Separated father loses ‘most unusual’ bid for damages over court order

A separated father has lost a “most unusual” appeal where he sought damages of €1m and €3m respectively against his estranged wife and a Circuit Court judge after winning a rehearing in that court on custody and maintenance issues.

The Court of Appeal’s Ms Justice Caroline Costello said this appeal was “most unusual” as the man brought it over a High Court ruling in his favour.

In a July 2020 judgment on his judicial review proceedings against his wife and a judge of the Circuit Court, the High Court quashed the judge’s March 22nd 2019 decision dismissing his appeal over custody and maintenance orders made by the District Court and directed a rehearing before a different Circuit Court judge.

Giving the COA judgment on his appeal over the High Court decision, Ms Justice Costello said the man and his wife married in their native EU country in 2009. They are both living in Ireland and have two children of whom the man was the primary carer as his wife worked outside the home.

Their marriage deteriorated about 2016, the wife left the family home with the children and divorce proceedings are ongoing.

In September 2017, the District Court granted the wife custody of the children with the man having access every second weekend, one night weekly and some hours on another weekday. In 2018, the District Court increased his access but made no alteration to maintenance orders.

He appealed, seeking joint custody and opposing paying maintenance of €120 weekly, saying he should instead receive maintenance from his wife.

On March 22nd 2019, a Circuit Court judge dismissed his appeal and affirmed the District Court orders on custody and maintenance.

He took judicial review proceedings solely against his wife but, when granting leave, the High Court directed the Circuit Court judge be added as a respondent.

Ms Justice Costello said the leave concerned only the Circuit Court decision on the man’s appeals over the District Court orders. Complaints by the man he was not being treated equally to his wife concerning welfare benefits and legal aid were not part of the judicial review.

In July 2019, the High Court, noting, inter alia, the transcript of the Circuit Court hearing and that the Circuit Court judge, represented by Claire Hogan BL, had not opposed judicial review, set aside the Circuit Court order and remitted the matter for a fresh hearing before a different Circuit Court judge.

In his COA appeal, the man argued the High Court should, inter alia, have “rectified” the situation in the lower courts, initiated disciplinary proceedings against certain judges and his rights were not vindicated. He claimed he was not treated equally to his wife, the courts had failed to uphold the children’s best interests by awarding joint custody and he sought damages of €1m and 3m respectively against his wife and the Circuit Court judge.

Ms Justice Costello said the “fundamental difficulty” for the man in this appeal is that he misunderstands the distinction between proceedings which determine substantive matters and those which do not.

The District Courts, and the Circuit Courts on appeal, decide issues of custody, maintenance and access but judicial review is an “entirely different” procedure concerned only with the “legality” of decisions of the inferior courts, not their merits.

The High Court had no jurisdiction to grant reliefs concerning his complaints about custody, maintenance and access, she said.

For reasons including neither the woman nor the Circuit Court judge had any opportunity before the High Court to address a damages claim, as the man had adduced no evidence there concerning damage, it was “simply not possible” for the COA to award damages in the sums claimed, or any sum.

The man has a rehearing before the Circuit Court and the issues raised by him simply do not arise in this appeal, she said. For the reasons set out in the judgment, the appeal was dismissed.

In view of the man’s “deeply felt” concerns and the “unsatisfactory” Circuit Court hearing of March 22nd 2019, the judge requested the president of the Circuit Court to assign the rehearing to a judge who had no previous involvement in the litigation.

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