The Courtroom 

Going into a courtroom for the first time can be intimidating. The Ombudsman for Children’s Office and the Court Services of Ireland have produced a very helpful recording which explains the court process and provides an insight into the workings of the court. 

In the context of family law proceedings the recording identifies those parties who will be  present in the courtroom and seeks to allay any fears on the part of those in attendance. Having an idea of what to expect and an understanding of who each person is in the courtroom can help ease the stress of the situation. 

When a family law dispute is brought before the courts, if  a resolution cannot be agreed between the parties; then the judge will decide the outcome of the case having read all of the documents filed in court and where necessary having listened to both sides of the arguments will make the  appropriate orders, for example an order for maintenance, custody or access and/or a decree of divorce. 

The judge hearing your case does not know you or your children personally, and can only make a decision based on the proper evidence put in front of them. Wherever possible, it is best that the parties to the dispute strive to come to an agreement regarding future arrangements, allowing for a  workable future to be planned, especially when it comes to parenting arrangements. 

The judge can only make what he/she believes to be the best decision in light of what he/she perceives to be in the best interests of the child or children. However, too often, neither parent is happy with the result. 

Parents who can work together to come up with solutions are often best positioned to create a custom-made plan for parenting, because they know their children, and their circumstances better than anyone. 

A judge cannot supervise the terms of an order or monitor parenting issues on an ongoing basis. Judges will, most often, use the traditional custody/access language in making a decision and will base decisions about financial support on income information that is known at the time of the hearing (an Affidavit of Means). 

In the case of parenting issues, this can create inflexibility that may disadvantage both parents and children as the situation changes, as the order may no longer fit the new situation. 

Although the court always retains the power and the right to amend arrangements as necessary on the application of either party, in reality, having the matter relisted in court can be a very slow process and the ability of the court to react as swiftly as maybe required in a given situation is rarely possible.

District Court 

Ireland is divided into 23 districts with one or more judges permanently assigned to each district. Generally speaking, the venue at which a case is heard depends on where the Respondent resides or carries on business. 

Family law proceedings in the District Court are heard in private and are as informal as is possible in the circumstances. The District Court is empowered to deal with many aspects of family law including the following: 

• Domestic Violence; 
• Child related orders including custody and access, guardianship, paternity in relation to any child, and child maintenance; 
• Maintenance; and 

• Child Care (relating to state intervention in the family). 

The person who seeks an order or other remedy from the court is called the Applicant; the person against whom the application is made is called the Respondent. 

In order to bring a matter before the District Court, the Applicant issues proceedings against the Respondent by  issuing a document called a ‘Notice of Application’, or by issuing a ‘Summons’ depending on what the nature of the application is.  For example a summons will issue in respect of an application for maintenance, where there has been a breach of a maintenance order or where a domestic violence remedy, such as a summons for a safety order is sought. 

Where the Applicant seeks a direction from the court (where an order has already been made but is not being complied with or where the parties need the Judge to make directions due to  change in circumstances since the relevant order was made)in relation to custody or access, a Notice of Application must be issued. 

The Notice of Application or the Summons are documents that document the beginning of the court process. They are issued by the District Court office where the Applicant resides and are then given a District Court number and usually the District Court office will assign a date for the hearing of the application on the day the Notice of Application or Summons is issued. 

There are set forms which must be used for such applications and summonses, these are set out in the District Court Rules; located on the Courts website; and direction as to the correct form of application/summons to be used should be available from every local District Court office. 

Once this document is filled out it must be signed and stamped by the relevant court office so that it is officially ‘issued’. As this work is done in the District Court office, you do not need to appear before the Judge to issue these proceedings. 

The Notice of Application or Summons must then be ‘served’ on the Respondent, either in person or by registered post, so the judge can be certain that the Respondent is aware of the court hearing. 

There are specific rules on the way these legal documents must be served as well as the timeframe in which they must be served, which differ depending upon the matter in dispute. 

For example, an application for maintenance before the District Court requires maintenance summons to be issued against the Respondent and to be served on him/her, in person or by registered post, at least 21 days before the court hearing. Proof of postage should be retained (the registered postage slip) as the court will ask the Applicant to prove that they did serve the proceedings on the Respondent. 

Circuit Court 

Ireland has eight circuits and court sittings vary in length from one day to three weeks and are generally held every 2 to 4 months in each venue in the circuit. However the Circuit Courts in Dublin and Cork sit continuously throughout the year. 

