An Chuirt Duiche

An Chuirt Duiche

Record No. 2011/232510

Between:

Garda Daniel Duggan

Prosecutor

And

Maurice J Lyons

Named Defendant

Legal Submissions of MAURICE J. LYONS

3DC Appearance

1. The Non Adversarial Nature of the Proceedings

1.1 Clearly the Legislation does not require the Applicant to specify or claim any misconduct on the part of the named respondent. The court similarly is not required by the Legislation to apply any test or make any finding as to whether or not the Respondent has misconducted themselves in any specified way. Wherein the Legislation no specific conduct is required to be claimed by the Applicant, no defence can be made by the named Respondent if they choose to take part and the Legislation only requires the court to concern itself with whether or not it believes the Applicant should have an order and therefore one must presume, that neither the Legislation nor the court is interested in the misconduct of the Respondent.

1.2 The long title of the Act suggests that the Court is interested only in the conduct of the Named Respondent. Where there is an absence of any claim of misconduct a defence was not designed by the legislators to be made. Only where a Defence is possible can a Judgment in Default of Defence be lawful. Where this is not possible, as in a non-adversarial matter such as this, it requires merely an answer. A named Respondent who defaults in making a mere answer in what is a non-adversrial matter cannot suffer by a Judgement being made against them. Being entitled but not obliged to do so it is therefore not possible either to make a Judgment in Default of Appearance. Orders made contrary to these principles are unenforcable.

2. Civil Enforcement

2.1 A spouse named as a Respondent is entitled by law to make an answer and the only reason that one will look to do so would be to get the court to make an order in their favour. So where we have the Applicant looking for an order in their favour and the Respondent looking for one in their own favour and the court hears the matter both spouses are bound by the outcome and can be held to it by enforcement in civil proceedings at the request of the spouse in whose favour the order was made.

2.2 If a spouse such as I, in any matter to do with a request for a Decree of Judicial Separation, including any Ancillary orders under the heading of those proceedings, declines to make an Answer he is not seeking an order in anyone's favour and he has not participated in any process and as no fault can be claimed by the Applicant because the legislation does not require it, no enforcement can be entered into by the state.

2.3 There is little attempt to acknowledge the Domestic Violence Act's non adversarial nature except by the naming of the parties as Applicant and Respondent. But non adversarial it is. In requiring neither party to attend to their duties and responsibilites or to account for their failure to do so, the jurisdiction exercised by it is at least amoral. Were it operating a moral jurisdiction based upon the necessity of spouses in a Married Family to carry out their duties and responsibilities, one would of course expect the courts to enforce it rigourously. In not operating a moral jurisdiction and in the absence of the necessary appearance being made to give the court jurisdiction, nothing could justify the courts attempting to enforce it.

3. Criminal Enforcement

3.1 Section 17(1)a of the act declaring like a thunderbolt a public law offence in the middle of a Private Law Act is an inappropriate intervention in Private Family Law. It brings into question why for this act where no failure can be establised, as for other Family Law provisions where for example payment of maintenance arising out of a perceived failure were enforcable by the Enforcement of Court Orders Act 1940, Section 8, it does not at the very least require a separate and stand alone enforcement procedure outside of the Act itself.

3.2 One must therefore question how such a Private Law Act can be legitimately enforced in a Public Law action where no misconduct can be established, where the original proceedings are non-adversarial in nature and where a Named Respondent is not obliged to take part in or to proffer the required answer, as distinct from a defence as required in an adversarial matter, and where any moral act such as attending to familial duties & responsibilites which at no time were ever relinquished and which in the normal course of events could never be considered criminal in nature, but instead necessary according to the fundamental requirements of duty to the Family, becomes an offence upon the mere contravention of a Barring Order. To suggest that the Act has this power brings its action firmly into the immoral rather than the mere amoral sphere; in discounting the basic requirements of welfare for the children being provided within the married family soundly based upon the necessity to support the Family in the performance of the duties and responsibilities through which this welfare is provided, it even goes contrary to the desired balance of convenience between conflicting rights in an amoral jurisdiction and is therefore an impermissable attack on the constitution and authroity of the Family Founded on Marriage.

3.3 Furthermore, in order for a contravention of a Barring Order to be an offence punishable by imprisonment there would have had to have been an acknowledgement at the very least, by means of an appearance in the matter by the named Respondent, that the application was necessary but more pertinantly, that a crime had given rise to the need for making the Barring Order in the first instance. This is an impossibility where there is no requirement in the Legislation to make such a finding. In the absence of this finding the only safeguard to the good name of the Respondent and protection from an imposition of Public Law enforcement where it would otherwise be inappropriate, is to demure from making an appearance.

3.4 Even in such circumstances, it is difficult to consider that the contravention required by the Act could in itself be other than of a criminal nature and not a mere technical breach of an order.

3.5 To consider it otherwise denies to the Act or its enforcement the remedial standard required of it to be constitutional as envisaged in the O'B v O'B case of 1985 by the Supreme Court in regard to the '81 Act, that is for the better functioning and continuance of the Family as a unit. It would, devoid of such conditions, be a direct and impermissable attack upon the constitution and authority of the Family founded on Marriage. The moral jurisdiction which lay behind this reading of the '81 Act and which made it possible to protect the privacy of the Family Founded on Marriage, in its constitution and authority, is not only absent in the '96 Act, it appears to be positively affronted by the impossibility of a finding that a criminal act was committed in the first place.

4. Outline of Sections 17 & 18

Offences.

17.(1) A respondent who

(a) contravenes a safety order, a barring order, an interim barring order or a protection order, or

(b) while a barring order or interim barring order is in force refuses to permit the applicant or any dependent person to enter in and remain in the place to which the order relates or does any act for the purpose of preventing the applicant or such dependent person from so doing,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding 1,500 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months, or to both.

Subsection (1) is without prejudice to the law as to contempt of court or any other liability, whether civil or criminal, that may be incurred by the respondent concerned.

Arrest without warrant.

18.(1) (a) Where a member of the Garda Sochna has reasonable cause for believing that, in respect of an order under this Act, an offence is being or has been committed under section 17 the member may, on complaint being made to him or her by or on behalf of the person who was the applicant to which the order relates, arrest the respondent concerned without warrant.

(b) For the purpose of arresting a respondent under paragraph (a), a member of the Garda Sochna may enter, if need be by force, and search any place where the member, with reasonable cause, suspects the respondent to be.

(2) Where a member of the Garda Sochna has reasonable cause for believing that a person (in this section referred to as the first-mentioned person) is committing

or has committed

(a) an assault occasioning actual bodily harm, or

(b) an offence under section 20 (which relates to unlawfully and maliciously wounding or inflicting any grievous bodily harm) of the Offences against the Person Act, 1861,

against a person (in this section referred to as the second-mentioned person) in circumstances which in the opinion of the member could give rise to the second-mentioned person applying for, or on whose behalf another person could in accordance with this Act apply for, a safety order or a barring order, then the member may

(i) arrest the first-mentioned person without warrant, and

for the purpose of making such an arrest, enter, if need be by force, and search any place where the member, with reasonable cause, suspects the first-mentioned person to be.

5. Arrest & Charging

5.1 Charge Sheets and official statements are only as good as their detail and accuracy. Where sections and further subsections are particular and specifically relevant, the absence of specific reference to them, by giving rise to imprecision or ambiguity, fails to properly establish the case.

5.2 Section 17(1) specifies that an offence can only be committed by a Respondent, not someone who declines the invitation to make an answer and is only a named Respondent in an Application for a Barring Order and who therefore did not make any undertaking to abide by the orders made in these non-adversarial proceedings.

5.3 Section 17(1) specifies two distinct and separate offences. At no times has anyone, the DPP or this court specified which subsection of Section 17(1) I am alleged to have committed and therefore where there is no defence possibble no prosecution can take place.

