Order prohibiting applications in respect of the welfare of two infants was impermissible

Kelly J: Family law – Judicial Separation and Family Law Reform Act 1989 – Family Law Act 1995 – custody/access – challenge to decision that that no further application was to be made to the High Court in respect of the two children – whether respite in the litigation war would be beneficial – court ought not to intervene and alter in any way the directions given by the judge concerning overnight access – s. 11 of the Guardianship of Infants Act 1964 – Article 42.1 of the Constitution – restriction element of High Court order set aside.

"If the order is to be interpreted in a constitutional way, then it cannot mean what it says. It is not possible to do what it purports to do without offending constitutional norms. That is particularly so in the context of the welfare of children."

Hogan J: agree with the judgment delivered by Kelly J - this concurring judgment deals only with the question of overnight access - it is clear that Article 42.1 of the Constitution envisages that both parents would, in principle, at least, be the joint decision-makers in respect of the upbringing of their children - children are entitled to the care, company and support of both parents - they are equally entitled, where at all possible, to have a meaningful relationship with both of their parents - confident that at the resumed hearing White J. will uphold the substance of the children’s entitlement to overnight access with their father in a proportionate, regulated and supervised fashion should the evidence establish that it is objectively in their interests that they should have such overnight access.