You are on page 1of 47

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
1

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

5.

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.

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
6

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.)

10.

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.)

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 NonAdversarial.
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.

10

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 courts1.
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

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.

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.

14.

....[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.2 (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.)

The Adversarial Jurisdiction


14.1 An adversarial court case is one where the application is from a person referred to as
the Plaintiff - 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

11

May need to elaborate on these assertions by linking them with events. Outline my efforts and question why I
should need to anything, even less to take Judicial Reviews when crimes have been committed?

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

12

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 cohabit. 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 it shall no


longer be obligatory for the spouses who were the parties to 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 an application


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 of a 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
13

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.
Safeguards3 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
3

14

See page 17 & 28

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.4
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?5
16.

15

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

See Section 3 of Skeleton Legal Argument in Case SC/342/2009 held on 27th July 2010: (3) To be Constitutional
The unique wording of the 2(1)f provision Requires the Respondent's Consent to an Examination of the Marital
Relationship.
See Sections 4 & 9 of Skeleton Legal Argument in Case SC/342/2009 held on 27th July 2010: (4) The grounds for a
decree of Judicial Separation must be read harmoniously in respect of consent and time.(9) The court is acting in
excess of jurisdiction in granting an Order for a Decree of Judicial Separation in Default of appearance on the
ground of 2(1)f.

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.6 (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.

16

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.)

So how does the Judicial Separations Act acknowledge this key principles of the Family dynamic contained in the
Constitution and in statute?

16.4

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.)

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

17

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.)

17.

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.)

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
18

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
19

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.7
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

20

Move UP

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.8
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.
Safeguards9 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

8
9

21

Hypocracy of Family Law Orders made before the welfare considerations of children.
See pages 10 & 28

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.

22

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,

22.

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.10 (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."11

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

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

10
11

23

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

This needs explaining for the ordinary punter.


The point iw weakly made; it requires further coment.

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

22.4

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.)

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

24

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.12
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.
12

25

Dont believe I can concede that Non-adversarial Judicial Separation protects the children.

26

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.

27

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 nonadversarial.
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, Godgiven 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
28

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 nonadversarial 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-adversarial amoral jurisdiction
the named Respondent is persuaded by the trick of association into believing that the
proceedings are adversarial and the court can make a judgement against them if they
dont take part.
d) Men are called to act honourably not always successfully and so this trick
triggers their need to show the courts that these claims are wrong and so clear their
reputation and restore their honour. One of the most evil aspects of this trick is in the
Form used to initiate the proceedings.
e) Where it involves a Civil Bill it is almost always of the wrong form, i.e. the Form 2N
is one that should only be used for adversarial proceedings as it contains a statement
requiring a Defence from the Named Respondent and the threat of a judgement
in default of Appearance/Defence and gives legal advice that the Named
Respondent should engage a solicitor to defend himself. (More on this later)
f) If, as happens in 99.9% of the time the Named Respondent is ignorant of the law
(why shouldnt they be their job after all is primarily to be a Husband and care for,
educate and protect their children and Family), the court rules actually allow for this
cheat to be done. They state that any such errors in the Civil Bill are cleansed
by the making of an appearance by the Named Respondent in the proceedings. His
solicitor therefore will make an appearance his utmost priority so as to get his

29

colleague off the hook and will not advise his client of what has happened and its
implications. Nor will he advise his client that if he does not wish to avail of the
scheme he doesnt have to take part and can ignore it or seek to have it struck out.
He would, rather than turn away work and money, not do the right thing.
27.

The Basis of The Criminal Fraud Is Contained in the Rules


27.1 Solicitors are on record claiming that Order 59 of the Circuit Court Rules (Rule
4(10)) allows for judgement in default of Appearance in applications under the Family
Law (Divorce) Act and Judicial Separation Act. (see p29 of transcript in 2009/774/JR)
This is a lie and a cheat.
27.2 The game is to frighten people with the shock of the menacing Form 2N and to fool
them into thinking they must make an Appearance in court or else the court will make
a judgement in default of Appearance if they do not do so. This is no less than a lie
and a criminal fraud.
a) Extract from Form 2N as follows:

"You are hereby required within ten days after the service of this Civil Bill upon
you to enter or cause to be entered with the County Registrar, at his Office at
., an Appearance to answer the claim of
. of ., the Plaintiff
herein.
And take notice that unless you do enter an Appearance, you will be held to have
admitted the said claim, and the Plaintiff may proceed therein and judgment may
be given against you in your absence without further notice.

