The High Court has refused an application for judicial review of a Circuit Court family law order, finding that the applicant brought it too late and after pursuing an appeal against the same order. The court did not decide the applicant’s constitutional challenge to provisions of the Family Law Act 1995.
The judgment, delivered by Mr Justice McMahon on 6 November 2009, concerned an order made by Judge Dearbhla Flanagan on 10 July 2008 and perfected on 7 August that year. The anonymised applicant, T.D., had appealed the order. On 12 March 2009, Murphy J. made a provisional High Court order dismissing the appeal, subject to a one-month stay and conditions relating to mortgage repayments and providing Ulster Bank account documents. The judgment records that the conditions were not met and that the order became absolute on 12 April.
On 20 April, T.D. obtained leave to seek judicial review and challenge, among other provisions, sections 9 to 15 and section 32 of the 1995 Act. The affidavit supporting that application did not mention the appeal or Murphy J.’s order. Mr Justice McMahon said the application was brought at least eight months after the relevant Circuit Court order, beyond the applicable time limit. He rejected the request to extend time.
The applicant’s counsel cited the applicant’s periods as a lay litigant and the public importance of the constitutional issues. The judge noted that the grounding affidavit had been sworn on 9 March, three days before the appeal hearing, showing the applicant was already contemplating judicial review. He also criticised the omission of the appeal and its outcome from the leave affidavit, saying it was a significant and serious omission.
The judgment also addressed the choice of remedy. The judge said the appeal had been heard and determined before judicial review proceedings began, and found no special circumstances that justified departing from the general rule against pursuing judicial review after a decided appeal. He refused the application on those grounds.
As the delay issue determined the case, the court did not assess the constitutional arguments. The judgment therefore contains no ruling on whether the challenged provisions are constitutional. It also records that, on 5 October 2009, a different High Court judge made orders striking out the appeal and lifting the stay, on consent. Mr Justice McMahon’s decision was to refuse the judicial review application; it did not determine the underlying constitutional questions.