Litigation between warring spouses can turn family law into “lawfare”, as one judge put it, when one party seems intent on pursuing the other at all costs.
In this scenario, the law and the courts appear to have no effective response.
One example before the courts – a man’s protracted litigation against his ex-partner, now in its 15th year – has shone a light on the costs and limitations of the family law system as it attempts to deal with an acrimonious case.
The woman and man were in a relationship for two years but were never married. During their relationship, they had a child who is now a teenager.
READ MORE
During more than 100 court appearances involving hearings before multiple judges in different courts, the woman has been subject to at least 40 applications by the man, his parents and his adult child by another relationship.
Of those, the man has to date lodged more than 30 in his own name across all five courts – from District Court to Supreme Court – including an appeal against a safety order the woman obtained against him late last year.
She lodged 15 applications over the 15-year duration of the litigation, including an application over his failure to pay child maintenance, and over child access issues.
The woman, a professional, works full time.
Up to early 2024, she had, according to legal documents, estimated her costs of the legal proceedings at more than €300,000.
Further court proceedings since, including the man’s Supreme Court appeal over a 2024 Court of Appeal order restricting his ability to bring further proceedings, are likely to have increased her costs to more than €350,000.
Despite multiple costs orders made against the man during the litigation, he has failed to pay any of her costs. He had obtained legal aid but represented himself at many hearings.
He was legally represented for his unsuccessful Supreme Court appeal earlier this month, which resulted in another costs order against him.
The proceedings have involved many reports by the State’s child and family agency Tusla, case conferences and reports by child assessors, all adding to the costs.
During the proceedings, the court was told the man had followed and harassed the woman, including through abusive emails, texts and phone calls.
He was found guilty of breach of a safety order.
The courts heard the man had made allegedly defamatory statements about the woman to her professional body, business associates, friends and family.
He had failed to comply with a range of court orders, including an order to undertake a psychiatric assessment.
His refusal to permit their child to undergo various medical and psychological assessments meant the woman had to seek approval from the court for those.
His refusal to sign a passport application for the child meant the woman had to apply to court for the removal of the requirement for his approval.
When the man applied ex parte (where only one side was represented) to the High Court for permission to take judicial review proceedings over a Circuit Court order in favour of the woman, he secured that permission on foot of what the High Court later found was “grossly misleading” statements and non-disclosure. The High Court subsequently set aside that permission as a result.
Several judges who dealt with the case found the man was being vindictive and pursuing a personal grudge towards the woman.
Last week, a five-judge Supreme Court unanimously upheld an order restricting the man from bringing further family law litigation against the woman without court permission.
Judge Maurice Collins observed it is “an unfortunate fact that family law proceedings can become a form of lawfare in which court processes are misused by one party to oppress, harass and destabilise the other”.
The disputed restriction order was granted against the man by the Court of Appeal in 2024 after it decided that permitting him an unrestricted right to litigate would be “unfair and oppressive” of the woman.
The man was responsible for the unreasonable or unnecessary extension or prolongation of the litigation, the Court of Appeal said. While some of his applications may have been partly brought for a proper child access purpose, it appeared his purpose also included harassment and oppression of the woman, it said.
The Circuit Court previously made a similar restriction order.
Such restriction orders, known as Isaac Wunder orders, mean a party cannot bring further proceedings against a particular party or parties unless granted permission by the president of the relevant court.
The woman’s Supreme Court win, on grounds including that endless litigation was not in the best interests of the child, may turn out to be a somewhat pyrrhic victory for her.
Since the Supreme Court appeal was heard in January 2025, but before judgment was given on January 23rd last, the man secured permission to appeal a safety order which she obtained against him last November. An access application is also pending before the District Court.
The woman’s frustration with the courts process was evident from her counsel’s application last Friday to seek an “exceptional” order requiring the Attorney General to pay her legal costs of opposing the man’s Supreme Court appeal.
The Attorney General had been invited by the court to make submissions to assist its consideration of the issues, including whether Isaac Wunder orders may be made in family law cases.
Such orders can be made, but should be made sparingly, with any constraint on a parent’s right to take proceedings to be considered “in a child-centred manner”, the Attorney General argued.
The woman’s counsel said there was “no reality” to a costs order against the man being met as he had not paid other orders to date.
Costs were sought against the Attorney General to protect parties such as the woman who, the evidence established, has incurred “inordinate legal costs over a long period of time”, counsel added.
The presiding Supreme Court judge, Judge Elizabeth Dunne, said the court’s view was it would be “unprecedented” for it to make a costs order against a party invited to make submissions to assist the court. On the back of the judge’s remarks, the woman decided not to pursue her costs application against the Attorney General.
Dunne, who said she was “deeply sympathetic” to the woman and fully understood her concerns and anxieties, said the court would make the usual costs order against the man.
In the wake of the court’s decision, lawyer Keith Walsh, a family law solicitor and chair of the Law Society’s Family and Child Law Committee, said the huge number of family law and childcare cases before the courts means the system is under continuing stress.
One of the main problems facing parties in protracted litigation is that their proceedings are dealt with by different judges, he said.
If one judge was allocated to a particular case, that would make “a big difference” and would allow persistent litigants “much less wriggle room”.
That could be done immediately through a practice direction by the president of the relevant court jurisdiction, he added.
He hoped the new Family Courts Act, expected to be implemented in its first phase in 2027, may also address some of the issues associated with protracted litigation, Walsh said.
Better enforcement of child maintenance orders would help, he said, but action was awaited on relevant proposals made in a report by the Department of Justice. Earlier intervention by the courts over noncompliance with orders would also assist, he added.
The Supreme Court judgments in this case, which make clear that Isaac Wunder orders can be made in family law cases, will be “a huge help” to other parties in similar situations and their lawyers, he said.
