I move amendment No. 91:
In page 10, paragraph (b), lines 26 and 27, to delete "and the needs of any such dependent children, including the need for care and attention" and substitute "and towards any other person and the needs of any such person or dependent children".
If the Special Committee agrees we can take amendments Nos. 91, 92 and 93 together.
They are to do with the same section.
It might be simpler to take them separately because I think we will have a more succinct discussion. Otherwise we are going to get ourselves into difficulties.
Amendment No. 91 seeks to exclude the last phrase in paragraph (b) so that it now refers to the financial and other responsibilities of the parties to the marriage towards each other and towards any dependent children. I have included "towards any other person and the needs of any such person or dependent children". The reason I have done this is that I can foresee a situation where, for instance, there would be foster children in a family or grandchildren of the family who might be illegitimate children, adopted perhaps by the parents, and this provision would not cover them. I feel that their need for care and attention should be considered when the court is regarding these matters. I am sorry for being so confused at the beginning. Essentially I do not believe the provision there would include such children or dependent persons in the family. There could be people who are mentally incapacitated. There could be handicapped people who are not children but who are dependent and they are not included under this.
With regard to amendment No. 91 the formulation in paragraph (f) of my amendment No. 90, which is not really before us, was more general than section 13 (b) of the Bill. While the financial obligations of the parties to each other and to the dependent children of the marriage must come first, it may be necessary for the court to take into account the needs, for example, of infirm parents or any other person whom it is reasonable to expect either party to look after in the circumstances. The Bill at present does not give the court the power to consider such responsibilities. Like Deputy Colley I think it should. For that reason I recommend her amendment although I prefer my own.
Some of the examples Deputy Colley raised actually do fall within the Bill at present. The problem she mentioned of a stepchild or a foster child or an adopted child comes within the definition of a dependent child of the family which is contained in Part II section 7 of the Bill where we have that detailed definition. That would cover anything to do with children where someone is either an adopted child or where someone is acting in loco parentis to a child. Her amendment does actually go beyond that. The Minister is correct in saying it would mean that the courts would be told to take into account other persons. The reality is that that is something the courts would take into account both under the Family Act at the moment, and under this Bill for a different reason, for example, if there are dependent, elderly parents that a husband or a wife may be taking care of.
What must not be lost sight of is that subparagraphs (a) to (i) in section 13 list a number of specific things as being particular items the court should have regard to but at the start of section 13 it says that it should be the duty of the court in deciding whether to exercise its powers under section 10, which is the power in effect to make various financial orders, to have regard to all the circumstances of the case and, in particular, the following matters. Indeed under the 1976 Act the court is required to have regard to all the circumstances of the case. If part of the financial circumstances is that there is a dependent elderly parent or that there is a relation who is handicapped in some way for whom someone is taking on a responsibility, as the law is currently operating, that would be taken into account as being a legitimate financial obligation that someone should meet.
There is another aspect of this that I would like to draw Deputy Colley's attention to. Because what she does would cover all those areas, it is only really reiterating it. On that basis I have no objection to it, but it does occur to me that because of the way that is drafted it could actually be even wider than that. You are talking about responsibilities towards any other person and I would simply draw attention to the fact, without commenting either in favour or against it, that it would seem to me that it could also result in the courts giving a degree of attention to financial obligations that one may have to someone a spouse is cohabiting with as opposed to someone to whom they are married or to whom they are related. It does bring that into play. I am not either opposing it on that basis or supporting it. I am merely saying it is a fairly broad provision. The examples the Minister and Deputy Colley have referred to are in fact covered by what we have at present. It is for the members of the committee to decide how much further they want to stretch the example of the people the courts should regard a husband or a wife as having a financial obligation to.
I appreciate what Deputy Shatter has said. He feels the examples I have given are catered for under section 7, Part II. I am not absolutely certain that that would be the case, particularly in regard to those who are no longer children, who are in fact adults. I feel, therefore, that there is room for an amendment. On the other hand I do not want to include such people who would be included spuriously under the term of "dependent people" who would be cohabiting. That is certainly not in my mind. I take what he says on board; it is possible that it might be construed in that way. If that is the view of the committee I would be happy to take it back and bring it forward on Report Stage and amend it further.
Perhaps Deputy Colley could reconsider the terms of this on Report Stage and we might have another look at it. I am anxious that we do not stretch matters in a way that none of us may intend and it could create inbuilt problems in this legislation. I simply gave an example of the husband who wanted to limit his wife's financial entitlements and who had a temporary relationship with somebody else, with no intention of making that permanent, moved in with that other person for a few weeks while court proceedings were taking place. He took advantage of the person with whom he moved in with and so delimited his wife's financial entitlement. That is the sort of thing I am concerned about.
We all may have diverse views as to other circumstances in which someone, because of the peculiarities of our own domestic law, should be regarded as having certain obligations to people with whom they are cohabiting. I am concerned about the way this is drafted and perhaps this could be looked at again to ensure that we cater for the sort of situations Deputy Colley is anxious to cover but that we do not build in a loophole that could be used to diminish a dependent wife's true entitlements in a family conflict.
Obviously, I do not object if the matter is being taken back. I want to make one point, that the section overall does not impose an obligation to respond. It simply requires the court to have regard to but does not say "must take into consideration" or "must provide for the interests". Clearly, I do not think any of the courts would countenance facilitating such temporary arrangements and perhaps we are creating more of a problem than exists. However, if it is going to be looked at on Report Stage I will be happy with that.
I move amendment No. 92:
In page 10, paragraph (e), line 33, after "co-habited" to insert "including any period of time before marriage".
This relates to paragraph (e) of section 13. It struck me when I was going through the Bill that, in making certain orders under section 10, to take into account the duration of the marriage and the length of time the parties cohabited could limit that to the time they cohabited during the marriage. I know there are many cases nowadays where, for instance, couples cohabit before marriage and they purchase property while they are cohabiting. The contribution either of the spouses might make during that period might not be available to the court to consider if the Bill is left as drafted. Therefore, my amendment seeks to include the words "including any period of time before marriage". The court should have regard to the duration of the marriage and the length of time the parties cohabited including any period of time before marriage.
I fail to see on what grounds Deputy Colley could suggest that the court should take account of the period of cohabitation before marriage in deciding what financial provision orders they should make. Apart from very exceptional cases, which could be dealt with within the framework of the preamble to section 13 of the Bill, my amendment No. 90 would replace any general provision to the effect that cohabitation before marriage should be one of the matters to be taken into account. In my view it is completely unacceptable and, indeed, objectionable. Marital rights and duties do not begin before marriage and to infer otherwise would not only serve to cheapen marriage but would offend against the status which the Constitution accords to the institution of marriage. I must oppose this amendment.
There are two things here. If this was included we would all be accused of trying to encourage people to cohabit for lengthy periods before marriage. On that basis I think it is not necessarily a helpful provision. Deputy Colley had a valid reason for tabling this amendment and I understand why she has tabled it. I do not want to belittle that. The approach is based on ensuring that if a couple have been living together for a period of time and then they marry and the relationship continues but deteriorates some short time after marriage, because they had only been actually living together as a married couple for a very short time the court might give no rights at all to a dependent wife. It may not be her fault that that has happened.
