Woman fails to get order restricting her child’s father bringing more applications

A woman has failed to get an exceptional High Court order preventing her child’s father bringing any more applications concerning family law proceedings unless he gets court permission to do so.

The order was sought against a background of some 70 applications having been brought by the couple between them in family law proceedings.

While the woman alleged the man was the instigator of most of those, Ms Justice Mary Rose Gearty said there was no evidence of the exact number he had brought.

In a judgment published this week, the judge said the man is currently subject of an order depriving him indefinitely of access to his son and she was not inclined to make another order preventing him making another access application without court permission.

Many of the woman’s complaints about the man are personal to the family relationships, related to matters outside the context of court proceedings, and it was not contested the relationship between child and father has broken down.

There is no jurisdiction here to order that parties in a family law case cannot come back into court and the criteria for the order sought here, known as an Isaac Wunder order, had not been met, she ruled.

In this case, both parties are “frequent visitors” to court in spite of the fact previous courts had ruled neither should be there for any reason. Their continuing failure to work together on any aspect of their child’s welfare was “deeply disturbing but not something I can change”, even if this was an access application.

To succeed in getting the Isaac Wunder order, the woman had to prove “habitual and vexatious” applications by the man, she said.

The woman had not demonstrated habitual challenges by him to actions of legal personnel involved in access hearings and the authors of relevant reports.

The man previously sought judicial review of the cross-examination of one expert but that was not enough for her to find his most recent judicial review was vexatious, she held.

Earlier, she said the unusual features of the case, in terms of an Isaac Wunder order, were “all too familiar” in family law proceedings with allegations and counter allegations, many “very serious”, and which were contested.

Both parties have made “multiple applications” and, to some extent, it was clear many of those “are not necessary – or at least are not wise”. Because both have asserted their rights repeatedly before different courts, there was no proof of the man being the main instigator of the court hearings, or even most of those hearings.

There was “no doubt” he has brought many applications but the court had no evidence of how many. There was reference to a general number of 70, “a high number by any standards”, but not all were his applications.

In this application, she could not assess the reasonableness of previous orders made in the family law proceedings, she stressed.

At least one judge had directed neither party should return to court for a specific period. That was not a lawful order but it pointed to “a certain level of litigiousness” on both sides.

It was also “impossible”, on the evidence before her, to decide as a matter of fact whether, as the woman alleged, there was “no real intention” by the man to maintain contact with his son.

He appeared to have a “genuine grievance” about a report related to his access and all his litigation is focused on one aim, to increase access, but she could not decide that without evidence.

There was insufficient information to find the man so lacking in credibility his sworn statement could be discounted, she added. Another judge had attempted to put in place a regime whereby the man’s access would be increased but the latest order on access prevents the man from direct access to his son indefinitely, she noted.