L (M J) v Ireland & AG
| Jurisdiction | Ireland |
| Judge | Mr. Justice Charleton |
| Judgment Date | 11 July 2008 |
| Neutral Citation | [2008] IEHC 241 |
| Judgment citation (vLex) | [2008] 7 JIC 1112 |
| Court | High Court |
| Date | 11 July 2008 |
[2008] IEHC 241
THE HIGH COURT
BETWEEN
AND
AND
DOMESTIC VIOLENCE ACT 1996 S5
DOMESTIC VIOLENCE (AMDT) ACT 2002 S1
DOMESTIC VIOLENCE ACT 1996 S2
DOMESTIC VIOLENCE ACT 1996 S3
DOMESTIC VIOLENCE ACT 1996 S4
K (D) v CROWLEY & ORS 2002 2 IR 744
DOMESTIC VIOLENCE ACT 1996 S4(3)
DOMESTIC VIOLENCE ACT 1996 S17
DOMESTIC VIOLENCE ACT 1996 S6
CONSPIRACY & PROTECTION OF PROPERTY ACT 1875 S7
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S7
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S9
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S13
GOOLD v COLLINS & ORS 2005 1 ILRM 1 2004 19 4389
GUARDIANSHIP OF INFANTS ACT 1964 S5(5)
EAST DONEGAL CO-OPERATIVE LTD v AG 1970 IR 317
DOMESTIC VIOLENCE ACT 1996 S9
CONSTITUTIONAL LAW
STATUTE
Validity - Property rights - Domestic violence - Protection order - Order obtained ex parte - Constitutionality of legislation - No requirement for return date for ex parte application - Whether protection order obtained ex parte infringed constitutional rights - DK v Crowley [2002] 2 IR 744 distinguished; Goold v Collins [2004] IESC 38, (Unrep, SC, 12/7/2004) considered - Domestic Violence Act 1996 (No 1), ss 2, 3, 4, 5, 9 and 17 - Domestic Violence (Amendment) Act 2002 (No 30) - Claim dismissed (2007/1611JR - Charleton J - 11/7/2008) [2008] IEHC 241
L(MJ) v Ireland
FAMILY LAW
Domestic Violence
Protection order - Order obtained ex parte - Constitutionality of legislation - No requirement for return date for ex parte application - Whether protection order obtained ex parte infringed constitutional rights - DK v Crowley [2002] 2 IR 744 distinguished; Goold v Collins [2004] IESC 38, (Unrep, SC, 12/7/2004) considered - Domestic Violence Act 1996 (No 1), ss 2, 3, 4, 5, 9 and 17 - Domestic Violence (Amendment) Act 2002 (No 30) - Claim dismissed (2007/1611JR - Charleton J - 11/7/2008) [2008] IEHC 241
L(MJ) v Ireland
1.The applicant seeks a declaration that s. 5 of the Domestic Violence Act 1996, is unconstitutional. In consequence he argues that a protection order that was made against him on an ex parte basis on 25 th September, 2007, in Kilkenny District Court should fall.
2. I will refer to the facts in a brief way. Mr. and Mrs. L. have five children who range in age from 24 years to 12 years. This application concerns the two youngest children, as the other three have attained their majority. The applicant describes himself as a deserted husband. At least some of children, and certainly the two youngest children around whom this application principally revolves, were home-schooled by the applicant and his wife for about eight years up to September, 2006. This form of education was pursued because the applicant claimed to have "concerns as to the moral integrity of the schools" that the three eldest children had been sent to. Unhappy differences arose between the husband and the wife. These came to a head during the summer and autumn of 2006. An essential disagreement that seems to have emerged was that the husband wished to continue home-schooling whereas the wife wished to send the children to a State school. In August of that year the husband went to Australia. The next day his wife issued an application for a protection order under s. 5 of the Domestic Violence Act 1996. Conversations between the husband and wife prior to his leaving had aired their mutual disagreements and he was aware that if he would not agree to a change of schooling that she was considering making an application to court. The hearing in relation to the protection order was to take place on 29 th August, before a District Court in Kilkenny. On 28 th August following an email and a telephone conversation with his wife, the husband became aware of that application but could not return in time. The children were sent by the wife to be educated at local schools. A safety order was made on 26 th September, 2006, and that is the only occasion on which the applicant, on what he has told me, was present in Kilkenny District Court. During that hearing the judge also made an order under the Guardianship of Infants Act 1964, as amended, that the children should continue at school. Subsequently, those schooling orders were continued on an interim basis by the District Court on 13 th December, 2006, on 14 th February, 2007, on 9 th May, 2007, and, finally, an order was made without a return date in July, 2007. The last three of these orders also included provision as to custody.