Perhaps I could point out to Deputy Colley that this amendment, as phrased, does create difficulties. We have to bear in mind the importance in this section of not only the specific things the court is directed to take into account but the direction to the court also to have regard to the circumstances which, in a situation where there is a very real injustice, could otherwise occur. Obviously, the fact that the couple had an ongoing relationship prior to marriage and the length of time of that relationship would be one of the circumstances of a general nature to which the court would have regard. I would be concerned that if we adopted this particular provision it could be suggested that the Oireachtas made a decision that it was desirable that people should cohabit before marriage. Some people may hold that view. A lot of people would not hold that view. That is something we should let the sociologists debate. This committee should not get into debating that at this stage on this Bill and embroil itself in any unnecessary controversy. Because of this general direction to the courts to bear in mind the overall circumstances as well as having regard to the various matters referred to in paragraphs (a) to (i) I do not think the amendment would necessarily add anything and it could be unhelpful.
To respond to the Minister's contribution, far be it for me to wish to promote cohabitation before marriage. As the Bill is drafted it says that the court must have regard to all the circumstances of the case and in particular to paragraphs (a) to (i) — that limits in the particular circumstances what the court must look at. As they are set out they are limited. Paragraph (e), "the duration of the marriage and the length of time the parties cohabited" as it stands is slightly ambiguous. I feel there are more and more people out there for whom we may be creating a legal maze if we do not take their cases into account. There are people who live together for two, three, four or five years, who purchase a house and the woman, perhaps, is the prime donor of the payments on the mortgage. They get married, perhaps because they are expecting a child, and she stops working. Perhaps a year later they break up. What happens then? The financial circumstances, have altered drastically since they got married but yet that may not be taken into account where paragraph (e) is concerned.
I am concerned simply that we do not provide very difficult situations for more and more people who are behaving in this way nowadays. I feel that the paragraph, as phrased, is ambiguous. The first thing that struck me was did it or did it not include a period, if any, before marriage. If it remains in the present form it will be ambiguous in court and it will be possible for parties to go in and claim that it includes what I wish to have included in my amendment.
I move amendment No. 93:
In page 10, paragraph (f), line 34, after "welfare" to insert "and maintenance".
This is really a drafting amendment and is not of great consequence. I felt that the reference to the contribution made by each of the parties to the welfare of the family need not necessarily include financial maintenance. I believe there should be a reference to that there, because later on the paragraph says, "including any contribution made by looking after the home or caring for the family." I think it should include maintenance as most people would define welfare as including maintenance. At the moment as the paragraph is phrased, it could be interpreted as referring simply to the psychological welfare or some such thing. It is just a little bit loose. I would prefer to see maintenance actually mentioned there.
I acknowledge what Deputy Colley is attempting there but I think for instance that paragraphs (g), (h) and (i) cover very adequately the financial contributions made. I welcome what paragraph (f) is doing. It is attempting to place a legal value for the first time actually on the contribution made to the welfare of the family. It particularly values the psychological nurturing and caring and supporting role and the other paragraphs adequately look after the financial one. It strengthens it by standing by itself. I absolutely recognise what Deputy Colley is saying and I know that her direction is the same as mine, but I think that because of the lack of acknowledgment given to the non-financial contributions over the years this must and has to stand strongly in its own right.
My principal comment on this is that the amendment is unnecessary. The general term "welfare" must include maintenance.
I do not think this amendment is necessary. Not only that, I think it is a dangerous amendment because paragraph (f) is designed to ensure that, for the first time particularly in the area of property transfer orders and other matters the courts are required to take into account the fact that the wife who works in the home, who has no independent income, who does not contribute financially towards the family in the sense of maintenance as we know it, being a financial sum, but who contributes by her daily work and love and devotion to her husband and to her children should get due and adequate recognition. Linking in the welfare and maintenance would seem to me to undermine that and it could result in some judges who may not be too well disposed to taking into account the fact that a wife makes a very real contribution by her work in the home taking the view that they have to again revert to regarding a maintenance or financial contribution by her as the important and integral element in this. I ask Deputy Colley to consider withdrawing this amendment. In so far as the courts need to take into account the financial contribution made by either husband or wife, the Minister is correct in saying it is dealt with any way. This could actually undermine what we are trying to do here which is to give due recognition to the work done by the wife in the home who has no independent income of her own at all.
I should like to explain that my effort here was very much in the direction Deputy Shatter and Deputy
Barnes have outlined, that is, to recognise the contribution of the partner who remains at home looking after the home or the children, or both, and the possibility that the other partner can go out and earn the money or wherewithal that the family lives on. It was with that intent that I had put in "and maintenance". I really do not believe that it would be open to a judge to give undue recognition to the word "maintenance" there because the rest of the paragraph includes the phrase "including any contribution made by looking after the home or caring for the family". So it is very much along those lines that the court must look and I believe that the amendment I have made strengthens that.
We will move on to section 16. The Minister has an amendment down to the section — amendment No. 94 which is a new section. Acceptance of this amendment involves the deletion of section 16 of the Bill.
I should like to point out that this seems to be an amendment that is dependent on the insertion by the Minister of a new section in the Bill. Am I right? I beg your pardon I am not right on that.
I move amendment No. 94:
In page 11, before section 16, to insert the following new section:
"21.—(1) Where the court has made an order to which this section applies, then subject to the provisions of this section and of section 20 of this Act, the court may, on application to it by either spouse, if it thinks proper to do so having regard to any change in the circumstances and to any new evidence, vary or discharge the order or suspend any provision thereof temporarily, revive the operation of any provision so suspended, and in any appropriate case again vary any such order or again suspend or revive its operation.
(2) This section applies to the following orders—
(a) an order for maintenance pending suit;
(b) a periodical payments order;
(c) a secured periodical payments order;
(d) an order for payment of a lump sum by instalments;
(e) a property adjustment order for a settlement of property or for a variation of a settlement;
(f) an order in relation to the occupation of the family home, and
(g) an order for the sale of property.
(3) Without prejudice to the generality of section 16 of this Act that part of an order which provides for the support of a dependent child shall stand discharged where the child ceases to be a dependent child of the family by reason of his attainment of the age of sixteen years or twenty-one years, as the case may be, and shall be discharged by the court, on application to it under subsection (1), of this section, if it is satisfied that the child has for any reason ceased to be a dependent child of the family.
(4) The powers exercisable by the court under this section in relation to an order shall be exercisable also in relation to any instrument executed in pursuance of the order.
(5) The court shall not exercise the powers conferred by this section in relation to an order for a settlement or for a variation of a settlement except on an application made in proceedings for the discharge of the decree of judicial separation.
(6) No property adjustment order shall be made on an application for the variation of a periodical payments or secured periodical payments order made (whether in favour of a spouse or in favour of a dependent child of the family).
(7) Where the spouse liable to make payments under a secured periodical payments order has died, an application under this section relating to that order (and to any order which requires the proceeds of sale of property to be used for securing those payments) may be made by the spouse entitled to payment under the periodical payments order or by the personal representatives of the deceased spouse, but no such application shall, except with the permission of the court, be made after the end of the period of six months from the date on which representation in respect of the estate of the deceased is first granted. For this purpose, a grant of representation limited to settled land or to trust property shall be disregarded and a grant of representation limited to real estate or to personal estate shall be disregarded unless a grant limited to the remainder of the estate has previously been made or is made at the same time.
