High Court dismisses father's appeal to amend judgment and his separate bias claim against the judge.

Neutral Citation: [2014] IEHC 450

THE HIGH COURT

FAMILY LAW

[2012 No. 97 and No. 98 CAF]

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989 AND IN THE MATTER OF THE FAMILY LAW

ACT 1995

BETWEEN

A.B.

APPLICANT/RESPONDENT

AND

C.D.

RESPONDENT/APPELLANT

JUDGMENT of Mr. Justice Keane delivered on the 8th October 2014

Introduction

1. On the 12th July 2013, Abbott J. gave judgment in this case, which is an appeal from a judgment of the Circuit Court in family law

proceedings brought under the Judicial Separation and Family Law Reform Act 1989 and the Family Law Act 1995. As they have

progressed, those proceedings have come to focus on the welfare of one of the parties' three children, a son who has been given the

pseudonym Edward. The appellant is Edward's father ("the father") and the respondent to the appeal is Edward's mother ("the

mother").

2. Although judgment has already been given in the appeal and Orders have long since been made, the father now brings two further

applications before the Court. The first, the subject of a motion dated the 12th July 2013, seeks, in essence, to set aside the Order

of Abbott J. made on the 28th February 2013 on the ground of bias. It would appear that, immediately upon being apprised that the

father is alleging bias, Abbott J. recused himself from the case, with the result that the application ultimately came before me, in

conjunction with the father's second application. In the second application, brought by motion dated the 21st November 2013, the

father seeks to amend, correct or supplement the terms of the judgment delivered by Abbott J. on the 1ih July 2013.

The background

3. It is both significant and sad to note that the parties have been locked in litigation for over a decade. While they received a

decree of separation in 2003 and were divorced in 2009, they remain in conflict concerning the welfare of their three children and, in

particular, the welfare of their youngest child Edward. As Abbott J. put it when giving judgment three years ago in an earlier appeal

from the Circuit Court involving the same parties, "the history of the marriage has been punctuated, if not dominated, by an

extraordinary number of court appearances."

4. To place the two applications now before me in their proper context, it is necessary to consider the judgments already delivered by

Abbott J. in relation to each of those two Circuit Court appeals.

The first judgment

5. The first judgment, reported as A.B. v. C.D. [2011] IEHC 543, was delivered on the 26th July 2011. It is a lengthy decision on an

appeal brought by the father against five orders made in the Circuit Court between the 17th June and 22nd October 2008 concerning

the welfare of the parties' three children. The effect of the relevant parts of the various Circuit Court orders then under appeal was

to refuse the father's application for custody of Edward.

6. In seeking custody of Edward, the father relied upon welfare reports procured by the Court, pursuant to the terms of s. 47 of the

Family Law Act 1995, from a particular expert child psychiatrist retained by agreement between the parties. That expert concluded

that the two older children were significantly distanced and alienated from the father, but the alienation of Edward might yet be

arrested or prevented if he were moved into the father's custody, since the expert found the father to be willing and capable in every

sense of providing good parental care to the child. Both parties impressed that expert as caring, intelligent and thoughtful in their

consideration of the children's needs. Nevertheless, having noted that the atmosphere in the parties' relationship was highly toxic, the

expert also concluded that it was these increased levels of parental conflict that had been particularly burdensome for all three

children.

7. Another expert, who conducted a separate assessment of the children's welfare, found no evidence to contradict the assessment

of the expert just mentioned that the three children were all alienated from the father. It is a further doleful reflection on the intense

and protracted nature of the litigation between the parties that the experts just referred to are described in the judgment as expert

No. 7 and expert No. 8, respectively. Expert No. 8 recommended a finding of chronic alienation of the children from the father but

expressed the view that the lapse of time that had already occurred militated against any solution that would help the children to re-

establish their bond with the father in the short or medium term.

8. Expert No. 7 gave evidence that alienation of a child from one parent by the other parent cuts that child off from the positive

resource that the relevant parent represents. His evidence was that the relationship between Edward and his father is "strongly not

expendable" in this case "because I have seen too many children go across the period of their life cycle, into later adolescence and

young adulthood, and the consequences in marriage and so on and for their own parenting, so that the long term...short term and

long term problems are significant."

