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Special Committee Family Law (Maintenance of Spouses and Children) Bill, 1975 debate -
Tuesday, 2 Dec 1975

SECTION 21.

Question proposed : " That section 21 stand part of the Bill."

There is an important new departure here which I think, we all welcome. I think all of us would have experience of cases where something along the lines set out in section 21 is the only solution and the only thing we can do is hope that the courts will be very wise and judicious in their exercise of their power under the section because it is a logical departure. The old maxim was that a man's home was his castle and so on. But I think we all agree that social circumstances are such that something like this is necessary, and we are placing a very important responsibility on the courts to make sure it is exercised wisely and with great discretion.

Oh, yes. This type of thing is long overdue.

The old maxim is now changed to a man's and woman's home is their joint castle. The social more demand that change.

Even if it is his property he can still be ordered out of the house by the court. Is that right?

And cannot get back until such time as the court will permit.

Mr. Collins

Because of violence.

I agree. This is a very important part of this Bill because this is where a lot of the trouble happens. Women and children have to remain in the home because they have nowhere else to go and they are under the threat of violence all the time. This will help to solve that particular problem. This is very important for dealing with the vicious husband.

I think provision should be specifically written into this section to make allowance and provision for the ejected spouse to visit the children at regular intervals.

It should be done here.

I think at that stage we are getting into something that is an incident of separation. This only provides for temporary exclusion by the district court for a period of three months renewable. The question of right of access to the children would come into the general area of separation and would not be a matter for this court at all. In many cases the Court will be called on to meet a temporary and pressing need.

But, surely, in the meantime to avoid possible separation proceedings, if this provision were made it might——

The point is that if the husband had acted in such a way that the court decided he should be excluded, the children's interest would hardly be served by admitting him back in to visit them. As Deputy Haughey said, it is a radical departure. As was mentioned in the Second Stage speech, this is the first time that a court of this jurisdiction has been given powers to exclude a person from his own home. That power is already there with the higher courts. We would, in essence, be relying on the District Court making a sound value judgment. I am content to rely on them to do that. They are men of common sense and wide experience. There is one further point I want to make in regard to that. We may have to have an amendment for Report Stage to deal with the question of an appeal from an exclusion order of the District Court. We will have to decide—and I have not decided what way I want to do it yet—what is to be the effect of the order pending the appeal. Normally an appeal from the District Court acts as a stay and maintains the status quo. In view of the situation this section is attempting to deal with, one can see arguments for changing that rule and saying : “ Yes. It will act as the status quo unless the courts say otherwise, or it shall not act as a status quo unless the courts say otherwise”. I just want to draw the Committee’s attention to that point. It is something we will have to consider on Report Stage. I have not decided. Deputies might have a view on it at this Stage.

Once the court made the order, he should have to go out and remain out. I am sure the judge would not make a decision to put a man out lightly. It would be made on hard evidence of brutality because then he would use the law and stick in his appeal to get back into the home again. As Deputy Haughey says, this is a piece of humanitarian legislation and this is something we have got to keep in mind all the time. I would certainly be very slow to let him back in, pending an appeal.

Mr. Collins

I fully believe it is desirable to bar a violent spouse from the home. I think, however, there is more to it than that. It is established now that drink and violence are the cause of approximately half the maintenance cases coming before the courts. We are completely overlooking the drink problem. Perhaps our legislation dealing with alcoholics needs to be looked at, but I think that our courts should have power to deal with it. I gather that the legislation covering this area is completely outmoded. Just barring the violent spouse from the home is not good enough. We should do more than that. Perhaps it is not relevant to this section.

I see what you mean.

Why the provision for three months in respect of a specific order? It strikes me that there is a slight piece of moralistic parliamentary draftsmanship in this regard. What is so radical about asking a spouse to leave the home after an irretrievable breakdown for 12 weeks. Then the unfortunate wife has to go back to court again after the expiry of the order and seek a fresh order to keep him out for another 12 weeks. This is stipulated in the Bill. Why do we have to stipulate that these orders last for three months. Why is it not left to the district justice to stipulate the period?