(8) The personal representatives of a deceased spouse against whom a secured periodical payments order was made shall not be liable for having distributed any part of the estate of the deceased after the expiration of the period of six months referred to in subsection (7) of this section on the ground that they ought to have taken into account the possibility that the court might permit an application under this section to be made after that period by the person entitled to payments under the order; but this subsection shall not prejudice any power to recover any part of the estate so distributed arising by virtue of the making of an order in pursuance of this section.".
Section 16 provides only for the discharge and variation of maintenance orders under Part II of the Bill. Subsection (4) of section 10 makes it clear that orders in relation to the transfer of property and the settlement of property are once and for all orders. The position regarding the variation of an order for payment of a lump sum by instalments is unclear and my amendment which would substitute for section 16 is more comprehensive and provides for the variation and discharge of orders for maintenance, lump sums by instalments and orders in relation to property with the exception of an order for the transfer of property and likewise the Bill does not provide for variation except for the transfer of property.
This is an amendment which I ask the Minister to withdraw and have a look at again on Report Stage. I am doing so because I am concerned about a number of aspects of this. The section 16 in the Bill at present is deliberately confined to deal with periodical weekly or monthly maintenance orders so as to provide for their variation in circumstances in which under the current law they would normally be varied. The reason it so deals with matters is that if a property transfer order is made — for example, a lump sum payment order might be made in conjunction with an order varying inheritance rights — such an order would not in my view be either equitable or reasonable in securing certainty in the lives of the people if, following the court varying inheritance rights and making a lump sum payment order, the spouse who has to make the lump sum order could come back to court and seek to have it varied and reduced. That, in fact, could result for example in a dependent wife on the one hand being given protection and some months later having it taken away from her.
The idea of allowing a variation of a lump sum order is a problem. A lump sum order is a different type of financial animal to a periodical maintenance payment. If you are talking about a payment to be made on a weekly, monthly or a quarterly basis, by and large they will normally be maintenance orders, not lump sum orders.
There is a final point I want to raise with the Minister, because even if he is willing to withdraw the amendment there is something I want to draw to his attention which I think is very important. The Minister in the context of what he is suggesting here as regards property adjustment orders or even varying property orders in particular circumstances would want to be very careful as to the impact that might have on conveyancing law and as to the very real problems it could create in the buying and selling of properties for any couple who have been embroiled in a marital problem. There could be a considerable difficulty arising here.
I appreciate if the Minister wishes to withdraw the matter. I would happily discuss this provision with him before Report Stage in so far as there may be things in it that it might be worthwhile incorporating. This provision would open up a hornet's nest of problems as it is currently presented.
I accept that. Bearing in mind the reference in section 21 (2) (a) of the amendment to an order for maintenance pending suit — and the earlier discussions we had — I am quite prepared to withdraw this amendment until Report Stage when we will take up the matter again.
I move amendment No. 95:
In page 11, before section 18, to insert the following new section:
".—Notwithstanding anything in this Act, the provisions of section 9 of the Family Law (Maintenance of Spouses and Children) Act, 1976, shall apply in relation to an order for maintenance pending suit, to a periodical payments order or a secured periodical payments order, subject to the modifications that the reference in subsection (4) of the said section 9 to the maintenance creditor shall be construed as a reference to the person to whom payments under the order would be made and the other references in the said section 9 to the maintenance creditor shall be construed as references to the persons on whose application the periodical payments order was made.".
The same argument applies to this amendment and in an effort to be consistent with what we have already agreed, I shall withdraw this amendment until Report Stage.
Acceptance of amendment No. 97 in the name of the Minister involves the deletion of section 20 of the Bill.
I move amendment No. 97:
In page 12, before section 20, to insert the following new section:
".—Payments of money pursuant to an order under this Part shall be made without deduction of income tax.".
This amendment, which proposes to replace section 20, provides that all payments of money pursuant to an order under Part II of the Bill should be made without deduction of income tax. Section 20 as it stands seems to confine itself to periodical payments and does not cover lump sums.
In dealing with this amendment, I want to say that I was careful not to make reference to lump sums and I deliberately did not. Section 20 as it stands reflects what is existing law as regards maintenance payments under the Family Law Act, 1976. I would argue that a lump sum is a capital payment made by a husband to a wife and should not be regarded as income for income tax purposes. The question of income tax becoming payable would not arise and neither would the question of the husband deducting income tax. The court would make a specific order in the same way as it makes an order, for example, for a damages order in a civil action, that a husband pays his wife X amount of money. Let us assume for a moment that the order is that a husband has to pay to his wife £20,000. The husband would have to pay the full £20,000. It is not a maintenance order and it is not income for income tax purposes. If the husband did not pay that he would be as much in breach of the court order as would someone who was awarded £20,000 in a damages action.
I would be worried that the Minister's phraseology of this could result in a possible interpretation that lump sums would be liable to income tax. The current income tax provisions as regards maintenance arise under sections 3 and 4 of the Finance Act, 1983, and I do not think a lump sum payment order would fall within that. It may be that we should have some express provision in a future Finance Act to confirm that but I would be concerned that this could result in a lump sum payment received by a wife being regarded by the Revenue Commissioners, under section 3 of the Finance Act, 1983, as income for income tax purposes. If this remained in the Bill, it could very well be that a wife who gets a lump sum order could be assessed by the Revenue Commissioners for income tax on foot of it.
I do not think there is any disagreement between us. I think we all want to see to it that these moneys would go directly to the person who is supposed to get them and not have to go through the Revenue Commissioners. Section 20, as it stands, seems to confine itself to the periodical payments and does not cover the lump sums. Perhaps we can have a look at it again before Report Stage. As I said, there is no disagreement between us; all we want to do is find the right form of words to give that protection.
Perhaps to copperfasten it a subsection in section 20 accepting that a lump sum is a capital payment and shall not be regarded as income for income tax purposes——
We will find some formula between us to achieve this.
——would be a helpful provision to have in the Bill. Perhaps the Minister would look at that and we will also.
Amendment No. 98 is in the name of the Minister.
I am not moving this amendment because of a reference to "maintenance pending suit". I think this would be in line with some of the decisions we made earlier on.
If the Minister retabled that amendment on Report Stage with a reference to "interim maintenance", the amendment would certainly be accepted but, if not, I would table one that would cover that aspect of it.
Amendments Nos. 99 and 101 are related and may be taken together. Is that agreed? Agreed.
I move amendment No. 99:
In page 12, before section 21, but in Part II, to insert the following new section:
".—An agreement shall be void in so far as it would have the effect of excluding or limiting the operation of any provision of this Part.".
With regard to amendments Nos. 99 and 101, an important flaw in the Bill is the absence of any provision rendering void transactions intended to frustrate the making of financial relief orders or reduce the amount that otherwise would be available in respect of spouses and any children. Amendment No. 99 is based on section 27 of the Family Law (Maintenance of Spouses and Children) Act, 1976, and aims to ensure, for example, that a promise by one spouse not to sue the other for financial provision under Part II of the Bill will not thereby exclude the operation of the Part II provisions. This would not, of course, interfere with the right of a couple to enter into a separation deed to agree financial provision between themselves and, in the normal course, a court would not upset such arrangements freely entered into. In addition, there is no provision in the Bill rendering void agreements or contracts in so far as they would have the effect of excluding or limiting the operation of any of the financial or property order provisions under Part II of the Bill.
