Two interesting cases in the last twelve months from Judge John Jordan in the High Court illustrate that there are circumstances where costs will be awarded in Family Law cases.
An ex tempore decision issued in June 2020 followed an interlocutory application in circumstances where a Section 47 Report by a child expert had issued and a decision made by the Court in relation to the parenting arrangements. The report had recommended further therapeutic intervention for the children and the father brought an application, notwithstanding the stated preference of the mother that the Section 47 Assessor not be the person to carry out the therapeutic intervention, that such therapeutic involvement be conducted by the Section 47 Assessor.
The mother had suggested other Assessors, but the father refused to engage with these Assessors.
The Court found that a Section 47 Assessor has a special status and that it was not appropriate in these circumstances for the author of the report to then be the person involved in further therapeutic care.
He dismissed the father’s application.
In relation to the costs application he made reference to judgement in BD -v- JD (May 2005) and held that while in Family Law cases where the Court is determining on a dispute in relation to matrimonial assets no costs would be awarded this is not the case in an interlocutory application such as this and he found no reason not to award costs and thus awarded the costs against the Husband.
In a judgement delivered in October 2020 in case of PM -V- EM this was a case where a Divorce was originally granted in 2018 and Judge Ryan made comprehensive orders in relation to access.
The father had applied on an ex-parte basis to suspend access. Judge Jordan ,in his decision on the substantive application in relation to the Motion , was very critical of the father’s behaviour i.e. he never told the Court (Judge McGrath) in the ex-parte (one party only) application that he was getting married and that the primary reason of seeking a suspension of access was so that his daughter could attend the wedding .The Judge found that the mother knew nothing about the application and that it was her weekend.
He further criticised the father for what he believed were unsubstantiated Covid related reasons for withholding access. He found that the father deliberately used Covid to frustrate access.
He made a finding of contempt against the father but he commented that committal of the father to jail for breach of a Court order was not in the best interests of the child.
In relation to the matter of costs he said that while the Court’s preference generally was not to award costs, he said the Court had to do so where it was necessary to do justice between the parties and to avoid a situation where in this case the mother is asking the Court that Orders be obeyed. He held in those circumstances that the mother should not be penalised by having to incur costs of having Orders complied with where there had been a clear breach.
He made an Order for costs against the Husband.
These decisions illustrate that in circumstances where one of the parties either brings an unreasonable application to Court or breaches an already existing Order that the Court will award costs against the offending party.
For further information in relation to Family Law matters please don’t hesitate to contact Brendan Dillon or Lorna McArdle on 01-2960666.