The exclusion order can be made permanent if it is sought in the High Court or the Circuit Court. In this Bill we are only giving power to the court of first instance for a quick remedy to deal with this problem.

Fair enough, but the bulk of such cases will commence and expire at District Court level. They are not likely to be brought to the High Court. They will all be resolved at District Court level. It is a totally irretrievable breakdown and the wife has been found and the children have been molested. The court case takes place and the judge has to rule in the context of the Act that he has to stay out for 12 weeks. Then the applicant, who is favoured by the order, of her volition must proceed to take a second order. It is arguable, for example, that, perhaps, a District Court clerk might find the unfortunate woman's order is about to expire and within two weeks the husband can come back in again. I am worried about the need for three months specified. I think it should be open to a judge to have discretionary power as regards the time limit on an order. I am very concerned that there is no provision for the notification to the spouse of the expiration of the order. He could wait outside the door until 12.30 the night after she has failed to get a court order. There is a lot of expense involved in going to court every 12 weeks as well as the amount of time spent waiting to see the district justice.

The Deputy is talking about an area that this section is not meant to cover. He is talking about a situation where a marriage has irretrievably broken down. All sorts of considerations then come into play such as the question of separation, the question of disposal of the property, the final settlement, alimony and custody of and access to the children. It is a different situation from what is envisaged by this section, which is concerned with an emergency where a violent spouse has beaten his wife and he has to be kept out of the house. It is not envisaged that there would have to be an irretrievable breakdown. This is merely to deal with that specific situation. If the marriage has broken down there are other considerations and other remedies available to them with which this Bill does not attempt to deal. The Deputy is misconstruing the scope of this Bill. This is an emergency provision. There is already a legal remedy there. The fact that that legal remedy may be expensive is another day's work, and hopefully at some stage when the Pringle Committee report and we have our oil flowing we will have a system of civil legal aid.

The Minister has already accepted a motion to bring in legal aid.

When the Pringle Committee reports.

Is the time limit on the basis of the beginning of the oil flowing?

I would like to see it. I was being facetious.

I know that.

(Interruptions.)

If the situation is such that at the end of the first three months a second order has to be made, the Deputy can be assured that the woman will be well aware of when the order expires. If she is still apprehensive of her husband, she will be back at the court before the order expires to take necessary steps to exclude him again. I am quite happy with this section as drafted. What the Deputy is talking about pertains to a much wider situation.

Would the Minister not consider that the district court clerk should have power to notify the woman of the expiration of the order?

I would be slow to put the obligation on him. It is asking him to take sides at the end of the three months. Should he notify the husband as well? He is the court official between both of them.

There might be a social worker in the background. This is obviously an emergency procedure to deal with an instant situation which requires quick treatment. Can we be assured that there is no longer period between sittings of the District Court than three months?

You can.

This is for a repeat of the order. Is it certain there is a court available?

I just wondered about what is called the long vacation.

There are special provisions for August sittings.

I have two points to make. The Minister remarked that this section is meant to deal with marriages that are not irretrievably broken down.

Not necessarily.

Take the case of a husband who is drinking and beating his wife and an order is made against him. We will hope at this stage he will go for a cure. The fact that he could not see his children for three months might not be a help to him in readjusting to a normal life. It could be an incentive to him to cut adrift rather than an incentive to return. I would like to see some provision made at the discretion of the judge that he could see his children.

I agree with the Minister's view that it is essential to bar him from the house immediately the District Court makes the order. Can the Minister legislate to prevent his appeal, if he makes one, from having the effect of annulling the order until the final decision is made in a higher court?

This is something we have to consider. I think so.

There is no fear of anybody challenging the constitutionality of the section?

There is a point I wish to make. The section only excludes him from the home. There is no reason why he should not see his children.

That is what I said.

That is what Deputy Brosnan said.

The section prevents the husband from seeing his children in the family home, and from molesting them.

