A.McN v M.McN (Approved)

Factual and Procedural Background

This opinion concerns an appeal arising from family law proceedings under the Family Law (Divorce) Act, 1996, involving the Applicant and the Respondent regarding custody, care, and access of their children. The Circuit Court, presided over by Judge McDonnell, made various orders on 19th March 2021, including refusal of the father's application for primary care and control of the children, refusal of an updated s. 32 report as premature, refusal of a psychiatric evaluation of the mother, and refusal of the father's application to prohibit a particular expert from involvement. The mother was directed to organise therapy for the children, and supervised Facetime calls were permitted for better communication between the father and the children. The matter was adjourned for review.

The father appealed the Circuit Court orders and sought additional reliefs, including restraining various Circuit Court judges from further adjudicating the case. The High Court, with Justice O'Hanlon presiding, managed procedural directions and scheduled hearings. The case has a complex history with prior decisions by Faherty J. in 2020, which detailed a high-conflict family situation, joint custody with primary care to the mother, supervised access for the father, and various professional recommendations concerning the welfare of the children and the parties.

The father has sought reinstatement and expansion of access, including unsupervised access, while the mother resists due to concerns about the father's behaviour and its impact on the children. Multiple professionals, including Dr. Byrne-Lynch and Ms. Nic Dhomhnaill, have provided reports recommending supervised access and therapy. The court has emphasised the need to reduce conflict and follow professional recommendations to protect the children's emotional and psychological wellbeing.

Legal Issues Presented

1. Whether the Circuit Court erred in refusing an updated s. 32 report as premature.
2. Whether the father should be granted primary care and control of the children.
3. Whether the mother should undergo psychiatric evaluation.
4. Whether the father's applications to prohibit certain professionals' involvement and to restrain judges from adjudicating further should be granted.
5. The appropriate regime for access and contact between the father and children, balancing the best interests and welfare of the children with the rights of the father.

Arguments of the Parties

Appellant's Arguments

• The father seeks reinstatement and expansion of access, including unsupervised access in the medium term.
• He contends that he has had limited or no effective access since July 2020 and desires a workable solution moving forward.
• The father wishes for a new assessor, specifically Prof. Sheehan, to evaluate the situation.
• He disputes some professional assessments and raises objections to psychometric testing procedures.
• The father asserts his commitment to co-parenting and maintaining a relationship with the children, including introducing them to his new partner.
• He challenges allegations of inappropriate behaviour and emotional abuse, denying breaches of access agreements.
• He highlights his financial difficulties and living arrangements conducive to caring for the children.

Respondent's Arguments

• The mother opposes unsupervised access due to the father's behaviour and its damaging impact on the children.
• She references the withdrawal of access supervisors due to the father's unacceptable behaviour.
• The mother emphasises the need for supervised access and therapy for the children and the father.
• She stresses the negative emotional and psychological effects on the children arising from conflict and the father's conduct.
• The mother seeks an end to ongoing litigation and conflict, advocating for adherence to professional recommendations.
• She describes her own physical and financial strain caused by the protracted dispute.
• The mother supports a structured and child-centred access regime with limited interference.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court carefully analysed the extensive factual history and professional reports, particularly the detailed judgment of Faherty J. The court acknowledged the high-conflict nature of the case and the significant emotional and psychological risks to the children if access were unsupervised or if the conflict continued unchecked. The court emphasised the importance of following professional recommendations, including supervised access and therapy for both the children and the father.

The court considered the father's desire for increased access but balanced this against the welfare of the children, concluding that the current situation required a phased, structured approach to access. The court detailed a specific timetable for short, supervised virtual contact sessions designed to be child-centred and non-coercive. The court rejected the father's application for an updated s. 32 report as premature, noting the potential detriment of excessive reporting and emphasizing the need to normalise the situation first.

The court also refused the father's application to transfer primary custody and rejected any psychiatric evaluation of the mother, finding no basis for such an order given prior assessments and the mother's current efforts under difficult circumstances. The court underscored the excessive litigation history and directed the parties to minimize further applications, focusing instead on cooperation and adherence to professional guidance.

Holding and Implications

The court UPHELD the Circuit Court's orders refusing the father's applications for an updated s. 32 report, for primary custody, and for a psychiatric evaluation of the mother. The court established a phased access regime commencing with short, structured virtual contact sessions, emphasizing child-centred communication and prohibiting coercion or conflict during access.

The father must engage in therapy, pay outstanding fees to access supervisors, and comply with professional recommendations before any expansion of access is considered. The court granted liberty to apply for suspension or urgent issues but stressed the importance of ending the ongoing conflict and litigation for the benefit of the children.

No new legal precedent was established; the decision primarily enforces existing principles prioritizing the best interests and welfare of children in high-conflict custody and access disputes.