Amendment No. 101 would give a measure of protection in this matter. A spouse might try to defeat an application under Part II by disposing of his property or transferring it out of the jurisdiction. He might do this before the institution of proceedings or after an order has been made under Part II with a view to reducing the property available to meet it. Amendment No. 101 aims to prevent fraudulent dispositions of that kind.
I suspect we are ad idemwith the Minister but I am concerned about amendment No. 99. I have absolutely no difficulty with amendment No. 101 on the assumption that the references to sections 15, 16, 17 and 21 can be amended. We now have to refer to sections 10, 11, 12, etc. in the Bill. I have no difficulty at all accepting what is proposed in amendment No. 101 because it is a worthwhile provision to have in the Bill. I say that first so that the officials might look at whether we can amend the sections and incorporate it in because as it stands it deals with the sections that the Minister has not pressed today.
I want to explain my problems with amendment No. 99. I was interested to hear what the Minister had to say. I think we would all agree that spouses should be encouraged to conclude separation agreements rather than go into the courts and to enter into arrangements amicably between themselves without engaging in a legal battle. I assume that we would also agree within the committee that it is desirable that all of those couples who have in years gone by resolved their marital problems by the conclusion of a separation agreement should be allowed to get on with their lives again without having the agreement unravelled. Amendment No. 99, as drafted by the Minister, is far too broad and creates a major problem.
In accepting amendment No. 101, I would ask the Minister to have another look at amendment No. 99 for the following reasons. First, it would seem that this provision will do a good deal more than the Minister intends it to do. The wording of the amendment, "An agreement shall be void in so far as it would have the effect of excluding or limiting the operation of any provision of this Part."——
I agree with what Deputy Shatter suggests about having another look at the amendment.
I want to put it on the record. My view is that any separation agreement concluded either before this Bill becomes law or thereafter could be unravelled by reliance on that provision and everyone going to court. There is a need to delimit its application.
I do not propose to move amendment No. 100 at this stage because of the reference in it to the maintenance pending suit. We will be consistent with our earlier agreement and leave it for another day.
I move amendment No. 101:
In page 12, before section 21, but in Part II, to insert the following new section:
".—(1) For the purposes of this section, ‘financial relief' means relief under any of the provisions of sections 15, 16, 17 and 21 of this Act, and any reference in this section to defeating a person's claim for financial relief is a reference to preventing financial relief from being granted to that person, or to that person for the benefit of a dependent child of the family, or reducing the amount of any financial relief which might be so granted, or frustrating or impeding the enforcement of any order which might be or has been made at the instance of that person under any of those provisions.
(2) Where proceedings for financial relief are brought by one person against another, the court may, on the application of the first-mentioned person—
(a) if it is satisfied that the other party to the proceedings is, with the intention of defeating the claim for financial relief, about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property, make such order as it thinks fit for the purpose of restraining the other party from so doing or otherwise for protecting the claim;
(b) if it is satisfied that the other party has, with that intention, made a reviewable disposition and that if the disposition were set aside financial relief or different financial relief would be granted to the applicant, make an order setting aside the disposition;
(c) if it is satisfied, in a case where an order has been obtained under any of the provisions mentioned in subsection (1) of this section by the applicant against the other party, that the other party has, with that intention, made a reviewable disposition, make an order setting aside the disposition;
and an application for the purposes of paragraph (b) shall be made in the proceedings for the financial relief in question.
(3) Where the court makes an order under subsection (2) (b) or (c) of this section setting aside a disposition it shall give such consequential directions as it thinks fit for giving effect to the order (including directions requiring the making of any payments or the disposal of any property).
(4) Any disposition made by the other party to the proceedings for financial relief in question (whether before or after the commencement of those proceedings) is a reviewable disposition for the purposes of subsection (2) (b) and (c) of this section unless it was made for valuable consideration (other than marriage) to a person who, at the time of the disposition, acted in relation to it in good faith and without notice of any intention on the part of the other party to defeat the applicant's claim for financial relief.
(5) Where an application is made under this section with respect to a disposition which took place less than three years before the date of the application or with respect to a disposition or other dealing with property which is about to take place and the court is satisfied—
(a) in a case falling within subsection (2) (a) or (b) of this section, that the disposition or other dealing would (apart from this section) have the consequence, or
(b) in a case falling within subsection (2) (c) of this section, that the disposition has had the consequence,
of defeating the applicant's claim for financial relief, it shall be presumed, unless the contrary is shown, that the person who disposed of or is about to dispose of or deal with the property did so or, as the case may be, is about to do so, with the intention of defeating the applicant's claim for the financial relief.
(6) In this section ‘disposition' does not include provision contained in a will or codicil but, with that exception, includes any conveyance, assurance or gift of property of any description, whether made by an instrument or otherwise.".
Is it agreed that, by leave of the Special Committee, the reference to sections 15, 16, 17 and 21 in amendment No. 101 be altered to refer to sections 8, 13, 15 and 16? Agreed.
It might be necessary to refer to section 10 also.
Is it agreed that, by leave of the Special Committee, the reference to sections 15, 16, 17 and 21 in amendment No. 101 be altered to refer to sections 8, 10, 13, 15 and 16? Agreed.
Is the amendment agreed?
On a point of order, I think amendment No. 101 should be put to the special committee. I do not think it is sufficient for Deputy Shatter simply to say that he accepts it.
I move amendment No. 102:
In page 13, before section 27, but in Part IV, to insert the following new section:
".—Save in so far as otherwise provided in this Act, the law relating to proceedings for divorce a mensa et thoro shall, so far as applicable, apply in relation to proceedings for judicial separation.”.
Amendment No. 44, which stands part of the Bill before section 7 in Part I provides expressly for the abolition of the action for a decree of divorce a mensa et thoro. The action is surrounded by a body of case law and amendment No. 102 is designed to preserve that law so far as it would be applicable in relation to the new proceedings for judicial separation.
I do not want to disrupt the harmony that has arisen but I have to say I am a little puzzled about this. I do not believe this amendment is necessary. In so far as we are anxious to preserve case law, for example, in the context of the meaning of a concept such as desertion or adultery, the courts will clearly look at cases where those concepts were previously defined by the courts. I would be concerned that this provision — and I do not believe this is what the Minister intends — could be relied upon to suggest that the very cumbersome court procedures we have inherited from the ecclesiastical courts in bringing petitions, motions and applications, which is really legal nonsense at this stage and adds to costs is being retained as part of our law. I do not think this adds anything to the Bill, and there is a slight danger that it could result in our retaining some of the antiquated approaches adopted. It is because of that that I oppose it.
This amendment is superflous. The general principles of precedent and construction are available to lawyers as and wherever they want to pick from, to adopt and apply the law as they find it in this section. This is superflous and for that reason I ask the Minister to consider its superfluity.
I am satisfied that here we are talking about law and not about procedures.
May I ask the Minister what he sees to be the effect of his amendment? It says:
". . . the law relating to proceedings for divorce a mensa et thoro shall, so far as applicable, apply in relation to proceedings for judicial separation. . .”
Which proceedings does he mean will take precedence, those for a mensa et thoro or judicial separation, or is there a difference?