9. At the conclusion of the appeal, Abbott J. made orders on the 5th November 2009 transferring custody of Edward from the mother

to the father. An attempt was made to effect that transfer at a neutral venue on the 6th November 2009 but Edward and his two

sisters became physically obstructive and the attempt was abandoned. The Court made further orders on the 12th November 2009 on

foot of which Edward was successfully transferred into the father's custody.

10. The Court adjourned the appeal in order to keep the situation under review. Abbott J. subsequently concluded that, regrettably,

the mother had breached her obligation to co-operate with the process of Edward's settling into the custody of the father. The

mother apologised to the Court and gave an undertaking to co-operate with its orders in future. Abbott J. also concluded, having

elicited the views of the children directly, that they continued to be alienated from the father by the mother. Accordingly, although

Edward expressed the wish to live with his mother and although the Court acknowledged that due weight must be given to that wish,

the Court concluded that Edward's wishes could not be considered determinative of the appeal and must not be allowed to change

the fundamental approach of the Court - i.e. that the welfare of the child is the first and paramount consideration.

11. The Court made final orders on the appeal on the 21st July 2010 confirming that Edward was to remain in the primary custody of

his father.

12. In the perfectly understandable hope that the litigation between the parties had finally come to a close, Abbott J. included a

section in the judgment he delivered on the 26th July 2011 entitled "Reflection", in which he posed the question, "what steps, if any,

by way of court procedures could have been taken to avoid or, at least, reduce the extent of this profligate and destructive

litigation?"

13. In addressing that question, Abbott J. identified two aspects of the litigation in particular that he felt had acted to the detriment

of the parties and the children. The first was the mother's determination to query and undermine any expert who gave an opinion

unfavourable to her position in the case. In that regard, I would add my own observation that it cannot have been entirely

coincidental that, by the time final orders were made in the appeal, nine different experts had been involved in the proceedings.

14. The second such aspect of the case was the regrettable fact that, although a number of experts had reported to the court that

the mother was guilty of alienating tendencies, no conclusion in that regard was ever formally put on record and, in consequence, no

steps were taken to counteract the corrosive effect of those tendencies or to alert anyone subsequently dealing with the case to

their existence. Abbott J. went on to recommend that the conclusions of a court concerning the matters canvassed in any s. 47

expert report should be clearly recorded. Specifically, in this case, Abbott J. accepted a submission made on behalf of the father that,

whether by accident or design, the mother had developed a system of agreeing access arrangements to the children for the father

whenever she was before the court only to obstruct or frustrate the operation of those orders in practice afterwards until brought

before the court again, thereby causing continuing damage to the development of the relationship between the children and the

father.

15. Abbott J. concluded his judgment with a consideration of the principles governing the procurement and use of s. 47 expert reports

generally.

The second judgment

16. The second judgment, reported as A.B. v. C.D. (No.2) [2013] IEHC 476, was delivered on the 12th July 2013. It addresses an

appeal brought by the father against an order of the Circuit Court made on the 25th October 2012, granting custody of Edward to the

mother.

17. That order of the Circuit Court arose in the following circumstances. On the morning of the 27th September 2012, while residing

with the father, Edward left for school in the usual way. However, instead of going to school, Edward travelled to the mother's home

in another part of the country, a considerable distance away. The mother refused to return Edward to the father's custody and

further litigation in the Circuit Court then ensued, culminating in the order of the Circuit Court just described.

18. The second judgment records that it was represented by the mother's counsel that Edward "agreed with [the Circuit Court judge

who heard the matter] that if he was allowed to stay with mother in her fulltime care, that he would cooperate with access for his

father more or less on the basis of a reverse of roles between mother and father as compared with the order of [the High Court]."

19. Abbott J. states, at para. 7 of the second judgment, that he spoke to Edward in the court room without the presence of lawyers

or parties in accordance with the procedure described in S. J.O'D v. P. C. O'D, 26 May 2008, High Court, Abbott J., unreported. The

judgment records that Edward expressed the wish to remain at home with his mother and the belief that, if he were allowed to do so,

his mother would abide by the access arrangements made for his father.

20. The findings at the conclusion of the judgment include the following:

"1. When the court first made the order herein, Edward was nine and a very upset alienated boy but still with a chance to

build a relationship with his father.

