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GAZETTE
JULY-AUGUST 1978
renounce his or her legal right would be taken into
account in the making of any such provision. Mr. Justice
Walsh also pointed out that the legislature is enacting the
1965 Act did not consider that "periodical payments
made for her maintenance during his lifetime" constituted
"permanent provision" for a man's wife.
The purpose of this analysis was, according to his
Lordship, to draw attention to the state of mind of the
draftsmen of the 1976 legislation. Mr. Justice Walsh
interestingly opined that
"one should not overlook that the responsible
Minister in the case of both the Succession Act
1965 and the Family Law (Maintenance of Spouses
and Children) Act 1976 was the Minister for Justice
and it would not be unreasonable to assume that
certain of the provisions in the 1976 Act were
framed with the relevant provisions of the 1965 Act
in mind".
These remarks, it should be noted, were made
after
the
learned Supreme Court judge had arrived at his
conclusion regarding the interpretation of the 1976 Act
and were made as
illustrating
the meaning of s. 27 of the
1976 Act.
Family Home Protection Act 1976
The decision in
D. v. D.
is to be welcomed as the first
authoritative ruling on the parameters of the
Family Law
(Maintenance of Spouses and Children) Act 1976.
However, it is unfortunate that the Supreme Court was
not given an opportunity to examine the provisions of the
Family Home Protection Act.
The applicant claimed in a special summons pursuant
to s. 5(2) of the Family Home Act an order "directing the
respondent to pay the applicant such amount as the Court
considered proper to compensate the applicant and the
two younger children who were claimed to be dependent
children for their loss arising from the deprivation of
their residence in the family home . . . which it is alleged
the respondent had by his conduct rendered unsuitable for
habitation as a family home".
Mr. Justice Doyle in the High Court considered the
status of the consent (which was received and filed with
and deemed to be part of the Order of Court) under the
two Acts of 1976. He did not, however, comment on the
provisions of either Act.
The appeal to the Supreme Court was brought from
the judgment of Mr. Justice Doyle on the net issue
whether or not the applicant was estopped from pursuing
whatever rights she might be entitled to under the two
Acts. The judgment of Mr. Justice Walsh in this Court
was devoted in large to an examination of the Family Law
(Maintenance of Spouses and Children) Act 1976. His
Lordship was not invited by counsel on either side to
consider the effect and extent of s. 5(2) of the Family
Home Protection Act.
Conclusion:
Although certain deficiencies have recently been
discovered in the Family Law (Maintenance of Spouses
and Children) Act 1976 (especially in relation to the
enforcement of barring orders) it nevertheless is a step
forward on the path of family law reform.
Unfortunately, Mr. Justice Walsh did not examine the
provisions of the Family Home Protection Act 1976,
leaving certain questions about the scope and effect of s. 5
unanswered. Thus, such matters as the standard of proof,
the extent of the Court's discretion and the extent to
which the respondent's subjective appreciation of his
behaviour will affect the granting of an order must await
judicial examination in a later decision.
On the 9th June, the President of the European Court, Mr. Hans Kutscher and members of the court, on a visit
to Dublin, were guests of the President, Mr. J.L. Dundon at a lunch in Blackhall Place.
Left to right:
Mr. Hans
Kutscher, Mr. J.L. Dundon, Chief Justice O'Higgins, and Mr. Gerald Hickey, Senior Vice-President.
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