Amendment No. 75 is tabled by the Minister. Amendment Nos. 76, 77, 78, 79, 80, 82 and 96 are related. Is it agreed to take them together? Agreed.
SECTION 8.
Chairperson
I move amendment No. 75:
In page 8, lines 5 to 7, to delete paragraph (a).
Paragraph (a) of section 8 of the Bill empowers the court in separation proceedings to make interim maintenance orders under the Family Law (Maintenance of Spouses and Children) Act, 1976, after an application for a decree of judicial separation is made to the court. However, an application can only be made under the 1976 Act where there has been a failure to maintain. That, of course, might not be the case in all judicial separation applications. It would seem preferable, and my amendment No. 82 so provides, to allow the court discretion in all judicial separation cases to make interim maintenance awards whether or not there has been a failure to maintain. Amendment No. 82 also comprehends section 15 of the Bill which enables the court to backdate any maintenance order for a dependent spouse in separation proceedings to the date of the institution of the proceedings.
Under the law as it stands, the court may in proceedings for divorce a mensa et thoro order the husband but not the wife to pay maintenance pending suit or alimony pendente lite as it is sometimes called. That power is based on the fact that the wife is entitled to be maintained by the husband and its purpose is to ensure that she and any dependent children obtain a sufficient allowance until the outcome of the proceedings.
The amendment would give the court a wide and unfettered discretion to make such interim periodical payments to a spouse and any dependent children as it considers proper. The maintenance pending suit may be ordered to be paid retrospectively from the institution of the separation proceedings. The court would at the outset of the proceedings for separation be able to give attention to the immediate financial position and the needs of the spouse and children of the family. On the other hand, section 15 provides only for retrospective maintenance payments at the earliest on the granting of a decree of judicial separation which may be some time after the application is made for a decree.
Amendment No. 83 which we will come to shortly is also relevant. Under subsection (2) of that amendment the court would be empowered to order a spouse to meet any liabilities or expenses already incurred by the other spouse in maintaining herself and any child of the family. By this means the spouse can be compensated if the other spouse fails to provide proper maintenance even before the separation proceedings are launched or if it turns out that the order for maintenance pending suit was not adequate. I do not think section 15 adequately caters for and protects the needs of a dependent spouse and children in the crucial time between the institution of separation proceedings and the outcome of those proceedings and for that reason I propose that my amendment, which is a standard type of provision in other jurisdictions, should be substituted for section 15.
Amendments Nos. 82 and 83 would mean, therefore, that all possible eventualities would be provided for, unlike the provisions in sections 8 (a) and 15 of the Bill. Paragraphs (b), (c), (d) and (e) of section 8 provide for interim measures on custody, barring orders, protection of the family home and contents under appropriate Acts after an application for a decree of judicial separation and presumably pending determination of the application. There is no provision in any of those Acts for the making of interim orders, as such, although it must be said that custody orders and barring orders of their very nature may be interim. The effect of amendments Nos. 76 to 79 is that the word "interim" in paragraphs (b), (c), (d) and (e) would be deleted so that the court will simply have the power to make orders as are already available under the Acts in question without a separate application having to be made under those Acts. The end result is that, where there is an application for judicial separation, it will not be necessary to initiate separate proceedings in any of the matters in question. The simple change in amendment No. 80 concerning the deletion of the word "interim" in section 9 falls to be made if amendments Nos. 76 to 79 are accepted.
Amendment No. 96 would replace section 19 with some drafting changes. Its purpose is to extend the definition of "antecedent order" in section 3 (1) of the Family law (Maintenance of Spouses and Children) Act, 1976, to include orders for periodical payments, including maintenance pending suit under Part II of the Bill and its effect will be to apply to those orders the machinery for attachment of earnings that is contained in Part III of the 1976 Act.
Chairperson
For clarification for the Minister of State, Deputy Geoghegan-Quinn, who has just arrived, we are on amendment No. 75 to section 8. It has been agreed to take amendments Nos. 76, 77, 78, 79, 80, 82 and 96 together. For the clarity of the discussion, Members should be aware that amendment No. 82 proposes the insertion of a new section and acceptance of this amendment would involve the deletion of section 15 of the Bill. Amendment No. 96 also proposes the insertion of a new section and acceptance of this amendment would involve the deletion of section 19 of the Bill.