FORM 2N (continued)

And further take notice that, if you intend to defend the proceeding on any
grounds, you must not only enter an Appearance, but also, within ten days after
Appearance, deliver a statement in writing showing the nature and grounds of
your Defence.

27.3 The Circuit Court Rules Committee is rightly very precise in outlining the source of
its authority and power to ammend the Rules of the Circuit Court

30

CIRCUIT COURT RULES, 2001.Family Law Order 59


Circuit Court Rules
Order: 59

Family law :S.I. No. 312 Of 2007: Circuit Court Rules (General) 2007

We, the Circuit Court Rules Committee, constituted pursuant to the provisions of
section 69 of the Courts of Justice Act, 1936, and section 12 of the Courts of
Justice Act, 1947, by virtue of the powers conferred on us by section 66 of the
Courts of Justice Act, 1924, and section 70 of the Courts of Justice Act, 1936, (as
applied by section 48 of the Courts (Supplemental Provisions) Act, 1961) and
section 27 of the Courts (Supplemental Provisions) Act, 1961, and of all other
powers enabling us in this behalf, do hereby, with the concurrence of the
Minister for Justice, Equality and Law Reform, make the annexed Rules of
Court.
Dated this 11th day of July, 2005

(Signed): Matthew Deery


(Chairman of the Circuit Court Rules Committee)

Gerard J. Doherty
Noel Rubotham
Susan Ryan (Secretary)

I concur in the making of the above Rules of Court.


Dated this 23rd day of August, 2005
Signed: Michael Mc Dowell.
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

b) Simiilarly, Each Rule is given its unique number and title


c) The standard pattern is that to make an application under a named section of an Act
or Order, a Form of a given identity number is assigned. These law sections are all
Adversarial where it is rightly expected that a Defence should be made.

2001 508 S.I. No. 510 of 2001.CIRCUIT COURT RULES, 2001, ORDER 59
FAMILY LAW

Rule 1 Appointment of registered father as guardian

At no. 4:

All applications made pursuant to section 6A of the Guardianship of Infants


Act, 1964 shall be brought in accordance with Form 37E of the Schedule of
Forms annexed

Rule 2 Declaration of Parentage:

At no. 3

Every Family Law Civil Bill containing an application made pursuant to


Section 35 of the Status of Children Act, 1987, shall be brought in accordance
with Form 2N of the Schedule of Forms

At no. 11

Any declaration made under this Order shall be made in Form 37G of the
Schedule of Forms

Rule 3 Blood Tests where Parentage is in Issue:

At no.4

Every direction under section 38 (1) shall be in Form 371 of the Schedule of
Forms annexed

d) However, looking carefully further down on the list the next Rule is Rule 4 There
is no Title! Also in Rule 4 there are further exercises in vagueness when referring to
the following 'Non Adversarial' Acts:

31

1. In this Order the 1996 Act means the Family Law (Divorce) Act, 1996 (No.
33 of 1996) and

the 1995 Act means the Family Law Act, 1995 (No. 26 of 1995)

and the 1989 Act means the Judicial Separation and Family Law Reform
Act, 1989 (No. 6 of 1989)

i.e., unlike above "the 1996 Act" is 'shorthand' for...such & such, Specific
Section of such & such Specific Act.

e) Further on at 3a of Rule 4 instead of spelling out in the required specific pattern and
terms as shown above, catch-all words such as divorce and judicial separation
are now being used. Similarly note the vagueness of the references to the 1964 the
1997 and the two 1976 Acts, yet when the adversarial sections of Acts are mentioned
they are very specific as to the relevant sections.