Amendment No. 44 provides expressly for the abolition of the action for a decree of divorce a mensa et thoro. The action is then surrounded by a body of case law and this amendment is designed to preserve the law so far as it would be applicable in relation to the proceedings for judicial separation. It is a safeguard. We have been advised by the Attorney General that it is necessary and I am putting that to the special committee.
Will the Minister clarify if when he uses the term "the law" he is referring to case law, precedent law or statutory provision?
Case law.
The precedent law is in the case law books and is available in any context and in any circumstances to be borrowed on.
We did inquire, we did have consultations with the Attorney General, and he recommended this amendment.
I am concerned that the thrust of the Bill, which is quite different to the law on divorce a mensa et thoro,would, in some way, become entwined with this, to the extent that it would be undermined. I am concerned that case law which has been built up over the years and is of value to practitioners and to litigants should be preserved. I am not happy with the wording of the amendment.
I should like to follow up on Deputy Colley's point. I take it that all precedents and case law that people consider relevant and helpful are still applicable, that they are not ruled out of court or out of evidence. Therefore, if that is true — I ask some of the professional people in the room to tell me if that is so — then there would seem to me to be no reason to actually put this amendment in, in so far as one can always refer to precedent or good case law anyway. I echo the reservations of Deputy Colley. As Deputy Shatter has already pointed out, quite a lot of the restrictions and very antiquated law relating to divorce a mensa et thoro might undermine the very thrust and direction that we want this law to take, which is open, flexible, compassionate and understanding. I share the view about that difficulty. Does this amendment have to be included at all? Surely it is accepted that good case law and precedents are used anyway as a matter of course and order in the courts?
It is a standard provision when you abolish an action to maintain case law.
My question is, does it have to be written into the Bill? Is that not part of the precedent, order and practice of the courts anyway?
The purpose of the amendment is to avoid uncertainty, to be definite and sure. I am being guided by the professionalism of the Attorney General on this matter. There is no argument between us as to whether or not it should be there.
Would the Minister be disposed, in view of some of the reservations expressed, to take it back and consult the Attorney General before Report Stage.
I will convey the views of the special committee to the Attorney General. I will take further advice on the matter and come back on Report Stage.
And, perhaps, inquire of the Attorney General if there is any risk of us giving some undue precedence or preference to the case law in view of its specific inclusion in the Bill——
I will do that.
Amendments Nos. 103 and 104 are related. Is it agreed to take amendments Nos. 103 and 104 together?
Yes, I move amendment No. 103:
In page 13, subsection (1), to delete lines 10 to 12 and substitute the following:
"(1) Section 5 of the Family Law (Maintenance of Spouses and Children) Act, 1976 is hereby amended by the deletion of subsections (2) and (3) and the insertion of the following subsection in their place—".
These amendments are simply drafting amendments. I noticed when reading the Bill that there were two different references, one in subsection (1) and the other in subsection (2), to subsections of another Act. The first one, section 27 (1) refers to section 5 (2) and 5 (3) of the Act and subsection (2) refers to section 6 (2), 6 (4) and 6 (5). The way I have put it, it is simply a tidying-up exercise and a clarifying one. I think it was slightly unclear as to what exactly was being done. It is purely technical but I think it would improve the ability of those of us who have to read Acts or Bills in the future to understand what is being got at.
We will be opposing section 27 when we come to that. The amendments are only technical amendments so they make no difference whatever to the substance of the section with which I am concerned, namely, the proposal to change fundamentally the bearing which conduct has on the making of orders for maintenance.
I see no reasoning at all behind the latest amendment of Deputy Colley. I think section 27 (2) as it stands is perfectly clear and adequate. It relates to section 6 (2), (4) and (5) of the Family Law (Maintenance of Spouses and Children) Act, 1976. The amendment for practical reasons or otherwise is purely cosmetic and I see no need to tamper with the provision as envisaged by Deputy Shatter.
Even a lay person reading it would see that section 27 (1) starts off subsections 5 (2) and 5 (3) and then subsection (2) starts section 6 (2), 6 (4) and 6 (5). That in itself does not marry one with the other. One should either refer to them as subsections or sections in both. With that in mind I set myself the task of re-arranging it so that it made more sense. That is simply all I have done.
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Bell, Michael. |
McCartan, Pat. |
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Colley, Anne. |
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Barnes, Monica. |
Flanagan, Charles. |
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Barrett, Seán. |
Taylor-Quinn, Madeline. |
I move amendment No. 104:
In page 13, subsection (2), to delete lines 20 to 23 and substitute the following:
"(2) Section 6 of the Family Law (Maintenance of Spouses and Children) Act, 1976 is hereby amended by the deletion of subsections (2), (4) and (5) and the insertion of the following new subsections in section 6 of the said Act—".
Will I recap for the benefit of Deputy Shatter?
Yes.
This is a drafting amendment, as I said just a moment ago. Section 27 (1) and subsection (2) refer to different subsections of another Act. Subsection (1) refers to subsections 5 (2), 5 (3) and subsection (2) to section 6 (2), 6 (4) and 6 (5). I am simply trying to unify the approach and have one reference either to sections or subsections.
I think the Bill is clear with the sections as they are.
How can you reconcile them — subsection (5) and section 6 — in the use of language?
Yes, I see the point.
I move amendment No. 105:
In page 13, line 32, to delete "by itself".
This is a drafting amendment. I see in section 17 (2) practically the same phraseology is used: "Conduct of the nature referred to in section 14 or 16 (2) shall not be a ground upon which a court shall refuse to make. . . .". In this section 27 (2) the second paragraph reads: "Matrimonial conduct of the nature referred to in section 6 (2) shall not be a ground by itself for discharging or varying any part of a maintenance order. . . ." It seems to be unnecessary, or else one should have the phrase "by itself" in section 17. It is apportioning an undue importance to the words "by itself" in this which are not reconcilable with section 17.
Is the amendment agreed?
I think there is a misunderstanding. I was taking what Deputy Colley said at face value, but if you take paragraph 6.—(4), "Matrimonial conduct of the nature referred to in section 6 (2) shall not be a ground by itself . . . ." and remove the words "by itself", you say "shall not be a ground. . . ." and that is diametrically opposed to what is in section 17. I think perhaps Deputy Colley misunderstood that. Maybe Deputy Colley will look at that again and she will see what I am talking about. If you remove the words "by itself" in the way that section is phrased, it means matrimonial conduct cannot be a ground at all whereas in section 17 it has a different applicability which is to the effect of saying that conduct of the nature referred to shall not be a ground upon which a court shall refuse to make a maintenance order for the support of a dependent child. It has the opposite meaning. I do not think Deputy Colley intended that.
I am willing to come back on Report Stage and do something about that.
Amendment No. 90 in my name would have substituted for sections 13 and 14 of the Bill. It concerned the matters to be taken into account by the court when making orders in relation to maintenance and property. Subsection (3) of my amendment would have made desertion an absolute bar to both maintenance and property orders under Part II of the Bill. The Bill contains a general provision in section 14, that the court may have regard to the conduct of the party seeking maintenance where it would be repugnant to justice to require the other party to pay maintenance. This, in effect, proposes that desertion would not prevent a spouse from claiming maintenance rights in separation proceedings.
