I move amendment No. D1:
In page 8. subsection (1), line 4, to delete " Court " and substitute " the High Court, the Circuit Court or the District Court ".
This amendment was put down primarily to open up discussion at Committee level to see whether it is necessary to define " court " here, whether it is the High Court, District Court or Circuit Court. Perhaps the Minister would like to comment on it.
No, I am advised that there is no need to specify the particular court, that the word " court " deals with whichever court happens to have seisin of the case, and that the consequences of section 8 follow from that.
To follow up Deputy Collins' reasoning for placing the amendment, it seems again that the beginning of this section is somewhat loosely worded or drafted, unintentionally, no doubt. This is our submission. The Minister may refute us or do what he wishes to do afterwards. Why not say what we mean? It is all very well for the Minister to say, lawyers or legislators, know what it means, but why are we not making quite clear in this particular section what " court " means? We know that it means the High Court, the Circuit Court or the District Court, whoever has the seisin of the case, but there is absolutely no reason why words should not be included.
The word " court " is defined on page 4 as the court that has jurisdiction.
Why then do we have to refer back to section 3, page 4, which, as I understand it, refers us to section 22 and we have for the first time in section 22 the definition of the word " court "?
In other words it is a " catch 22 " situation.
A " catch court " situation.
Who could be in any doubt? Where the court makes a maintenance order is it not quite plain that the only court that can get the maintenance order is the court that has seisin of the case and all the people involved—the parties and the lawyers—are in that court.
I move amendment No. E1 :
In subsection (1), page 8, line 5, after " Act " to insert " or any Order for the maintenance and education of a child under the Illegitimate Children (Affiliation Orders) Act, 1930."
To shorten this, I agree with the purpose of the amendment and I accept it. The Deputy has requested me to draft it for Report Stage.
These are affiliation orders made under the 1930 Act.
I take it that it is withdrawn and the Minister will give us an amendment on Report Stage.
This clearly removes the distinction in regard to the unmarried mother?
In this area, yes. There is a further amendment I will be putting down to remove that distinction in regard to dependency.
That is what I thought.
Amendment No. 1 on the green sheet.
I move amendment No. 1 :
In page 8, after line 36, to add the following subsections:
" () Nothing in subsection (1) or (2) of this section shall affect paragraph (a) or (b) of section 14 (8) of the Maintenance Orders Act, 1974.
() Section 14 (8) of the Maintenance Orders Act, 1974, is hereby amended by the insertion in paragraph (b) after ‘ application under ' of ‘ section 9 of the Family Law (Maintenance of Spouses and Children) Act, 1975, or' and by the substitution of ‘ the said section 8 ' for ‘ that section ' and the said paragraph (b), as so amended, is set out in the Table to this section.
TABLE
(b) The district court clerk shall, if any sum payable by virtue of an enforceable maintenance order is not duly paid and if the maintenance creditor so requests in writing, make an application under section 9 of the Family Law (Maintenance of Spouses and Children) Act, 1975, or section 8 (which relates to the enforcement of certain maintenance orders) of the Enforcement of Court Orders Act, 1940, and for that purpose the references in the said section 8 (other than subsections (4) and (5)) to the applicant shall be construed as references to the district court clerk."
This is a drafting amendment and its purpose is to make clear the effect of the Bill on the Maintenance Orders Act, 1974. Section 14, subsection (2) paragraph (a) of that Act provides that:
An enforceable maintenance order made under the Act is deemed to be a maintenance order under section 1 of the Married Women (Maintenance in Case of Desertion) Act, 1886.
The 1886 Act is now being replaced by the present Bill. By virtue of section 13 of the Interpretation Act, 1923 it might be argued that section 8, subsections (1) and (2) of the Bill in some way override a somewhat similar provision contained in section 14 subsection (8) of the 1974 Act. The first part of the amendment makes it clear that it does not do so. The second part of the amendment is required because the Bill proposes that the provisions in Part III relating to the attachment of earnings should apply to enforceable maintenance orders under the 1974 Act. Under section 14 (8) of the 1974 Act the District Court clerk, where payments under the enforceable maintenance order are in arrear, is restricted to taking proceedings under the Enforcement of Court Orders Act, 1940. This amendment is designed to make it clear that the District Court clerk in such cases will also be permitted to take the necessary steps to attach the earnings of the maintenance debtor. Consequently, the drafting amendments secure these two points.