5.4 Section 17(2) indicates that Subsection (1) is without prejudice to the law as to contempt etc. Neither the State who decided not to oppose my appeal nor Mrs. Lyons who were both represented in the Supreme Court on 27th July 2010 when that court found my detention of 13 months unlawful, believed that it was possible to oppose my appeal of the order of Mr. Justice Birmingham, dated 30th July 2009, which had upheld the Circuit Court Order of Mr. Justice Teehan, dated 2nd July 2009, finding me in contempt of that court. Neither believed that there was a case. Had they so believed, they should have then sought to uphold a claim for contempt where I had not purged it. Instead both the state and Mrs. Lyons forfeited their opportunity of doing so.

5.5 Furthermore, it is hardly possible that a criminal finding can be established Beyond Reasonable Doubt where a finding of civil contempt On the Balance of Probabilities is already beyond reach for the same act. An attempt to lay criminal charges upon me now for this same contempt of what is an unenforcable order along with its ancillaries is contrary to the princple of autrefois acquit.

5.6 I was not told which of the Subsections of Section 18 on which I was arrested without warrant.

5.7 Even if it was Subsection 18(1)a this part claims that arrest can only be done on complaint by the Applicant. In the book of evidence provided there is no mention by anyone, neither Mrs. Lyons nor Garda Duggan, of any specific complaint.

5.8 The Custody sheet which for my benefit requires the Garda to specify in Section F of the same the Act under which I was detained and they have failed to indicate that.

6. The Jurisdiction Granting a Barring Order

6.1 A Barring Order can be granted under Section 3 of the Domestic Violence Act 1996. The Legislation states:

3.-(2) (a) Where the court, on application to it, is of the opinion that there are reasonable grounds for believing that the safety or welfare of the applicant or any dependent person so requires, it may, subject to section 7 and having taken into account any order made or to be made to which paragraph (a) or (d) of subsection (2) of section 9 relates, by order (in this Act referred to as a barring order)

(i) direct the respondent, if residing at a place where the applicant or that dependent person resides, to leave such place, and

(ii) whether the respondent is or is not residing at a place where the applicant or that dependent person resides, prohibit that respondent from entering such place until further order of the court or until such other time as the court shall specify.

(b) In deciding whether or not to grant a barring order the court shall have regard to the safety and welfare of any dependent person in respect of whom the respondent is a parent or in loco parentis, where such dependent person is residing at the place to which the order, if made, would relate.

6.2 It is clear that Section 3(2)a of the Act sets out the Jurisdiction that the court exercises in the making of a Barring Order and that each order should recite this Jurisdiction:

.... the court, ......... is of the opinion that there are reasonable grounds for believing that the safety or welfare of the applicant or any dependent person so requires,

6.3 In the absence of this in the body of the Barring Order it is on its face void..

7. Introduction

7.1 It needs to be stated at the outset that as I am a husband and parent of a Married Family which is a moral institution to which the state has pledged its protection, anything the state does with respect to my Family which requires me to so much as lift a finger to ensure they do their job properly within a moral framework is an imposition upon the peace and harmony of my Family and its integrity and furthermore represents in itself a threat to it and to the life and wellbeing of the nation as a whole.

7.2 What is more, it is completely unacceptable that a father and husband of a Family founded on Marriage in going about the normal duties required of him should be the subject of the states interest by means of a jurisdiction other than one which has a moral focus on a possibile crime or at the very least the possibility of misconduct.

7.3 Family Law proceedings are since the Act of 1989 not adversarial and are no longer based upon a moral foundation. By refusing to acknowledge that I am a Deserted spouse, by denying me a remedy in the face of that Desertion in a court of law with moral jurisdiction, the Sate has renaiged on its pedge to protect the moral institutions that are My Family and the Marriage upon which it was founded.

7.4 It has gone in the opposite direction and assisted the dismantling of the Marriage Bond by invoking an amoral jurisdiction, which rules out any possibility of making any findings of fault on the part of either party to the proceedings, while accepting that both parties are failing but to an unquantifiable degree, to the extent even of permitting a deserting spouse to have standing to seek benefits or reliefs in a court of Family Law.

7.5 Family Law proceedings since the Act of 1989 are amoral and non-adversarial and therefore, in the absence of a finding in a court of law of any crime being committed or proven misconduct, cannot rightly be imposed upon me as a member of a Family founded on Marriage without first receiving the authoirty to do so from my wife AND myself acting jointly.

7.6 For this reason, in principle there is no place in Family Law proceedings where a Judgement in Default of Appearance could be lawful and any suggestion that the rules of Circuit Court could administer an adversarial standard to such proceedings by the use of a Civil Bill of the Form 2N, as provided for in the Schedule of those rules, demanding a Defence from the Named Respondent where such a thing is impossible, is also unlawful.

7.7 My Family is victim of a series of fraudulent Orders which solicitors acting on a Legal Aid Certificate and with the blessing of the state have insisted on enforcing to perpetuate the myth that Family Law proceedings are moral and adversarial. It should be noted that prior to the enforcement of the unlawful Judicial Separation decree that had been made on the 7th October 2008, including its ancillary orders, I had made a criminal complaint against officers of the court of harrassment with malices based upon the threat of enforcing this fraudulent order that was at various times since it was made, and to varying degrees of duplicity, claimed to be a Decree of Judicial Separation and a Judgement in Default of Appearance.

7.8 Officers of the Court seem to believe that where disagreements exist within a Family Founded on Marriage that one of the spouses is somehow entitled to ask the court exercising its amoral jurisdiction, to directly affront the constitution, authority and privacy of the moral institution that is the Family Founded on Marriage and side with them against the other spouse or even to dispense with their consent. I am here to inform you that the time for directing this coordinated onslaught upon the Married Family, particularly my own, must stop here.

7.9 This court will be fully apprised of the essential nature of this onslaught that my Family has endured at the hands of officers of the court over the last six years. I will be insisting that it is not going to stop simply with a mere acknowledgement of the technicalities as outlined in part 1 of this argument. Once and for all the state is going to have to acknowledge these so called technicalities within the whole context of the case at hand, in general with regard to the absence of moral legitimacy and in particular with regard to the fraudelent instruments and actions used to compensate for this absence. This is something which the Supreme Court, to its own disgrace, attempted to deny to my family, leaving the offending parties to take advantage of some further technicalities while ignoring the central issues at the core of this misadventure.

7.10 Also the High Court and the Supreme Court refused to invoke their unlimited jurisdiction to acknowlege that my children had been and were being denied the exercise of their rights, available to them simply by virtue of being members of the Moral Institution of the Family founded upon Marriage, and to the enjoyment as they should, of every protection being afforded to them exercising those rights from the time of the very first application, made in my absence to this court on the 29th August 2006.

7.11 The reason why the children never enjoyed that protection is because the courts were never operating a moral jurisdiction based upon duties and responsibilities, which have an inbuilt and automatic view to the childrens' welfare, but an amoral one which takes its eye off the ball and seeks rather to accommodate spouses wishing to forgo their responsibilities.

7.12 This had and could only have had, and even more so in the absence of my participation, the effect of siding with the spouse whose applications, by their implicit nature, were seeking to fail the marriage. They were applications not merely seeking to rubber stamp an already failed marriage, as is often claimed, but to divert attention away from the failure of the applying spouse who, by attempting to secure the participation of the other spouse, seeks to legitimize her own failure.

7.13 The courts in the name of the state are duty bound to protect the moral institution that is the family founded on Marriage and to hold spouses to account for their failure to carry out the duties and responsibilities they took upon themselves by virtue of entering into the married state. With the current set of legislation under the Family Law Reforms of the past 50 years this is no longer possible.

