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GAZETTE
OCTOBER 1994
LRC Consu l t a t i on Paper on Fami ly
Cour ts - A Prac t i t i oner Responds
by Brian Gallagher
9
"
The Law Reform Commission's
Consultation Paper on Family Courts
was published in March 1994 and is
concerned with the judicial process
and procedures through which the
remedies in family law are pursued
and delivered.
It considers the following areas:-
1. The organisation of family law
business, court accommodation and
accessibility.
2. Alternative means of dispute
resolution.
3. Pre-trial procedures and
documentation.
4. The conduct of family proceedings.
5. Support services.
6. Judges and lawyers.
Organisation of Family Law
Business
Under the first heading, the
fragmentation of jurisdiction in family
law matters in Ireland is detailed, and
problems of fragmented jurisdiction in
Australia, Canada, England, and New
Zealand are considered. The paper
concludes that fragmentation of
jurisdiction gives rise to a measure of
confusion and presents difficult tactical
choices to practitioners. Clients can
become confused. The different forms
of pleading add to the complexities of
the system. A unified jurisdiction is
recommended. Reference is made to
court accommodation and the paper
concludes that the physical conditions
of many courts are not appropriate for
family cases.
Mediation
Chapter 2 refers to mediation and
gives consideration to matters which
are not often discussed, such as power
imbalance in mediation and the scope
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Brian Gallagher
of mediation. Often legal practitioners
feel that either everything should be
mediated or nothing should be
mediated. The paper points out that
some mediation schemes deal only
with custody and access issues, and
others include financial and property
issues. Appendix 1 provides a very
interesting commentary on mediation
services in other jurisdictions.
Arbitration is also referred to.
Pre-trial Procedures
On pre-trial procedures and
documentation the paper contrasts the
views of Mr. Justice O'Hanlon in
H
-v- H
that "the summons should not
contain unnecessary detail and should
not be of unnecessary length . . ." with
the fact that in practice the new rules
with regard to the form of affidavits
have resulted in affidavits becoming
very long. Interestingly, no specific
criticism is made of the Circuit Court
forms of application although they
have been the subject of much
criticism from practitioners.
Personally I felt that more attention
could have been give to the whole
issue of court documentation.
Conduct of Family Proceedings
Chapter 4 refers to the conduct of
family proceedings and to the contrast
between adversarial and inquisitorial
procedures. The views relating to these
in other jurisdictions are referred to.
An interesting section refers to the
question of representation of children
in family litigation and to guardians
ad
litem.
The privacy of family
proceedings is considered and it is
interesting to know that other countries
examining this issue have agreed that a
balance must be struck between
openness and privacy. While litigants
in family cases are entitled to a degree
of privacy, the public is also entitled to
know the way justice is being
administered in the courts. I believe
this is a subject which will receive
more and more consideration in this
country. One Australian textbook
records that "the family court was
acquiring the image of a star chamber,
or secret court, that its procedures were
often unjust and that because of its
secret nature it was impossible for the
man in the street to know what it was
doing". Is this the case here also? The
Law Reform Commission of Canada
has recommended that representatives
of the media should be allowed to
attend and report family law
proceedings. There has been little
public debate on this issue in Ireland.
Are we afraid of it?
Support Services
Chapter 5 refers to support services,
chiefly to persons who participate in
counselling or mediation. Reference is
made to the Probation and Welfare
Service in family cases and to support
services available in other
jurisdictions. It is clear that we fall
down very badly in this jurisdiction in
providing sufficient resources for
support services.
Judges and Lawyers
Chapter 6 refers to judges and lawyers
and makes the point that judges are