Tuesday, 24 November 2015
Family Law Cases
I thank the Minister of State for coming to the House to deal with this important matter. In September the Department of Justice and Equality announced that it was of the opinion that there was no need for a referendum in order to establish a system of specialist family law courts and rather it could be done by legislation. What is the timeframe for dealing with that legislation?Despite recent positive developments, such as the reporting of family law cases, the Minister will be aware there remains disquiet about the operation of the current system. This disquiet arises on a number of fronts, one being the fragmented nature of the system. There are three courts - the District Court, the Circuit Court and the High Court - hearing various aspects relating to family law. In addition, there are long delays getting the most basic applications heard. The result of such delays is that if a person does not have his or her case heard by the judge on the day it is listed, he or she could be wait months for it to be heard. To put it simply, there are not enough sittings to deal with these cases.
Will the Minister of State give a commitment that the system envisaged will be one where specialist judges will sit and listen only to family law matters and that they will sit regularly? There is little point in taking judges from the existing system where they are overloaded with work as matters stand. There is no requirement for judges who hear family law matters to have any specialist knowledge in the area. It is also the case that family law matters are often heard at the end of a busy day on which other legal matters have been dealt with. This means family law litigants are forced to sit around courthouses hoping that their cases will be heard. While I accept this practice is out of a wish to grant as much privacy as possible to the parties, it is far from ideal. I do not need to go into the other shortcomings of the current system because I know the Minister of State is aware of them.
The Minister of State will also be aware of the varying stories about the perceived gender bias that is supposed to operate in the family law courts. In light of the passing of the marriage equality referendum, I ask that the perception of a more gender-neutral attitude would emerge in family law matters. Now that children of married same-sex partners can be the subject of court orders, it is hoped that the best interests of the child, and only that, will be the overriding consideration. Of course, the introduction of specialist courts and trained judges would also go a long way towards eroding this perception.
I commend the Minister, Deputy Fitzgerald, on the work she has done in reforming the system. I know she shares the concerns of citizens that our system of family law is not as it should be. I ask the Minister of State, Deputy Kevin Humphreys, to provide some assurance that the reform of the system is ongoing by providing an update to the House on the proposed introduction of the specialist family law courts and by indicating where that legislation currently stands.
I apologise on behalf of the Minister, Deputy Fitzgerald, who is unavailable to be here to take this matter. However, the issue is very close to her heart and is getting her fullest attention.
I take this opportunity to inform the House of developments in regard to the establishment of specialist family courts. As the Senator is aware, the programme for Government contains a commitment to establish a dedicated family court. While it was originally anticipated that a referendum to amend Article 34 of the Constitution would be required in order to remove any constitutional obstacle to the establishment of a separate family court, it appears from more recent examination of the issues that it will be possible to proceed with the establishment of the court in a manner which does not require such a referendum, which is very positive news. This could be achieved by establishing the court as a separate division within existing court structures. The Department of Justice and Equality is currently finalising proposals for future legislation based on submissions which have been received in regard to the family court and ongoing consultations with interested parties.
I wish to outline in general terms the principle features of the proposed family court system. A district family court, a circuit family court and a family high court will be established as divisions of the existing courts. It is envisaged that judges will be appointed full-time to the district family court and the circuit family court. In the case of the family high court, it is anticipated there would not be sufficient case loads to warrant the appointment of judges full-time to family law matters. Therefore, judges of the family high court will also be able to hear other cases. The judges appointed to the family courts will be selected on the basis of their training, experience and expertise in dealing with family law matters.
The new legislation will include a set of guiding principles that will apply to all family law proceedings. These guiding principles will underline the importance of encouraging and facilitating, as far as possible, the resolution of disputes by means of alternative resolution methods, including mediation, which provide an opportunity for a less adversarial, less argumentative, less stressful and less costly resolution of disputes.The Minister intends to bring the proposals to establish the new family courts to Government as soon as they are finalised. She intends, at that point, to refer the draft general scheme of the legislation to the Joint Committee on Justice, Defence and Equality for the usual pre-legislative scrutiny conducted prior to the formal drafting of the Bill. Once again, on behalf of the Minister, I thank Senator Naughton for raising this issue.
I thank the Minister of State for his comprehensive reply. We all know that anyone who enters the family law system does so as an option of last resort. I welcome, in particular, the commitment given that judges will be appointed full time to the District Court and Circuit Family Court which is a positive step forward. I also welcome the commitment to facilitate, as far as possible, the resolution of disputes by means of alternative solution methods. I look forward to the legislation passing through the various Stages in the House.
I thank the Senator for raising the issue. For the information of the House, I wish to confirm that the groundbreaking Child and Family Relationships Act was enacted earlier this year and is due to be commenced in the coming weeks which I am sure will be of interest to this House. It will better protect children and their families for decades to come. It also contributes to giving meaningful effect to the now constitutionally enshrined principle of the child's best interests and right to be heard which often was not automatically done in the courts in terms of looking at these cases. I think there is a need for specialisation for judges in terms of lower courts. The Minister is fully committed to doing so, as quickly as possible, and to getting the legislation to the Joint Committee on Justice, Defence and Equality for proper pre-legislative scrutiny. I hope to see the legislation enacted as soon as possible next year.