F (J) v L (J)

 
FREE EXCERPT

1998 WJSC-CC 6932

THE CIRCUIT COURT

(DISTRICT COURT APPEAL)

Record No. 200/94
F (J) v. L (J)
DUBLIN METROPOLITAN DISTRICT

BETWEEN:

(J) F
APPLICANT:
-and-
(J) L
RESPONDENT.

Citations:

FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976

STATUS OF CHILDREN ACT 1987

BRUSSELS CONVENTION 1968 ART 5(1)

BRUSSELS CONVENTION 1968 ART 5(3)

JURISDICTION OF COURTS & ENFORCEMENT OF FOREIGN JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 REGS 1988 SI 173/1988

JURISDICTION OF COURTS & ENFORCEMENT OF FOREIGN JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 SCHED 2

ACCESSION CONVENTION 1971 ART 1

ACCESSION CONVENTION 1978

ACCESSION CONVENTION 1982

ACCESSION CONVENTION 1971 ART 2 S2

BRUSSELS CONVENTION ART 5

JURISDICTION OF COURTS & ENFORCEMENT OF FOREIGN JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 SCHED 5

JURISDICTION OF COURTS & ENFORCEMENT OF FOREIGN JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 S1

JURISDICTION OF COURTS & ENFORCEMENT OF FOREIGN JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 S6

JURISDICTION OF COURTS & ENFORCEMENT OF FOREIGN JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 REGS 1988 SI 173/1988 RULE 20

SOMAFER V SAAR-FERNGAS 1978 3 ECR 2183

GANNON V BRITISH & IRISH STEAMPACKET CO LTD 1993 2 IR 359

BRUSSELS CONVENTION 1968 ART 6(1)

JURISDICTION OF COURTS & ENFORCEMENT OF FOREIGN JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988 S4(2)

JENARD REPORT ART 5(2)

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980 ART 5(2)

KAYE ON CIVIL JURISDICTION & ENFORCEMENT OF FOREIGN JUDGMENTS 527

BYRNE, EEC CONVENTION ON JURISDICTION & THE ENFORCEMENT OF JUDGMENTS

NEW YORK CONVENTION ON THE RECOVERY ABROAD OF MAINTENANCE 1956

MAINTENANCE ACT 1994 S13(1)

MURPHY V BORD TELECOM 1986 ILRM 483

MAINTENANCE ACT 1994 S4

Words & Phrases:

C

Subject Headings:

*

JUDGEMENT By JUDGE
CATHERINE McGUINNESS
1

These proceedings are a District Court appeal in regard to a maintenance application which was dismissed by the District Judge on the ground of lack of jurisdiction.

2

The Applicant is an unmarried woman, 28 years of age, who resides at 34 Tubbermore Road, Dalkey. She is the mother of a child J: born 3 July 1988 and she alleges that the Respondent is the father of this child. This is disputed by the Respondent who is married man who is employed and habitually resident in Bruges, Belgium. The Applicant seeks maintenance for her child pursuant to the Family Law (Maintenance of Spouses and Children) Act,1976as amended by the Status of Children Act,1987.

3

In the District Court a preliminary point was raised as to whether the proceedings were properly brought in the Irish jurisdiction, the Respondent contending that under the Jurisdiction of Courts and Enforcement of Foreign Judgements (European Communities) Act,1988and the District Court [Jurisdiction of Courts and Enforcement of Judgements (European Communities) Act,1988] Rules 1988, ( S.I. 173/1988) the proper forum for the proceedings was the courts of Belgium. On the face of the maintenance summons, the Applicant claimed that the court should assume jurisdiction under the Jurisdiction of Courts and Enforcement of Judgements (European Communities) Act, 1988by virtue of Article 5(1) and 5(3) of the 1968 Brussels Convention on jurisdiction and the enforcement of judgements in civil and commercial matters.

4

Legal argument on the preliminary point of jurisdiction was heard by the learned District Judge on 16 December 1993 and the matter was adjourned for further hearing. On 11 February 1994 District Judge King dismissed the application for want of jurisdiction. The Applicant appealed to this court. The matter was listed in the District Court appeals list on 12 May 1994 and was transferred by His Honour Judge Devally to this list for hearing of the jurisdictional point.

5

Prior to the legal submissions made before this court, Counsel for the Respondent agreed to an amendment of the Applicant's original summons by which the Certificate concerning jurisdiction on page 2 of the Summons, paragraph 1 lines 4–6 was amended to read "The Court should assume jurisdiction by virtue of Article 5(2) of the 1968 Convention".

6

In addition to the other legal submissions made to me by Counsel on both sides, Senior Counsel for the Applicant, Ms. Clissmann, referred me to the Second Schedule of the Jurisdiction of Courts and Enforcement of Judgements (European Communities) Act,1988which sets out the text of the 1971 Protocol as amended by the 1978 Accession Convention and the 1982 Accession Convention. In Article 1 this Protocol provides that "The Court of Justice of the European Community shall have jurisdiction to give rulings on the interpretation of the Convention on jurisdiction and the enforcement of judgements in civil and commercial matters and of the Protocol annexed to that Convention signed at Brussels on 27 September 1968 and also on the interpretation of the present Protocol." Article 2 provides that certain courts may request the Court of Justice to give preliminary rulings on questions of interpretation. These courts at Section 2 include "The courts of the Contracting States when they are sitting in an appellate capacity". Since the present proceedings are an appeal from the District Court, the power to seek rulings on interpretation is therefore...

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