It is difficult to take seriously some of the amendments that have been tabled in the Minister's name. The Minister has read through a series of amendments for us and made it sound as if all of these amendments are going to do something dramatically new that has not been done before. The reality is that the Minister and his advisers have spent a great deal of time trying to simply rearrange and redraft provisions to reproduce them with an identical effect to those contained in the original Bill and to make them look different. In some instances sections that have seven or eight subsections are reproduced with new language into separate sections. In other instances the section is simply rearranged in such a way as to bring about the result that it does not make any difference whether the Bill in its original form is accepted or whether the Minister's amendments are accepted. To that extent one wonders why anybody has bothered to go to the trouble of rearranging in different language and re-presenting to the same effect provisions that are already adequately dealt with in the Bill that is before us.
The Minister proposes to delete paragraph (a) of section 8 and to replace it with a new provision which he seems to think is going to have some sort of dramatic effect that is different from the original section. Section 8 confers on the court, in the context of making preliminary court orders before a decree of separation is granted, powers to deal with all of the various problems of an emergency nature that can arise. It is normal and usual for the court to make either an interim alimony order or, as is usual nowadays in practice, an interim maintenance order under section 7 of the Family Law Act. The Minister suggests that amendment No. 82, which would insert a new section 15, would in some way produce a different result. The reality is that both sections would produce the result that following the issuing of separation proceedings it would be open to, for example, a dependent wife to apply to the courts and to ask the courts to make what is, in effect, an interim maintenance order.
None of the problems that the Minister suggests could arise under the existing section as drafted does arise. In reality both amendment No. 82 and section 8 (a) will have an identical effect. The reason for phrasing section 8 (a) in the way it is phrased is so that there is a complete uniformity of approach in the courts as regards interim maintenance applications, whether they be brought under the Family Law Act or whether they be brought in separation proceedings. Section 8 (a) applies in this instance section 7 of the Family Law (Maintenance of Spouses and Children) Act, and I quote:
On an application to the Court for a maintenance order, the Court, before deciding whether to make or refuse to make the order, may, if it appears to the Court proper to do so having regard to the needs of the persons for whose support the maintenance order is sought and the other circumstances of the case, make an order (in this Act referred to as an interim order) for the payment to the applicant by the maintenance debtor, for a definite period specified in the order or until the application is adjudicated upon by the Court, of such periodical sum as, in the opinion of the Court, is proper.
The reality is that there is no difference in effect between this section and the Minister's amendment. I suppose for that reason we could accept the Minister's amendment but I fail to understand why we have to go through this Bill in such a way that we have to amend sections which are already fully and properly drafted and for the Minister to create a perception that he is doing something new and extending new protections that the Bill has already.
There is one thing the Minister said that is inaccurate. He said that amendment No. 82 will allow the court to back date orders. What this section will do, as the original provision does, is allow a spouse, following issuing separation proceedings, to make an application to the court for an interim order for support and the interim order for support will date as and from the date when the application is made to the court, that is, from the date when the court hears the proceedings. If it takes a month before you get your application into court under this provision, as is currently the case under the Family Law Act, that will remain the position. Maintenance will only be ordered by the court to apply as and from the date it hears it and not back to the commencement of the issuing of proceedings. The Minister's amendment does not refer to the court making an order to apply as and from the date when the proceedings issued. That is not what it says and for the record it should be stated that the Minister's introduction appears to suggests that that is the case. I do not know why we have to waste time going through amending provisions that are already adequately dealt with.
Amendments Nos. 76, 77, 78 and 79 propose the deletion of the word "interim" from paragraphs (b), (c), (d) and (e). The word "interim" is there deliberately. It can arise that it appears that there is a major family problem that requires the courts to make interim orders. This may require the court to make an interim custody order or it may require an interim barring order to provide some immediate protection for a wife. Very often the court will make interim orders without hearing the full case and full dispute between a husband and a wife. Normally an interim order remains in force until the full hearing takes place. It is referred to as an "interim order", be it for maintenance, or custody, or barring, so that when the court has an opportunity to hear all witnesses on both sides, neither side is in a sense prejudiced by there being a full court order made. It is merely an interim order.
It is understood that the interim order is normally based on the court not having heard in full the evidence from both sides. Interim orders will often be made the balance of convenience. For example, a wife may allege her husband has been violent and the husband may deny it but the husband may have alternative accommodation he can quite adequately reside in for the six or eight weeks that it takes for the case to come on into full hearing. The court in those circumstances, may make an interim barring order because it does not disrupt greatly the lives of either the husband or the wife without necessarily prejudging the validity of allegations made.