Commencement
3. (a) All proceedings for divorce, judicial separation, relief after foreign divorce
or separation outside the State, nullity, declarations of marital status, the
determination of property issues between spouses pursuant to section 36 of the
1995 Act/formerly engaged couples pursuant to section 44 of the 1996 Act, relief
pursuant to section 25 of the 1995 Act, section 18 of the 1996 or section 15A of
the 1995 Act, relief pursuant to the 1964 Act, relief pursuant to the 1997 Act,
relief pursuant to the 1976 Act or relief pursuant to the Second 1976 Act under
this Order shall be instituted by the issuing out of the office of the County
Registrar for the appropriate county of the appropriate Family Law Civil Bill in
accordance with Form 2N of the Schedule of Forms annexed hereto with

f) It can hardly be that this precision is no longer necessary because they are non
adversarial. Rather it is because none of these non-adversarial acts provide
within them sections, as do the other acts, which accommodate the making of
Judgments in Default of Appearance/Defence. The one act that possibly contains
both jurisdictions, the 1996 Act has already had its references fudged into specific
(Sections 18 & 44) and non specific (Divorce). In other words this is nothing short
of a cheat.
g) Apparently, the Applicant is required to use just one form, the 2N form, for any of
these vague non-specific law titles mentioned, as well as the list of specific
adversarial ones. The Form 2N circulated is appropriate only to adversarial issues
where a defence is required and entirely not appropropriate for use in a nonadversarial matter where a non-participating party cannot even be imposed upon to
give an answer in a scheme intended to be provided, as the Department of Justice
website and other official authorities maintain,

for couples who wish to separate but who are unable to agree the terms.

27.4 At 10 of Rule 4 it is clear that the application for Judicial Separation or Divorce is
being treated adversarially by referring to the need for a defence with the corollory
requirement for a Judgement in Default of Defence.
27.5 This fraud is now clearly exposed for what it is As Criminal and designed to cover
over the fact that the Judicial Separations and Family Law Reform Act 1989 which is
non-adversarial in nature does not, for the purpose of initiating proceedings, give effect
to the use of this type of form used in adversarial matters.
27.6 Section 26 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 is very
informative:

32

Using false instrument.


26.(1) A person who uses an instrument which is, and which he or she knows
or believes to be, a false instrument, with the intention of inducing another
person to accept it as genuine and, by reason of so accepting it, to do some act,

or to make some omission, or to provide some service, to the prejudice of that


person or any other person is guilty of an offence.
(2) A person guilty of an offence under this section is liable on conviction on
indictment to a fine or imprisonment for a term not exceeding 10 years or both.
27.7
a) It hardly justifies any excuse of oversight on the part of the Rules Committee
following on from the repeal of Divorce Mensa et Thoro and the Common Law
action for the Resititution of Conjugal Rights at the end of the '80s and the moral
jurisdiction that went with it for (1) acknowledging the Non Adversarial Jurisdiction
effected by replacing Order 70 of the Superior Courts, including the use of rule 4,
with Order 70A while (2) failing to withdraw the 2N Form from usage and while (3)
obfuscating the distinctions between Adversarial and Non Adversarial practices by
the vagueness of the rules of Court as outlined above Order 59 of the Circuit Court
rules.
On the other hand the introduction of Order 70A of the Superior Court Rules for
Non Adversarial Family Law matters which dropped from usage the procedure to
establish the Cause of Action for the adversarial Matrimonial Causes and
Matters provided for in Rule 4 of Order 70 demonstrates the clarity of intention
which the Rules of the Superior Court have managed to apply to these matters.
4. In cases where the petitioner is seeking a decree of nullity of marriage, or of
divorce a mensa et thoro, the petitioner's affidavit filed with his or her petition,
shall further state that no collusion or connivance exists between the petitioner
and the other party to the marriage or alleged marriage, and in cases where the
petitioner is seeking a decree for restitution of conjugal rights the affidavit filed
with the petition, shall further state sufficient facts to show that a written demand
for cohabitation and restitution of conjugal rights has been made by the
petitioner upon the party to be cited, and that after a reasonable opportunity for
compliance therewith, such cohabitation and restitution of conjugal rights has
been withheld.
Were Judicial Separation proceedings adversarial, the inclusion of this rule
establishing a cause of action demonstrating that the plaintiff transparently
provides the Defendant with the opportunities necessary to reconcile, appears
to have the only potential to make such proceedings constitutionally consistent
with the courts pledge to protect the moral institution that is marriage. The
absence of this step as a prerequisite in engaging the Defendant in adversarial
proceedings, if that is what they were, would render them grossly unjust. The
key to this is that the Defendant is provided all fairness to choose correctly
before being imposed upon to take part.
No such opportunity to act morally is put to the Respondent in non adversarial
proceedings, therefore no jurisdiction exists for the court to act on any other basis
than his consent, freely given, to take part. Judicial Separation proceedings
require him to enter an Appearance and if represented by a solicitor that
Appearance to be accompanied by a Section 6(2) Certificate as provided for in
the Judicial Separations and Family Law Reform Act 1989:

