McG (petitioner) v F (respondent).
Family Law - Nullity - Inability to enter into and sustain normal marital relations - Medical inspectors - Extent of the role of medical inspector in nullity suit - Whether the medical inspector may examine third party informants.
The Supreme Court (Mrs Justice Denham, Mr Justice Murray and Mr Justice Geoghegan); judgment delivered 17 January 2001.
Where an order was made by the Master of the High Court appointing a medical inspector to examine the parties to a nullity suit, the examination was restricted to the parties involved and should not include third party informants. The Supreme Court so held in dismissing the appeal and affirming the order of the High Court.
Inge Clissman SC and Cormac Corrigan SC for the petitioner; David Hegarty SC and Michael Kinneen BL for the respondent.
Mrs Justice Denham outlined the facts of the case. The petitioner presented a petition to the Central Office in January 1997 seeking a decree that the marriage celebrated between the petitioner and the respondent was null and void and of no legal effect by reason of the fact that both parties lacked the capacity to enter into and/or sustain a normal lifelong marital relationship with each other at the date of the said marriage. This was based on their respective states of mind, mental conditions, emotional and psychological development at that time. The respondent denied the allegations stating the proceedings amounted to an abuse of process of the court by the petitioner and involved his seeking to evade proceedings for judicial separation which had commenced in 1996 but were adjourned following the nullity citation. The petitioner sought an order appointing medical inspectors to examine the parties and such an order was made by the Master of the High Court on the 14 May 1997. The petitioner and the respondent both attended with a psychiatrist who had been nominated and formally appointed in the Master's order. During one of the interviews with the psychiatrist, the petitioner requested that five other persons outside the parties also be examined. The directions of the High Court were then sought in regard to the medical inspector appointed and if necessary, an order granting liberty to him or her to interview persons other than the parties to the nullity.
The respondent objected strongly to non-parties being interviewed. The matter came before Mr Justice Kinlen on 24 April 1998 but no order was made and when the medical inspector indicated he intended to interview persons other than the parties the respondent applied to the High Court for directions in regard to the function of the medical inspector in accordance with the order of the Master dated 14 May 1997.
Mrs Justice Denham said that the issue came before Mr Justice Budd in the High Court relating to the ambit of the medical inspector's inquiry and a thorough analysis of the law of nullity was set out in the judgment. It was held that the medical inspector in the present case should operate within the terms of the order of the Master and should interview the parties and report without moving into the contentious areas of interviewing third-party informants. In the High Court's view, this restricted inspection would ensure the court would remain in control of the inquiry. The petitioner then appealed against the judgment and order of the High Court on a number of grounds.
Mrs Justice Denham then considered the submissions of counsel for the petitioner who pointed to the fact that this was a nullity petition and that it was within the court's power, or the Master's power to order a medical inspection. It was submitted that in order to carry out such an inspection and to ensure it was as comprehensible as possible, the medical inspector was entitled to interview witnesses of the wedding and surrounding circumstances. Counsel also considered that transparency would be assured by recording such interviews and any such witnesses could be called to give evidence on oath to avoid hearsay evidence being taken into account.
In addition, it was also submitted that should any evidence which showed that the basis upon which an expert opinion was reached was in fact mistaken, the judge could discount such evidence or place little weight on it. If the doctor gives evidence of information given to him which is undermined at trial then the report prepared to the doctor may not stand up to scrutiny. In counsel's view such a process allowed the court to weigh up and consider what regard should be had to the report. In support of this argument counsel drew an analogy with cases involving the welfare assessment of children by a doctor and referred to the similarities of a wardship case. Citing In Re Wards of Court: Eastern Health Board v MK and MK [1999] 2 IR 99 it was submitted that both wardship proceedings and nullity proceedings are inquisitorial.
Mrs Justice Denham referred to submissions by counsel on behalf of the respondent who argued that the decision of the High Court was correct and that the medical inspector should not interview persons other than the parties. He distinguished this case from that of the wardship saying there were major pecuniary interests at stake in the present case and he did not accept that nullity proceedings were inquisitorial. The proceedings for judicial separation had been pre-empted by this nullity suit and should the petitioner succeed it would deprive the spouse of ancillary reliefs. It was further submitted that the grounds for nullity based on personality disorder were a relatively recent development and it was suggested that the court should tread warily in this area. In his view if persons other than the parties were to be interviewed by the medical inspector it would be for the respondent to challenge the matters in question and that the application at hand was in fact a request to shift the role of judge to the medical inspector.
Mrs Justice Denham stated that the case related to nullity proceedings only and the issue concerned the ambit of the medical inspector's report. She pointed to the fact that the law of nullity in Ireland has been the subject of much case law and that originally impotence was the ground upon which marriage was voidable. As a result of case law during the 1980s, the examination by a medical inspector was extended from physical to psychiatric where it was held that if a party lacked the capacity to enter into and maintain a normal marriage relationship at the date of the marriage this could render it voidable. In support of this the judgment of Chief Justice Finlay in UF (otherwise C) v JC [1991] 2 IR 330 was cited. Mrs Justice Denham said that in such cases the issue was capacity involving consideration of matters of the mind. In this instance the parties had consented to such an examination but the issue concerned the examination of other persons.
In considering the point made by counsel on behalf of the petitioner in relation to wardship proceedings, Mrs Justice Denham was of the view that nullity proceedings were not of a similar nature and on that basis case law relating to wardship of children is of no relevance or assistance. In relation to the examination of other parties and counsel's suggestion that such individuals could be called to give evidence in court, it was opined that such a vista would give rise to many problems. This would involve the medical inspector conducting what would amount to a preliminary hearing of third parties and the fact that such persons would then be called to give evidence would leave many additional matters to be addressed in court such as what was said to the medical inspector. Further, the weight to be attached to such a report in the absence of evidence from interviewees would, in her view, be seriously undermined.
Mrs Justice Denham was satisfied that the opinion of the learned High Court judge that to allow third parties to be interviewed by the medical inspector would be to stretch the law too far was correct. Consequently, in this case the medical inspector had the authority as stated on the face of court order to interview the parties and no other persons but that nothing in this judgment was intended to inhibit a court, if deemed appropriate, from giving additional authority to the medical inspector with the consent of both parties.
Accordingly, Mrs Justice Denham dismissed the appeal and affirmed the order of the High Court.
MR JUSTICE MURRAY and MR JUSTICE GEOGHEGAN concurred.
Solicitors: Reddy, Charlton & McKnight (Dublin) for the petitioner; Martin E. Marren & Co (Dublin) for the respondent.