2. Edward is now twelve and, although he arranged his escape contrary to the court order, he now by all accounts has

matured and, indeed, he has taken possession of his own future by indicating his preferences through his own voice to

two judges in succession.

3. Having regard to Edward's attitude and obvious maturity, it would appear that the care of his father and his second

wife, while much criticised by Edward and mother, had obvious beneficial effects which were admitted all round.

4. Edward is now at a stage at twelve years and having regard to his maturity and his obvious commitment to work out

his future while attending the B. school, must be allowed a degree of self determination and it is inappropriate for the

court to interfere with the broad findings of the Circuit Court subject to details in relation to existing schooling as appear

in the order hereunder.

21. The appeal to which the second judgment relates was heard on the 12th 13th and 28th February 2013. At the conclusion of the

appeal, on the 28th February 2013, Abbott J. made orders, inter alia, directing the nature and scope of the access that the father

was to be afforded with Edward and the arrangements that were to be made for Edward's education at a school in the vicinity of the

mother's home. Thus, by implication, Abbott J. substantially affirmed the first instance decision of the Circuit Court, subject to

directions on the father's access to Edward and on Edward's education.

The first application

22. The father, as a litigant in person, now seeks an Order "striking out and/or setting aside" the Order made by Abbott J. on the 28th

February 2013. The father makes that application by reference to a particular matter addressed in the second judgment. At para. 6

thereof, in describing an intervention the Court made during the cross-examination of the mother, Abbott J. states:

"I asked [the mother] if, after the making of the High Court order herein but before the furnishing of reasons, she asked a

Dáil Deputy to make inquiries for her in relation to the matter from the judge, and that that Dáil Deputy sought the

services of a Circuit Court judge to ask me was it a fact that Edward had been sent away to the primary care of the

father. She agreed that she had made that approach to the Dáil Deputy and apologised on the basis that it was at a time

when she was unrepresented. I informed the court that on being asked the question by the Circuit Court Judge (quite

improperly), I replied that a judgment would issue on the web in due course in relation to the matter."

23. I pause here to note that the High Court Order in respect of the first appeal was made on the 21st July 2010, and that reasons

were furnished in a lengthy judgment delivered on the 26th July 2011, so that the period with which Abbott J. was concerned was

that falling between those two dates.

24. The concluding section of the second judgment is headed 'Findings' and contains 10 enumerated paragraphs. The last of those

paragraphs states as follows:

"I indicated to the parties that notwithstanding the entirely improper interference of mother via political representative

and judge, that I did not propose to disqualify myself such as other judges might have done in the circumstances and the

parties proceeded to authorise me to speak to Edward on the [S. J.O'D v. P.C.O'D] principle, which would indicate

consensus of the parties that I should continue to act, notwithstanding this impropriety by mother and her fellow actors."

25. In the notice of motion that grounds the first application, the father asserts that he is entitled to have the Order made on 28th

February 2013 overturned "due to the wrongful and accepted representations made by [the political representative concerned] which

was (sic) brought to the attention and knowledge of Mr. Justice Henry Abbott by an unnamed member of the judiciary on behalf of

[the mother]."

26. As disclosed in the submissions filed in support of this first application, the father's principal argument is that the incident

described by Abbott J. in his second judgment gives rise to a reasonable apprehension of bias such that the judgment and order of

the Court should be set aside on the basis of the principle that justice should not only be done but should be seen to be done.

The evidence

27. The mother and father have exchanged a number of affidavits on the application. Insofar as the husband is seeking to place

particular reliance on what occurred during the relevant part of the appeal hearing before Abbott J., I directed him to take up a copy

of the transcript for the second day of that hearing, the 13th February 2013. On reading that transcript, it became apparent that the

hearing did not conclude on that date, contrary to what had been averred by each of the parties, and I therefore directed the

production of the transcript for the 28th February 2013, which, it transpires, was the third and final day of the appeal hearing.

28. The father has exhibited to one of the affidavits that he has sworn in the application a copy of the Statement of the President of

the High Court and the President of the Circuit Court of the 4th November 2013, concerning an urgent investigation they had

conducted into a report in the Sunday Times Newspaper of the 3rd November 2013 that suggested that a judge of the Circuit Court

had "tried to meddle in [a] family case." The father has done so for the purpose of submitting that the statement concerned amounts

to a pre-judgment of the issue that he is seeking to have determined by this Court. In deference to that submission, I have not taken

the contents of that statement into account in addressing either of the applications now before me.

