Father loses claim judge was biased in custody case

A father who claimed a judge was biased because of alleged political interference by former Fianna Fáil TD Mary O'Rourke during family law proceedings has lost a legal challenge seeking to set aside an order granting full custody of his son to his estranged wife.

Ms O'Rourke denied she had made any representation to Circuit Court Judge Desmond Hogan who later had a brief conversation in the Four Courts yard with High Court judge, Henry Abbott, who had been dealing with two appeals in relation to the same family law matter.

An inquiry by the presidents of the High and Circuit Courts decided the raising of the matter by Judge Hogan should not have occurred – but that it could not have influenced Judge Abbott in his decision.

Mr Justice Abbott said Judge Hogan had asked him whether a boy at the centre of the custody battle between the father and mother had been sent away to the primary care of the father.

Mr Justice Abbott, who said he considered the question improper, told his Circuit Court colleague his judgment on the matter would be available in due course.

The father and mother have been locked in family law litigation for over a decade with the most recent focus in the cases before the Circuit and High Court relating to the custody of the boy, the youngest of their three children.

The last order to be made was in February 2013 by Mr Justice Abbott who agreed with a Circuit Court decision the child should remain in the primary care of the mother but, given his age, the boy must be allowed a degree of self determination in which the father would have access arrangements.

In his judgment in February 2013, Mr Justice Abbott complained about the “entirely improper interference of the mother via a political representative and a judge” but said he would not disqualify himself from the case “notwithstanding this impropriety by mother and her fellow actors”.

The mother had apologised for approaching Ms O’Rourke, who was a TD at the time, but said she did so because she was not legally represented at the time, Mr Justice Abbott said.

The father then brought a High Court application to overturn the February 2013 decision alleging “wrongful and accepted representations” were brought to the attention of Mr Justice Abbott by another member of the judiciary on behalf of the mother.

This, the father claimed, gave rise to a reasonable apprehension of bias such that Mr Justice Abbott’s order should be set aside on the principle justice should not only be done but be seen to be done.

Because Mr Justice Abbott had, before becoming a judge, also been a TD in the same party and same constituency as Ms O’Rourke, this was sufficient to establish objective bias, he alleged.

Mr Justice Abbott recused himself from hearing the father's application and it went before Mr Justice David Keane who today rejected the claim of objective bias.

Mr Justice Keane said the father was seeking to extensively amend the judgment on the substantive (custody) issue which had already been made by Mr Justice Abbott.

“It is certainly clear that I cannot entertain any such application as I did not hear the appeal in which the judgment concerned was given”, he said.

While he rejected the father’s claims of bias, Mr Justice Abbott may be prepared to take the case on again not only for the purpose of keeping his February 2013 order under review but also to consider the application the father was now making in relation to that order.

"That is entirely a matter for Mr Justice Abbot in the first instance and I do not propose to make any order in that regard", Mr Justice Keane said.

He also said it was “perhaps fortunate for the mother” he had not concluded there had been a breach of the “in camera” rule in relation to family law proceedings by her approaching Ms O’Rourke.

But, as the substantive issues in the case had already been dealt with by Mr Justice Abbott, he (Justice Keane) said he “must not be lured or lulled into purporting to act as a court of further appeal or of review in relation to any aspect of the (February 2013) judgment that has already been given”.

He said he was making no order on costs in view of the mother’s conduct.