Part 1

THE MORAL INSTITUTION OF THE FAMILY FOUNDED ON MARRIAGE

8. The principles of Family Law that govern the exercise of Spousal duties to Reconcile.

The duties of a Spouse flow from the vows that they made in the Marriage ceremony. In a valid Marriage ceremony prior to 2004 a Spouse vowed to love and to cherish the other Spouse above all others until the day they died, or words to that effect. (from paragraph 7.1 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

[By this] they imposed upon themselves the duty to work jointly with the other Spouse for the benefit of the Family unit and all its assets, including the Family home and any children etc. From the word "love" we derive, this being a Christian country, the meaning as being "authentic Christian love" as shown by Jesus when he sacrificed himself for all others. Thus Spouses vow to put the other members of the Family and the interests of the family as a unit before their own self-interest. In return each Spouse is promised that the other Spouse will do likewise. (from paragraph 7.2 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

In practice Spouses had the duty to work co-operatively with each other to maintain each other and the children according to their means. They had the joint duty in the upbringing of their children to provide for their education welfare and protection. The most important duty of all however was - derived from the promise that the co-operation would be until they died, i.e. without any "get-out" clause - that whenever any difference arose between them that threatened the stability or integrity of the Marriage - they would each individually commit themselves to Reconciling those differences so that the family unit would be sustained and its members would not suffer. (from paragraph 7.3 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

This means that if one of the Spouses misconducts themself - by adultery, by being cruel, by desertion for a period even - both Spouses are under a duty to resolve the problem. The "errant" Spouse must mend their ways and repent and ask forgiveness. Moreover the other Spouse is under a duty to take them back if they do repent and ask to be forgiven. (from paragraph 7.4 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

It is these latter reciprocating duties towards Reconciliation which guarantee the best chances for stability and longevity of a Family founded on Marriage and [justifies] the Constitution acknowledg[ing]the Family as...

"the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law"

and for the State to

guarantee to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State."

(from paragraph 7.5 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

Furthermore so important are these Reconciliation duties that the State pledges itself

"to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack."

(from paragraph 7.6 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

9. Are the Courts Applying These Moral Principles and Acting to vindicate the rights and duties of spouses?

[Are] the courts in the exercise of the Judicial Separation Act, in particular in the interpretation and implementation of an application on ground 2(1)f , ..... acting to vindicate these rights and duties of Spouses or not and to what extent are contributing to the stability or instability of Families and of society and are therefore Constitutional or not? (from paragraph 7.7 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

9.2 This is not simply a question of the effects of their actions which are alarming enough and obviously unjust but one of whether they are so in their nature and intent.

Prior to 1988 matrimonial law was rational and easy for the layman to understand and as such promoted the Common Good by enforcing the vows made in Marriage. There was no question as to whether they were Constitutional. If a Spouse was deserted they could ask the other Spouse to return and resume their duties and if they didn't they could, under the action for the Restitution of their Conjugal Rights, get a court order for them to return. If the deserter still refused to return they could theoretically be sent to prison for contempt of the order but this hardly ever happened. In practice a Spouse who was in contempt simply lost their right to be maintained by the other Spouse and the deserted Spouse was relieved of the duty to maintain the deserter. The deserter was not relieved of their duty to co-habit or maintain and so could have an enforceable order made against them to maintain the deserted Spouse. It is noteworthy that the deserted Spouse was not required to seek a Decree to be relieved of their duty to co-habit. Rationally they had no need of such a thing. (from paragraph 7.8 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

Similarly the action of divorce a mensa et thoro permitted a Spouse, who claimed that the other Spouse was being adulterous or being cruel and - crucially - refused to cease such behaviour, to be relieved of their duty to co-habit with the errant Spouse. They likewise were relieved of the duty to maintain the errand Spouse and were granted an order from the court which enforced the duty of the errand Spouse to maintain them. (from paragraph 7.9 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

The practical relief for a Spouse who had done no wrong was simply a maintenance order against the errant Spouse if they so wished. They were not required in any way to dishonour the vows they had made by seeking leave of the court to be relieved of them. (from paragraph 7.10 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

10. The Effect of the Family Law Reforms

Under the guise of Family law reforms the Oireachtas abolished the action for the Restitution of Conjugal Rights in 1988 and as part of the new Judicial Separation Act in 1989 they abolished the action for divorce a mensa et thoro. (from paragraph 7.11 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

10.2 Under the Judicial Separtion legislation the Applicant spouse is not required to establish that the Respondent is the errant spouse nor are they required to show that they themselves are seeking the better functioning and continuance of the Family unit. Indeed under this legislation they can themselves be the deserting spouse.

[This] legislation, in the court's discretion, in the allocation of the Family's assets - the family home, Family income etc, including the most precious, the children- allows for the errant Spouse to be granted elements of these assets despite them being guilty of matrimonial misconduct. (from paragraph 7.12 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

10.3 These four characteristics, which distinghuish the jurisdiction operated in the current legislation from the previous jurisdiction, alert us to the nature of proceedings as being Non-Adversarial and Amoral.

11. The Family Law Reforms appear to be at odds with the Principles Declared in Doyle

The current availability of legislation, [that is up to 2010,] appears to be at odds with the position the Supreme Court encountered with the case in Re Doyle, An Infant: State (Doyle) - v - Mininster For Education & Attorney General [SC 1955]. In that situation the Supreme Court declared that Mr Doyle, on the desertion by his Wife, was left with unilateral control of the entire Family's assets and with the Family's Constitutional rights intact. (from paragraph 7.13 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

b) The current Jurisdiction being exercised by the courts and Custom & Practice not only fails to offer realisitc relief to a deserted spouse it compromises even further the constitution and authority of the Family Founded on Marriage.

12. The position in re Doyle & the Adoption Act 2010

12.1 Acknowledgement for the first time in statute that the best interests of a child are presumed to be secured within a Married Family.

12.2 Baby Ann on the same subject

12.3 Why is the rule of law not spelt out elsewhere in Family Law?

12.4 Where now does the Paramouncy principle lie?

12.5 It means that it has not been enabled so long as JS decrees are given

12.6 to a Deserting spouse &

12.7 in defiance of a deserted spouse's authority

12.8 Or before the consent of both spouses waiving that authority is secured.

12.9 However, everywhere one looks we see flouted (1) the joint authority of the spouses in Private Family Law applications and (2) with or without the aid of the resulting Private Law Orders, the public right of custody of Married Parents against the claims of third parties who are not guardians of the children.

12.10 We see custody orders granted under Section 11(1) of the GOI being interpreted as giving unilateral authority to one spouse.

12.11 We end up questioning by what cause of action was the court entitled to hear and grant such applications when the nature of Section 11(1) Applications are Non-Adversarial.

12.12 And finally, by what slight of hand did (1) this use of the GOI Act and (2) the Act in itself ever become applicable to guardians of a Married Family?

13. The power to make orders in regard to the children & assets is an Affront to the Constitution &Authority of the Family and denies a remedy to an innocent spouse.

The provisions in the Judicial Separation Act which allow for the court to make Orders on its own motion in relation to these [Family] assets especially in regard to the children are an affront to any Spouse who has been deserted or where one of the Spouses is guilty of adultery or cruelty. The information booklet issued to every home in the country by the Government in the run up to the referendum on Divorce in 1996 states that

couples who do not want the court to make orders to do with their children should not use the Judicial Separation Act but should use other legislation such as the Guardianship of Infants Act, 1964.

This strongly suggests both that the Government accepted that a Judicial Separation was applied for by both Spouses and that it was voluntary.

The fact that the court is given these powers in the Judicial Separation Act creates a bar to an innocent Spouse who does not wish to have his right to the custody and protection of his children alienated by the State through the courts. Such a Spouse is left with no remedy available to him through the civil courts. (from paragraph 7.14 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

13.2 As my Affidavit attests, where third parties unlawfully interfere with his Public Law rights he cannot seek the assistance of the Gardai in going about his lawful business, to exercise those rights or to make criminal complaints.

....[T]his process, .. strewn with roadblocks, ... must be faced at the same time as repelling attacks from a Spouse who has abandoned their commitment to the Family integrity and who has no qualms about inviting the State, through the courts and government agencies to unlawfully interfere with what should be private Family business. (from paragraph 7.16 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

This case is an extreme example of such a situation. It shows that a Spouse can be imprisoned because they have no remedy in law open to them other than acting on their lawful entitlement to decline to take part in proceedings instituted on the grounds of 2(1)f. (from paragraph 7.17 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

One must presume that the intention of the Oireachtas was to replace the.. reliefs [once available] without disturbing the settled principles that govern the exercise of Spousal duties. (from paragraph 7.18 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

14. The Adversarial Jurisdiction

14.1 An adversarial court case is one where the application is from a person referred to as thePlaintiff - named so because they are there to make a complaint.