It is important that we preserve the concept of orders being of an interim nature for that very reason. The same will often apply as regards custody. A husband and wife may have a dispute over custody of children; they may be living apart and the children may at the moment the preceedings are brought be living with one parent. The court may take eight or ten weeks before it can hear the full custody dispute that, so as to ensure family circumstances are not disrupted pending the hearing, the court may make, in effect, what is an interim custody order.
I do not see any reason why, in the context of separation proceedings, we cannot formally introduce the concept of these orders as interim orders and in doing so apply existing law that has worked well. That is what paragraphs (b) (c) (d) and (e) and, indeed, paragraph (a) of section 8 do. I see no reason to amend any of those provisions and I believe they adequately provide the necessary protection.
I would also be concerned in particular about one amendment the Minister has tabled. Amendment No. 76 seeks to delete the reference to an interim barring order. The Minister is correct in saying that the Family Law (Protection of Spouses and Children) Act, 1981, currently allows the courts to either make a protection order or a barring order. It does not refer to a barring order as an interim barring order; it can make a barring order. It has never been finally clarified whether in a situation of great violence a wife can get an interim barring order. She can get a protection order which allows the husband to continue to reside in the family home and prohibits him from assaulting her but there are many wives who greatly fear, even with such an order, that they are at serious risk. While District Courts will not grant interim barring orders, it has been quite usual for applications to be made to the courts to seek a barring order for the protection of a wife pending the hearing of the proceedings.
It is important that we make it very clear in this Bill that the courts can grant an interim barring order, not simply a protection order. Otherwise it could very well be suggested after this Bill was passed on the basis of the Minister's amendment that barring orders can only be granted after a separation decree has been itself granted. There is often a need for immediate interim protection. If we do not provide this protection, as the lawyers on this committee will know, we will have wives rushing into court looking for injunctions rather than barring orders. That will make things more complicated than they need be.
There is not any difference in effect between what the Minister proposes in amendment No. 82 as regards section 8 (a). There could be, in the way the Judiciary would apply it, a lessening of the protection for vulnerable children or dependent spouses if we amend paragraphs (b) (c) (d) and (e). It would be my preference to retain paragraphs (b) (c) (d) and (e) in their current form. In that context I intend to oppose the Minister's amendments Nos. 75 to 79.
It seems to me that legislation that comes out of this House is often a good deal more complicated than it need be. On balance it would seem to me that there is a great advantage in having in one section in the Bill a list of the interim orders the courts can grant rather than having a reference to protection orders, custody orders and protection of the family home orders in one section and in five or six sections later referring to interim maintenance orders. The Minister's provisions relating to interim maintenance are, in effect, no different from mine. I just think it is a better way of legislating to keep all of these interim orders together in one section so that both lawyers and members of the general public who go to the trouble of reading Bills will know what immediate protections are available if they seek separation proceedings. In the context of dealing with this I would feel that the correct approach would be to accept section 8 as it is and I hope the committee will do so.
Like the previous speaker I am very much at a loss to understand where the Minister and the Fianna Fáil group are going with their amendments. The order under section 8 is very clearly and concisely laid out and we should not seek to interfere or tinker with it unless we have a real concrete alternative to present. As has been said, amendment No. 82 is merely reconstructing in different language exactly what is in section 8 (a). I am at a loss to understand why such an elaborate procedure is being adopted to reconstruct and to rejig the lay out, if nothing more, and syntax of the Bill.
The next point I want to make is that I wonder why the Minister, and the Fianna Fáil group, are seeking to attack not only the notion but the word "interim" considering that the principle of seciton 8 is acceptable. If we look at it more carefully, in particular line 2, on page 8, we will see that it is a section enabling a court to make orders before deciding the main issue. Such orders, as any practising lawyers irrespective of what side of the room they sit on will concede, are known as interim orders. Why we have to take out a very innocuous term in each of the paragraphs, the word "interim", confuses me entirely. In regard to the word itself, I cannot understand why it is causing upset. As a term it is standard and it reflects clearly what the section intends, that before the major issue of whether or not to grant a decree of judicial separation is determined the court can make orders along the way.