33

Safeguards13 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.
Surely the meaning of this section is that the Respondent must be given every
respect and opportunity to take the necessary positive step to rule out his default
position of non participation in the offer of a scheme proposing to relieve him of
the duty to cohabit with his spouse. Only the ruling out of the possibility of
Reconciliation can change that defualt position.
b) It appears rather to have had the more sinister intention of hiding the ending of
the Moral Adversarial jurisdiction from view while administering an Amoral
Non-Adversarial jurisdiction as if it were, conveniently and merely selectively
so, a moral Adversrial one. Its sinister and subversive effect has been all too
apparent in the devastation inflicted upon so many unwitting Married Families as a
result. I refer you to my Affidavit (dated / / ) which outlines just how this fraud
was carried out.
28.

Fraud using District Court Forms


28.1
There are no Forms available to the District Court permitting the making of orders
in Family Law in default of a Named Respondent's appearance.
a) The District Court Rules in the Schedules section specify the Forms that must be
used to give Notice for applications and grant Orders under the respective Acts.

13

34

See pages 10 & 17

(i) Guardianship of Infants Act, 1964


(ii) Family Law (Maintenance of Spouses and Children) Act 1976
(iii) Child Care Act, 1991
(iv) Domestic Violence Act, 1996
Similarly,were it possible to do so, the District Court Rules would have to specify for
the above Acts the circumstances where a judgement in default of
Appearance/Defence can be made. They do not do so.
b) For none of the acts above is there a form which contains the phrase or concept,
the named Respondent not being present or not having made an appearance.
Furthermore, there is no District Court form which states on its face that the Court is
making a judgement in default of Appearance. All Orders must always denote
whether or not the named Respondent participated.14
c) As there are no forms in these Acts which provide for an order being made whilst
denoting the Non-Appearance of the named Respondent nor for a judgement in
default of Appearance this confirms that no such order where the named
Respondent did not make an Appearance is lawful and all such Orders made where
the named Respondent declined to make an Appearance are, prima facie, invalid.
d) The refusal to admit that this is the case results in the making, even in the Circuit
Court, of orders in the absence of a named Respondent yet still containing the words
on the form in the presence of the Respondent or the Respondent being present
as was the case in the herein impugned Barring Order made on the 31st July, 2009.
e) These orders are in fact frauds and Solicitors and Judges participating in and/or
orchestrating the persecution or prosecution of a Father/Husband using this
process are guilty of the crime of fraud. I refer specifically to the Affidavit dated
..../......./.....accompanying this submission for specific detail in this regard; to the use
by the Law Centre Kilkenny of the Civil Bill dated
/
/
/ in the From
2N, to the two motions dated......./......../....and ../..../......... threatening with the
connivance of the Circuit Registrar Mary Enwright to enter Judgement in Default of
Appearance, to producing an Order which fails to make reference to any such
Default of Appearance and is thus on its face untrue and invalid,to further efforts at
ambusing the Named Respondent to make an appearance in the form of an Appeal,
to the harassment that resulted from these false instruments, to the criminal
complaint dated 5th December 2008 made to Garda Superintendent Walter O'Sullivan
of Kilkenny Garda Station, and to my false imprisonment and continued restriction
to my liberty that continues to this day as a result of these false instruments.

Part III
29.

This part will outline the three pillars upon which the Domestic Violence Legislation stands
or falls: in essence it concerns the willing acceptance, by both parties, of an amoral
jurisdiction in place of a moral one with a view to the court providing a contingency for the
Family to facilitate a remedy
29.1
The only intent with which any Family Law jurisdiction can be implemented is for
the Better Functioning and Continuance of the Family Founded on Marriage. This has

14

35

IS THIS ACTUALLY TRUE?

