I move amendment No. 1:
In page 3, line 18, after "If" to insert "an application for".
Domestic Violence (Amendment) Bill, 2002 [ Seanad ] : Committee and Remaining Stages.
SECTION 1
Amendment No. 2 is related and the two amendments may be taken together by agreement.
This is a very simple amendment designed to streamline the proceedings of the courts. Section 1(c) states that if an interim barring order is made ex parte then a particular note has to be taken and so on. The wording I introduce is to ensure that if an application for an interim barring order is made, the same procedure would take place. I am seeking to ensure that there would be a procedure in place in the courts that would kick in automatically once an application was received and that, irrespective of whether the application was successful, a note would be taken of the evidence presented. This would be in accordance with the wishes of the Supreme Court and the manner in which it made its judgment and would ensure a fairness in procedures from the very beginning. Amendment No. 2 is consequential on amendment No. 1.
The effect of these amendments would be that a note of the evidence given in any application for an ex parte interim barring order would have to be made and served on the respondent even though the application was refused. The Bill, as it stands, deliberately provides that this be done only if an ex parte order is actually made. My Department is being lobbied for a change along the lines of these amendments by two organisations that are concerned about men's interests in domestic violence proceedings, namely AMEN and Parental Equality.
However, I believe the amendments are fundamentally misconceived. Firstly, the purpose of requiring that a note of evidence be made is to make a record of the evidence on which the court acted in making the ex parte order so that this can be served on the respondent as soon as practicable. In this way, the respondent will know some time in advance of the hearing, which will be held to decide whether to confirm the order, what is alleged against him or her and he or she is thereby better prepared to present their side of the case. In the absence of the note of evidence, the respondent would see the sworn information perhaps but, as I indicated on Second Stage, this might not give the full picture as told to the judge by the applicant at the ex parte hearing.
Providing for a note of the evidence to be made and served on the respondent is eminently fair to him or her. However, if no ex parte order is made this reason for preparing and serving the note of evidence seems to disappear. No order is in existence, the status quo is maintained and the respondent is still residing in the family home. Why serve the evidence given at the ex parte hearing on him or her? I can see no reason to do so. In fact, it could be harmful as it could serve to seriously inflame whatever friction exists between the parties and could even lead to incidents of violence. It is not difficult to imagine the atmosphere that would be engendered when service is made to the respondent of evidence given about him or her to a judge by the applicant when both parties are still residing under the one roof. The purpose of this legislation is to combat domestic violence, not cause it. That is a further reason for rejecting the amendments.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
I move amendment No. 3:
In page 3, line 32, after "unless" to insert "within that period the order is discharged on application in that behalf by the respondent on notice to the applicant for the barring order, or unless".
This provides that within the period of eight days an application can be made by the respondent as well as the applicant to confirm the order or otherwise. The legislation makes specific provision for the applicant to seek to have the order confirmed. The amendment provides that the same entitlement is given to the respondent so the order can be dealt with within the period of eight days.
I understand the Deputy's intention. The Deputy wishes to provide for the possibility that the respondent could move to have the ex parte order discharged prior to the hearing which will decide whether to confirm the order. However, this possibility already exists in section 13 of the 1996 Act which provides that a respondent may apply for the discharge of an interim barring order or, indeed, any other order under the Act. There is, therefore, no need for the amendment.
Another point is worth making. If such a procedure is undertaken by the respondent, the onus of proof will be on the respondent whereas if the situation is left to run to its natural conclusion when the hearing is held to confirm the interim barring order, the onus of proof will still be on the applicant for the barring order.
Amendment, by leave, withdrawn.
Amendment No. 5 is an alternative to amendment No. 4 so amendments Nos. 4 and 5 may be discussed together. Is that agreed? Agreed.
I move amendment No. 4:
In page 4, line 2, after "court" to insert "and in specifying the date on which the order shall lapse, the court shall specify a date, on or before the first-mentioned date, for the hearing of any application that may be brought by the applicant to confirm the order".
The amendment would guarantee a return date within the eight days. This arises out of the degree of confusion surrounding the eight day provision. In the court the judge would determine when the next hearing would take place. If an ex parte application is made on 23 of December, it does not have to be heard until 6 January, which is the latest date. However, the courts will not be sitting, if I am not mistaken, because they are on holidays at that time and domestic violence is likely to be greater during the festive season.
The courts are not in operation for long periods of the year. We could end up with the situation suggested by Deputy Cuffe, where there would be continuous postponements with the eight day period being repeated on a number of occasions. It is important that during the hearing a specific date is agreed and set down at that time.
My amendment seeks to close a loophole. It requires the court to fix a return date for a hearing within the proposed eight day period and to serve notice of such on the respondent. There is no onus at present on the court to do so. This amendment would be helpful to the intent of the Bill.
If the amendment is not accepted, situations will arise where the return date for a hearing on notice of either an application for an interim barring order or a full hearing is fixed outside the eight day period. Hence, the order will lapse before the applicant can get an opportunity to have his or her application dealt with. It will also leave the application at the mercy of the varying sitting days of the courts, which differ greatly throughout the country. Dublin might have more sitting days than areas outside the greater Dublin area in various courts. If one is depending on the Circuit Court, it means waiting until it is sitting in the area.