14.2 The Plaintiff makes a complaint that the other person has committed a civil offence, that they have done something wrong which has harmed the Plaintiff, that they have breached a contract they made with the Plaintiff or in some other defined way misconducted themselves which has resulted in some loss or injury to the Plaintiff.

14.3 The person who is accused of these wrongdoings is given an opportunity by the rules of justice to defend himself against this complaint and so is called the Defendant. In the pursuit of justice the Defendant must be given a formal Notice that the Plaintiff has made a complaint made against him with sufficient details to see whether or not to mount a defence and sufficient time in advance of the proposed court date for him to prepare his defence if he so chooses to show to the court that the complaint is unfounded. If he is irate that the complaint is malicious or vexatious he is entitled to make his own complaint against the Plaintiff as a counterclaim and then the Plaintiff is required to make a defence to his complaint.

14.4 Before the Defendant can submit his defence he must indicate to the court that he accepts there is a case to answer and that he is seeking an opportunity to show the complaint is unfounded. This step is called, entering an appearance and is executed by entering the appropriate form to the court. Once this step has been done the Defendant is given time to put forward his defence, where he can set out his reasons why the complaint is unfounded or groundless.

14.5 This is a very similar process to criminal proceedings where the Defendant is charged with a specific offence and is given the opportunity to plead Not Guilty and is then afforded time to prepare a defence pending trial of the matter.

14.6 If the named Defendant, having received Notice of the proceedings to hear the complaint declines to make a defence either with or without first entering an Appearance , the court is obliged to accept that the Defendant has admitted the claim and the court is entitled to make a judgement in default of Defence. If the Defendant didnt make an Appearance either it is called a judgement in default of Appearance/Defence. There is no such thing as a judgement in default of Appearance on its own.

14.7 Criminal matters are different in that a person can not be tried and convicted in their absence so the Defendant is forced under threat of imprisonment to attend the court and make an Appearance. A criminal trial can not take place if there is no Defendant in court.

14.8 Where the legislation requires it and there is a specified claim by a Plaintiff against a Defendant that the Defendant can defend himself against it by proving he is not responsible for the misconduct specified we call this adversarial. The court, when operating this, is exercising its moral jurisdiction i.e. it is applying the principle derived from the Ten Commandments that the State has a duty to protect the innocent against the wrongdoer. This is the traditional justice that we all thought was going to prevail when we were dragged into the Family law system.

15. The Jurisdiction Invoked In An Application for a Decree of Judicial Separation Is Non Adversarial

15.1 The Department of Justice Web site //www.justice.ie refers as follows to Judicial Separation:

If married couples wish to separate, they have the option of entering into a separation agreement or applying for a Judicial Separation.

b) As the Architect, by means of a private member's bill, of the Judicial Separations Act 1989, Mr. Alan Shatter TD., the present Minister for Justice, is aware that the granting of a Decree of Judicial Separation is not an adversarial process.

15.2 We also know this by the fact that parties to these proceedings are referred to not by the Adversarial nomenclature of Plaintiff / Defendant but as Applicant / Respondent.

15.3 The Relief is Granted to Both Spouses.

What distinguishes an application under the Judicial Separation Act from divorce a mensa et thoro is that in the Judicial Separation Act , as it states at Section 8, both Spouses are granted the right to be relieved from the duty to co-habit. In divorce a mensa et thoro only the offended Spouse was given this relief.

"8.(1) Where the court grants a decree of judicial separation itshall no longer be obligatory for the spouses who were the partiesto such proceedings to cohabit."

(from paragraph 7.24 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

This strongly points to the nature of the proceedings being non-adversarial. (from paragraph 7.25 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

One could paraphrase such proceedings as being where an Applicant, acting on behalf of both Spouses, is asked to prove that specified circumstances exist which would make the couple eligible for the Judicial Separation scheme. Such a scheme being where the court allocates the Family assets in a manner according to justice. (from paragraph 7.26 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

Obviously a person can not be forced under threat of imprisonment to take part in a scheme. No-one is ordered to comply with the provisions of a scheme that they didn't ask to be part of. (from paragraph 7.27 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

15.4 For this relief there is no need for the Applicant to act morally and the court is not interested in such misconduct either.

a) Hamilton CJ stated in TF v Ireland 1IR at p375

an application could be brought by the party responsible for the deterioration of the spouses' relationship. This includes the spouse who has deserted the marriage.

b) In a moral jurisdiction a deserter would not be entitled to be relieved of the duty to cohabit.

c) No Findings of Fact are made in regard to the misconduct of either party. Rather there is an acceptance of implicit mutual failure.

15.5 The Judicial Separations Act dropped the Defences that Were Available in the Adversarial Action for Divorce Mensa et Thoro

Further support for the contention that the proceedings are non-adversarial is that the usual defences - Collusion, condonation, recrimination and connivance - that were available to the Defendant in an action for divorce a mensa et thoro built up over decades of case law were made unavailable to the ..... Respondent by Section 44 of the Judicial Separation Act,

"44.(1) Collusion between the spouses in connection with anapplication for a judicial separation or, subject to subsection (2)of this section, any conduct (including condonation or recrimination)on the part of the applicant shall not be a bar to the grant ofa decree of judicial separation.

(from paragraph 7.28 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

This would be a clear case of Constitutional injustice towards the ..... Respondent if the proceedings were to be applied in an adversarial manner. (from paragraph 7.29 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

This all supports the contention that the Judicial Separation Act can not be treated like a typical adversarial matter where the Plaintiff is suing the Defendant and is making a claim against the Defendant. In this sort of case it would be rational for the court to consider making a Judgement by default of Appearance. (from paragraph 7.30 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

15.6 The Robust Burden of Proof Once required in Family Case Law has With this Act been reconfigured to be the Balance of Probabilities

It is noteworthy that in Section 3 of the 89 Act the Oireachtas felt it necessary to stipulate that the burden of proof to be used to grant a Decree is that "any of the grounds have been proved on the balance of probabilities". This would seem to be superfluous as the burden of proof in almost all civil matters is on the balance of probabilities. The balance of probabilities means that the court is directed to make its decision after hearing both sides. By reiterating and reinforcing that both sides must be heard this section appears to rule out a situation where only one side is heard and suggests that the Judicial Separation Act can only lawfully be heard where there has been an Appearance by the named Respondent.

"3.(1) Where, on an application under section 2 of this Act, the court is satisfied that any of the grounds referred to in subsection (1) of that section which have been relied on by the applicant have been proved on the balance of probabilities, the court shall, subject to subsection (2) of this section and sections 5 and 6 of this Act, grant a decree of judicial separation in respect of the spouses concerned."

(from paragraph 7.31 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

b) The real strength in this observation lies in the understanding that prior to the Law Reforms that ended in this Act the Burden of Proof was understood to be of a very robust form consistent with its moral and adversarial jurisdiction.

c) Rather than being a circumstance where a Defendant in an adversarial matter chooses not to be heard or to defend the claim, Section 6 of the Act requires the appearance of the Named Respondent in a Non-Adversarial matter before jurisdiction can be activated, in order to ensure that due regard is given to the exercise of his lawful preference to engage the court's assistance under any circumstance.

Safeguards to ensure respondent's awareness of alternatives to separation proceedings and to assist attempts at reconciliation.

6.(1) A solicitor, if any, acting for a respondent in an application for a decree of judicial separation shall, as soon as possible after receiving instructions from the respondent

(a) discuss with the respondent the possibility of reconciliation and give to him the names and addresses of persons qualified to help effect a reconciliation between parties to a marriage who have become estranged, and

(b) discuss with the respondent the possibility of engaging in mediation to help effect a separation on an agreed basis with an estranged spouse and give to him the names and addresses of persons and organisations qualified to provide a mediation service, and

(c) discuss with the respondent the possibility of effecting a separation by the negotiation and conclusion of a separation deed or written separation agreement.

(2) An Entry of Appearance or a Notice of Intention to Defend an application for judicial separation shall be accompanied by a certificate by the solicitor, if any, acting on behalf of the respondent, that he has complied with the provisions of subsection (1) of this section and where a solicitor does not so certify, the court may adjourn the proceedings for such period as it deems reasonable for the respondent's solicitor to discuss with the respondent the matters referred to in that subsection.

