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GAZETTE
SEPTEMBER 1981
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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