I oppose section 27 because it proposes to bring the rules of conduct in sections 5 and 6 of the Family Law (Maintenance of Spouses and Children) Act, 1976, into line with those that have been proposed in section 14. The main effect of section 27 is that desertion would no longer be an absolute bar to a claim for maintenance. It would be open to the court to make a maintenance order for the support of a spouse who has deserted. I am not in favour of that proposal and, therefore, I oppose the section.
Section 27, which amends the Family Law Act is to ensure that our maintenance legislation operates on a uniform approach with uniform standards. It seeks to introduce amendments into that Act which ensure that there is a similarity of approach in regard to making financial orders between that Act and section 14, as the Minister refers to in this Bill. It is important that there is. Both section 14, which we have now accepted, and this section will ensure that where it is repugnant to justice to require that support be paid to a spouse, such support will not be provided for a spouse. If a spouse has been guilty of very bad conduct or if a spouse, for example, is permanently residing with someone else the court would normally, under current law, not provide for that spouse's support and they would continue not to do so under this provision.
For some reason that relates more to history than family reality, we in this country give desertion a very honoured and peculiar role in our marital laws. It all derives from the Desertion of Spouses Act, 1886, which provided that the only circumstance in which a wife could get support for herself if she was not being properly supported was if she could prove her husband was in desertion of her. Ever since then we have had a particular view of desertion. As the law currently stands under the Family Law Act, a wife living in adultery can get a support payment. In theory someone who is guilty of cruelty can get support payments.
The idea and the intent behind this Bill is to diminish the impact of allegations of matrimonial offences and simply to ensure that only in circumstances where there is very extreme matrimonial misconduct, that becomes a consideration in determining whether maintenance orders should be made.
In the context of the Family Law Act as it is currently operating, desertion is virtually an impossible concept to pin down. If the husband's conduct towards his wife is bad and if the wife leaves the family home, some judges may regard her as being in desertion and some will not. What one judge would regard as cruelty, another judge would regard as behaviour that you have to put up with within marriage. Where wives have lived in very difficult circumstances and have left the family home due to the fact that there was a clear incompatibility between themselves and their husbands and there was a great deal of difficulty in the home, I have heard some judges on occasions say to a wife: "You cannot get any support because you have to put up with the wear and tear of married life". Other judges, on an identical set of facts, have said to a wife that she was not in desertion and that she was justified in leaving the family home.
This subjective concept of desertion has created a great deal of difficulty within the family law area, has left wives who are living in very unhappy circumstances in a position of great uncertainty as to whether for their own peace of mind they can move out of the home and, for no reason other than financial dependency, has often forced people to continue residing together in the most atrocious family circumstances. This amendment is designed to move away from that type of approach, to move away from this peculiar concept of desertion that we have as determining guilt or innocence for the breakdown of a marriage and to try to move a little bit away from the degree of judicial subjectivity that attaches to the concept of desertion.
I hope that rather than seeking to retain the current law we would seek to ensure that the law when this Bill is passed is uniformly applied in the area of financial support payments whether a spouse does or does not seek a separation decree. This provision is designed to provide that uniformity.
Amendment No. 106, in the name of an tAire, is a new section. Amendments Nos. 108 and 109 are alternatives. Is it agreed to take Nos. 106, 108 and 109 together? Agreed.
NEW SECTION.
I move amendment No. 106:
In page 13, before section 28, to insert the following new section:
".—Section 11 of the Guardianship of Infants Act, 1964, is hereby amended by the addition of the following subsections:
‘(5) The court may, of its own motion or on the application of either parent, by an order under this section give such directions as it thinks proper to procure a report from such person as it may nominate on any question affecting the welfare of the infant.
(6) A report under subsection (5) shall be privileged.
(7) Any such report may be received in evidence in the proceedings and the person who made it may be called as a witness.
(8) Subject to the foregoing provisions, a report shall not without leave of the court be communicated, in whole or in part, to any person; and a contravention of this provision shall be punishable as contempt of court.
(9) The costs of a person making a report, including his attendance as a witness, shall be at the discretion of the court.'.".
This amendment concerning reports on children in guardianship cases would replace section 28 of the Bill, with some changes. The changes are mainly of a drafting nature. The important change, however, is that the court would be empowered to procure a report of its own motion, that is on its own initiative, on the welfare of any child in guardianship proceedings. This amendment provides also for the confidentiality of reports. In addition, the scope of the reports may be wider than is provided for in section 28.
I take the view that the provision in the original Bill adequately meets the position and I would be a little bit concerned about some aspects of the Minister's provision. I will take each of the points. There is no doubt that under the Minister's amendment, and under my proposal, a court will and can of its own volition seek a report. It says in the new subsection (5) that would be inserted in section 11: "Upon any application made under this section the court may if it is satisfied that it is necessary for the proper determination of the application request any person. . ." to provide a report. I do not see how that in any way creates a different position. It goes on to say in the Minister's amendment: "A report under subsection (5) shall be privileged". I am not exactly sure what additional protections the Minister seeks to provide by referring to the report as privileged. I would be concerned about it in one respect which is whether that provision could be interpreted as saying that a judge can get a report that does not necessarily have to be made available to the parties to the proceedings. Any such report should be made available to the parties to the proceedings. Perhaps the Minister could clarify in what sense he means the report is privileged.
In subsection (7) the Minister goes on to say: "Any such report may be received in evidence in the proceedings and the person who made it may be called as a witness". Subsection (7) of section 28 states:
"A copy of any report prepared under subsection (5) shall be made available to the barrister or solicitor if any, representing each party in the proceedings or, if any party is not so represented, to that party."
There is no necessity to say that someone may be called or may not be called, because the reality is that if a report is prepared, for the report to have any evidential validity in any court proceedings the person who prepared the report must be called as a witness, otherwise the report of itself could have no validy. Under case law the position is clear, that each party must not only see the report but would have an opportunity to call not only the person who produced it but other people to give evidence as to the correctness of what is contained in the report.
Taking subsection (8) with subsection (6) is a matter of some considerable concern. The Minister saying it is privileged simply means that the person who prepares the report will not be sued for defamation. I would take the view that if someone does prepare a welfare report they would need to ensure that what is in it is accurate and that issue should not arise. In practice, every day of the week, social workers, psychiatrists and medical practitioners go into the family courts to give evidence and there is no problem about privilege. It would seem that under subsection (8) a judge who wishes to get a report could possibly use subsection (8) to exclude everyone from having access to the report — barristers, solicitors and the parties to the proceedings. If he were to do so it would be unconstitutional. I have no doubt about that. It seems that subsection (8) has a very broad sweep that could create a Kafkaesque situation in which judges were making family law decisions without people understanding the basis upon which they are making them.
In a nutshell, I believe the provision in the original Bill adequately deals with this area. I have reservations about some aspects of the Minister's amendment and I ask the Minister to reconsider his amendment in that regard. I hope I will have the support of the other members of the committee, subject to any further explanations the Minister may give in particular in regard to subsections (6) and (8), in seeking to retain the existing subsection in the Bill.
Let me make one further point. As this is a report that would be obtained under the Guardianship of Infants Act and because those proceedings would be held in camera, of its nature the report would be subject to the in camera rule. If anybody were to reveal it to the newspapers or anyone else they would be in contempt of court. That is part and parcel of the Guardianship of Infants Act proceedings since 1964 as some of the national media learned to their cost in 1970 when they got into difficulties on that point.
