a Circuit Court judge, Judge Ó Donnabháin, to refuse an adjournment of a nullity application, brought by the applicant in this case, was quite correct.
Background
The case concerned a couple, married in 1991, who had two children. The marriage ran into difficulties and in December 2001 the wife brought proceedings seeking a judicial separation.
The following December the applicant husband brought counter proceedings seeking a decree of nullity on the grounds that there was no full, free and informed consent and that neither of the parties was capable of entering into and sustaining a normal lifelong marriage relationship with each other.
After this the family law proceedings “took an extraordinarily protracted course”, Mr Justice ONeill said.
The applicant was represented by a solicitor until May 2004, when the solicitor came off record, and since then the applicant has represented himself.
He failed to file a Certificate of Readiness so that the matter could be listed for trial, and in July 2006 Judge O’Donoghue made an order dispensing with the applicants Certificate of Readiness and appointing a clinical psychologist, Eddie Hogan, as medical inspector.
In January 2007 Judge Kenny directed that the nullity action be dealt with first and separately to the judicial separation proceedings, and that the nullity action be listed with priority. It was listed for May 11th.
That morning the report from Mr Hogan was given to the applicant at 8.30am, and a little later, but before the hearing, to the wife and the court.
The applicant sought an adjournment so that he could consider the psychologists report, stressing his disadvantage at not having legal representation.
This was refused, and the court invited the applicant to give evidence, which he refused to do. The nullity proceedings went ahead.
Mr Hogan was available to the court, but was not called by either side. Judge Ó Donnabháin refused the order of nullity.
The applicant sought a judicial review of the refusal to grant an adjournment on the grounds that, having regard to his status as a lay litigant and the lateness of the report, he was not in a position to assess whether or not it was advantageous to him.
He also contended that there was a breach of the Rules of the Circuit Court in that there was a failure to record the proceedings as laid down, and that the respondent judge showed bias in proceeding.
He sought an order of certiorari against the decision, and an injunction restraining any further proceedings on the judicial separation application of his wife.
The notice party (the wife) said that the judicial review proceedings had not been brought promptly or within the time prescribed, and supported the judge’s decision in refusing the nullity and the adjournment.
Decision
The onus was on the applicant to establish his case for nullity, Mr Justice ONeill said. “It is well settled that this is a very heavy burden and that it is necessary to prove the grounds alleged to a higher standard of proof than normally prevails in civil proceedings, but not to the extent of the standard of proof prevailing in criminal proceedings.”
He pointed out that the appointment of the medical examiner was not for the purpose of providing the applicant with the proofs he needed, but to assist the court with independent expert evidence. Nevertheless, the applicant proceeded into his nullity case without any attempt to obtain any evidence to support it.
Judge Ó Donnabháin was entitled to be conscious of the fact that these family law proceedings were at that time in being for six years and that, regardless of what determination was made on the nullity application, further proceedings would be necessary to bring them to a conclusion.
He was entitled to have regard to the extraordinary delay that had already occurred in the case.
In addition he was entitled to have regard to the content of the medical examiner’s report.
“The report was shown to me and it is clear that there is no support whatever in it for the grounds of nullity alleged by the applicant,” Mr Justice O’Neill said.
Bearing all of this in mind, and that he had given the respondent an ample opportunity to make his case, it could not be said that Judge Ó Donnabháin denied the applicant fair procedures or natural justice in any way.
He also had ample opportunity to rectify his lack of legal aid. He had dispensed with his solicitor three years earlier, and had engaged in correspondence with his wife and attended at court a number of times without apparent difficulty. He had been refused legal aid on the grounds that he had available assets in excess of €320,000, and had appealed this decision. There was no breach of his rights in proceeding with the hearing before the outcome of this appeal.
He had adduced no evidence to support his allegation of bias against the judge.
Relating to the question of delay raised by his wife, he said that the applicant had made his ex parte application eight days outside the time limit. The notice party had contended that the delay exacerbated the prejudice she suffered in putting off the day she could have her status regulated.
“There is considerable merit in the contention made on behalf of the notice party in this regard,” Mr Justice O’Neill said. “The notice party is not, as the authorities say, to be penalised because of the fact that the applicant was a lay litigant and in all probability content to remain as such for a considerable period.”
He said he was informed during the proceedings that the applicant was a full-time lecturer in a third-level institution and he could not accept he would be unable to secure legal representation. His status as a lay litigant did not excuse his failure to bring the proceedings in time, and therefore he was refusing him an extension of time.
“I do so with the comfort of knowing that I am not shutting out a meritorious case,” he said, refusing all the reliefs sought by the applicant.
The full judgment is on www.courts.ie
The applicant represented himself. The names of counsel in the case were not available.