The amendment will relieve the respondent of the onus of bringing the matter before the court and will give the applicant the benefit of not being subject to the difficulties of the listing system or the discretion of the court as to when the hearing can be accommodated within the lists. The applicant for an interim barring order is not in a position to require the court to list the hearing on notice within the eight day period. The onus should be on the court to list the matter. I hope the Minister will accept the amendment.
I have given this issue some thought. People's fears about courts not sitting at certain times and so forth are misconceived. We are talking here mainly about the District Court and family law matters are heard throughout the year. The District Court will be forced to sit, even in vacation periods, to deal with situations such as this. That is clear.
Amendment No. 4 would require the court which has made an interim barring order ex parte to specify a date on or before the date on which the order is due to expire on which it will hear any application for confirmation of the order. Amendment No. 5 is similar in that the court would have to fix a return date within the eight day period so the application for an interim order could be heard on notice to the respondent. This is not necessary. The amendments seem to be based on the premise that the court will wilfully allow the order to lapse for want of a confirmation hearing or that the court will lose sight of the matter, perhaps under pressure of its other business. Neither of these scenarios is likely and the rules of court committees can be relied on to make any necessary provision in respect of procedure in this regard.
In making the interim barring order ex parte the court will have accepted that the applicant is at immediate risk of significant harm and that in the circumstances of the case it is necessary or expedient, in the interests of justice, that the order be made ex parte. In this serious situation I am satisfied the court will be mindful of its responsibility to arrange its business in such a way that the order does not lapse because a hearing within its period of validity is not fixed. Regrettably, I cannot accept the amendments.
Amendment put.
Tá
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Allen, Bernard.Boyle, Dan.Broughan, Thomas P.Bruton, Richard.Burton, Joan.Connaughton, Paul.Connolly, Paudge.Costello, Joe.Cowley, Jerry.Crawford, Seymour. |
Crowe, Seán.Cuffe, Ciarán.Deasy, John.Deenihan, Jimmy.Durkan, Bernard J.Enright, Olwyn.Gilmore, Eamon.Gogarty, Paul.Gormley, John. Gregory, Tony. |
Tá–continued
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Higgins, Joe.Higgins, Michael D.Hogan, Phil.Lynch, Kathleen.McGinley, Dinny.McGrath, Finian.McGrath, Paul.McManus, Liz.Mitchell, Gay.Mitchell, Olivia.Morgan, Arthur.Murphy, Gerard.Naughten, Denis.Neville, Dan.Ó Caoláin, Caoimhghín.Ó Snodaigh, Aengus. |
O'Dowd, Fergus.O'Keeffe, Jim.O'Shea, Brian.Pattison, Seamus.Penrose, Willie.Quinn, Ruairi.Rabbitte, Pat.Ring, Michael.Ryan, Eamon.Ryan, Seán.Sargent, Trevor.Stagg, Emmet.Timmins, Billy.Twomey, Liam.Upton, Mary.Wall, Jack. |
Níl
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Ahern, Michael.Ahern, Noel.Andrews, Barry.Ardagh, Seán.Aylward, Liam.Brady, Johnny.Brennan, Seamus.Browne, John.Callanan, Joe.Carey, Pat.Carty, John.Cassidy, Donie.Coughlan, Mary.Cregan, John.Cullen, Martin.Curran, John.Davern, Noel.de Valera, Síle.Dempsey, Noel.Dempsey, Tony.Dennehy, John.Devins, Jimmy.Ellis, John.Fahey, Frank.Finneran, Michael.Fitzpatrick, Dermot.Fleming, Seán.Gallagher, Pat The Cope.Glennon, Jim.Grealish, Noel.Hanafin, Mary.Haughey, Seán.Hoctor, Máire.Jacob, Joe.Keaveney, Cecilia. |
Kelleher, Billy.Kelly, Peter.Killeen, Tony.Kirk, Seamus.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McDaid, James.McDowell, Michael.McEllistrim, Thomas.McGuinness, John.Moloney, John.Moynihan, Donal.Moynihan, Michael.Mulcahy, Michael.Nolan, M. J.Ó Fearghaíl, Seán.O'Dea, Willie.O'Donnell, Liz.O'Donoghue, John.O'Flynn, Noel.O'Keeffe, Ned.O'Malley, Fiona.Parlon, Tom.Power, Peter.Power, Seán.Ryan, Eoin.Sexton, Mae.Smith, Brendan.Treacy, Noel.Wallace, Dan.Wallace, Mary.Walsh, Joe.Wilkinson, Ollie.Woods, Michael.Wright, G. V. |
Tellers: Tá, Deputies Stagg and Durkan; Níl, Deputies Hanafin and Kelleher.
Amendment declared lost.
In accordance with the order of the Dáil of this day, I am required to put the following question: "That in respect of each of the sections undisposed of, the sections are hereby agreed to, the Title is hereby agreed to, the Bill, accordingly, is reported to the House without amendment, Fourth Stage is hereby completed and the Bill is hereby passed."
Question put and agreed to.