Michael McDowell (Independent) | Oireachtas source

I move amendment No. 1:

In page 10, between lines 16 and 17, to insert the following: “(3) The provisions of this Act relating to the Family District Court shall not come into operation unless a resolution approving the making of an order in that behalf under subsection (2) has been previously approved by each House of the Oireachtas.”.

I welcome the Minister here today. To begin, I wish to emphasise that although I am a member of the barristers' profession, I am not a family lawyer in the conventional sense. I have done some family law in my time. I found it to be most challenging, emotionally committing and difficult work. I admire those who specialise in it, the work they do and the way in which the courts function in respect of family disputes. The second matter I wish to emphasise is that I am not approaching this from a conservative point of view. I strongly believe that a separate family law jurisdiction and divisions in each of the courts is the right way to go.Family law disputes should not be dealt with in backrooms in courthouses where people have spent the whole day waiting for TV licence spongers, dangerous driving cases and criminal cases, for example, to be dealt with. There is an overwhelming argument to be made for dignity, specialisation and compassion for those involved in family law disputes.

I am a passionate believer in mediation. For any family law case, except divorce proceedings, which are constitutionally required to be dealt with in court rather than as a private matter between the parties, mediation should be done. Going to court in family law cases is often stressful, often expensive and potentially hugely damaging to the parties involved, often without any particularly beneficial outcome. In the last analysis, the great majority of these disputes should be dealt with by agreement and reasonable compromise between the parties involved in family law breakdown proceedings.

The reason I tabled amendment No. 1 is not stick-in-the-mud stuff. It is not designed to obstruct the legislation. I looked at the legislation and realised that if I spent a week tabling 100 amendments, the same point I want to make through amendment No. 1 could be made, which is that there is a very serious question mark over the extent of the jurisdiction it is proposed to confer on the District Court in family law matters. In that regard, I am mindful of what the Bar Council stated by way of its concerns with the Bill. I refer to courts that operate traditionally - not necessarily in family law matters - in a summary way, have a significant caseload and cannot spend a week or two weeks looking at one individual case. When it comes to a family law case in which there are a variety of issues, such as custody, maintenance and division of family property issues, it simply is not possible or desirable that it be dealt with in a summary manner. The standard of judicial involvement and judicial engagement and the availability of State resources to enable excellence in the judicial function should be the same in all family law cases in one sense. Why should a less well-off family get different treatment as to custody, maintenance or division of family assets or whatever from a family that is better off or has bigger assets and where the parties to the marriage have substantial private fortunes? It does not seem to be a good idea that there should be, to go back to the days of my childhood, first-, second- and third-class carriages in the train. Everybody is entitled to a first-class service from the State when their case comes to court.

In its submission, the Bar Council said it was primarily concerned with one aspect of the Bill. It has genuine concerns about the reorganisation of the jurisdiction of family law proceedings such that most of the divorce and judicial separation proceedings will be heard and disposed of in the family District Court. The Bar Council does not think this is in the best interest of families who find themselves interacting with the family justice system and believes it will create a two-tier family system. It made the point that although the proposal to have most of the divorce and judicial separation proceedings disposed of in the District Court is undoubtedly well intentioned from the point view of reducing costs and the like, it fears that, far from serving the interests of families, the allocations of those often complex and challenging cases to the District Court, a court of summary jurisdiction, is likely to have the unintended effect of disadvantaging the very persons whose interests most acutely require to be defended.

If there is a very wealthy family living in a very wealthy tree-lined suburb in Dublin and there are family law differences between them, the parties to that marriage are usually in a far better position, in a huge number of ways, than a family who is at the edge and at the bottom of the social ladder, with limited resources and limited options. The dispute as to who gets the trophy home in Dublin 4 or Dublin 6 is one kind of dispute but the dispute as to what happens to a family that cannot afford any accommodation at all in its present circumstances is quite different.

The Bar Council’s concerns in this respect deserve to be considered. Without slavishly adopting its position, what I want to bring about and what this amendment is proposing to do is to create a period of time in which the Houses of the Oireachtas would consider, first, the points that the Bar Council made in respect of the family law jurisdiction being conferred in the District Court, second, whether the property valuations limits being contemplated for the District Court jurisdiction are or are not appropriate and, third, require clear proof that all of the necessary underpinnings to the family justice reform – this is a radical Bill in terms of family reform – are in place.

If we proceed with the commencement section as it now appears, a Minister – it may be this Minister or somebody else, who knows – can, by signing a statutory instrument, press the button and various bits of the Act come into operation. Although the commencement section allows for different aspects of the Act to come into effect in different places and for different purposes, and I acknowledge that should give some considerable degree of flexibility, before we engage in what is a fairly radical and dramatic transformation of the various courts’ jurisdictions, there should be an opportunity for the Members of both Houses to look at whether adequate facilities and adequate systems have in fact been provided before somebody says that the District Court is now in operation, it will operate in this or that premises in family law cases and asks if it is adequate. I would prefer for whoever occupies the position of the Minister for Justice to be under an obligation to come into the Houses and, before pressing the button to give the green light to this major transfer of jurisdiction to the District Court in family law cases, to prove to us to our satisfaction, as legislators. that the Minister and the Courts Service have put in place the resources, facilities and support staff and that the required number of district judges available to discharge this function are in office. We should put a positive obligation, in other words, on the Minister, before exercising this commencement power, to come before the Houses and say that this is radical and it will have serious effects but he or she has demonstrated to us that if the Act is commenced in two or three months’ time, there is, for example, an adequate family law court in Carrick-on-Shannon, the system is being operated to a satisfactory extent, the management proposals by the various senior judges in charge of the family divisions of the various courts have got all the resources necessary and that people whose disputes are put into the District Court are going to meet first-class facilities, have first-class availability of time to deal with their cases and will not be seen as people who are bundled into quick turnover summary procedure where their cases receive less consideration than they would if they were more well-to-do or operating in a more serious court.That is what this amendment is about. Rather than challenge the fundamental principle of the Bill, I just want to put in a safeguard to ensure that the high-minded ambition of the Bill to deliver a first-class service will in fact be delivered on before somebody says the District Court, which is a court of summary jurisdiction in most respects, is to take over the adjudication of very complex and far-reaching family law disputes. Those who are at the lower end of the socioeconomic ladder are the most vulnerable to poor quality administration of justice. Those who are in Shrewsbury Road or wherever are in a far better position to deal with the legal process than people who are at the very fringes of our society.