The Circuit Court can deal with most family law disputes including judicial separation, divorce, nullity and appeals from the District Court. 

In the context of applications for orders relating to the status of a relationship, the Circuit Court has the power to make related orders, including custody and access orders, maintenance and remedial orders in response to incidents of domestic violence. Applications for protection and barring orders may also be made directly to the Circuit Court. Applications to dispense with the three month notice period of marriage are also dealt with by the Circuit Court. 

The person who seeks an order or other remedy from the court is called the Applicant; the person against whom the application is made is called the Respondent. 

In order to bring a matter before the Circuit Court, the Applicant issues proceedings against the Respondent typically by issuing a Family Law Civil Bill, or by appealing an existing decision of the District Court. Each Circuit Court has a Circuit Court office and assistance is available to members of the public from the clerks in each office. 

Family law court proceedings are held in private, referred to as ‘in camera’ (so no one from the public can attend only the parties involved and their legal team if applicable). 

Procedural matters leading up to the actual hearing of the court case, such as setting the date for the hearing, are not held in private, everyone can attend the courtroom, and these house-keeping matters are often dealt with by a senior court official called the “County Registrar” rather than by a Judge. 

The Circuit Court can make a ruling on separation and divorce where all matters are agreed between the couple already (often referred to as a ruling made ‘on consent’) or it can hear matters in disagreement and the judge will make a ruling based on the evidence before him and make the appropriate court orders. 

To begin a case one of the parties needs to ‘issue proceedings’, which requires the Applicant to fill out the necessary paperwork and provide the necessary documents to have a summons issued. For example in judicial separation or divorce proceedings, the Applicant files a Family Law Civil Bill, Affidavit of Means, and Affidavit of Welfare. 

Once issued in the relevant Circuit Court office, the Family Law Civil Bill and supporting documentation must be served on the Respondent in accordance with the Circuit Court rules which are available on the court service website www.courts.ie. The Respondent must in turn enter an appearance and file a defence to the proceedings. There are templates of  the required documents available from the Circuit Court office and/or available on the court service website. 

Where a party is a lay litigant, a person not represented by a solicitor, it is wise to call to the Circuit Court office in advance to make sure all paperwork is in order and all necessary information is to hand. 

Common Applications 

Below is a list of some of the main procedures. 

Maintenance: 

• What is Maintenance? 

• How to apply for maintenance 

Guardianship 

• What is Guardianship? 
• Who can apply for guardianship? 

To make an application to the District Court to be appointed legal guardian of the child, the Applicant father must file and issue an Application for Guardianship 

Custody and Access 

• What is Custody or Access? 
• Who can apply for custody? 

A Notice of Application for the direction of the District Court must be filed and issued by the Applicant and served upon the Respondent. The application before the Court will allow the Applicant to seek the direction and orders of the District Court on the issues of custody and/or access as appropriate. 

Paternity 

Married parents are presumed under law to be the parents of a child born to the mother, unless the contrary is proven. Where parents who are not married and the paternity of the child is in dispute, the court may order that the parties undergo paternity testing prior to any court order being made as regards guardianship, or maintenance. In such circumstances, an application for the ordering of a paternity test can be made to the court 

Passports: 

When issuing a passport for a minor the Minister has to be reasonably certain that the passport has been consented to by in the case of a child with 2 legal guardians, both legal guardians, and in the case of a child with more than 2 legal guardians, no fewer than  2 legal guardians. 

Where a parent of a child is not the legal guardian of a child  the Minister must take into account the circumstances of the individual case before he may grant a passport without that parent’s consent. 

When the application for a passport concerns a child who is not ordinarily resident in Ireland a passport may be granted without the consent of  other  guardian(s)  when 

A) A court or competent judicial or administrative authority the child lives in normally, takes a measure directing that a passport may be issued to the child without the consent to such issue of the other guardian(s) 

or 

B)if  the  laws surrounding the requirements relating to the consent of the other guardian(s)of the child have been fulfilled in the country the child ordinarily lives in. 

Domestic violence 

An application for a remedy in circumstances of domestic violence can be made to the District Court. The Applicant must issue and serve on the Respondent, a document called a ‘‘Summons’. For example a summons for a safety order will issue where the Applicant seeks the protection of the Courts without the necessity to remove the Respondent from the Family home. An Applicant can seek the protection of the court, and apply for whatever remedy is most appropriate: 

• Summons for a Safety Order 
• Summons for a Barring Order 
• Information for an interim barring order 
• Information for a Protection Order 

See further on Domestic Violence