(3) Provision shall be made by rules of court for the certification required for the purposes of this section.

15.7 An Entry of Appearance by the Respondent Denotes his Acceptance of the Courts Jurisdiction to Decide on the Application.

a) The Minister is aware also from the TF case that where married couples do apply for a Judicial Separation that their entering into such proceedings can only result in the making of a Decree of Judicial Separation, that nothing that a respondent can say in such proceedings can prevent or expect to prevent such a decree being made. This can only be constitutional if and when spouses are in a position where they both expect and accept the anticipated outcome of such a decree.

b) The courts interpret the unconditional entry of appearance made by the respondent to be such an acquiescence. Furthermore, it is cautioned in Order 70 Rule 18 that where such an entry of appearance is made a respondent forfeits the right to question either the jurisdiction being exercised by the court or any error in the the Civil Bill or its issuing. An entry of appearance cannot therefore be forced upon a respondent to hand over to the court the exercise of this jurisdiction.

15.8 Mixing of Ground types must mean that the ground 2(1)f is the foundational ground based upon it being Non Adversarial. So what can the purpose of mixing them be?

16. How Does the Family Founded on Marriage Function As a Moral Insititution With Its Full Authority Intact in the Context of This Non Adversarial Family Law Jurisdiction?

The Family founded on Marriage is acknowledged in the Constitution

"as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law" and "as the necessary basis of social order and as indispensable to the welfare of the Nation and the State."

(from paragraph 8.9 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

This designation arises from the stability and positive benefits that accrue to the Family founded on Marriage. These rely on the Spouses keeping their vows to commit themselves to work jointly for the welfare and interests of the Family as a unit before their own welfare and self-interests. The Spouses promise to make their children their first priority, i.e. love them unconditionally. This is why in Section 6 of the Guardianship of Infants Act, 1964 Spouses are acknowledged as having automatic joint-Guardianship of their children so they can provide for their education and welfare and protect them from undue influences and dangers. (from paragraph 8.10 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

16.2 The Respondent in all Applications on any Grounds is, by Having Made His Appearance, Presumed to be Closed to the Possibility of Reconciliation

The .... Respondent in all applications under the Judicial Separation Act on any of the grounds is presumed to be closed to Reconciliation and to want to be relieved of the duty to co-habit. The presumption on grounds 2(1)a, 2(1)b and 2(1)c is that the Applicant has exhausted all attempts at encouraging the named Respondent to keep their vows and all attempts at asking the named Respondent to Reconcile with them but to no avail. The Applicant is claiming that the named Respondent has refused all their efforts at seeking Reconciliation including the use of qualified Reconciliation services and is determined to no longer be a part of the Family founded on Marriage. (from paragraph 8.11 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

The position of the Applicant in the grounds 2(1)d,2(1)e and 2(1)f is less certain. as in TF the Applicant could be the deserter and closed to Reconciliation and who simply wishes to legitimise the path she has already taken of reneging on her duty to cohabit. (from paragraph 8.12 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

Regardless of the position of the Applicant the presumption in grounds 2(1)d, 2(1)e and 2(1)f is that the .... Respondent is closed to Reconciliation and so also wants to be relieved of the duty to co-habit. In ground 2(1)d the Applicant must have the consent of the .. Respondent. In ground 2(1)e the presumption must be - although not accepted by myself - that the .. Respondent has somehow "slept on their rights' by default after a three year period and therefore have accepted that the Marriage is over. This presumption rests on the ready availability of qualified Reconciliation services and there being useful remedies available to a deserted Spouse that they have chosen not to take up. (from paragraph 8.13 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

16.3 The Court Can Only Act on This Presumption, Arising Out of The Appearance, That the Respondent Is Also Happy to Be Relieved of Their Duty To Cohabit.

Under ground 2(1)f according to TF the court is only concerned with the evidence of the wish of the Applicant to relinquish her duty to co-habit. If this is not to be a violation of Constitutional justice the court must be acting on the presumption that the .. Respondent is happy for the Applicant to be relieved of their duty to co-habit and by deduction it is because they themselves do not wish to be held to their duty. It would be foolish to propose that a Spouse would want to continue with their duty after they have given consent to the other Spouse to be relieved of their duty. (from paragraph 8.14 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

The usefulness of the Judicial Separation Act is limited to those spouses who ultimately wish to be relieved of these vows that they solemnly promised to be faithful to until they died. The Applicant in Judicial Separation might not originally have been looking for such a relief but must have at some time decided to seek to be relieved of their duties because they claim the .. Respondent Spouse obstinately refuses to honour their commitments. (from paragraph 8.15 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

16.4 A Spouse is Never Compelled to Relinquish their Marital Commitments

However there is no obligation on a Spouse to take that route. A Spouse is entitled to never relinquish their commitment that they personally made regardless of the misconduct of the other Spouse and their refusal to Reconcile and can themselves lawfully remain open to Reconciliation indefinitely and never seek to be relieved of their duty by the granting of a Decree of Judicial Separation. (from paragraph 8.16 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

The presumption in Judicial Separation proceedings is that the ....... Respondent Spouse has either, by their actions, relieved themselves albeit unlawfully of their duty to cohabit, or would be happy for the court to so relieve them of their duty. (from paragraph 8.17 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

16.5 The Courts are not there to Police Couples into Separating for the Common Good

This appears to be at odds with the statement made by Hamilton CJ in TF wherein he first states,

"It appears from the judgment of the learned trial Judge that -

the Plaintiff/Appellant recognised that in many cases the common good will require that spouses should be separated notwithstanding the indissoluble bond of marriage between them"

and later repeats this himself where he states,

"However, in many cases the common good will require that spouses should be separated notwithstanding the nature of the indissoluble bond of marriage between them."

(from paragraph 8.18 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

This use of the word "should" raises doubts over its meaning. One possible interpretation here is that the State should be out on patrol examining all Families everywhere to determine those who the State believes should be separated for the Common Good. I don't for a moment accept that a learned Judge of the Supreme Court could have meant such a thing but I do caution against anyone with ulterior motives using that quotation to suggest that the State has the right to interfere in any way with the Constitution and authority of any Family founded on Marriage except where acts of a criminal nature have been claimed. (from paragraph 8.19 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

I submit the only Constitutional interpretation of that statement by the Chief Justice is that where BOTH spouses have asked the court to grant them a Judicial Separation and be relieved of their duties to co-habit, the state should not stand in their way and should offer the use of the courts as a forum for managing - in an orderly way - the proper allocation of the Family assets during the temporary contingency of the separation period. (from paragraph 8.20 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

The forced separation of a Spouse who wishes to continue to honour his committment to the vows he made, ie, the making of orders which can never be justified would be an intolerable and impermissable attack on the Constitutional legal institution of the Irish Family unit founded on marriage. (from paragraph 8.21 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

17. In an Adversarial Moral Jurisdiction The Basis for The Cause of Action which must be Supplied on the Civil Bill by the Plaintiff is the Refusal by the Defendant to Comply With the Duty to Reconcile in response to the Plaintiff seeking this Specific Performance of the Marriage.

The Legal Aid Board would have us believe that [an Application for a Decree of Judicial Separation on] the ground 2(1)f allows the court to implement the Judicial Separation Act in such a way as to violate the[ settled] principles[confirmed in Re Doyle SC 1955]. It claims that a court can make an order granting a Decree of Judicial Separation on ground 2(1)f without reference to the ...... Respondent Spouse. (from paragraph 7.19 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

[In an adversarial jurisdiction] the principle that the court must always apply is whether or not the [Defendant] has misconducted themselves AND if they refuse to Reconcile and take up their duties again. As we have seen it is always open and indeed incumbent on an errant Spouse to Reconcile. It is incumbent on the other Spouse to accept them back. If th[is] Spouse will not accept them back they are themselves then in dereliction of their duty and have no claim against the other Spouse. They could by their refusal leave themselves open to a claim by the [Defendant] Spouse.

b) This process effectivly seeking the specific performance of the marriage contract is consistent with the adversarial jurisdiction prior to the Family Law reforms of 1989. Even more salient is the observation that it was a moral jurisdiction, requiring, as it does, the reconciling of the Defendant to their duties. The standing of the Plaintiff was based upon the premis that they wished to save the marriage and required the assistance of the courts to hold the errant party to the marriage contract. The Cause of Action for the court's involvement as provided for in Rule 4 of Order 70 of the Superior Court Rules in relation to Matrimonial Causes, was established by a letter sent to the errant spouse seeking the specific performance of the marriage contract. Depending upon the answer from the errant spouse refusing to be reconciled or the lack of an answer, this was sufficient to establish the Cause of Action upon which court action could be taken.