29. Accordingly, the material before the Court in the present application comprises the affidavits exchanged, the two judgments of

Abbott J., and the transcripts of the second and third days of the second appeal hearing before Abbott J. on the 13th and 28th

February 2013, respectively.

The facts

30. It is plain from the terms of the second judgment that the encounter to which Abbott J. took exception occurred between the

making of an Order and the delivery of a judgment on the first appeal, that is, between the 21st July 2010 and the 26th July 2011.

This was, of course, some time prior to the events in September 2012 that precipitated the second set of Circuit Court proceedings,

not to mention the proceedings themselves or the decision subsequently made on appeal in those proceedings on the 28th February

2013, for which decision reasons were given in a judgment delivered on the 12th July 2013.

31. It is also plain from the terms of that judgment that the nature and consequence of the encounter were as follows. A Circuit

Court judge asked Abbott J. whether it was a fact that Edward had been sent away to the primary care of the father. In response,

Abbott J., who considered the question to be improper, replied that a judgment in the matter would be available in due course. That

description of the relevant interaction is broadly reflected in the transcript of the second day of the appeal hearing on the 13th

February 2013, which contains nothing to suggest any further or wider contact or discussion.

32. Another significant fact is that the Court raised the matter of its own motion with the mother in the presence of the father when

the mother was giving evidence in the course of the second appeal. The transcript discloses that the Court remonstrated with the

mother during that exchange, and the second judgment describes the Court's view that what had occurred represented "the entirely

improper interference of mother via political representative and judge." The mother's conduct is an issue to which I will return later in

this judgment.

The law

33. In the Supreme Court decision in Bula Ltd v. Tara Mines Ltd. (No. 6) [2000] 4. I.R. 412, Denham J. described the test for bias in

the following terms (at 441):

"[I]t is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances

would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the

issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any

party. It is an objective test- it invokes the apprehension of the reasonable person."

34. The question I have to answer, therefore, is whether a reasonable person would have a reasonable apprehension that the father

did not have a fair hearing from an impartial judge on the second appeal in February 2013 by reference to the fact that, during the

hearing of that appeal and in his judgment, the judge had castigated the mother for her involvement in what the judge considered an

improper enquiry from another judge on behalf of the mother at the behest of a political representative some time previously in

respect of an order that the judge had made in the first appeal, which enquiry had been rebuffed. In my view, the answer to that

question must be that a reasonable person could not have a reasonable apprehension that the father did not receive a fair hearing in

those circumstances.

Fair hearing

35. The father's case on his first application goes beyond the claim of objective bias that I have just rejected. It extends to the

contention that the father was deprived of a meaningful opportunity to advance that claim of bias in the course of his second appeal

and was, thus, deprived of his entitlement to a fair and just hearing.

36. In the affidavit that the father swore on the 8th July 2013 to ground the first application, he avers that the hearing took place

over two days- the 13th and 14th February 2013- and that, since the matter at issue was not raised with the mother until "late on

the final day of the hearing (the 14th February 2013)", he was deprived of any meaningful opportunity to consider its potential

significance. In the same affidavit, the father avers that he was given no opportunity for an adjournment to allow him to consider the

position. The father also avers as follows: "I say later on the 14th February 2013, Judge Abbott gave his decision...." In a further

affidavit sworn on the 14th October 2013, the father averred that his application is "in respect of orders made on the 14th February

2013." In a further supplemental affidavit sworn on the 3rd December 2013, the father again averred that his appeal had been heard

over two days (the 12th and 13th February 2013).

37. As has already been explained earlier in this judgment, in the context of an argument that the father wished to rely on concerning

what he claimed had transpired on the second day of the hearing, I directed the father to take up a copy of the transcript for that

day, which was then made available to the mother and the Court also. That transcript establishes that the second day of the appeal

hearing was on the 13th February 2013 (and that, by implication, the first two days of the hearing took place on the 12th and 13th

February 2013, rather than on the 13th and 14th February 2013). More significantly, the transcript establishes that the hearing did

not conclude on the second day, directly contrary to what the father has averred. In the circumstances, I directed the production of

a transcript in respect of the 28th February 2013.

