Family Courts Bill 2022: Report and Final Stages
Before we commence, I welcome to the Public Gallery my former colleague, Joanna Tuffy, as well as Siobhán and Courtney from New Zealand. They are welcome to Leinster House and I hope they enjoy their trip.
I remind Senators that they may speak only once on a Report Stage amendment, except the proposer of the amendment, who may reply to the discussion of the amendment. Amendments other than those tabled by the Government must be seconded.
Amendments Nos. 1 and 2 are related and may be discussed together by agreement. Is that agreed? Agreed.
Government amendment No. 1:
In page 9, line 23, after “1995,” to insert “the Civil Legal Aid Act 1995,”.
Amendments Nos. 1 and 2 are technical amendments to reflect in the Long Title of the Bill amendments made to the Civil Legal Aid Act 1995 and the Judicial Appointments Commission Act 2023 on Committee Stage in the Seanad.
Amendment agreed to.
Government amendment No. 2:
In page 9, line 32, after “2018,” to insert “the Judicial Appointments Commission Act 2023,”.
Amendment agreed to.
Government amendment No. 3:
In page 42, between lines 14 and 15, to insert the following:
“(3) Without prejudice to sections 70 and 72, where family law proceedings may, under an enactment, be initiated in the Family District Court or another court, nothing in this Act shall require such proceedings to be initiated in the Family District Court.”.
As indicated on Committee Stage, I am introducing amendment No. 3 to amend section 39. This is to provide greater clarity and certainty to those involved in family law proceedings, including legal practitioners, regarding the initiation of family law proceedings in the family law court divisions. As I stated on Committee Stage, the extension of concurrent jurisdiction to include the family District Court is an enabling measure to allow appropriate cases, especially those that are not contentious where most if not all of the issues have been fully resolved or settled between the parties, to be determined under the jurisdiction of the lower court. The Bill does not compel parties to initiate family law proceedings in the family District Court. The fact that the family District Court will have jurisdiction concurrently with the other family court jurisdictions in a broader range of family law matters provides a potentially simpler pathway for people through the family court system where the circumstances of the case are deemed appropriate for the family District Court route. In some cases, including those relating to judicial separation, divorce and dissolution of a civil partnership, a ruling by the family District Court may be all that is required to determine matters. It is not Government policy to push people into the family District Court but, rather, to enable people to avail of that pathway in appropriate situations. The circumstances of the case will always need to be considered by the parties and their legal advisers when selecting the most appropriate course.
This Bill is underpinned, however, by a set of guiding principles to which those involved in proceedings in the family court at all levels must have regard. Among these principles is that the court and legal practitioners should participate in the proceedings in a manner that is just, expeditious and likely to minimise the cost of the proceedings. Similar obligations are placed on the parties to the case.
The Bill is part of a bigger family justice strategy to which the Government is working to create a modern, streamlined, user-friendly and family-friendly justice system that supports simple, easy, early, fair and, where possible, non-adversarial outcomes. The family court divisions at all levels will be properly resourced to ensure families and children can avail of proper supports during what are challenging and difficult times. The Government wants to bring family court facilities to a very high standard, and I am conscious that much work is being and further work needs to be done in that regard. The Bill is a key part of this strategy. The family justice implementation group, chaired by my Department, is working on an ongoing basis to ensure all the goals in what is the first national family justice strategy are met.
If there has been a lack of clarity regarding where court proceedings should be initiated, I hope this amendment makes it very clear that there is nothing in the Family Courts Bill that mandates that proceedings must be initiated in the family District Court where that court has jurisdiction concurrently with higher courts under the family law enactments. I am providing this clarification by means of an amendment so any concerns in this regard can be discounted. It will always be a matter for the parties, in consultation with their legal representatives, where they are legally represented, to initiate their proceedings in what they determine to be the most appropriate court. The Bill will also give discretion to the judge to transfer a case to another family court jurisdiction, either up or down, where it is determined that the matter has been inappropriately initiated in a particular jurisdiction.
Amendment agreed to.
Amendments Nos. 4 and 5 are related and may be discussed together, by agreement. Is that agreed? Agreed.
Government amendment No. 4:
In page 65, to delete lines 22 to 41.
Amendment No. 4 is a technical amendment to enable section 69, as amended by amendment No. 5, to be moved from Part 7 to Part 8.
With regard to amendment No. 5, Senators will recall that, on Committee Stage, I indicated that I was examining what is now section 69 with the intention of introducing an amendment to the section on Report Stage. Senators will be aware this section provides that where the family High Court, family Circuit Court and family District Court have concurrent jurisdiction for proceedings under family law enactments, these proceedings shall not be initiated in the family High Court in the absence of a special reason to initiate the proceedings there. The rationale behind including this provision was to help ensure only those family law proceedings that require the consideration of the family High Court would come before that court in the first instance. I am particularly aware that, under the Constitution, the High Court is the court that has full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal. This equally applies to family law matters in the family High Court.
Having reflected on the provision, I have concluded that the inclusion of a special reasons hurdle to be crossed before the initiation of proceedings in the family High Court may be interpreted as an impediment to the full original jurisdiction of the court. Clearly, this is not what was intended. By way of this amendment, I have therefore decided to remove the special reasons provisions from the Bill. It is already clear from the original guiding principles in the Bill that the court, solicitors, barristers and the parties to a case must have regard to the need to ensure the proceedings are just, expeditious and minimise the cost of proceedings. Adherence to this principle should contribute to circumstances in which only those cases that require the intervention of the family High Court will then be initiated in that court.
Amendment agreed to.
Government amendment No. 5:
In page 66, between lines 2 and 3, to insert the following:
"Transfer of proceedings from Family High Court to Family Circuit Court or Family District Court
70. Notwithstanding section 25 of the Act of 1924, where proceedings are initiated in, or transferred under Part 10 to, the Family High Court on and after the coming into operation of this section and the court is satisfied, having regard to any practice direction issued under section 13(3), that the Family District Court or the Family Circuit Court, as the case may be, is the more appropriate court in the circumstances of the case, it may—
(a) transfer the proceedings to the Family Circuit Court or the Family District Court, and
(b) make an order—
(i) as to costs as it considers appropriate, or
(ii) that the costs shall be determined by the court to which the proceedings are transferred.".
Amendment agreed to.
Bill, as amended, received for final consideration.
When is it proposed to take Fifth Stage?
Question, "That the Bill do now pass", put and agreed to.
Cuireadh an Seanad ar fionraí ar 11.54 a.m. agus cuireadh tús leis arís ar 12.50 p.m.
Sitting suspended at 11.54 a.m. and resumed at 12.50 p.m.