The more important aspect, and clearly the whole intention of the section, is to provide a workable piece of legislation to arm lawyers on behalf of aggrieved parties with a means of taking effective action and to ensure that in cases of emergency or need they can approach the court and not have to wait for the ultimate and final determination of proceedings. That can not only take months but even longer to be complete. There may well be an appeal or the case may have to be determined before another higher tribunal which could take years. It should be possible for the court to make arrangements for the parties in the intervening period before the final order is made. For that reason the section proposes a very important and effective procedure for parties to these proceedings. It is a concept that in principle we are both agreeable to. The Fianna Fáil group, and the Minister, do not attack the notion in any amendments that the court can make orders before the final determination is made. That is something we must clearly understand. With that in mind, and given that we are at a common purpose to that extent, the question is, how best to draft the legislation. As Deputy Shatter has said, the concept of a single section that lays down clearly the five different areas in which a court can make orders is very desirable. For that reason I believe that the section, as drafted, should stand.
I am slightly intrigued at the arguments put up by Deputy Shatter in relation to section 8 (b), the interim barring order. What is a barring order except one given when a spouse goes into court and asks the judge, based on violence, for a barring order. I cannot understand what he means by an interim barring order. Either she is entitled to a barring order or she is not. I would also ask Deputy Shatter to explain how someone could go into court and obtain an interim barring order. Would the person go in without notice to the other spouse as in the case of a protection order? If he proposes, in his amendment, to work it in such a way that the other party would be on notice, then what is to stop the district justice or the Circuit Court judge giving a barring order? There is no difference, so I cannot really see how he intends to put this interim barring order. Either it is a barring order or it is not. I agree, in relation to the maintenance that there is always a need possibly for interim maintenance orders to be made because the judge may find that the situation has not been resolved and will not be resolved until a later date. He would feel obliged, in that event, to make what is called an interim maintenance order, but an interim barring order is a misnomer.
Everybody accepts that there is a duty on this committee to produce the best possible legislation in this area. The Minister has stated that section 15 of the Bill does not adequately cater for and protect the needs of a dependent spouse and children in the crucial time between the institution of proceedings and their outcome. For that reason he moved this amendment.
I think it is a perfectly reasonable amendment. Everybody knows that under the Family Law (Maintenance of Spouses and Children) Act, 1976, there is nothing to make the court make an order for maintenance unless there is actually a failure to maintain. There will be applications to court for a decree of judicial separation where the case is that the husband or the wife is maintaining the other spouse and the children. The possibility arises that after the institution of an application for a decree of judicial separation a husband might say to himself that he is no longer going to maintain his wife. It may be the spark to make him do that. Because the matter, when it originally came before the court, was all right and the maintenance was being paid, the court would obviously have no power under the Family Law (Maintenance of Spouses and Children) Act, 1976, to make an order for maintenance.
The Minister's amendment improves this legislation considerably in that it allows the court to grant a decree for maintenance whether or not maintenance is being paid. This is the least protection the dependent spouse and her children could expect. I believe we have a duty to protect them in this way and to ensure that the maintenance order is made whether or not maintenance is being paid because this is the best possible way to protect the wife and the dependent children. They are entitled to that and I believe it is incumbent on this committee to ensure that they get that.
In my approach to any amendments that have been brought before this committee I hope I have been open as regards reasonable amendments which improve the terms of the Bill but yet are in keeping with the principle of it. With that in mind I am looking at the Minister's amendments. I listened carefully to what he and other members of Fianna Fáil have said and I still do not understand. Perhaps it is something to do with my mind's working this morning, but I still do not see any difference between what the Minister is proposing and what is already contained in the Bill as regards the effect.
I reiterate what a number of speakers have said about the word "interim". I think it is a very important facet of this part of the Bill because it is something akin to, say, an interim injunction where, without a full hearing, one can obtain an order from the court which may be varied when the full hearing has occurred.
The concept of this Bill is to allow all issues related to judicial separation to be dealt with together. Bearing that in mind, it may be that it will put a party to the proceedings at risk if, for instance, an interim barring order or interim custody order is not awarded to one side or the other at an earlier date than a full hearing can be dealt with. Therefore, I think it is perfectly in keeping with the principle of the Bill, that is, to keep all the actions together and yet to make sure that neither party is disadvantaged in the interim, that these provisions should be here.
It seems to me at present that the Minister's amendments are at variance with this. He is dividing them up in approach. Any legislation we pass should be as clear and concise as possible. He is moving the maintenance provision to another part of the Bill when, in fact, he is allowing for somthing akin to an interim order to be granted. He is not calling it an interim order.
