The Gazette 1977

GAZE1TE

DECEMBER1977

or indeed in any Family Law Case than they might be in an action for tort or contract.

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

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. 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 Petition for Separation and Summons Under the Maintenance Act 197

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