Supreme Court dismisses judicial review appeal regarding maintenance review, upholding statutory in-camera proceedings and jurisdictional limits.

THE SUPREME COURT

Keane C.J.

Murphy J.

Murray J.

88/2000

Between:

R. McC.

Applicant

and

Judge Yvonne Murphy

Respondent

JUDGMENT delivered the 23rd day of March 2001 by Keane C.J.

This is an appeal from a refusal by the High Court (O’Neill J.) to give leave to the applicant to apply by way of judicial review for

inter alia an order of certiorari quashing an order of the respondent refusing an application by the applicant for a review of

periodic maintenance payments payable by the applicant under an order of the Circuit Court dated the 29th June 1998 granting

a divorce decree in respect of the marriage between the applicant and D.J.

The applicant made a preliminary application to this court that the hearing of the appeal should be in public. While he accepted

that under

s. 38(5) of the Family Law (Divorce) Act, 1996, (hereafter “the 1996 Act”) proceedings under the Act are to be heard otherwise

than in public, he submitted that these were not such proceedings and that, accordingly, the hearing should be in public having

regard to the provisions of Article 34.1 of the Constitution.

The application for leave to issue judicial review proceedings had been refused in the High Court on the ground inter alia that, if

the respondent had erred in the order which she made, it was an error within jurisdiction. If the learned High Court judge was

correct in so holding, it would follow that, if the applicant were aggrieved by the determination of the Circuit Court, his

appropriate remedy was by way of appeal to the High Court. The intention of the Oireachtas that proceedings under the 1996

Act were to be heard in camera would be frustrated if an unsustainable application for judicial review in respect of the Circuit

Court order, grounded as here on affidavits setting out in detail evidence heard by the Circuit Court, had to be heard in public.

The court, accordingly, decided that the appeal from the order of the High Court would be heard otherwise than in public in

order to ascertain in limine whether there was a sustainable ground for granting leave.

It appears from the affidavit sworn by the applicant in support of his application that he and D.J. were married on the 5th

November 1982 and that there are three children of the marriage. As already noted, a decree of divorce was granted by the

Dublin Circuit Court on the 29th June 1998. It also appears from that affidavit that, on that occasion, an order by consent was

made providing inter alia for the making of periodic payments by the applicant for the benefit of the three children of the

marriage.

The applicant applied by way of a notice of motion dated 17th November 1999 for a number of orders, including an order varying

or amending the order in relation to periodic payments. This notice of motion came on for hearing before the respondent on the

29th November when counsel for D.J. submitted that the court had no jurisdiction to review the consent order. Having heard

the applicant’s response, the respondent said that she would like to consider the matter and would give her judgment at a later

date. She gave her judgment on the 27th January and said that under s. 22(2) of the 1996 Act, she could only vary the order

as to periodical payments if she considered it proper to do so having regard to any change in the circumstances of the case

and to any new evidence. She said that the only change in the applicant’s circumstances since the consent order was that he

had himself acquired a larger mortgage for his own requirements. She said that she was satisfied that in these circumstances it

would not be proper to alter the maintenance arrangements. She accordingly refused the application sought and granted costs

to D.J. The applicant says that at the time she gave this judgment the respondent informed him (the applicant) that the matter

was still in camera.

The grounds relied on in the High Court by the applicant can be summarised as follows:

(1) That the refusal by the respondent was contrary to the relevant legislation and to the requirements of fair procedures

and natural constitutional justice;

(2) That the respondent had improperly referred to the parties having previously availed of mediation;

(3) That the applicant was prevented from procuring particulars of D.J.’s property and income arrangements by virtue of

the respondent’s ruling, contrary to the relevant legislation;

(4) That the respondent was in error in stating that there were no other grounds for review of the periodic maintenance

payments other than an increase in the mortgage repayments of the applicant.

In this court, the applicant relied on additional grounds as follows:-

(1) That the decision of the respondent flew in the face of fundamental reason and common sense;

(2) That the respondent failed to take into account all the circumstances of the applicant, D.J. and their children as she

was obliged to do under Article 14.3.2º of the Constitution;

(3) That the giving by the respondent of her judgment otherwise than in public was in breach of Article 6.1 of the

European Convention for the Protection of Human Rights and Fundamental Freedoms.

The learned High Court judge was of the view that the respondent heard the applicant’s case and that she was entitled to

come to a conclusion on the merits of the applicant’s case, having read the affidavit and heard submissions, and that, in the

result, there had been no denial to him of natural justice. He was also of the opinion that, if there was any error on her part, it

was an error within her jurisdiction and could only be corrected on appeal.

I am satisfied that the learned High Court judge was entirely correct in so holding and that none of the additional grounds urged

in this court entitled the applicant to the relief he was seeking. The respondent arrived at the conclusion, having read the

affidavit of the applicant and heard the submissions, that it would not be proper to review the periodical payments in the light

of the allegedly changed circumstances and evidence adduced by the applicant. That was plainly a finding which it was within

her jurisdiction to make and which, if mistaken, could be corrected only by way of appeal. Had the applicant pursued an appeal

to the High Court, the view might have been taken that the applicant had demonstrated a sufficient change in circumstances

and had adduced sufficient evidence to warrant the making of an order pursuant to s. 22(2) of the 1996 Act. The applicant

having failed to take that course cannot succeed in having the respondent’s order set aside where it was plainly made within

her jurisdiction.

I am also satisfied that there is no ground for arguing that the order was so manifestly contrary to reason and common sense

as to justify it being set aside in judicial review proceedings. As to the submission that the respondent should have given her

judgment in public, I am satisfied that this is also not well founded: the giving of the judgment was part of the proceedings

under the 1996 Act which, by virtue of s. 38(5) of the 1996 Act were to be heard otherwise than in public.

I would accordingly dismiss the appeal and affirm the order of the High Court.

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It follows that, in these circumstances, it is unnecessary for this court to review its preliminary finding that this matter should

be heard otherwise than in public, for the reasons I have given at an earlier part of this judgment. Unless and until the relevant

legislation is found to be invalid having regard to the provisions of the Constitution, the High Court and this court must give

effect to the requirement in the legislation - in this case s. 38(5) of the 1996 Act - that proceedings of this nature be heard

otherwise than in public.