There is a real risk that delay may be caused to parties to proceedings if what the Minister is suggesting is implemented. Amendment No. 82, allowing for maintenance pending suit, could be seen to require almost a full hearing. It could be seen that a great amount of evidence which would not have to be produced under the Bill as it exists in looking for an interim maintenance order may well have to be adduced to the court to obtain an order under amendment No. 82. That means delay will be caused and it is not one of the principles of this Bill that delay should be caused unnecessarily.
I remain to be convinced. I am open to reasonable amendments. I see no real difference between these and the original Bill. The existing version is tidier and clearer, both to practitioners and to others. Therefore, I see no reason to change it.
There is one aspect of both section 8 and of the Minister's amendments which concerns me and my reservations are common to both in a sense. Perhaps it can be clarified to my satisfaction. All of us must surely agree that a procedure ought to be possible under which temporary relief can be obtained on these issues before the full hearing of the case, but a question arises which is not touched on here. Is it the intention or would it be the effect of section 8, as drafted, that these interim reliefs, as they are called in section 8, could be obtained or granted by the court without any notice to the other party? That is the question that concerns me because I take the view that it would not be appropriate that a barring order, a maintenance order, a custody order, or any of those orders should be made without at least the other party to the proceedings being put on notice that such an application is being made and being given an opportunity to present his or her case in response before the court. Otherwise, a husband could find himself barred and orders made against him which were totally unwarranted just on the say-so of one party. The Minister's amendments do not meet that so far as I can see. We should have clarification on that.
There are two categories of relief that a court can grant under different circumstances before the full hearing comes on and, if I remember rightly, one of them is called interim relief which is relief given without notice to the other party at all, and the other, I think, is called interlocutory relief which is given after notice to the other party. These are all serious and important orders dealing with maintenance custody and so on. I would like some clarification to the effect that two days notice, four days notice or whatever, of such an application will be given to the other party, husband or wife as the case may be, before such an order would be made. I do not see that the Minister's position helps that situation in any way. Maybe it is already covered and I am missing the point, but I think it should be clarified.
As to the use of the word "interim" there is a technical problem here. The section in the Bill presupposes that interim orders so called are already available under the Acts in question. In the final analysis that would be a matter of interpretation for the courts. What it really comes down to is a problem of legal drafting. The proper approach is to allow the existing law to operate an alternative to make appropriate amendments in the Acts in question. I do not see any need to pursue the latter course. We should allow the existing law to operate and the safeguards that Deputy Mervyn Taylor is talking about are there.
Does the Minister mean that a separate proceeding would have to be brought then under those other Acts? That is totally undesirable. The whole thing quite clearly ought to be dealt with in the one proceeding. That is the whole object. I would not subscribe to the idea that we would have to issue three or four different——
Not separately, they would be all together.
Taking up the point that Deputy Taylor made in relation to an interim maintenance order and an interim barring order, I would not entirely agree with him when he says there should be no case when an interim maintenance order or a maintenance pending suit order under the Minister's amendment would be required. A question would arise whereby a judge may have to give one of those orders before the determination of the proceedings, but in relation to the barring I really cannot see how we can have an interim barring order.
I am proposing that section 9 would read
"A court may make orders under section 8 if sought by the applicant or the respondent without separate proceedings having to be instituted."
I am deleting the word "interim", that is all.
Otherwise the Minister would leave section 8 as it stands?
Section 8 as amended and section 9 without the word "interim".
I should like to deal with the very reasonable queries and questions that have been raised. I will try to do so as briefly as I can. Probably part of the problem here arises from some members of the committee not necessarily being all that familiar with what happens in practice at present in regard to providing protection in a variety of different circumstances. It is important to put it in perspective.