38. That transcript discloses that the appeal resumed on that date and occupied the whole day, concluding late in the afternoon. It

is instructive to note that the transcript of the hearing on the 28th February 2013 runs to 112 pages, whereas that of the hearing on

the 13th February 2013 runs to only 61 pages. The transcript for the 28th February 2013 discloses that the father was permitted to

open his case at length; that he then gave sworn evidence and was cross​ examined upon it; that the parties were then permitted to

make submissions; and that the Court finally ruled on the appeal, rising at one point to permit the parties to work out the mechanics

of a particular part of the proposed Order, before adjourning the matter to the 12th July 2013 for the purpose of any review of the

operation of the order that might then be necessary.

39. It is difficult to imagine a situation more fundamentally at variance with the averments that the father has made than that

disclosed by the transcripts that I have now seen. Those transcripts disclose that the father had an adjourned period of just over

two weeks to consider the significance of the matter raised on the 13th February 2013 before the hearing of his appeal resumed on

the 28th February 2013, and ample opportunity to make whatever application or submission he considered appropriate during the

entire day between the resumption of the hearing and its conclusion.

40. I therefore reject the submission that the father was deprived of a fair or just hearing.

Acquiescence or waiver

41. The fact that the father had a period of more than two weeks prior to the conclusion of the hearing to formulate any objection he

wished to make to the determination of his appeal by Abbott J. in light of the matters disclosed on the 13th February 2013, yet did

not do so, goes to a separate issue that was raised in argument before me on behalf of the mother.

42. That issue is whether the father can be held to have waived any objection he might otherwise have been entitled to maintain in

that regard by acquiescence. The rationale behind the doctrine of waiver was explained in the following way by Henchy J. in Corrigan

v. Irish Land Commission [1977] I.R. 317 (at 326):

"The rule that a litigant will be estopped from raising a complaint as to bias when, with knowledge of all the relevant

circumstances, he expressly or impliedly abandoned it at the hearing, is founded, I believe, on public policy. It would be

obviously inconsistent with the due administration of justice if a litigant were to be allowed to conceal a complaint of that

nature in the hope that the tribunal will decide in his favour, while reserving to himself the right, if the tribunal gives an

adverse decision, to raise the complaint of disqualification. That is something the law will not and should not allow. The

complainant cannot blow hot and blow cold; he cannot approbate and then reprobate; he cannot have it both ways"

43. The father has not explained how he came to make the serious allegation that the Court failed to afford him an adjournment or

any meaningful opportunity to consider the matters that arose on the 13th February 2013, which allegation was based upon his own

sworn evidence that the appeal hearing concluded, and a ruling was made, on that date. Nor has he apologised for doing so, despite

now acknowledging that the hearing in fact adjourned on the 13th February 2013 and was concluded over a full day on the 28th

February 2013.

44. Instead, the father filed further written submissions without the leave of the Court just prior to the conclusion of the hearing of

the present application. In those written submissions, he seeks to make a significantly different case in relation to bias. The father

asserts that there was a relevant circumstance that he did not have knowledge of on the 28th February 2013. That circumstance is

that, at a time prior to making the declaration required of a judge appointed under the Constitution, Abbott J. was himself a political

representative with the same party political affiliation in the same constituency as the political representative concerned. The father,

in effect, submits that that circumstance, either on its own or in conjunction with the other circumstances already considered, is

sufficient to establish objective bias.

45. In my view, there are three problems with that submission, quite apart from the irregular manner in which it was raised. The first

is that the circumstance concerned is not, in fact, relevant to the matters upon which the father had previously relied in seeking to

establish objective bias- i.e. that during the hearing of the father's appeal, and in his judgment, the judge had reprimanded the

mother for her role in what the judge perceived to be an improper enquiry that had been made of him by another judge some time

previously on behalf of the mother at the behest of a political representative, which enquiry had been rebuffed. In circumstances

where the relevant enquiry had been curtly dealt with, and its occurrence deprecated by Abbott J., the nature of any prior public

association between that judge and the political representative concerned does not seem to me to be either relevant or material to

the claim of objective bias originally advanced. The father now seeks to link the two matters in a way that suggests that he would

see no difficulty, or less difficulty, with any perceived interference in the case, as long as came from someone with whom the Court

did not have any prior public association, however innocuous. That cannot be correct. Since the only proper and appropriate course is

to reject and condemn any perceived interference in the judicial process in every case, the presence or absence of a prior public

association between the actors concerned cannot be considered a relevant circumstance in that regard.