to rely on the presumption that the best opportunities for the provision to the children of
their welfare interests lie within the Family unit. The Paramouncy Principle, that the
court must have a view to the childrens' welfare being of paramount importance, is of no
effect if this underlying principle is overlooked or placed into second place behind
providing a relief in an amoral jurisdiction to parents submitting their Family to the
states supervision.15
29.2
The proper relief, for the Family, can only be gauranteed by using a Moral
Jurisdiction capable of establishing a finding upon a robust burden of proof of
wrongdoing where the cause of action is provided by a spouse seeking to protect and
uphold the Family and using the process as a contingency having remedial intent.
29.3
Where this Moral Jurisdiction is substituted by a Non Adversarial Jurisdiction, as
under the Family Law Reforms of the last fifty years, in which the legislation requires
the court only to have a care to the Respondent's conduct, not misconduct, and with
no mention of the Applicant's, even where this involves the commital of a Crime such as
the threat of violence, the proposed cause of action has to be supplied by the
Respondent's appearance willingly acknowledging the need, for the sake of the Family
as outlined above, to handle the issue in a Family Law Court, rather than under a
criminal jurisdiction.
29.4
The balancing of these three pillars is essential to progressing any Family Law
action but, in its nature, it seriously compromises any consideration of the childrens' best
interests being of paramount concern lacking as it does a moral jurisdiction to measure
the failure of either spouse including the failure implicit in accepting an amoral
supervision.
30.

Enforcement is Not Possible Where There is No Appearance in an Amoral Non


Adversarial Matter
30.1
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.
30.2
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 finding of fault can be claimed by the
Applicant or made by the court because the Legislation does not require it,) no order can
rightly be made and no enforcement can be entered into by the state.
30.3
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 both 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

15

36

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.

absence of the necessary appearance being made to give the court jurisdiction, nothing
could justify the courts attempting to enforce it.
31.

As stated previously at paragraph 13 herein, the Cause of Action of joint participation


used to activate the Non-Adversarial Amoral Jurisdiction invoked in Family Law
proceedings does not have the purpose or effect of ensuring the best interests of the
children whose welfare is presumed to lie within the Moral Institution of the Family
Founded on Marraige.
31.1
Obviously, any responsible parent would be failing if they were to submit their
Family and children to the Court's supervision in the absence of a moral compass. The
court must be impressed that the paramouncy of the childrens' welfare can only be
secured by upholding the integrity of the Family unit against the wishes of either parent
who would alienate that responsibility by seeking to have the Family subjected to an
amoral supervision. Failing that, the coercive imposition of this amoral jurisdiction can
only be viewed as a cynical effort by the state to seek parental cooperation in failing the
children.

32.

Criminal Enforcement Where it is Not Possible to Make Findings of Criminal


Behaviour Makes a Nonsense of The Rights of Parents Protected by the Constitution to
Carry Out Their Duties and Responsibilities.
32.1
The performance of these duties and responsibilities which at no time were ever
relinquished or alienated could, in the normal course of events, never be considered
criminal in nature but instead necessary according to the fundamental requirements of
duty to the Family. One such duty is protected by the right to educate in ones own home
as expressed in Article 42.2. To suggest that the Domestic Violence Act, a Private Law
Act, in the exercise of its amoral jurisdiction has the power to make the performance of
these duties and responsibilities an offence brings its effect firmly into the immoral
sphere.
32.2
Wherein the original proceedings no misconduct on the part of either the Applicant
or the Respondent is permitted to be of issue, they are amoral and non-adversarial in
nature, and where a Named Respondent is not obliged to take part or to proffer the
required answer, one must therefore question how this amoral jurisdiction operated in
such a Private Law Act can be legitimately enforced in a Public Law action.
32.3
Only the exercise of a proper moral standard is appropriate to the task before the
court of considering before all else and as of paramount importance the children's
welfare. It can only achieve this by assisting the continuance and functioning of the
Family Founded on Marriage. This remedial effect for the Family must always be the
primary justification for the use of any Family Law Act. However, it is offended at
every stage of any Family Law action by the imposition of the useless non adversarial
jurisdiction, by the fraudulent use of the Form 2N in the Civil Bill as if it were
adversarial, ending in the immoral criminalization of those very functions a head of a
Family is required to perform in order to protect, maintain, educate and nurture their
charge.

33.

