Supreme Court to consider if orders can be made to prevent vexatious family law applications

The Supreme Court is to consider whether an order preventing vexatious litigation can ever be made in family law applications for child access and maintenance.

The issue arises in an appeal brought by a father who is said to have been involved in over 100 court appearances costing the family more than €300,000.

In July, the Court of Appeal made what is known as an ‘Isaac Wunder order’ prohibiting the man from taking any legal case or appeal against his former partner without prior permission from the court’s president.

Modifying what was an original order imposed in the Circuit Court, the Court of Appeal said that to permit the man an unrestricted right to continual litigation against the mother of his child would be “unfair and oppressive” to her and a waste of court time and resources.

The court said there had been a “consistent pattern of unmeritorious conduct” on the man’s part, including “constant breaches” of an order for access to their son and constant applications by him to court.

The woman claimed she has had to attend District and Circuit courts more than 100 times for family law applications over the last 12 years that cost the family over €300,000.

The Court of Appeal had largely dismissed the man’s appeal seeking to overturn a decision by the High Court to withdraw its permission for him to pursue a judicial review application arising out of protracted family law proceedings between the former couple.

The High Court had initially allowed his case but later found he had made misstatements and had not disclosed pertinent information. The court decided his case should therefore be dismissed.

The Court of Appeal upheld the High Court decision save for one “minor qualification”.

It held that the misstatements and non-disclosure were not material to the man’s challenge, which was to a Circuit Court ‘Isaac Wunder’ order restricting him from taking any further case without the court’s permission.

The man submitted his proceedings could not be defined as “vexatious”. The man submitted he only brought applications, or opposed the woman’s applications, to assert his rights as a father and to maintain his son’s right of access.

He appealed the Court of Appeal’s judgment to the Supreme Court which, in a decision published on Tuesday, granted him leave to appeal.

The Supreme Court will now consider whether an ‘Isaac Wunder’ order can ever be made in respect of applications for access and maintenance by parents in respect of a child, and if so, the circumstances in which such an order can be made.

“These issues have never been addressed by this court and it is a matter of general public importance that the law in this area be clarified,” said the three-judge court in its determination.

The court will also consider whether the Court of Appeal erred in making the order and what powers a court can more generally exercise when presented with a “serial litigant” or someone who prolongs or disrupts proceedings on a repeated basis.