Tipp FM Legal Slot – 24th July 2012
John M. Lynch on Family Law Courts Reform[soundcloud id=’167071694′]
Recently there have been proposals for the reform of our Family Law Courts structure, tell us about this?
A major shakeup of the legal system has been drawn up by Justice Minister Alan Shatter and agreed by the Cabinet. As part of this system a new Family Court structure is proposed. The initiatives accepted by the Government will require the holding of a Constitutional Referendum and this have the potential to achieve significant changes to the courts structures which have remained largely unchanged since 1924.
What Family Law Courts System is currently in place?
The current family courts system is “fragmented” and “overlapping”. There are three courts — district, circuit, and high court — each dealing with separate family issues, ranging from maintenance applications and custody issues to child abductions.
One of the legal hallmarks of Irish Family Law is that there is a great deal of judicial discretion. In addition, Family Law cases present particular and special challenges which mean that a Family Law case could, potentially, require a Court to make a wide range of decisions on children, maintenance, family assets and finance, occupation of the family home, etc. Family Law cases may be psychologically complex, requiring family assessment by social workers, psychiatrists or psychologists, particularly where there are children involved. Cases can also be financially complex, especially in what have come to be known as “ample resources” or “big money” divorce cases where the assets (financial and property) may involve millions of euro and where pension splitting may also be in question.
Under the current system, family law cases generally first come before the District Court. Family cases are usually left until the end of the court list, to give those concerned as much privacy as possible. But as a result, families can be left waiting in the courthouse as prisoners and other criminals are ushered in and out.
None of the Courts have family law divisions and therefore people can be at the mercy of all the work that the Court have to do.
Matters are not improved by the poor listing system when people have to wait all day and then come back another day which may be month away.
The frequency with which family law cases are dealt with add to the stress – sometime in the Circuit Court month can go by before family law cases are dealt with.
The other issue is the availability of suitable judges and different judges covering for the assigned judge. – this all adds to the unpredictability of the system and outcome.
Some of the locations in District Courts with other business and lack of facilities heaps further stress on the people involved.
What new proposals have been put forward by the Minister for Justice, Alan Shatter?
The Justice Ministers proposals include to humanising the courts system and ensuring that the judges dealing with family law cases have the skills and training to do so.
He also hopes that the new system “should be more user friendly and should make things less costly”.
It is hoped that the new regime will prove less intimidating and a more welcoming environment for families in personal difficulties.
Are there any changes in the makeup of Judges in the proposals?
Under a reformed structure, the Justice Minister envisages entirely separate family courts, where just the parties involved, the judge and the court clerk are present. Judges with a specialisation in family law cases could preside over all proceedings, ensuring a level of compassion and understanding. Many judges dealt very well with family cases, but not all judges were trained in the area.
It’s important the judiciary have special skills, so when individuals go to family court, they know there’s going to be a degree of consistency of approach.
Are there any suggestions on the Back up services to the Family Courts?
It is hoped that the new system would also have the necessary back-up, including welfare services that would conduct assessments and mediation services that would provide alternatives to courts.
Is this a new concept being proposed by the Minister?
The restricting of the Family Law Courts is not a new concept. Specifically designated Family Courts and trained judges as was originally proposed in the 1996 Law Reform Commission Report on Family Courts. This report originally pointed out that: “Judges who deal with Family Law matters in Ireland are not by law required to have any special qualifications, training or experience in, or aptitude for, Family Law matters.” Since this report in 1996 there has been considerable and substantial growth of Family Law and, there have also been large increases in the number of Family Law cases coming before the courts. This reform will therefore be very important and will hopefully modernise our court system to reflect the realities of society.
Will our new system be similar to any other country?
The specifics of exactly what the Justice Minister is proposing are largely unknown. We do know that in March 2012 the Justice Minister visited the New South Wales Family Court in Australia where he discussed the workings of the Australian family court structure and its relevance to his commitment to establish an integrated Family Court in our jurisdiction. Following on from this visit he may decide to establish a dedicated Family Court structure similar to that which operates in Australia, where it is a separate entity with its own judges who are specially appointed for this work, as well as having distinctive procedures, personnel and appropriate support services to deal with Family Law matters. There is a comprehensive case management system and extensive support services such as counselling and mediation funded by the State.
Minister Shatter also attended a Family Law Conference in 2011 which included judges from the US and Canada where issues around improving the Irish system were discussed by Irish judges in collaboration with international judges who shared their experience. This experience was grounded in dedicated and specialised Courts, judges with support from experts and case management.
What will be the first step in reforming our system?
Perhaps as a first step towards a less radical restructuring of the court system in relation to Family Law matters, Minister Shatter may however decide that it could be possible to make improvements in our existing system by creating a distinctive Family Law Division which would include District, Circuit and High Courts and would have significant improvements in resources in staff and ancillary services.