David Stanton (Cork East, Fine Gael) | Oireachtas source

These amendments are similar to what we discussed earlier in some ways. I fully appreciate what Senators have attempted to provide for in their amendments. They seek to provide guidance for the courts when considering applications for orders. In attempting to help the court reach a determination on whether a domestic violence order is appropriate, the factors that Senators propose to prescribe might run the risk of fettering judicial discretion. We all agree that this is a very difficult process for applicants and victims, so the last thing that we should do is further complicate it, make it more stressful or prolong it for the applicant in any way. We must be careful not to do anything that might do so. The amendments demonstrate the complex nature of domestic violence. As I said earlier, the human mind can conjure up ingenious ways that we might never be able to list.

Amendment No. 3 proposes that the Minister for Justice and Equality devise a list of factors and circumstances that the courts would be required to consider. This amendment would give rise to operational difficulties in that it does not set out any policies and principles to guide the Minister in formulating the list. Neither does the amendment specify the legislative status of the list. It does not provide for the list to take the form of a ministerial order or regulations. These are important technical issues. Before we go any further, we would have to figure out whether it is a regulation or ministerial order and then the underlying policies and principles to guide the Minister in formulating a list. The provision gives the Minister a lot of discretion.

Amendments Nos. 4 to 6, inclusive, seek to prescribe a list of factors that a judge hearing a domestic violence case must consider in reaching a decision in a domestic violence application. Further, the proposed amendments attempt to define what constitutes violence and psychological violence. The amendments go on to include additional factors that a court must consider when deciding applications for an emergency barring order or a protection order. The bulk of domestic violence cases are dealt with under the summary jurisdiction of the District Court. In deciding whether to grant a domestic violence order, the court has very wide discretion. The threshold for the granting of an order is that the court is of the opinion that there are reasonable grounds for believing the safety or welfare of an applicant or a dependent person requires an order. As a result, the discretion is very wide. I think this is appropriate because it is sufficiently broad and does not restrict the court in determining what is relevant in deciding a domestic violence application. The discretion is very broad and everything is included.

There are so many factors that could cause a court to consider that someone is in danger. I want us to be careful in limiting the court's discretion or independence on this complicated matter. Everything is covered already because section 6(2) includes the phrase "there are reasonable grounds for believing that the safety or welfare of an applicant or a dependent person so requires". As matters stand, an applicant can put forward to the court any factors he or she considers relevant to the application. The judge will consider each case on its merits and make a decision based on all of the evidence put forward. There may be factors involved that we may not have considered at all here. We already have a very open provision.

I have been advised that including a list such as that proposed runs the risk of creating a lawyers' charter that would involve arguments on both sides. In itself, the latter would run the risk of prolonging cases. Again, I return to the difficulty involved in drawing up an exhaustive list of behaviours that constitute domestic violence. I argue that everything has already been covered in the legislation because the provisions are very broad. As already stated, the legislation provides that an order may be granted where "there are reasonable grounds for believing that the safety or welfare of an applicant or a dependent person so requires".I have tabled an amendment which will deal with one aspect of the proposed amendments Nos. 3 to 6, inclusive. Amendment No. 35 proposes to require the court to give reasons for decisions to grant or refuse applications for orders, including reasons for a decision relating to exemptions or conditions to which the order is subject. I understand the intention behind the proposed amendments, given the complexities, the possible delays that could arise in arriving at a decision and the wish to retain wide discretion for judges hearing these cases, but I am proposing that we should not put forward those amendments now. As Senators have requested, as with the issue of control, I am willing to examine further the text of all the amendments tabled on this issue and the important points made by Senators during the debate. I will again consult with the Attorney General and the Parliamentary Counsel on these matters and see what amendments could be proposed on Report Stage.

One could say that a list imposed by statute may not give rise to consistency in outcomes, given the different perceptions of different judges but the Chief Justice has informed the Tánaiste that the Judiciary has received training or information on domestic violence cases. It is quite important that this happens. The importance of an independent Judiciary is a cornerstone of our democracy. Nevertheless, the Judiciary is not blind to the menace of domestic violence and the requirement of an appropriate response. We are aware that members of the Judiciary are very aware of the needs of victims. There are arguments for and against, but I am willing to examine further the text of all the amendments and I am cognisant of what we discussed earlier regarding definitions and listing and so on. There are risks, if there is a list in the legislation, that it could become prescriptive in some way although I take Senator Norris's point that one could include a catch-all phrase, stating the list is not exhaustive.