The High Court has allowed a family law appeal to be formally re-entered so the applicant can pursue specified relief concerning custody and access, while indicating that any fundamental change to its orders should be referred to the Circuit Court.
In a judgment delivered on 14 December 2012, Mr Justice White considered the applicant’s motion to re-enter an appeal and vary aspects of orders made on 31 July 2012. The motion also sought appointment of a guardian ad litem for the couple’s anonymised child, identified as M.
The July order followed a High Court appeal from a Circuit Court judicial separation order. Some practical arrangements remained unresolved, including weekend collection and delivery times, midweek access, and dates and times for equal summer access and the Christmas holidays. The judge said a recommended facilitation had not taken place.
The court ruled that a motion to review or vary an order under the relevant family law provisions must be brought before the court of first instance, which in this case was the Circuit Court. It also held that it had discretion to accept or reject jurisdiction over a motion seeking to vary orders it had made on appeal, where it had reserved its position or granted liberty to apply.
The judge declined to consider the guardian ad litem request in this application. He said three section 47 reports had been considered across the Circuit Court and High Court proceedings, and that either party could make such an application to the Circuit Court in future. He did not decide whether the Circuit Court or the High Court on appeal had power to appoint a guardian ad litem under the provisions argued by the applicant; he said this case was not suitable for determining that question.
The High Court permitted the matter to be re-entered and allowed the applicant to seek the relief specified in paragraphs 3, 4 and 5 of the motion. It said it was appropriate to hear an application to substitute further weekend access for midweek access already granted. The judgment did not determine the substantive access application. It directed that the respondent be given suitable time to file a replying affidavit.