46. The second problem is that, if the particular circumstance now relied upon is instead asserted as a separate and freestanding

basis for seeking to establish objective bias, I do not believe that it is capable of satisfying the appropriate test. That is to say, I do

not accept that a reasonable person could have a reasonable apprehension that the father did not receive a fair hearing because of a

past public association between the Court and a political representative whose perceived representations on behalf of the mother

through an intermediary in relation to earlier proceedings between the same parties had been both spurned and deprecated by the

Court.

47. The third problem is that the past public association that the father now seeks to rely upon is, and was at all material times, a

matter of public record. Even allowing for the father's status as a litigant in person and his assertion in submissions, though not in

evidence, that he was born outside the jurisdiction and worked abroad for several years, the circumstance concerned was at all times

capable of being ascertained by the most obvious and rudimentary enquiry. Accordingly, it seems to me that, even if the father's

averment that he did not become aware of the relevant circumstance until after the appeal hearing is correct, that circumstance is

nevertheless one of which the father could simply and readily have apprised himself before the 28th February 2013, insofar as he had

any genuine concern about the matters that were raised in open court on the 13th February 2013. The fact, if it is a fact, that the

father did not make any such rudimentary enquiry prior to the 28th February 2013, strongly suggests an intention on the part of the

father at the time to refrain from raising any issue of that kind in the hope of a favourable decision on appeal, while seeking to

reserve to himself the right to make a complaint subsequently should the decision turn out to be unfavourable to his interests.

48. For each of the reasons set out above, I am satisfied that the alternative claim of objective bias put forward by the father must

also fail, and that the father must, in any event, be deemed to have waived his entitlement to assert any objection in respect of

either such claim.

Breach of the in camera rule

49. The transcript of the hearing on the 13th February 2013 discloses that, contrary to what was afterwards averred by the father,

the mother acknowledged as soon as the question was put to her that she had indeed contacted the political representative

concerned, in her words, "a way back." The Court put it to the mother that she had broken the in camera rule in doing so. The

mother denied that she had asked the political representative concerned to do anything on her behalf in relation to the proceedings

and insisted that she had merely gone to speak to that person because she was, in her words, "in crisis." The mother claimed that

she had not been legally represented at the time. Later, the mother conceded that her contact with the political representative

concerned may have been unwise and offered an apology to the Court in that regard.

50. The father now seeks, as one of the reliefs claimed in his first application, an order that there has been a breach of the in camera

rule in the context of the matters of which he complains.

51. The mother has sworn two replying affidavits in response to the father's first application. In her first affidavit, sworn on the 30th

July 2013, the mother avers that, on the 6th November 2009, she telephoned the political representative concerned and made an

appointment to meet with that person on the 21st November 2009. It will be remembered, as the mother acknowledges, that Abbott

J. had made orders on the 5th November 2009 transferring custody of Edward from the mother to the father. After an unsuccessful

attempt was made to effect that transfer on the 6th November 2009, the matter came back before the Court on the 12th November

2009. Tellingly, the mother acknowledges that she was legally represented by solicitor and counsel on that date. The mother avers

that Edward was transferred into the father's custody on the 20th November 2009. The mother accepts that she kept the

appointment that she had made with the political representative concerned on the 21st November 2009.

52. The mother is adamant that she did not ask the political representative concerned to intervene or interfere in any way in the

case, and that she was unaware of any such intervention until the matter was raised with her by Abbott J. on the 13th February

2013, over three years later. However, having read the transcript of the evidence given by the mother on the 13th February 2013,

and the two affidavits that she has now sworn in this application, it remains entirely unclear to me what the mother's purpose was in

meeting with the political representative concerned on the date in question, at a time when she clearly had access to the best

available legal advice from the experienced and highly regarded solicitor and counsel who had represented her in court just over a

week previously.