Let me refer, first of all, to my amendments, Nos. 108 and 109. Amendment No. 108 deals with the situation where the court has regard to the wishes of the parties and seeks to insert "but shall not be bound by the said wishes". I think it is reasonable to put that in because the parties might claim that the court should have a far greater degree of regard for their wishes than the court might have, as it is now presented. While the family unit is a very important unit, we are dealing here with the breakup of a marriage. Usually the interests of both parties when the case reaches the court cannot be reconciled with each other. It should be made quite clear that the court would be able to make a request that such a report be drawn up despite the wishes being expressed to the contrary by the parents. That would be very important.
The second of my amendments relates to subsection (9). I take on board what Deputy Shatter has said about the fact that any report presented to a court would be part of the evidence and, therefore, may be examined. By implication, the person who prepares that report must be called as a witness. Under this subsection the only party who would be able to call that person as a witness would be the court itself. Under the rules of natural justice it would not be fair to a party to the proceedings that a report be drawn up by somebody they could not cross-examine. Certain things could be said about either party and they or their legal representatives would not be able to call into question either the reasoning used or the standing of such a person. It would be only reasonable that the parties themselves should also be able to call that person as a witness.
Without wishing to criticise Deputy Shatter, because I do not think it is his fault in drawing up this Bill, section 28 deals with an amendment to section 11 of the Guardianship of Infants Act. I had some difficulty working out which application was being referred to because it says "Upon any application made under this section . . .". Eventually I discovered that it was an application for custody under the Guardianship of Infants Act. Originally I thought perhaps it was only on application of the parties that a report could be drawn up. Now I can see that the court could request one. I think that is essential.
I will accept both amendments in the name of Deputy Colley as I think they are helpful and I thank her for tabling them.
I am glad we are taking a moment simply to discuss the whole principle of the preparation of professional reports, their submission to court, their status and access to them. As a practitioner who has worked for a number of years in the police courts, I have experienced incredible confusion about the status of reports, particularly those prepared by probation officers, pursuing the community welfare service schemes and other reports prepared by psychiatrists and doctors with regard to the physical or mental fitness of persons, prepared at the request of the court. Often games of duck and drake were played between lawyers, the officers of the court and judges as to who could see what, when and in what circumstances. The Minister has the benefit of dealing with one section of that whole scenario, namely, the officers of the court, in drafting his amendment.
His amendment reflects a lot of the feelings that probation officers and community work scheme officers would have and the provisions they would like to have available to them but, quite frankly, I do not go along with them. I am much more inclined to the Bill as it stands as opposed to the amendments the Minister has proposed. I can see that he is trying to grapple with a problem on which I have no doubt he and his office have received many representations. The Minister has said that the basic difference between his amendment and the Bill as it stands is that it would allow for the court of its own motion to proceed. I think the wording of the Bill as it stands — but I would like this to the clarified — does allow for a court to move of its own motion, although those words are not specifically used. "Upon any application" refers to an application referring to custody of children—
Because we were advised that what Deputy McCartan seeks is not in the Bill we put down amendment No. 106.
If there are reservations about this, and I am not convinced that the Bill is specific enough on it, perhaps Deputy Shatter might consider incorporating the words, "of its own motion" into subsection (5) so that could be made absolutely clear. I think it is essential that a court would have that residual right and authority. It is not explicit though I believe it is probably strongly implicit in what is already there.
The next matter attempted to be addressed is the word "privilege". I would like clarification as to what extent that word is being employed here to protect the availability of the reports. If it is intended that the use of the concept of privilege here means that the document remains entirely the property of the court to be delivered and dealt with as the court directs, I have some worries because subsection (8) of the Minister's amendment which states that a report shall not without leave of the court be communicated, in whole or in part, to any person raises a major problem in that officers of the court in preparing and presenting reports to the solicitor defending or representing a party have often asked that certain elements of content of the report not be communicated. This is something we have to be clear about because often the report is only a part in a stage of proceedings. There may well be further ongoing things to be done.
In this Bill we talk about mediation and attempts to help retrieve marriages. An officer may often be involved with the party or the person involved at a later stage in the preparation of the report. Many officers coming to court are not simply reporters to the court but they may also be mediators, counsellors or social workers working with the people in the field. We have to look at this question. Has a lawyer the right to disclose all of what is in the report to the client or should someone — if there is anyone then it certainly should be the court — have the right to direct that all or part not be disclosed. If that is so, how does one then devise a mechanism? Is the report submitted then some days in advance to a judge who can then direct that it be edited and represented to the parties or is it to be presented in totowith a rider from the judge? These are practical problems that I think we have to discuss in the context of this Bill because if we are going down that road we must be very clear as to where rights begin and end.
Subsection (9) of the Bill worries me a little. I understand that amendment No. 109 has now been accepted by Deputy Shatter. It is important that parties to proceedings have the right and should be allowed to call the author of any report to give evidence and be cross-examined, if necessary.
The final point I want to make is that clearly — and this is a point that was made by Deputy Shatter — the rules of in camera will cover these proceedings and for that reason I do not think we should be too worried about communication outside of court. There is no question that a report can ever be communicated beyond the parties and the persons representing the parties at proceedings.
I think the preference is in the order of things as they stand in the Bill subject to us looking more closely at that part of the Minister's amendment under subsection (8) whether we need to incorporate some form of control on the one hand and, secondly, whether or not Deputy Shatter would be agreeable or whether he feels it is necessary to include the words "of its own motion" in the first part of the amendment.
To erase the concerns of Deputy McCartan, when I was drafting this particular section I was very conscious of the need to ensure that the court could on its own application or on its own motion require that reports be prepared. That is why subsection (5) says: "Upon any application made under this section"— which is the section relating to custody which will arise not just under this Bill but under custody contests which arise under the Guardianship of Infants Act itself —"the court may if it is satisfied that it is necessary . . . request any person whom it considers qualified. . .". Therefore, it is the court if it is satisfied it is necessary that seeks the report. I deliberately did not use the words "of its own motion" because of the legalistic nature of that. The intent was to make it quite clear. It is always open to the individual parties to obtain reports as they wish or to apply to the court under the Guardianship of Infants Act to require the other parent to co-operate, but they are reports normally obtained by either mother or father.
This whole section is all about allowing the court, where it deems it necessary, to request a suitably qualified person to prepare a report on the infant who is the subject matter of the proceedings and on other relevant members of the infant's family. This provision is about allowing the court in a sense of its own motion to appoint someone to carry out the necessary work.
I agree with Deputy McCartan that there are other larger issues that apply to all welfare reports. These are issues that could be addressed in a different Bill dealing with the whole issue of reports in the context not just of custody cases but in other areas when welfare reports are brought before the courts. I was anxious not to get this Bill involved in another area of controversy and difficulty and in a sense do something that happens at present except allow the court to do it as well. At present the courts regularly hear evidence from social workers, psychiatrists and child psychologists in custody cases and it works well except in some instances a court hears two conflicting views and the judge wants to get an independent view. In other instances there are cases where neither mother nor father seek such assessments and none is made available to the court. I simply wanted to allow — within the way it operates at the moment — for a judge to require that a court be prepared to make orders that would enable a report to be prepared not just on the child but on the family members who are in dispute before the court.
