Aggravating factors
This can be against a background of violence, emotional point-scoring, and other aggravating factors mitigating against agreement.
The Family Courts Bill was intended to update the system, but had problematic proposals that might pose difficulties, speakers said.
Bar Council chair Sara Phelan SC said that the Bill had laudable aims for a more efficient and user-friendly system, as well as judges with specialist family-law knowledge and ongoing professional training.
Phelan addressed the planned re-allocation of jurisdiction from the Circuit Court and High Court, where most judicial-separation, divorce, and cohabitation cases with an asset value over €3 million are now heard.
“The Circuit Court is the powerhouse of family law, and it's our position that this should remain so in the future,” she said.
The bill proposed that the District Court could deal with all cases, irrespective of the market value of the lands involved, she said.
Two cases with the same set of facts could end up being treated very differently, depending on where they were heard and where the parties lived, she said.
“There is, in our view, absolutely no equity in this proposition,” the Bar Council chair added.
A nurse and a teacher with a four-bed family home in Dublin might be able to issue proceedings in the Circuit Court, where their rural counterparts would be consigned to the District Court, she said.
Pensions and savings
Lower value cases would go to the District Courts, irrespective of the complexity of pensions or savings questions, she added.
Phelan questioned what was fair and equitable about these differentiations based on market value of land.
“The reallocation of jurisdiction will have a detrimental impact on the very urgent matters that the District Court currently deals with, day in day out, because there will be a significant and additional volume of work brought down,” she said.
Paltry District Court facilities in many areas around the country would exacerbate the existing rural-urban divide, she added.
Barrister Paul McCarthy SC told the seminar that a recent survey of family lawyers found that 79% felt that insufficient time was the primary existing challenge for family and child-law proceedings currently before the District Court.
This was before any overlay of extra family-law work, he said.
There were also issues with inappropriate physical settings and a lack of litigant privacy, he added, while delays with reports were also a very acute challenge.
Domestic violence cases only worsened because of existing District Court delays, McCarthy said.
“Lawyers are working in this tinderbox situation in some courthouses,” he said.
A majority view of those surveyed was that the District Court was unsuitable for family-law cases, McCarthy said.
Rationale
The most compelling rationale for the re-allocation of jurisdiction was to lower costs, the seminar heard.
However, many respondents believe that, counterintuitively, costs may increase if cases are re-allocated into an existing unsuited jurisdiction.
Fewer than 10% believe that the impact on individual family units will be positive.
At present, section 32 reports can take up to six months to complete because of a lack of qualified personnel.
Resources must come before significant changes, not afterwards, the seminar heard.
“It seems to be glaringly obvious that we are going to accentuate the rural-city divide with an arbitrary €1 million jurisdiction,” the barrister said.
And 88% of survey respondents believe that the change will negatively impact on the development of case law in the High Court.
“It's very difficult to understand why there would be a push to take some litigation, which needs to be in the High Court, away from the High Court,” McCathy continued.
The Circuit Court already had all the existing family-law architecture needed, in terms of case management and back-office supports, the seminar heard.
Attendees were told that resources would be needed to build similarly enhanced case-management at the District Court.