53. In the submissions filed on behalf of the mother in response to the father's two applications, it is argued that, insofar as the

mother approached the political representative concerned to obtain advice, there can have been no breach of the in camera rule.

That argument is made by analogy with the position that pertains in the United Kingdom. There, under para. 1.3 of Practice Direction

14E, which supplements Part 14, rule 14.14(b) of the Family Procedure Rules 2010, a party to family law proceedings may

communicate with "an elected representative or peer" without the permission of the court in order "to enable the elected

representative or peer to give advice, investigate any complaint or raise any question of policy or procedure."

54. However, the mother's submissions on that point fail to disclose that, under the relevant provision, the only information that can

be thus communicated between a party to family law proceedings and an elected representative or peer is "[t]he text or summary of

the whole or part of a judgment given in the proceedings." In this case, final orders were not made on the first appeal until the 21st

July 2010 and judgment was not delivered until the 26th July 2011. It is difficult, therefore, to see how, in the circumstances of the

present case, the mother could avail of that specific exception to the application of the in camera rule, were it to apply in this

jurisdiction.

55. It is perhaps fortunate for the mother therefore that I have concluded that it would not be appropriate for this Court to consider

the issue of whether there has been a breach by her of the in camera rule. It is important to bear in mind that, in considering the

specific interlocutory applications that are now before me, in circumstances where Abbott J. has already dealt with the substantive

issues in the appeal itself, I must not be lured or lulled into purporting to act as a court of further appeal or of review in relation to

any aspect of the judgment that has already been given.

56. The issue of the mother's apparent breach of the in camera rule was raised by the Court itself in the course of the appeal hearing

and was addressed by the Court in that context. The Court made its disapproval of what had occurred plain and the mother tendered

an apology. The father did not seek to make any submissions to the Court either at the time the matter was raised or subsequently

on the 28th February 2013, when the father made extensive submissions to the Court on other issues. Accordingly, in my view this

Court is now functus officio on that point.

The second application

57. In the second application that the father has brought, by way of motion dated the 21st November 2013, he seeks various reliefs,

principal among which are orders amending, correcting and supplementing the judgment of Abbott J. delivered on the 1ih July 2013 in

the second appeal.

58. That application is grounded upon an affidavit of the father sworn on the 21st November 2014. In that affidavit, the father makes

a number of complaints about the circumstances in which the second judgment was delivered on the 12th July 2013 and about the

contents of that judgment. The father avers that he was not present when the judgment was delivered on that date and was not

given an opportunity to address the contents of the judgment, in contrast to what had occurred in relation to the delivery of the

judgment of Abbott J. in the first appeal.

59. In the course of the hearing before me, it became apparent that there might have been some confusion in court on the 12th July

2013. It will be remembered that, having made orders in the second appeal on the 28th February 2013, Abbott J. had adjourned it to

the 12th July 2013 for the purpose of keeping those orders under review. Meanwhile, on the 8th July 2013, the father issued his

application to have those orders set aside on grounds of objective bias. It appears that, when the Court was apprised on the 12th

July 2013 that the father was seeking to have its orders overturned on grounds of objective bias, Abbott J. decided that he should

recuse himself from the case with immediate effect and that another family law judge should thenceforth deal with the proceedings. It

seems that, in the understandable - though mistaken - belief that nothing further was to occur before Abbott J. on that date, the

father had left the Court before the formal judgment in the second appeal was handed down, although he did subsequently receive a

copy of it. Having recused himself from the case in the face of the father's claim of objective bias, Abbott J. was obviously not in a

position thereafter to consider any submissions that the father might wish to make concerning the judgment that had been delivered.

60. In consequence, the father has brought this second application. I do not know whether any court could properly or realistically

entertain the extensive amendments or additions to its judgment that the father is seeking in respect of the judgment of Abbott J. in

this case. It is certainly clear that I cannot entertain any such application, as I did not hear the appeal in which the judgment

concerned was given. Since I have rejected the father's claims of bias on the part of Abbott J., it may be that Abbott J. would be

prepared to take seisin of the appeal again, not only for the purpose of keeping his orders of the 28th February 2013 under review,

but also for the purpose of considering an application of the sort that the father now wishes to make. However, that is entirely a

matter for Abbott J. in the first instance and I do not propose to make any order in that regard.