First I will take the second last point the Minister made when he said that section 8 as currently drafted presupposes that interim orders can be made under the various different pieces of legislation referred to. The position in practice is that there is no doubt that interim orders are made under the various pieces of legislation referred to, except in the context of one particular order about which there is a degree of confusion in practice. There is no doubt that interim maintenance orders can currently be made and section 7 of the Family Law (Maintenance of Spouses and Children) Act, 1976, deals with that. I deliberately read out that section because of the Minister's reference to the need to prove failure to maintain. That does not arise under section 7. Deputy O'Donoghue referred to that. If you are looking for a maintenance order under section 5 of the Act, it is correct to say that you have to prove failure to maintain but, if a wife issues a maintenance application and she needs interim maintenance, she can bring an application under section 7 that does not require her to prove failure to maintain. The section is very clear. That section allows the courts to make a maintenance order as an interim measure: if it appears to the Court proper to do so having regard to the needs of the persons for whose support the maintenance order is sought and other circumstances of the case,
It is a simple question. Is there a need to make an order or is there not? So, if we take the concern that Deputy O'Donoghue referred to of the husband who stops making payments or, for example, dramatically reduces them after he is served with court proceedings, there is no doubt that if he stops paying them there is a failure to maintain anyway, and an interim application has to be made. There is also no doubt, for example, if a husband continues to pay money to his dependent wife for her support after proceedings have been issued, and continues to pay it at the rate he has always paid it, that, under section 7, if the wife is in dire financial straits she can make an application for an interim maintenance order and that is what it is. None of the issues that have arisen gives rise to any problems. There is no need to prove failure to maintain. You may be able to prove your husband is maintaining you but he is doing so inadequately to meet the needs of yourself and your children. So there is no doubt that an interim maintenance order as referred to can be made, is currently made, and that there is no problem under the section as it is drafted.
To take Deputy Taylor's point on that in the context of interim maintenance, as matters stand at present it is a matter of well known practice for over ten years that if a wife seeks an interim maintenance order it will always be done in the Circuit Court by the bringing of a motion to the Circuit Court with the filing of affidavits and with both parties having an opportunity to file replying affidavits. That is what is done at present in the context of interim maintenance orders. They are referred to as interim maintenance orders. The language of injunctions is not used. There is no such thing as an interlocutory maintenance order and there is no problem using the terminology "interim" here in the family law context. That is what happens currently in practice.
In the context of custody orders, interim custody orders are normally applied for under the current rules of court by notice of motion, and there are to be rules of court made under the Bill which will provide for the same approach. These are Circuit Court proceedings about which we are talking. Deputy Ahern referred to something very important which is that occasions arise when interim emergency orders must be sought in a family law context and are sought where you cannot give notice. For example, where a child has been kidnapped by one or other parent this is quite usual and currently in practice and has been the case for over 20 years. If a mother discovers that some time during the course of the morning a father in an estranged marriage situation has kidnapped a child, the mother accompanied by her lawyer may go down to the Circuit Court or the High Court with or without affidavits in a situation of great emergency and the court may grant an interim injunction, for example, or an interim custody order.
That is not a barring order.
I am dealing with the custody issue for a minute. The court may grant an interim custody order and, indeed, other orders under the Guardianship of Infants Act to protect the welfare of children. They would do it on the basis of requiring the father to return the child to the mother. Normally, if the father's whereabouts were known, a motion would have to be served.
To deal with Deputy Taylor's worries, all of these provisions in the rules of the court would envisage that, normally speaking, interim orders will only be made by a motion on notice, but there will be exceptional circumstances where children are kidnapped where such orders would have to be made and the motion will come after that. That interim order may remain in force for a week or two weeks only pending the hearing of the application because the court can, under this provision, make such order as it deems proper. It may make an interim custody order for a period of two weeks, for example, to prevent a kidnap. The father will still be allowed to come to court and make his case. At present in practice, where a wife is in fear of assault, or indeed a husband is, she or he can walk into the District Court offices and be taken to a district justice and protection orders are being made regularly on a daily basis throughout the country without any notice being given to husbands or wives. This is to ensure that the application for an interim protection order in great emergency can be made. These orders would normally be made on notice or motion. This Bill is to ensure that the family law language of interim orders applys to both the emergency and the motion on notice. The rules of court that this Bill provides for will deal fully with those problems.
To come to the final issue of the interim barring order raised by Deputy Ahern again I have come across cases in practice where, wearing my lawyer's hat, I have gone before a High Court judge and indeed Circuit Court judges accompanied by wives who have been beaten black and blue by their husbands where it has been obvious to any judge just looking at the wife that she has been treated in an appalling fashion and there and then the judge has granted a seven day barring order on the basis that the husband would be served with proceedings within those seven days and would have an opportunity to come into court. That is why there is a need to provide here also for interim barring orders.
The reason I refer here to it as being an interim barring order is that whereas there is no doubt, interim orders can be made about custody and maintenance, some judges are of the view in practice that whereas they can grant interim protection orders they will never grant a barring order without a full hearing of a case in which everybody appears and gives their point of view. By and large, barring orders should not be granted of course without both parties having such an opportunity.