In short the court has to know, in all circumstances, that is because the Family is a moral institution, and on all grounds, that the errant spouse is closed to the possibility of Reconciliation.

17.2 The Cause of Action in an Adversarial Moral Jurisdiction would, if proved to the satisfaction of the court, serve to protect the Family and innocent spouse from the ill effects of wrong-doing, including vexatious and frivilous applications being made by a spouse in desertion of their Family duties and responsibilities.

18. In a Non-Adversarial Amoral Jurisdiction The Basis for The Cause of Action which is to be Supplied on the Civil Bill by the Applicant is an averral to the Named Respondent's waiver of Reconciliation Possibilities and requires an echoing of that fact by the Named Respondent making a formal appearance in the matter.

The safeguards built into the 89 Act at Sections 5, 6 and 7 are specifically to ensure - to the satisfaction of the court - that the Applicant has exhausted all avenues of Reconciliation and that the named Respondent has refused all avenues of Reconciliation. (from paragraph 7.20 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

18.2 The problem is that for the exercise of this Non-Adversarial Jurisdiction the Applicant is not required to actively exhaust all avenues but merely given the opportunity to waive them. However, even this opportunity to activate a waiver is denied to the Named Respondent'on the suggestion that a court could make orders in default of their appearance.

18.3 The cause of action for an Application on any ground under this Act (as for any application in an Adversarial & Non Adversarial Jurisdiction ) must allege [on the Civil Bill] facts which if proven would establish this refusal to Reconcile. Without allegations of fact that show the named Respondent has refused all avenues of Reconciliation the application would be vexatious and frivolous, depriving the Named Respondent of any basis to respond.

18.4 Adversarial.

18.5 The cause of action for an Application in an Adversarial case must allege [on the Civil Bill] facts which if proven would establish this refusal to Reconcile.

18.6 Non Adversarial

18.7 The cause of action for an Application on any ground under this Act (as for any application in a Non Adversarial Jurisdiction ) must allege [WHERE] facts which if proven would establish this [refusal? / Waiver?] to Reconcile.

18.8 Without allegations of fact that show the named Respondent has refused / waived all avenues of Reconciliation the application would be vexatious and frivolous, depriving the Named Respondent of any basis to respond.

18.9 So it is either Adversarial and Requires a Cause of Action, with the Civil Bill, showing refusal to reconcile or it is Non Adversarial requiring a Cause of Action based upon respectful opportunity given to the Named Respondent to CONFIRM, by their entry of an appearance, the allegation on or with the Civil Bill in the form of the endorsement of claim, of having waived their opportunity to pursue further Reconciliation possibilites and of their willing involvement in the process seeking a Decree of Judicial Separation.

18.10 This is given effect by complying with Sections 5,6 & 7 of the Act, that is in waiving his right to seeking opportunities of Reconciliation, demonstrated by entering an appearance, and this, if he is represented by a solicitor, to be accompanied by a Certificate showing that he was made fully aware of the alternatives to Judicial Separation. If he has not exercised this waiver by means of his appearance the court cannot have knowledge to the contrary.

18.11 [It is highly indicative, in the absence of any such cause of action being supplied on the Civil Bill by the Applicant, on any of the grounds provided in the Judicial Separations and Family Law Reform Act 1989, that this active step be required of the Named Respondent and must essentially be acknowledged as an expression of his voluntary appearance. In other words this voluntary appearance by the Respondent supplies a cause of action for want of it being supplied by the Applicant. There is no other justification for the Applicant not supplying the Cause of Action in the Civil Bill. If the lack of such a requirement would not be tolerated in an adversarial action, it most certainly cannot be tolerated in a Non Adversarial one. Because it is Non-adversarial it can only be tolerated where the Cause of Action is supplied by the Named Respondent's voluntarily made appearance. (DUPLICATION)]

18.12 This Cause of Action in Non Adversarial Family Law proceedings Acknowledges the Joint Power and Authority of the Spouses

Moreover where the application is on ground 2(1)f and no misconduct is alleged the court fails entirely to have jurisdiction unless it can be shown that the Named Respondent is agreeable to the granting of a Decree of Judicial Separation to the Applicant because [he himself is] closed to Reconciliation and wish[es] to be relieved of the duty to co-habit. (from paragraph 7.21 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

The case that I put to Mr Justice Birmingham was simply that this situation prevailed, the Civil Bill showed no cause of action and [it's] author could not claim that I had given up on my Marriage without perjuring herself. (from paragraph 7.22 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

18.13 In the absence of a cause of action, either on the Civil Bill or by virtue of the Named Respondent not having made an appearance, the court is not entitled to proceed and must strike out the matter.

a) If supplying a Cause of Action is required and sufficient in itself to establish the court's jurisdiction over the issue, adversarial or otherwise, then this might explain why in an Non Adversarial matter this is not and could not be supplied on the Civil Bill but is supplied by the Named Respondent entering an appearance.

19. The Cause of Action in a Non-Adversarial Amoral Jurisdiction does not have the purpose or effect of ensuring the best interests of the the children whose welfare is presumed to lie within the Moral Istitution of the Family Founded on Marraige.

19.1 The principle well established in law that the children's welfare is optimally provided within the married family firmly places upon the legislators and the courts to practically support this principle by, firstly and before all else, assisting the cohesion of the Family in the performance of the duties and responsibilities through which this welfare is provided. Neither the legislators nor the courts can do this without reference to a moral standard in the implementation of the law.

19.2 As this jurisdiction purports not to be based upon either the misconduct of the Respondent or the appropriateness or otherwise of the Applicant's own conduct, it is an amoral one reducing as of no consequence and to the one standard with misconduct, any moral conduct such as attending to familial duties & responsibilites.

19.3 The Cause of Action in a Non-Adversarial Amoral Jurisdiction does not have the purpose or effect of ensuring the best interests of the the children whose welfare is presumed to lie within the Moral Institution of the Family Founded on Marraige but relinquishes the supervision of that Family to the jurisdiction of the court based upon the free-will decision on the part of both spouses, either or both of whom could already be failing the marraige through misconduct, agreeing to legitimize the failure.

19.4 Justice Walls, head of the Family Division in England, has acknowledged that all separations, ie where the court hears that spouses accept that they cannot agree and therefore ask the court/State to make decisions on behalf of the Family in their place, is a failure of parenting and not in the child's best interests.

19.5 As ruling out the possibility of Reconciliation is a personal withdrawal from the most important duty of a spouse to the marriage, then doing so is an acknowledgement of personal failure of duty to the marriage. As it is the same for each spouse, it is necessarily a mutual failure, an acknowledgement of such and a willingness to legitimize that personal failure of the other spouse. This legitimization of the other spouse's failure is not something that can be imposed upon a spouse who does not wish the marriage to fail and who continues themselves to act responsibly and on behalf of the moral institution that is the Family Founded on Marriage.

19.6 The absence of this Cause of Action must mean that by at least one member of the Family not wishing to compromise the Family by failing the marriage and therefore not requiring the supervision of the court, in order simply to provide the best chance of gauranteeing the childrens' welfare, must deny the court this jurisdiction.

20. Recourse to a Remedy for a Deserted spouse is further Removed by the willingness of officers of the court to discount that the court's jurisdiction can only be activated by its compliance with Sections 5 & 6 of the Act. This denies Constitutionality to the administration of the Act.

20.1 Lip service given to all the Sections of the Act providing for Reconciliation possibilities is not in itself an acknowledgement that the Act identifies the point at which the court can exercise its jurisdiction and before which it cannot. This occurs only after both Sections 5 & 6 have been complied with, that is upon entry of appearance by the Named Respondent, without a Section 6 certificate if unrepresented by a solicitor or with a Section 6 Certificate when represented by a solicitor.