The Domestic Violence 1996 Act Does Not and Cannot Have a Remedial Purpose
33.1
To consider the operation of the Domestic Violence Act 1996 as anything other
than assisting a Family to continue to function as a unit by the use of such contingency
measures as Safety or Barring orders in the face of a crime of violence, the threat of
violence or a series of misconducts perpetrated by the Respondent in the household is to
deny to the Act or its enforcement the remedial standard required of it in order to be

37

considered constitutional. This was the standard required of the '81 Act, by the Supreme
Court in the O'B v O'B case of 1985. The absence of a remedial character denies to the
Act its justification as providing to a Family Founded on Marriage, by virtue of being
one, a relief different to the remedy available to others, that is, by way of the criminal
code. It is, devoid of such remedial intentions, an unjustified level of intrusion into the
privacy of the Family and a direct and impermissable attack upon its constitution and
authority.
33.2
The moral jurisdiction which lay behind this reading of the '81 Act and which made
it possible to uphold a standard required to protect the Family unit, is not only absent in
the '96 Act, it appears to be positively affronted by the impossibility of a finding that a
criminal act or a series of misconducts were committed in the first place. It is further
affronted by its indifference to the possible misconduct of the Applicant or to their
disposition to promoting the continuation of the Family unit. In this it is similar to the
Judicial Separations Act which permits a deserting or otherwise failing spouse to
legitimize their failure by means of such applications.
33.3
It is pointless to suggest that a Respondent may make a cross application when no
moral judgement on the parties' actions is appropriate.
33.4
Even if the parties were to acknowledge the need to seek remedial effect from the
Domestic Violence Legislation by their joint appearance it is difficult to see, in the
context of its insubstantial moral foundation, that a remedial approach can be either
appropriately applied or is sustainable.
33.5
At the very least the need for remedial use of the Domestic Violence legislation,
whether or not in the context of a crime in the first instance, would have had to have
been invoked by the appearance of the Respondent in the proceedings in the first
instance. The absence of a remedial approach renders an appearance by the Respondent
to be of no purpose and with nothing to achieve from it. Where it to have been
uniquivically remedial, put in place as an alternative to a criminal action, an appearance
that is voluntary would still be required.
33.6
It falls between stools on the conduct / misconduct issue. Where there is recourse
to an alternative to voluntary participation where a crime has been commited in the first
instance, in the event of some apparent misconduct short of a crime there appears to be
no alternative recourse to moral remedy to not taking part in these non-adversarial
proceedings.
33.7
No misconduct can be proved; no misconduct is required; it is an amoral
jurisdiction; it is non-adversarial; how does the state get over the obstacle of voluntary
participation?
33.8
Thus in the inevitable scramble to ambush the named Respondent to make an
appearance solicitors have unfortunately completely lost sight of any remedial
justification for using the Act. They are of course not encouraged to act adroitly simply
because of the absence of the necessity to establish misconduct. If no misconduct is to
be established as it cannot be within this amoral jurisdiction, then logically there is no
place to apply a moral remedy.
33.9
More importantly, this holds true also where there is no basis in the legislation for
establishing the standing of the Applicant based upon their own conduct and moral
disposition to seek a remedial solution. This is the very hinge upon which the whole of
Family Law Reforms since 1989 falls, especially the Judicial Separations and Family
Law Reform Act 1989, which nominally is an act to promote Reconciliation between
estranged spouses, -and the Domestic Violence Act 1996.

38

Part IV
34.