In the horrific example I have given where a wife has clearly been beaten black and blue, any judge can see that that is the case and she requires interim protection. It would be inhuman to say to the wife: "I am very sorry, you have to swear an affidavit, you have to serve proceedings and maybe in two months time we will allow a full hearing and let you get a barring order but in the meantime we will make a protection order and you and your husband will live together under the one roof".
These provisions are deliberately designed to ensure that, in the context of separation proceedings, interim orders that currently can be obtained under a variety of different Acts can be obtained in separation proceedings. They are designed to dispel any current uncertainty there may be about the powers of the courts to grant interim barring orders as opposed to interim protection orders. The provision in the Bill for rules of court will adequately cover Deputy Taylor's concerns that, as a generality, orders could be granted——
What section deals with the rules of court?
In Part IV of the Bill there is the general power to make rules of court relating to the operation——
Could you refer me to the section that gives general powers to make rules of court?
Section 26 in Part III of the Bill.
That is a very limited power.
As Deputy Taylor knows, in all areas of law rules of court provide for all of these issues. The Deputy should know that in the area of civil litigation, any legislation that ever passed through the Oireachtas relating to the law of tort has never set down, within for example the Defamation Act, the particularities of the documentation you require to make the applications. It is dealt with in rules of court under the Family Law (Maintenance of Spouses and Children) Act, 1976 and the Guardianship of Infants Act, 1964. There is no reference to the bringing of motions or to the swearing of affidavits. It is all done in the rules of court which are provided for under the provisions of those Acts.
The section does not provide that.
They are provided for in exactly the same way in those Acts as they are in the context of this Bill. My concern is that if the Minister's amendment is accepted — by and large the Minister is following along a similar road to us — the confusion that currently exists about interim orders in the barring order area will not be satisfactorily resolved. If Deputy Taylor has any particular concerns about the generality of the substance of rules of court, it is of course open to him in the context of dealing with Part IV of the Bill or indeed in dealing with this part of the Bill to table amendments if he wishes to expressly provide for the general approach that should be adopted. I am concerned to preserve the integrity of this Bill and the protections that it seeks to ensure exist for people who are in dire circumstances and who seek the protection of the courts on an interim basis.
I hope what Deputy Shatter has said has now dispelled what I understand to be the major ground of opposition from Fianna Fáil to the inclusion of the word "interim". It was suggested in the Minister's intervention that there was a drafting difficulty about the use of the word "interim" because the enabling legislation referred to in each of the subsections did not allow for interim orders. It does quite clearly so allow. We are not in any way creating a difficulty here.
The other reservation that has been raised is that of Deputy Ahern in failing to understand what is an interim barring order. An interim barring order is, as it says, a barring order full stop. That stands on an interim basis pending the full hearing.
He knows that.
He may know it but, again, I am curious to know what the difficulty is in grappling with that concept or allowing it stand. It is very sensible legislation and I do not think we should be worried about the basis. We are trying to deal with the emergency in the interim period.
As regards Deputy Taylor's point, I would perhaps suggest, if it is something we could do, that we consider an addition to section 8 suggesting that all such applications made under paragraphs (a) to (e) be made on notice to the other party where circumstances allow, or some words to that effect, simply to cover that point. I would be happy with the section as it stands but nonetheless if there is concern as to whether or not proceedings have to be made on notice, we could very easily include an extra line in section 8 to cover that.
I want to make a final point in relation to the barring protection order procedure. There is a Bill going through the Oireachtas at the moment which intends to amend that. There have been problems that have arisen in that area. I think it is in that Bill that it should be amended rather than try to bring it into this Bill. That is the area that is being examined. There may very well be a need for some sort of change in the procedure whereby someone could go in in an emergency situation.
That Bill will not come back before the House—
(Interruptions.)
Amendment put.
The Committee divided: Tá, 7; Níl, 8.
Tá
- Ahern, Dermot.
- Kitt, Michael P.
- Collins, Gerard.
- Kitt Tom.
- Cowen, Brian.
- O’Donoghue, John.
- Geoghegan-Quinn, Máire.
Níl
- Barnes, Monica.
- McCartan, Pat.
- Barrett, Sean.
- Shatter, Alan.
- Colley, Anne.
- Taylor, Mervyn.
- Flanagan, Charles.
- Taylor-Quinn, Madeline.
Amendment declared lost.
Amendments Nos. 76 to 79, inclusive, not moved.
Section 8 agreed to.