Safeguards to ensure respondent's awareness of alternatives to separation proceedings and to assist attempts at reconciliation.

6.(1) A solicitor, if any, acting for a respondent in an application for a decree of judicial separation shall, as soon as possible after receiving instructions from the respondent

(a) discuss with the respondent the possibility of reconciliation and give to him the names and addresses of persons qualified to help effect a reconciliation between parties to a marriage who have become estranged, and

(b) discuss with the respondent the possibility of engaging in mediation to help effect a separation on an agreed basis with an estranged spouse and give to him the names and addresses of persons and organisations qualified to provide a mediation service, and

(c) discuss with the respondent the possibility of effecting a separation by the negotiation and conclusion of a separation deed or written separation agreement.

(2) An Entry of Appearance or a Notice of Intention to Defend an application for judicial separation shall be accompanied by a certificate by the solicitor, if any, acting on behalf of the respondent, that he has complied with the provisions of subsection (1) of this section and where a solicitor does not so certify, the court may adjourn the proceedings for such period as it deems reasonable for the respondent's solicitor to discuss with the respondent the matters referred to in that subsection.

(3) Provision shall be made by rules of court for the certification required for the purposes of this section.

20.2 To the extent that custom and practice ignores or disregards these safeguards then the Act is being operated unlawfully.

21. The Unavailability of Professional Reconciliation Services Denies A Remedy to a deserted Spouse Who is Not Willing to Give Up on the Possibility of Reconciliation and therefore denies Constitutionality to the administration of the Act.

The 1988 Act, which put the remedy of a Decree for the Restitution of Conjugal Rights beyond reach, was passed and presumably relies for the repealing of this remedy to be Constitutional, on the principle that it was unacceptable in modern society to compel a spouse to co-habit with their Husband or Wife and that Reconciliation should be voluntary and not compulsory. (See Law Reform Commission Report 1983, Restitution of Conjugal Rights and Jactitation)

(from paragraph 5.1 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

As a result of the abolition of this remedy to a deserted Spouse the State is under an obligation to provide voluntary Reconciliation Services. This obligation is given statutory recognition in the Judicial Separation legislation at Sections 5, 6 7 and 8 which refer Spouses to qualified Reconciliation services. (from paragraph 5.2 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

This provision of an alternative remedy for abandoned Spouses itself relies on the easy availability of service providers who have been recognised as having the necessary qualification to assist such Spouses and effect a Reconciliation between the Spouses. Sadly I present to this court confirmation from the Department of Social & Family Affairs (now Social Protection!) that there are no such qualified Reconciliation services available in Ireland. Writing on behalf of the Minister the letter concludes by admitting that,

The Department is satisfied that, through the Family Support Agency, an appropriate range of supports and services is being provided to families. There are no plans at present to set up a Reconciliation Service along the lines suggested in your letter

(from paragraph 5.3 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

The provisions in the '89 Act which were designed to act as safeguards and assist an abandoned but faithful Spouse have no effect and this renders the implementation of the Act without such a remedy since 1989 as unsafe. The court does not have discretion to allow the granting of Decrees where the filing of bona fide Certificates in this regard has not been properly complied with. (from paragraph 5.4 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

The finding of the Supreme Court that the Act of '89 is Constitutional in TF relied on the production before the court of two practitioners offering Reconciliation services. The court was led to believe that such services were widely and freely available throughout the country.

In this regard Hamilton C.J. stated,

"In the Act, the Oireachtas has amended and extended the grounds upon which an application for judicial separation may be granted: it has provided that no order will be granted unless the Court is satisfied that provision is made for dependent children: it has provided that the spouses are made aware of the alternatives to judicial separation such as reconciliation, mediation and agreed separation and for the adjournment of proceedings to assist reconciliation and that even after the granting of a decree of separation, application can be made to rescind the decree of separation.

These provisions apply to applications on all the grounds set forth in Section 2(1) of the Act and illustrate the concern of the Oireachtas as expressed in the Act, to safeguard the institution of marriage while at the same time making provisions for the situation created by marriage breakdown."

(from paragraph 5.5 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

22. There is there no remedy available for a deserted Spouse who was the designated income generator for the Family?

A deserted Spouse who, as part of an agreed Family decision, undertook the designated role of generating an income from work outside the home to pay for the household necessities whilst the other Spouse,as part of an agreed Family decision,stayed at home to look after the house and children, no longer has a remedy in law. For the sake of convenience I will call this type of deserted Spouse a Husband. (from paragraph 8.1 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

22.2 Remedy of Restitution of Conjugal Rights Not Available

He can not look for the Specific Performance of the Marriage contract because the action of the Restitution of Conjugal Rights has been abolished and he can no longer compel his deserting Wife to resume her duties at home. (from paragraph 8.2 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

22.3 Judicial Separation is Not a Remedy As A Deserted Spouse Has No Need to be Relieved of his Duty to Cohabit nor to Legitimize the Deserting Applicants Desire To Do So

In TF we are told that a Decree of Judicial Separation has the effect of relieving a Spouse of the duty to co-habit with the other Spouse. Being deserted against his will such a Spouse clearly has no need to be relieved of the duty to co-habit and a Decree of Judicial Separation would serve no purpose for him. However by seeking one himself he is offering the opportunity to the deserting Spouse to legitimise their desertion and indeed to collude with it. (from paragraph 8.8 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

22.4 No Remedy under Maintenance

The Family Law (Maintenance of Spouses and Children) Act, 1976 is skewed in favour of a dependent Spouse and children of a Family founded on Marriage so under this Act a Judge has discretion to permit a deserting wife to be awarded maintenance from the deserted Spouse contrary to the ban on deserters in Ireland .......... from doing so. Such a Wife is also permitted to make a claim for maintenance for the children of the Family although she does not claim for herself because she accepts she is in desertion and so banned from doing so. (from paragraph 8.3 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

b) There is no longer a remedy for the designated income generator as there is for maintenance for the designated non income earner. Men can no longer rely on the Restitution of Conjugal rights exercised in the context where the function of the state is to uphold the Domestic Forum. The lawful position for the state is to ensure there are deterrants in place against any one who threatens the stability of the Family founded on Marriage.

22.5 There are also No Remedies Available under the Guardianship of Infants Acts 1964-97

The deserted Husband also encounters official obstruction if he attempts to bring the children home. Under the Guardianship of Infants Act, 1964 in theory either spouse is entitled to make an application under Section 11 for the court to assist the Family by providing a forum for arbitration between the Spouses as to the lawful residence of the children. (from paragraph 8.4 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

The new form - that was added in 1997 at the amendment of the Guardianship of Infants Act, 1964 by the Children Act, 1997 - which must be used when applying in the District Court introduced for the first time a requirement that the Applicant Spouse provide details to the court of the "residence of the children". When a deserted Spouse attempts to provide the address of the Family Home the courts service officials refuse to accept the application and insist that the address provided is the one where they currently reside, i.e. where the children have been moved to by the deserting Spouse. At the hearing the court then presumes from the application form that the children's residence is settled by the "consent" of the Applicant and "in the best interests of the child" award custody of the children to the Spouse who, the court have been informed by the Applicant, lives with them at "their" address i.e. custody is awarded to the deserting Spouse on the presumption of "consent" and the "status quo" being preserved. (from paragraph 8.5 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

Similarly if the named Respondent makes an Appearance in an application brought by the deserting Spouse who has informed the court on the application form [by inserting where the children are residing] that the children are settled with her, the court will presume that the named Respondent is accepting that this arrangement represents the status quo and will preserve that in its orders. (from paragraph 8.6 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

This ambush that the deserted Spouse is forced into by the use of the biased forms was brought to the attention of the Minister for Justice but he declined to reply or correct the injustice. The form originally used for applications under section 11 when the District Court was first given jurisdiction to hear matters under the Guardianship of Infants Act, 1964 did not ask the Applicant for the residence of the children. It was accepted at that time that their residence would be the Family Home and that the onus would be on a deserter - if they wished to ask for directions on the children's custody - to make a case for why it should change. (from paragraph 8.7 of skeleton legal argument of the 27th July 2010 submitted to the Supreme Court, Case SC/342/2009.)

