X v Y (Approved)

1.������ This is an application for costs by Ms Y following on the judgment of the court in the substantive portion of these proceedings. The court has been provided with written submissions by both parties and gives its judgment by reference to same. Some of the points made for Mr X seemed more concerned with the substance of the principal judgment ( X v. Y [2020] IEHC 502 ) than with the issue of costs following on that judgment; however, as a courtesy, the court has sought briefly to address all the points raised.

2.������ The court accepts the proposition advanced by counsel for Mr X that, although by no means a licence to litigate without consequence, it has long been accepted that in family law litigation a court should be slow to award costs to one party against the other. The court was referred in this regard to the judgment of McKechnie J. in B.D. v. J.D . [2005] IEHC 154 . There, McKechnie J. observes as follows, at para. 24:

��������� �I do not believe that any category of family law case should as a matter of principle be exempt from these cost provisions. It cannot be right that litigation can be open ended without even the risk of any type of cost order�.I cannot accept that a court should be powerless to award costs even where the case, or the parties to it or their conduct within the proceedings, merit the making of such an order. If that were so I firmly believe that both justice and the public would be ill served.��

3.������ In other words, if a case, or the parties, or the conduct of the parties merit the making of an order as to costs, such an order can be made. But if it does not the implicit assumption seems to be that no such order will typically be made in family law proceedings.

4.������ In the within proceedings, Mr X considers that at this time he does not have enough by way of access to/physical custody of Z and wants, it seems in good faith, to have greater access/custody. Those factors seem to the court to offer a reasonable basis on which to come to court and seek greater access/custody. Though Mr X might have waited for the coming divorce proceedings in which to ventilate these issues, there was no obligation on him to do so. The court therefore sees nothing in this case that requires an order for costs to be made against either party.