Surely the district justice in his discretion could make arrangements about this at the time of making the order? The whole purpose of this order is to give the marriage a chance to recement.

The intention of this is to ensure the safety of the wife and children and to keep him out. If after a fortnight he has come to his senses and wishes to come back, under subsection (2) either spouse may apply to the court to discharge the order.

Again, I would not exclude him seeing the children in the home if he has reformed.

If he has reformed or semi-reformed after a month or two months and if one of the children is, for example, sick in the home, why should he not be allowed to see the child?

Then you make the whole order nugatory. If you grant the husband permission to visit the home under any pretext, then you may as well not make the order. The whole purpose of the order is that there is a desperate wife battery situation.

Surely there is some communication within the family if he wants to see the children?

Can the Minister tell us what would happen if there was a child dying in the family?

It can happen.

He would apply for the annulment of the order.

Two things could happen. The excluded spouse could apply to the District Court as a matter of urgency to have the order discharged with reference to the dying child. It is inconceivable that such an order would not be supported by the wife.

I do not see that you must keep the spouse waiting until separation proceedings are instituted to make arrangements for visiting children.

You cannot on the one hand provide for his exclusion and on the other hand allow him into the house.

Under supervision.

If there is a really desperate emergency and he has to visit the dying child, the most that can happen is that he would have a fine of £200 as a maximum. In those circumstances a district justice would have the option of not fining him at all.

We are inviting someone to break the law.

The real point, as I see it, is that it makes it an offence if he breaks the order, gives the Garda authorities power to move in because there is a criminal offence being committed. How many of us do not know of cases where gardaí are called to houses so frequently where there is wife battering and there is little or no power?

There are so many now that the gardaí will not go any more.

Exactly. It is a very necessary provision.

I do not see how making provision for visiting the children negatives this whole section.

We could make provision to visit the children elsewhere.

Surely there is a difference between a person living in the home for 24 hours a day and a person visiting the home for five minutes to see the children?

He could come at a very awkward time.

I see what the Deputy is getting at. It would not be a very good idea at all. Once he is excluded he should be out until either spouse looks for a discharge.

I wonder if the section is as effective as we thought and if the Minister has considered the possibility of registering a charge on the property, the right of occupation of the spouse to whom the court has made the order?

I do not see what benefit such a charge would have.

It comes back to this whole question of joint ownership of the property, as distinct from the house. This arises further on on an amendment proposed by myself and Deputy Collins.

In other words, Deputy Andrews is looking at the situation where the court makes an order under this section, and the husband goes off and sells the house over her head.

This is the whole basis of my point. It has been known to my own certain knowledge on two occasions. This type of legislation was not available. There was a row brewing and there was definitely the possibility of a court action arising out of a breakdown of the marriage and so on. The husband immediately took off and sold the house over the head of the wife and children.

As I have already announced, the Bill to cover that is being drafted.

I am not suggesting that the Minister does not have his priorities right and that the Bill he is suggesting will not be law before the next Dáil term. Can the Minister tell us when that Bill will be introduced and when does he see it becoming law?

The first draft has been made available. It is being looked at and examined.

In the Department?

Yes. I am hopeful that we will introduce it before the end of this session.

Before this session? The Michaelmas session?

I hope so. I suppose that it is just conceivable that subsection (3), paragraph (b) could be interpreted to cover the difficulty the Deputy mentions.

Where does that cover it?

If a court finds that he thereby molests his wife, it could be so interpreted. It would be stretching it very far indeed but the real remedy is in the Bill I have indicated——

You could not enshrine it here in one line.

We had the other Bill following shortly on this one. It is not something that could be enshrined in one line.

The intention should be seen. I am not an expert in matters of drafting but it is an extremely important suggestion, to prevent this type of situation occurring, namely, that the husband might sell the house over the head of the wife and children. It happens and will continue to happen and there is not provided in this Bill, radical and all as it has been suggested that section 21 is, the remedy for that particular problem. We must now wait until the Minister brings forward a Bill providing for that remedy.

