The Gazette 1978

GAZETTE

JULY-AUGUST 1978

renounce his or her legal right would be taken into account in the making of any such provision. Mr. Justice Walsh also pointed out that the legislature is enacting the 1965 Act did not consider that "periodical payments made for her maintenance during his lifetime" constituted "permanent provision" for a man's wife. The purpose of this analysis was, according to his Lordship, to draw attention to the state of mind of the draftsmen of the 1976 legislation. Mr. Justice Walsh interestingly opined that "one should not overlook that the responsible Minister in the case of both the Succession Act 1965 and the Family Law (Maintenance of Spouses and Children) Act 1976 was the Minister for Justice and it would not be unreasonable to assume that certain of the provisions in the 1976 Act were framed with the relevant provisions of the 1965 Act in mind". These remarks, it should be noted, were made after the learned Supreme Court judge had arrived at his conclusion regarding the interpretation of the 1976 Act and were made as illustrating the meaning of s. 27 of the 1976 Act. Family Home Protection Act 1976 The decision in D. v. D. is to be welcomed as the first authoritative ruling on the parameters of the Family Law (Maintenance of Spouses and Children) Act 1976. However, it is unfortunate that the Supreme Court was not given an opportunity to examine the provisions of the Family Home Protection Act. The applicant claimed in a special summons pursuant to s. 5(2) of the Family Home Act an order "directing the respondent to pay the applicant such amount as the Court

considered proper to compensate the applicant and the two younger children who were claimed to be dependent children for their loss arising from the deprivation of their residence in the family home . . . which it is alleged the respondent had by his conduct rendered unsuitable for habitation as a family home". Mr. Justice Doyle in the High Court considered the status of the consent (which was received and filed with and deemed to be part of the Order of Court) under the two Acts of 1976. He did not, however, comment on the provisions of either Act. The appeal to the Supreme Court was brought from the judgment of Mr. Justice Doyle on the net issue whether or not the applicant was estopped from pursuing whatever rights she might be entitled to under the two Acts. The judgment of Mr. Justice Walsh in this Court was devoted in large to an examination of the Family Law (Maintenance of Spouses and Children) Act 1976. His Lordship was not invited by counsel on either side to consider the effect and extent of s. 5(2) of the Family Home Protection Act. Conclusion: Although certain deficiencies have recently been discovered in the Family Law (Maintenance of Spouses and Children) Act 1976 (especially in relation to the enforcement of barring orders) it nevertheless is a step forward on the path of family law reform. Unfortunately, Mr. Justice Walsh did not examine the provisions of the Family Home Protection Act 1976, leaving certain questions about the scope and effect of s. 5 unanswered. Thus, such matters as the standard of proof, the extent of the Court's discretion and the extent to which the respondent's subjective appreciation of his behaviour will affect the granting of an order must await judicial examination in a later decision.

On the 9th June, the President of the European Court, Mr. Hans Kutscher and members of the court, on a visit to Dublin, were guests of the President, Mr. J.L. Dundon at a lunch in Blackhall Place. Left to right: Mr. Hans Kutscher, Mr. J.L. Dundon, Chief Justice O'Higgins, and Mr. Gerald Hickey, Senior Vice-President.

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