Risky sexual activity of parent might have bearing on welfare of child

Family law – discovery – right to privacy - judicial separation – child custody - appeal from the Circuit Court – Circuit Court interim order for discovery of respondent’s (wife’s) email accounts, mobile phone numbers, and text messages – discovery of 6 months of records - applicant (husband) German citizen - respondent U.S. citizen – one child aged 14 – custody dispute – allegations of addiction of respondent to risky sexual activity and of multiple affairs and of publication of sexual activity on websites – denial by respondent – respondent claims to be in one stable extramarital relationship and to have viewed adult sexual content websites at home – s.47 report and expert oral evidence in Circuit Court as to welfare of child - respondent’s right to privacy – welfare of the child is the paramount consideration – health and safety of parent is also to be considered as this can affect the welfare of the child – court would be concerned for the health and safety of the respondent if she were involved in sexual activity with unfamiliar partners where restraint or the infliction of pain was part of the activity – court would be concerned that a child would inadvertently see websites with sexual content – moral repugnance of certain types of sexual activity should not of itself be a ground for any restriction on custody or access unless it is demonstrably shown that this activity affects the welfare of the child – normal discovery rules apply to family law proceedings – allegation by respondent that applicant gained passwords/access to her email accounts in breach of her privacy – acquisition of email passwords tainted by illegality – whether the evidence thus obtained could be admitted – criminal proceedings test would be: whether there were extraordinary excusing circumstances justifying admission of the evidence – family law proceedings: different principles as to admission of evidence apply, especially when dealing with welfare of a child – if court were dealing only with issues between the parties, then sexual history of marriage would not have been taken into account and the discovery order would not be made – where court has to consider welfare of a child, court will take different matters into account – alleged sexual activity of respondent has direct bearing on welfare of child – constitutional right of privacy of respondent is protected in in camera proceedings as the information is restricted to the parties, their lawyers, and the court – the welfare of the child takes precedence over other considerations such as the fact that certain information was illegally gathered – respondent’s right to privacy can be further protected by the addition of further conditions – High Court affirms Circuit Court discovery order of respondent’s email accounts, mobile phone numbers and text messages – further conditions added: material to be used only for determining welfare of child, and not for s.16(2)(i) of the Family Law Act 1995 in respect of the behaviour of the respondent; material discovered which does not impinge on child’s welfare should be furnished but returned to respondent and not relied on by the court; in the event of any dispute, Circuit Court Judge to consider the material and decide on relevance.