The alternative would be to hold up this Bill.

The Minister might possibly consider it. It might be a drafting amendment.

The Minister might be able to get into subsection (3), paragraph (b), some words to the effect " molests or puts in fear or endangers the security of the family home ". Some such words might be suitable.

It might be possible to put in something to that effect, but, quite frankly, we would be getting into an area that is quite complex, from the point of view of the law of property and maybe from the point of view of the Constitution. I am quite prepared to deal with it in a separate Bill. I am cognisant of the danger the Deputy pointed out. That is why we have been going as hard as we possibly can to get this other Bill ready. While they will not be contemporaneous the delay between them will be slight.

On the Minister's observations I will withdraw my suggestion. We look forward to this new Bill to take care of the problem.

May I ask in relation to the provision in section 21 how does this match up with the Forcible Entry Act where an owner of a premises decides to re-enter a premises of which he is the owner?

It could be said that there was a——

When an amending measure for forcible entry was brought in the Deputy's party were against it.

We are in a very interesting situation at the moment.

Will the Deputy tell us?

We will not talk on that subject. We will leave that alone.

He owns the property. He wishes to re-possess to re-enter the property which is his. One Act permits him to do it, the other Act does not.

Unless the three months are up.

Under the Forcible Entry Act he is kept out forcibly by some wrongdoer. In this case he is being kept out by the order of a court.

He is the occupier of a premises and is prohibited by the court order from occupying the premises. He is liable for rates as the occupier of the premises even though he is prohibited by the court from occupying the premises.

He has seizin.

He has seizin without occupation.

Deputy Andrews withdrew his suggestion. Am I right in thinking the Minister is going to have a look at subsection (3) (b) to see if some words should be put in there?

I am not keen to do that. It would be a waste of energy.

There is one further point. This whole section, in fact, conduces to what Deputy Andrews fears will happen. A person of the type we visualise here is quite liable to go out and sell his property over his wife's head.

This is what we want to provide against in another Bill.

In another piece of legislation?

Has the Minister considered consolidating these two Bills?

I do not think there would be any need for that. A further point with regard to the commission of the offence, this is an emergency section. We will have to give consideration to the possibility of giving the Garda power to arrest without warrant for breach of the section. I do not know whether that would be the proper way.

Why without warrant?

For speed.

In the light of the generosity with which the Minister has dispensed these peace commissionerships throughout the countryside—plenty of these would be available for the Garda to go and get a warrant.

There would be now. It would be less difficult than during the time of my predecessor. More peace commissioners are available. The alternative to giving the Garda power to arrest without a warrant would be contempt of court procedure. If the Garda arrest without a warrant the chances are that the arrested person will immediately get bail whereas, if he is found to be in contempt that would involve actual imprisonment. I just mention it so that Deputies may be aware of the need to do something on Report Stage.

I would like the Minister to have a look at that because I know this problem does arise. I am thinking of an outlying area which could be some distance from a Garda barracks.

Is it the intention of the Minister to consider on Report Stage the matter of arrest without warrant?

Yes, and/or provide that a breach of this agreement constitutes contempt of court.

That is a very serious position.

It is serious. I might not bring in anything at all. Bearing in mind that it is an emergency section we want effectively to exclude a person who was putting his wife in danger. The point of the section is to deal with the question of the safety of the wife—the battered wife. There is no good in providing the exclusion order if the husband is going to come back in and not give two hoots about the court.

There was a very prominent case quite recently where the court ordered the husband to stay away from the family altogether and he arrived back in the middle of the night. It is a very real threat.

My question as regards registering the position of the spouse has gone by the board in view of the Minister's suggested amendment.

I would consider that to be more urgent and of graver import.

I am still unhappy about the position in regard to visiting the children.

The Deputy will have to put in an amendment.

Question put and agreed to.

Amendment No. 5a in the names of Deputy Collins and Deputy Andrews has been ruled out of order on the grounds that it is outside the scope of the Bill.

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