22.6 To the extent that the state does not support the stability of the Family and its integrity the Judicial Separation Act is unconstitutional. Rather the Judicial Separation Act in its present form and in its operation is unconstitutional and an ambush. The deserted spouse cannot partake of it by being respondent or applicant because he cannot be expected to skin himself by asking to be relieved of the duty to cohabit. If the Restitution of Conjugal Rights still existed one could say that is the vehicle for a deserted spouse and couples who both wanted to separate could use the Judicial Separation Act for the purpose it was designated for, that is, as a substitute for mediation when couples agree to separate but cannot agree the terms.

22.7 On its own and in its present implementation where a deserted spouse, who is unwilling to be relieved of his duty to cohabit, is coerced to the point of being extracted from his Family Home which he never abandoned and to imprisonment, the Judicial Separation Act is not constitutional because it denies the moral framework and remedy necessary to support a spouse who does not wish to give up on his duties and responsibilities to his Family.

Part 2

Lest this court be inclined toward the opinion that the aforemention and following issues sould have been more appropriately argued at another time in another forum, let me advise from the start that the implications which flow from these same issues demonstrate all too clearly that they could never have been appropriately put except by way of criminal complaint to the Garda Sochna as was done on the 5th December 2008 for the attention of Superintendent Walter O'Sullivan.

23. In Ireland on very careful examination it is clear that all our so-called Family laws including the Judicial Separations Act, the Divorce Act, the Maintenance Act and even the Domestic Violence Act do not require any misconduct on the part of the named Respondent. They are all Non Adversarial in Nature

23.1 Clearly Family Law Legislation under the Family Law reforms of the last 50 years does not require the Applicant to specify or claim any misconduct on the part of the Named Respondent. The court similarly is not required by the Legislation to apply any test or make any finding as to whether or not the Respondent has misconducted themselves in any specified way. Wherein the Legislation no specific conduct is required to be claimed by the Applicant, no defence can be made by the named Respondent if they choose to take part and the Legislation only requires the court to concern itself with whether or not it believes the Applicant should have an order and therefore one must presume, that neither the Legislation nor the court is interested in the misconduct of the Respondent.

24. Judgement in Default of Appearance / Defence is Applicable only where a Defence is Possible Against a Claim of Misconduct.

24.1 Even the long title of the Domestic Violence Act 1996 suggests that the Court is interested only in the conduct of the Named Respondent. Where there is an absence of any claim of misconduct it is not intended that a defence be made. Only where a Defence is possible can a JUDGEMENT IN DEFAULT of Defence be lawful.

24.2 Where this is not possible, as in a non-adversarial matter such as this, it requires merely an answer. Being entitled to make an answer but not obliged to do so, a named Respondent who defaults in making a mere answer cannot suffer by a Judgement in Default of Answer being made against them. It is therefore not possible either to make a Judgement in Default of Appearance.

a) This has very important ramifications. Since there is no provision for making a claim of misconduct against a Respondent this would explain the absence of a court form being provided in the rules of court which contains the phrase or concept, the named Respondent not being present or not having made an appearance, in other words the absence of any provision for making a Judgement in Default of an Appearance/Answer.

24.3 As a Judgement in Default of Appearance is only possible where the nature of the case makes it possible to make a Judgement in Default of Defence, orders made contrary to these principles are unlawful and unenforcable.

24.4 However, if no claim of misconduct is required or made and no finding of misconduct is required by the court in order to grant the Applicant what they want, what is the point of being a Named Respondent if there is nothing specified to defend against?

a) Studying the courts jurisdiction for a number of years has uncovered the cheat going on where Spouses are being suckered into giving the court jurisdiction to make orders against them and so supervise their Family.

b) This cheat is built upon the absence of apropriate relief for a deserted spouse under the current legislation, especially one who is the designated provider, and the non transparency of the jurisdiction it operates under.

c) It is made possible not only by the court rule making body who are responsible for administering the use of the legislation in the courts but by the workings of custom and practice among officers of the court who appear to operate as if to be completely devoid of any understanding of the Constitution and Authority of the Family Founded on Marriage as a moral institution whose rights and duties must be protected at all costs for the sake of the children of the marriage, and for the sake of the common good. This is simply making a mockery of the so called Paramouncy Principle to which the court is bound.

25. The Court Gets its Authority to Exercise This Amoral Jurisdiction from the Participation of the spouses.

25.1 It is clear that the courts have been operating an invented secular Amoral jurisdiction. Whereas a Court gets its Moral Jurisdiction solely from facilitating a Plaintiff who has standing because their claim against the Defendant is authentic, where no such claim can be made between an Applicant and Respondent the proceedings are clearly non-adversarial.

a) It is simply by having both Spouses/parties present in court! These proceedings are more administrative than strictly judicial. They are in effect Schemes with a twist. For the Court to get its authority to operate these schemes lawfully it requires the acquiescense of both spouses. The presumption is that the application is a Family Decision, in that it carries the joint power and authority of the Family, i.e. the consent of the Husband to the Wifes application or the consent of the Wife to the Husbands application.

25.2 In order to perform their God-given Natural law duties Spouses of Families must be allowed to exercise these inalienable rights.

a) The Court needs this because, being an amoral Non Adversarial jurisdiction it can not make a judgement in default of Appearance/Defence. This jurisdiction actually interferes, where the state cannot, with the fundamental right of a Family to make decisions. These rights flow from the duties that a Husband and Wife take on themselves when they marry. In order to perform these God-given Natural law duties they must be allowed to exercise these inalienable rights. Any prevention by the State in doing so is repugnant to the Constitution.

25.3 The courts only have jurisdiction to implement the law morally.

a) It is important to understand that a Constitution merely acknowledges the Law, God-given natural Law, and thereby imposes severe limits on what any mere secular government might do to impose their will over Gods. For statute to be lawful it must not in any way be repugnant to the Constitution. The Constitution is prima facie Christian teaching and therefore wholly moral. The Constitution mandates therefore that the courts only have jurisdiction to implement the law morally i.e. in accordance with Christian teaching.

25.4 The court can morally grant judgement to a Plaintiff in default of a Defendant making a Defence

a) Where the jurisdiction allowed by the Constitution must be moral it applies only to adversarial matters, i.e. the plaintiff claims a wrong-doing by the defendant and asks the court to remedy the wrong. Clearly this is moral. Where the Defendant fails to make a defence and the claim is verified to its satisfaction the court can morally grant judgement to the Plaintiff in default of the Defendant making a Defence (and Appearance) as justice requires that a transgressor must not benefit and refusing to take part would be seen to benefit the Defendant if the Plaintiff was not successful.

26. In Order To Contrive Participation a FRAUD has been effected by the creation and passing into law in Ireland of a whole body of so-called Family Law which is non-adversarial and amoral but is being unlawfully administered and enforced as if it were adversarial and moral.

26.1 The Officers of the court, by various means, collude to trick the Named Respondent into believing that proceedings are adversarial, requiring an Appearance and Defence and therefore Permitting a Judgement in Dafault of Appearance/ Defence.

a) In the scheme under which this non-adversarial, amoral jurisdiction is being exercised the Applicant is claiming a benefit that the legislation confers on both spouses, if certain conditions are met. Clearly this type of proceedings does not allow for the court to make a moral judgement against the named Respondent if he fails to appear as he is not accused of any wrongdoing.

b) You may ask what is the purpose of such proceedings if there is no likelihood of success for the Applicant because the named Respondent is under no compunction to take part. This is where the solicitors and the court collude to trick the named Respondent into believing that the proceedings are adversarial and moral.

c) The Family Law solicitors letters preceding the serving of a Civil Bill issued under the invented, secular, non-adversarial and amoral jurisdiction, although addressed to a Respondent and referring to their client as the Applicant contain wild and inflammatory allegations by their client of wrongdoing on the part of the Named Respondent. Even though the proceedings are not derived from the Constitutional moral jurisdiction but from the invented secular non-adv