The Gazette 1995

GAZETTE

JANUARY/FEBRUARY 1995

Fami ly Dispute Resolution - The

Sol icitor's Role

The Family Law and Legal Aid

Committee organised a seminar based

on the theme

Family Dispute

Resolution - The Solicitor's Role,

which was held in Blackhall Place on

16 November, 1994 before an invited

audience. The seminar was principally

aimed at members of other professions

such as counsellors, child

psychiatrists, probation and welfare

officers and others who participate in

one way or another in family law

disputes. Immediately following the

seminar, a reception was held which

gave the participants an opportunity to

discuss issues of mutual interest in an

informal setting.

The seminar was addressed by His

Honour

Judge Esmond Smyth,

Judge

of the Circuit Court, Dr.

Gerard

Byrne,

Child Psychiatrist and

Rosemary Horgan,

Solicitor. In his

address, Judge Smyth noted that there

is only one full-time family law judge

for the Circuit Family Court for the

county and eity of Dublin, who must

deal with the family law problems of a

population of over 1 million people.

The family law list in the Circuit

Court consists of a motion list on

Monday (containing from 50 to 90 or

100 applications), and four days

thereafter to deal with substantive

hearings of applications for Decrees

of Judicial Separation with all the

consequential reliefs and orders which

it is open to the Court to make, the

fact that these lists are cleared was

described by Judge Smyth as

something of 'a forensic miracle'

which spoke volumes for the

professional approach of practitioners.

Judge Smyth made a number of very

helpful suggestions to facilitate the

efficient conduct of a family law case,

which the Committee feels are worth

repeating in their entirety as follows:-

"The following is the traditional

format which should be adopted,

either in briefing counsel or as an

aide memoire for a solicitor who is

presenting the case himself. The

first page contents should set out in

numbered form, matters such as the

following, for example:-

1. The application itself;

2. The Certificate pursuant to Section

6 of the 1989 Act; the Appearance;

the Answer; any Motions and any

other Orders and any other pre-

Trial Orders of the Court;

3. Any Affidavit of Discovery

together with the copies of the

documents discovered in it;

4. Copies of any P60's or other

relevant tax documents for, at

least, the year ending prior to the

date of the application;

5. Copies of any payslips in respect

of relevant earnings;

6. A copy of the Certificate of

Readiness;

7. A copy of any folios;

8. A paginated Book of

Correspondence in sequential

form;

9. The parties statement of means.

The Brief should then contain under

' the heading "The Matrimonial

Background or History" in

summarised form, all the relevant

facts which it is felt the Court should

know. Then under the heading "The

Family Home" there should be a

history of the family home; any details

about mortgages or other

incumbrances on it; its present

valuation and what the parties

ascertained wishes are in respect of it.

Then if the client is employed there

should be details of employment,

including a statement as to whether it

is proposed to have anyone from that

employment in Court to give evidence

in relation to it.

The Brief should then proceed under

the heading of the Reliefs Sought

setting out the views of the client in

relation to each separate relief sought.

If it is suggested that the other party is

in receipt of any other income, known

details of that income should be set

out. Alternatively, if either party is on

welfare, details of that should also be

set out.

The Brief should then, in the usual

way, list the witnesses which it is

proposed to be called, with a short

statement of the evidence which they

are to give and finally any other

matters which should be dealt with.

May I also suggest that when it comes

to the actual Hearing of the case, it

helps if practitioners have their facts

and figures properly marshalled; their

legal submissions brief and to the

point, and if they propose to call

witnesses, practitioners should

ascertain what evidence those

witnesses will give, before the

Hearing, and not during it - as

sometimes seems to happen.

It is also helpful if cross-examination

is directed only to that part of the

evidence of the other party that it is

proposed to dispute.

It is preferable if the precise wishes of

the respective parties are opened to

the Judge at the outset of the

proceedings, so that if evidence is

given, their views can be assessed in

the context of the overall evidence,

and not as to nota-bene at the end of

the case."

At the close of his talk, Judge Smyth

referred to the suggestions which are

contained in the Law Reform

Commission's report on Family

Courts, dealing with the establishment

of a Family Law Division and the

setting up of regional Family Law

Centres. In Judge Smyth's words "the

first would require more judges but

would be an eminently desirable

objective for the future. The second

would provide an information and

referral service offering information