3.Whereas marriages break up, and whereas this is regrettable, Mr. L. takes the view that he has been deserted. In a letter to his wife dated August 2007, he said:-
"Your behaviour most especially your desertion, your refusal without just cause or reason, of access by the children to their father guardian, your continued incapacity to provide reasons to justify your behaviour and to put proposals for agreement, has and continues to inconvenience the family and by abusing the power you pretend to exercise, has so obviously and repeatedly shown up to be to the detriment of the your childrens' welfare. As you have continued to fail to act even as a guardian let alone a custodian, and so that provision for their welfare is no longer neglected, it is obvious that I and only I am of the disposition to make and manage this manly task. The following therefore are my proposals in regard to the childrens' right to access to both their parents notwithstanding that I do not acquiesce to the unacceptable situation that has arisen both in family and schooling arrangements, from your actions and your mischievous court proceedings … [T]he children should return to the family home so that they can be properly cared for, provided for, educated and protected by me. I am therefore proposing despite your deviancy, that they have access to you on the humanitarian grounds that they deserve it by right and in the interests of their welfare and comfort."
4.No argument as to access or custody has ever been addressed by Mr. L. to the District Court. He has at all times been of the view that all of the court proceedings that have taken place in this matter have been tainted by the original ex parte application, are unfair and are a denial of his constitutional rights.
5.The only order which is impugned as to its validity is that dated 26 September, 2007. The District Court order reads as follows:-
"Whereas the above named applicant who resides at [redacted] Co. Kilkenny, in the court district aforesaid has caused a summons to issue for hearing at a sitting of the court at Kilkenny on the 10 th day of October, 2007, at 10.30am pursuant to the provisions of ss. 2/3 of the [Domestic Violence Acts, 1996 and 2002] for a safety/barring order against the above named - respondent residing at [redacted] County Kilkenny, which application has not yet been determined by the court; And whereas the court is of the opinion that there are reasonable grounds for believing that the safety or welfare of the above named - applicant and dependent persons, so requires, The court hereby orders that the above - named respondent shall not use or threaten to use violence against, molest or put in fear the above - named applicant or any dependant persons, and Further orders that the respondent shall not watch or beset the place where the applicant or dependant persons reside."
6.According to an information, sworn under the Domestic Violence Acts 1996 and 1992, and verified before this Court on affidavit, the circumstances behind the wife applying for, and being granted, a protection order in the foregoing form, arose by reason of her visiting the United States of America in the summer and autumn of 2007. This was one year after the original rift had occurred between the husband and wife. She had decided to visit a relative who had been diagnosed with cancer in the United States. This was done for support, and to see whether she might have the necessary potential to donate bone marrow. In her absence she had been reluctant to grant Mr. L access, which had hitherto proceeded on a twice a week basis, and instead caused the children to stay in the care of the older children and her mother. She was of the view that because Mr. L allegedly had a history of mental illness and held "unorthodox views about his role" in his childrens' lives, and had refused up to that date to recognise any court orders, that it would not be safe for access to continue during that period. In any event, while she was away, Mr. L arrived at the family home and tried to physically take the two children away. His older son intervened and took them out of the car. She said that she was "uneasy about his demeanour and the threatening tone of his letters".
7. I am concerned only with s. 5 of the Domestic Violence Act 1996, as amended by s. 1 of the Domestic Violence (Amendment) Act 2002. A brief reference to some other provisions of the Act may be useful, however. Section 2 of the Act allows for a court to make a safety order where it is of the opinion that there are reasonable grounds for believing that the safety or welfare of an applicant, or of a dependent person, requires it. This kind of order can require a respondent not to use violence or put an applicant or dependent person in fear; not to watch or beset the place where the applicant resides; and may be made subject to conditions. It may be varied by application of the respondent or of a Health Board. This order lasts for five years, or such lesser time as may be specified. A barring order may be made under s. 3 of the Act. This may require a respondent to leave the place where he or she...
To continue reading
Request your trial