C.G. v B.G.

Factual and Procedural Background

This judgment concerns two motions arising from a long-standing family law dispute between the Applicant, the former husband, and the Respondent, the former wife, regarding access to their daughter (referred to as "the Child"). The Child was born in 2008 in a European country designated "EUC". Divorce proceedings were initiated by the Respondent in EUC in 2008, followed by multiple court rulings in EUC and in this jurisdiction concerning parental authority and access rights.

A significant ruling by the Supreme Court in 2015 upheld the lawfulness of the Respondent’s removal of the Child to this jurisdiction in 2012, establishing the Child’s habitual residence here and refusing the Applicant’s application to return the Child to EUC. Subsequently, the parties entered into a Consent Order in July 2017 intended to settle access arrangements.

Despite the Consent Order, disputes over access reignited, leading to the Applicant’s motion alleging the Respondent’s breach of the Consent Order by denying access to the Child in EUC, and seeking committal orders and other relief. The Respondent filed a motion seeking to vary the Consent Order to restrict access to electronic means only, citing concerns over the Applicant's conduct and other circumstances. The motions were heard in December 2018.

Legal Issues Presented

1. Whether the Respondent has breached the terms of the Consent Order by denying the Applicant access to the Child as stipulated.
2. Whether the Consent Order should be varied to restrict access to electronic communication only.
3. Whether the Applicant’s application for committal of the Respondent for breach of the Consent Order should be granted.
4. The appropriate measures to restore and facilitate a relationship between the Applicant and the Child in the Child’s best interests.

Arguments of the Parties

Applicant's Arguments

• The Respondent refuses to comply with the Consent Order by preventing access to the Child in EUC.
• The Respondent lost the Child’s EUC passport and has refused to allow a replacement to be issued.
• The Respondent obstructed access during the Christmas period and other scheduled times, including refusing access when police intervened.
• The Applicant seeks committal orders to enforce the Consent Order, an order to dispense with the Respondent’s consent for issuing a new passport, and dismissal of the Respondent’s appeal against the 2013 High Court judgment.
• The Applicant alleges the Respondent has engaged in parental alienation, deliberately undermining his relationship with the Child.
• The Applicant wishes to set aside the Consent Order and obtain custody of the Child, although he states he does not intend to remove the Child from this jurisdiction.

Respondent's Arguments

• The Respondent seeks to vary the Consent Order to restrict access to electronic means only, citing concerns over the Applicant’s conduct.
• The Respondent asserts the Applicant failed to take necessary steps to obtain mirror orders in EUC as required by the Consent Order.
• The Respondent describes instances of the Applicant’s aggressive and abusive behavior during access visits, including a public altercation resulting in a protection order (which was later dismissed).
• The Respondent contends that the Child does not wish to visit the Applicant in EUC and that forcing such visits would cause fear and anxiety to the Child.
• The Respondent has communicated with the EUC embassy to prevent issuance of a new passport without her consent, which she maintains is necessary given the circumstances.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
G v. G [2015] IESC 12	Upheld the lawfulness of the Child’s removal to this jurisdiction and confirmed habitual residence.	The Court relied on this precedent to affirm that the Child’s habitual residence is in this jurisdiction and that return to EUC was refused, thus establishing the framework for subsequent orders and access arrangements.

Court's Reasoning and Analysis

The Court acknowledged the extensive and protracted litigation history and the detailed terms of the Consent Order, which clearly established access rights for the Applicant to the Child in EUC at specified times. The Court found that by December 2017, the arrangements under the Consent Order had become inoperable due to deteriorating relations and conduct by both parties.

The Court noted the conflicting accounts of events in EUC in August 2017 and in this jurisdiction in November 2017, but found it unnecessary to resolve these disputes due to their limited bearing on the final decision. It was clear that heated and distressing arguments occurred in the presence of the Child, negatively affecting her welfare.

The Court considered the report prepared under section 47 of the Family Law Act 1995, which highlighted the Child’s negative perception of the Applicant and the need for professional intervention to restore the relationship. The report recommended gradual reintroduction of access with professional support, emphasising the importance of cooperation between the parties.

Regarding the allegation of parental alienation, the Court found the evidence insufficient to establish deliberate alienation by the Respondent, though it acknowledged the seriousness of such an allegation and the need for vigilance in the future.

The Court observed that both parties had acted contrary to the Consent Order to some extent: the Respondent by withholding access without seeking variation of the order, and the Applicant by initiating or continuing proceedings in EUC and not securing mirror orders as required. The Court emphasized that deliberate breaches of court orders would not be tolerated going forward.

Given the breakdown in the relationship and the Child’s welfare, the Court held that access under the Consent Order should be temporarily suspended and access should proceed only under professional guidance aimed at rebuilding the relationship gradually and safely.

The Court affirmed the remaining provisions of the Consent Order concerning mirror orders in EUC, subject to the suspension of access provisions, and placed the onus on the Applicant, as a practicing lawyer in EUC, to secure these orders with the Respondent’s consent to facilitate legal certainty.

The Court dismissed the Applicant’s committal application due to late service of the Consent Order with penal endorsement and the timing of alleged breaches, but noted that the Respondent’s refusal to facilitate access post-August 2017 constituted a breach of the Consent Order. However, no adverse order was made against the Respondent given the circumstances and the Child’s best interests.

Holding and Implications

The Court temporarily suspended the access provisions of the Consent Order pending professional recommendations to restore the relationship between the Applicant and the Child. Access shall proceed only on terms recommended by qualified professionals to ensure the Child’s welfare.

The Court affirmed the remaining terms of the Consent Order relating to mirror orders in EUC, requiring the Applicant to obtain these orders with the Respondent’s cooperation.

The Applicant’s application for committal of the Respondent was dismissed due to procedural deficiencies and timing of service.

The decision directly affects the parties by mandating a cooperative, professionally supervised approach to access and relationship restoration, but does not establish new legal precedent.