The Gazette 1981

SEPTEMBER 1981

GAZETTE

District Court (Family Law (Protection of Spouses and Children) Act, 1981) Rules, 1981 T HE new Family Law (Protection of Spouses and Children) Act 1981 became law on the 23rd July 1981 providing, inter alia, for a new system of Barring Orders and Protection Orders and for swifter and direct enforcement of same by the Gardai. New District Court Rules entitled as above (S.I. Number 246 of 1981) lay down the practice of procedure and the appropriate Court Forms to operate the Act in the District Court. The general lay out of the Rules and the Forms thereunder are similar to the previous 1976 rules and do not call for detailed individual comments. In general, they provide for the making of applications for Barring Orders and Protection Orders and for discharging and varying the same, and for the proper notification to be given to the Gardai as provided by the Act, with all the requisite Court Forms set out in the Schedule. However, there are a number of important features in the Rules — particularly relating to service of documents — which deserve mention and which, from the Practitioners' point of view, will be of some practicable assistance. In particular, Rule 11 provides that henceforth service of Summonses issued under the Rules will be effected by the District Court Clerk. Thus, the responsibility for effecting service has been removed from the applicant or his or her Solicitors. Also, Rule 11 provides for service to be effected by means of ordinary pre-paid post, instead of pre-paid registered post which had hitherto become the principal mode of service. Clearly this is a very substantial change in practice which, it might be argued, is readily capable of working serious injustice on Respondent Spouses, particularly in the context of the type of proceedings involved. However, it will no doubt be equally argued that this provision will make for more effective protection for applicants spouses by substantially reducing the possibility of a respondent spouse avoiding service. Rules 13 and 14 provide for the District Court Clerk posting a copy of the Barring Order, Protection Order or Order varying or discharging the same by ordinary post and for posting a copy thereof to the Local Garda Siochana by pre-paid registered post. With regard to the question of which particular District Court shall have jurisdiction to entertain applicants under the Act, the Rules would appear to present an applicant spouse with a wider choice of jurisdiction than was hitherto the case. Under Rule 5 of the 1976 Rules (S.I. Number 96 of 1976) jurisdiction was determined by wherever "either party to the proceedings ordinarily resides or carries on any profession, business or occupation, "whereas under Rule 6 of the 1981 Rules jurisdiction is determined by wherever "the applicant spouse resides or where there is situate the place in relation to which the Barring Order is sought". Thus it

would appear that, for instance, a wife taking refuge in a Women's Aid Centre would be entitled to issue a Summons for a Barring Order for hearing in the District Court Area District in which the Centre is situate, whereas under the 1976 rules she would not have been so entitled, this not being a place where she "ordinarily resides". This interpretation is, it is submitted, consistent with the word "ordinarily" being deleted from the new Rules, but clearly the question is arguable and may ultimately have to be decided by Court. Finally, again in connection with jurisdiction, there is a possibility of confusion arising under Rule 7 in relation to applications for Protection Orders in the Dublin Metropolitan District. Rule 7 provides that where a Barring Order has been issued the Spouse may also apply ex parte for a Protection Order "at any sitting of the Court in the district court district within which the Summons was issued". Because the Family Law Office in Ormond House operates as the Court Office in family law matters for both the Dublin Metropolitan District and the District Courts in the County of Dublin it might be thought that a Spouse having issued a Summons for a Barring Order for hearing at, say Kilmainham District Court (District No. 11) might at the same time be entitled to apply ex parte to the District Court in Ormond House for a Protection Order. This, however, is not the case, and the application for a Protection Order would in fact have to be made at the Courthouse in Kilmainham or any other Court sitting in District N o . 1 ! . •

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