I want to comment on subsection (2) which provides for the recovery of arrears. We may have several requests in writing and that is acceptable in that a record of the requests is necessary. It seems to me that most of the maintenance creditors will not be aware of the enforcement arrangements under this section. It is very important that they be aware of the mechanism for making such requests for recovery. They should be aware of the steps to be taken for recovery and they should be as simple as possible.
There will not be any doubt about that. At the making of the order the payments will be made directly to the District Court clerk. The District Court clerk will have personal knowledge if the payments are not made. The maintenance creditor will be coming in looking for payment.
I have a submission here from the Dublin Solicitors' Bar Association on the Bill which the Minister might care to comment on. It is related to section 8 and the general tenor of the Bill. The committee feel that the transmission of payments through the District Court clerk leaves too much discretion to the court clerk and that he is not quite the suitable person through whom payments should be transmitted. They are also of the view that not only does the District Court clerk not have the premises and staff to administer the Bill but the geographical situation of the District Court offices would lead to great problems in practice. They also have a point of view on the additional burden to the District Court clerk with that responsibility. They recommend that payments should be made to the President of the District Court or the social welfare officer for the appropriate district. In addition, the committee note that there is no accommodation for those who suffer because of the very unlikely probability of the absconding of the existing District Court clerk.
Let me say at the outset that District Court clerks are men of the highest integrity. Apart from that——
The Minister need not get too hot under the collar at all. The committee note that there is no compensation for those who may suffer because of the unlikely probability of an absconding District Court clerk. I suggested that this would be unlikely because of the integrity of these people. The Minister need not get too sensitive about it. District Court clerks would be as anxious as anybody else to ensure that that possibility should not arise. That is what the interpretation of the submission means.
My knowledge of the situation is that there are far more absconding solicitors.
Exactly. I was afraid to say it.
The Minister would know more about absconding solicitors.
I am aware it has happened but we are talking here about District Court clerks, and I reject the suggestion.
Perhaps the Minister is too sensitive.
In any case, it is unreal because should that most unlikely event happen the State would, of course, intervene because he is a State employee. It is a pointless submission I must say and gratuitously offensive to these people.
In regard to the other suggestion that the District Court clerk is not a suitable person through whom payments should be transmitted, he seems to me to be the ideal person because he is there for the making of the order and he is familiar with the mechanism of the court. I cannot understand the suggestion that he does not have the requisite premises and staff because while not all District Court offices are as efficient as we would like them to be, nevertheless they are, by and large, suitable and are adequately staffed up and down the country. In regard to the allegation on the geographical situation of the District Court office, this may be Dublin parochialism and the Dublin Solicitors' Bar Association may be looking at it from their narrow point of view. Certainly there are District Court officers all over the country. In every large town and in many smaller towns and villages there are District Court sittings and the District Court clerks attend. I cannot see any merit whatever in the recommendation that payment should be made to the President of the District Court or to the social welfare officer in the appropriate district. The District Court officers represent the ideal mechanism for collecting and securing maintenance orders.
The Minister replied in a gratuitously offensive fashion. Obviously the Dublin Bar Association have some part of the Minister's monopoly which is particularly thin. These submissions were made in a reasonable fashion. To suggest that in some ways they were intended to be offensive to anybody is totally untrue.
I do not say that they were intended but the fact is that they are offensive.
The Minister knows very well that there was no intention to hurt anybody.
I accept that.
They are not used to making submissions to the Department of Justice and to the Minister in particular.
I am not taking it either personally or as an attack on the Department of Justice.
There arise some administrative costs in relation to transmission of payment. I presume the District Court clerk would have the power to post payments direct to a person or he might have to travel with them.
I cannot envisage travelling. The District Court clerk posts many documents such as court orders and he transmits fines and makes regular financial payments.
