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GAZE1TE
DECEMBER1977
Children) Act 1976, and sometimes under the Married
Womens Status Act 1957 and/or the Family Home
Protection Act 1976- Such a joinder is a practical
inevitability and to an extent the children and the welfare
of the children is affected by the result of the proceedings
under the other Acts to which I have referred.
Again however I would strongly recommend that the
different causes of action be dealt with separately and in
particular, both in the taking of instructions and in the
presentation of the case in Court, that'the questions of
custody, access, education and general welfare of the
children should be segregrated.
An endeavour should be made, as is almost always
desirable, to persuade a parent who may be going to get
custody of the children to recognise and accept as a
matter of reality and not merely as a lip service to the
Court the importance of access by the children to the
other parent. There are in my experience very few cases
indeed in which it is not of some importance and there are
very many in which it is of great importance that the
children should have access to the parent in whose
custody they are not and that it should be access in the
most favourable possible circumstances, giving to them
an opportunity of retaining as far as possible a real
relation with that parent. The difficulty of persuading a
mother or father of that fact when her or his view of the
marriage partner has become clouded by bitterness can be
extremely difficult.
the second feature of this type of case, the
Guardianship of Infants Act cases, which I would like to
emphasise is that any aspect of it no matter how trivial,
which can be agreed, should be agreed, and that every
possibility of agreement, even on marginal or tangenitial
features concerning the entire dispute, should be explored.
It is probably preferable in almost every instance to have
an agreed rather than an imposed solution, no matter with
how much wisdom the Court may attempt to impose it.
Again a fully fought out action — and this applies not
only to Guardianship of Infants Act but to other forms of
proceedings between spouses — leaves inevitably behind
it considerable scars. They react not only on the future
relationship between the parents which may well be
irretrievably broken but they also react on the atmosphere
in which the children for many years may be brought up.
Anything that will minimise the extent or depth of that
scarring and wounding should I think be availed of. I
would accept, as far as the Court is concerned, the
absolute necessity for these proceedings to be tried in the
calmest possible atmosphere. I would accept that whilst
impatience on the part of a Judge is always a sin,
impatience in a Family Law case should be a reserved sin.
Assistance in keeping to a minimum the heat of the
controversy can be contributed by the lawyers concerned
cutting down the element of harshness wherever possible
in the advocacy and style of advocacy. It is not always
possible to avoid some real clash; it is not always wise to
avoid a real and, if necessary, a telling cross-examination.
The ultimate function of the Court, namely to arrive at
the truth of the facts of the matter concerned, and then
apply the legal principles, must never be lost sight of, and
the Court cannot, no matter how desirable it might be, be
turned into merely a tribunal of conciliation. With these
qualifications however is seems to me that the approach
to questioning, the approach to the issues that are raised,
the approach to the way in which they are raised and even
the approach to the way that wuestions are asked, should
be significantly different in a Guardianship of Infant Act
or indeed in any Family Law Case than they might be in
an action for tort or contract.
Children as witness
The calling of one of the children as a witness either in
a Guardianship or in any other form of Family Law case
must surely be considered as a last resort. If a child has to
be called then care should be taken that he or she is
meticulously separately interviewed, is not apprised of
issues unless those with which he or she is directly
concerned, is not present at the taking of statements from
a parent or other people involved in the marital dispute
and is not in Court for a moment longer than is necessary
for the taking of his or her evidence.
Petition for Separation and Summons Under
the Maintenance Act 197
Consideration should I think now be given from a
practical point of view to the limited value which applies
to a petition for separation having regard to the
provisions of the Family Law (Maintenance of Spouses and
Children) Act 1976. (For brevity referred to as the Family
Law Maintenance Act 1976). There are undoubtedly cases
in which both spouses have property and substantial
property rights and in which a petition for separation is an
appropriate proceeding to commence, frequently with a
hope that it will lead not to an ultimate hearing of the action
but rather to a Deed of Separation.
There are a limited number of cases where upon
grounds which would not be sufficient to justify an
exclusion order under Section 22 of the Family Law
Maintenance Act 1976, it is necessary that a spouse
should obtain the right to live apart from the otherspouse
and to be saved and be immune from molestation or
interference by him or her. In a great number of cases
however, I think that consideration of the provisions of
this Act would indicate that it is not only a less expensive
and less cumbersome but also a more effective remedy for
the matters which are in dispute between a married
couple. The maintenance provisions in this Act of 1976,
inducing the power of the Court to grant
interim
maintenance pending the hearing of the full claim for
maintenance, are co-extensive with the right to award
alimony both
pendente lite
and by way of permanent
alimony. Futhermore the right of the Court to make such
maintenance payable by an employer adds considerable
teeth to the effectiveness of an order so made. Where the
conduct of the defaulting or erring spouse is of sufficient
gravity to lead to a danger to the health or welfare of the
other spouse and children, an Exclusion Order under the
Act is much better and can usually be much more rapidly
achieved than a decree of seperation. Its major advantage
is of course the fact that it is enforceable other than by a
motion for attachment to the Court. To act in breach of
an Order made under Section 22 is a criminal offence and
the apprehended or attempted commission of it can
therefore properly be restrained by the Gárda Siochána.
I think Solicitors should always make sure that where
such an Order has been obtained either for a limited time
or on a permanent basis, the local Gárda Siochána, in
whose district the house from which the spouse has been
excluded is located, should be informed of the fact, and
the client should then be informed that, if an attempt is
made to break the Order, they can notify the Gárdai of
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