It was always my intention that not only the court could call forward the person who delivers the report as a witness but also each parent would be entitled to do that. I assumed that that would be something that each parent could do in any case by issueing a subpoenaif the court did not require the person to be present. Because it was always so intended that matters would be dealt with, I was quite happy to accept Deputy Colley’s amendment to expressly provide for that.
Bearing in mind the drift of the discussion and in particular the contribution made by Deputy McCartan I am prepared to withdraw my amendment and come back on Report Stage with something on this issue.
That is something I would appreciate.
I move amendment No. 107:
In page 13, before section 28, to insert the following new section:
".—(1) Where, after the making of an order under section 5, 6 or 7 of the Family Law (Maintenance of Spouses and Children) Act, 1976, application is made for a judicial separation between the parties to the proceedings in which that order was made, the court in which the application is pending may, if it thinks fit, direct that the order made shall cease to have effect on such date as may be specified in the direction.
(2) Where, after the making of an order under section 5, 6 or 7 of the Family Law (Maintenance of Spouses and Children) Act, 1976 or for payment of alimony pending suit or permanent alimony in proceedings for a divorce a mensa et thoro, application is made under Part II of this Act the court may, if it thinks fit, direct that the order made shall cease to have effect on such date as may be specified in the direction.”.
This is a technical matter not provided for in the Bill. The amendment will enable the court in which an application for financial and property orders under Part II of the Bill is pending to direct that an order previously obtained in any court for maintenance under the Family Law (Maintenance of Spouses and Children) Act, 1976, or, as the case may be, an order for payment of alimony in proceedings under the old action for divorce a mensa et thoro shall cease to have effect. This would obviate the need to apply to that court which could be the District or High Court for a discharge of any orders. The same problem does not arise in the case of barring or protection orders since the Family Law (Protection of Spouses and Children) Act, 1981, already provides the discharge of those orders and on the determination of any matrimonial cause, are a matter between spouses.
I have no difficulty accepting that.
I move amendment No. 108:
In page 14, line 3, after "ascertainable" to insert "but shall not be bound by the said wishes".
I move amendment No. 109:
In page 14, line 12, after "fit," to insert "or either party to the proceedings may,".
I move amendment No. 110:
In page 14, before section 29, to insert the following new section:
".—(1) Where the court grants a decree of judicial separation it may declare either spouse to be unfit to have custody of any dependent child of the family.
(2) Where a decree of judicial separation contains such a declaration, then, if the spouse to whom the declaration relates is a parent of any child of the family, that spouse shall not, on the death of the other spouse, be entitled as of right to the custody of that child.
(3) Section 18 (1) of the Guardianship of Infants Act, 1964, is hereby repealed except in relation to an action instituted before the commencement of this Act.".
Subsection (1) of section 18 of the Guardianship of Infants Act, 1964 provides that in pronouncing a decree of divorce a mensa et thoro the court has jurisdiction to declare the parent, by reason of whose misconduct the decree is made, unfit to have custody of the children. In such event that parent is not entitled to the custody on the death of the other parent. The power to declare a parent to be unfit to have custody is of particular relevance where the other spouse dies. Section 29 provides, however, for the repeal without replacement of section 18 (1) of the 1964 Act and I am opposed to that change.
Section 29 as it stands could result in a parent who is quite unfit to have custody of a child being entitled to custody on the death of the other spouse. I believe that this is a situation which should be prevented from occurring. This amendment repeals section 18(1) but re-enacts it with some changes to take account of the fact that the person against whom a decree of judicial separation is granted may not necessarily be a guilty spouse as such or one who is unfit to have custody of the children.
I am opposed to this amendment and I think I should explain the history of this section. The Guardianship of Infants Act, 1886 contained a provision which is more or less identical to the provision in the Guardianship of Infants Act, 1964 and which the Minister seeks to re-enact whereby in the granting in the existing Act of a decree of divorce a mensa et thoro, the court can declare either spouse to be unfit to have custody. The reality is that this section is simply not used in practice. In 15 years of practising as a family law practitioner I cannot recall any case in which such an order has ever been made. The possibility to make such orders has been criticised on the grounds that a court could, in theory, because it simply does not operate in practice, declare someone to be unfit to have custody of their child because of matrimonial misconduct towards the spouse rather than because of parental misconduct towards the child. The unfitness, the fact someone has behaved badly to their husband or their wife within a difficult marriage, or the fact that a judge may have that view, does not of necessity mean that person is unfit to be a parent.
This Bill contains a whole structure whereby, following the granting of a separation decree, a court will determine any dispute that arises as regards the custody of children and will do so on the basis of their welfare. It can also make a custody order as an interim order. What happens in practice at present is that where there is a dispute about custody the courts make a custody order. Let us assume for a minute the parent who succeeds in getting custody then dies; section 8 of the Guardianship of Infants Act, 1964 in the circumstances where a parent dies allows any other person to make application to the courts to be named as a substitute guardian. The custodial parent, prior to their death if they so decide can, in fact, make a will and name someone as a guardian in their place. Neither the person named by the parent as guardian or the person who makes application under section 8 of the Guardianship of Infants Act can apply for a custody order in a custody contest.
The powers of the courts to declare people to be unfit parents was, in effect, only inserted in the 1964 Act, because it was in the 1886 Act. I suspect the Minister wants to keep it here in this Bill now because it was in the 1964 Act. It is a provision that does not work but it is a provision that, if someone wants to engage in a war of attrition, they can try to use where a marriage has broken down by asking a court to label, perhaps, the non-custodial parent as an unfit person or an unfit parent.
I do not think this provision adds anything to the Bill. I do not see any point in re-enacting a provision that the courts have not used. Certainly there is no written court judgment indicating its use since 1964. My belief is it adds nothing to this and I think in the context of the spouse who has custody dying, all the inbuilt protections for other people to make guardianship and custody applications are contained in section 8. I think we should remove what is an anomalous section from the Guardianship of Infants Act and not re-enact it in a slightly more updated linguistic form in this Bill.
I am surprised to learn that a provision of this sort as existing in the 1964 Act is not ever resorted to or used. I think it is certainly a desirable provision to have available to a court when proceedings of this sort are taken, particularly in the context of where we are talking about finality and clarity and the need to have situations clearly established and dealt with comprehensively. It is a provision that perhaps we should have available to us and included in this type of legislation.
In regard to the point that it is a means of allowing abuse to be hurled, that is a fair point. I would say that if one is at the stage of approaching or contemplating this type of order one will have had quite a deal of abuse and acrimony flying in any event in the proceedings, irrespective of whether or not one is proceeding to this type of order. I do not think we would avoid that type of proceeding taking place. For that reason for the sake of comprehensiveness, we might consider leaving this power and authority to the courts in the legislation to be relied upon. Frankly, I would have thought it is a useful provision and I am somewhat surprised to learn that it is not resorted to as a matter of practice at the moment.
I do not want to prolong the discussion on this. I agree with Deputy Shatter's view of the matter. I believe that there is sufficient safeguard either in this Bill or in the Guardianship of Infants Act as it stands.
I am putting the question: "That the new section be there inserted". Is that agreed?
As there is an equality of votes the question is decided in the negative.