Non compliance With Article 6 of the ECHR


34.1 From the outset where I had been brought to this court under arrest I asked that I be
provided with details which specify clearly the specific nature of the offence of which I
am accused and to explain under what piece of legislation I am being tried for a
criminal offence.
34.2 Article 6(3)a of the European Convention of Human Rights (ECHR) reads as
follows:
6(3) Everyone charged with a criminal offence has the following minimum
rights:
(a) to be informed promptly, in a language which he understands and in detail,
of the nature and cause of the accusation against him;
34.3 Article 6 of the ECHR which was enacted into Irish Law in 2003 safeguards my
right to be considered innocent and to only have to defend myself where there is a
prosecution against me which has provided me in good time with the specific details of
the reasons for any arrest and of the specific law under which I was arrested and am to
be tried for a criminal offence with the penalty of imprisonment.
34.4 At the first hearing on the 27th September 2011 when I required that information to
be given to me, Mr. Justice Anderson claimed that he was not going to do so and did
not do so and claimed that his only purpose at that hearing was to see if I wished to be
provided with legal aid and with bail.
34.5 The Garda Inspector on behalf of the DPP objected to bail without satisfying my
rights under Article 6 and this court remanded me into Cloverhill Prison for 6 days.
34.6 At the second hearing in this court on the 3rd October when I was brought back
under arrest I repeated the request for the information I was entitled to under Article 6
of the European Convention of Human Rights. At this hearing the Inspector said he
was not yet in a position to present the case and I was forced to sign a bail bond on
pain of being imprisoned for two weeks if I did not, and where my personal integrity
was to be impugned by a concurrent order that psychological assessment be carried out
whilst in detention. Again I was not provided with the details as required by Article 6
of the European Convention of Human Rights and this court informed me that those
details would be provided me in the form of Disclosure before being required to
attend on the 18th October 2011..
34.7 Article 6 of the European Convention of Human Rights is clear that there is no case
to answer until its requirements regarding the detail that must be provided is provided
to the accused person for without it they are bereft of a defence. I had stated on the
two previous occassions before the District Court in Kilkenny that there is no case to
answer and stated again on the 18th October 2011, that there was still no case to answer
because the requirements of the state as required by Article 6 had still not been met and

39

I demanded that I be released immediately upon a finding that the Inspector on behalf
of the DPP had failed to comply with Article 6 of the European Convention of Human
Rights and had no right to try me and I must be released forthwith.
34.8 I then sought to set out in detail the evidence to support my contention before
accepting that I had to plead or make a defence.
35.

Arrest & Charging16


35.1 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.
35.2 Sections 17 & 18 state as follows
Offences.
17.(1) A respondent who
(a) contravenes a safety order, a barring order, an interim barring order or a
protection order, or

16

40

(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.

(2) 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

Normal conditions of arrest may be appropriate to outline here.

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

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 firstmentioned person to be.

35.3 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 merely 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.
a) Were the proceedings Adversarial in nature, in order to have a Defendant, who in Criminal
Law has no choice but to attend, to be so treated as a non Family member by means of a
Barring Order, would require in the first place the provision of those proofs of the Defendant's
commission of a crime, (or in Public Civil Law some form of misconduct) and of the
Plaintiff's standing as the sole remaining legitimate representative of the Family's interests
seeking that relief to be properly and morally established. (see 20 below)17
b) Someone who is merely a Named Respondent who declines to enter an appearance in a
Non Adversarial matter operated in an amoral jurisdiction, as in Domestic Violence and
Judicial Separation proceedings, is not compromised into accepting that their status within the
Family has somehow diminished and is therefore not compromised into accepting that the
performance of duties required of them as a spouse is prescribed in any way.18
c) If someone other than either head of a Married Family were to attend at the Family home this
could have molestation or harassment implications for a member of the Family who objected to
it. Likewise where a Respondent, by taking part in Non Adversarial proceedings, accepts the
need for a Barring Order application in the first place, that is accepting that the good of the
Family may require his temporary exclusion, the need for the enforcement of the resulting
order would place the Respondent in a similar position to a non Family member. The
performance of an act normally required of a Family member could, because of some such
context, be construed as being done by a non Family member.
17

18

41

There appears not to be enough background information established in the argument in order to make this point
now. Presexisting Required Tags: Adversarial, Standing, Moral, Appearance, Named Respondent, Crime. It
points forward to Misconduct not required by Legislation.
Others are like to try to argue that Judicial Separation Proceedings do not involve such a compromise. The use of
Domestic Violence proceedings in this way shows that they believe it can.

35.4 Section 17(1) specifies two distinct and separate offences. At no time has anyone,
the DPP or this court specified which subsection of Section 17(1) I am alleged to have
breached leaving no defence possible and therefore no prosecution can take place.
36.

No Crime Was Complained Of


36.1 Without being told on the charge sheet under which of the Subsections of Section
18 I was arrested without warrant, the arrest was invalid.
36.2 If it were under Subsection 18(1)a this part claims that arrest can only be done on
complaint by the Applicant. In the disclosures provided there is no mention by
anyone, neither Mrs. Lyons nor Garda Duggan, of any specific complaint. She did not
make any complaint of any criminal wrongdoing which is exactly what she is required
to do under Section 17 of the Domestic Violence Act. The existence of a Barring Order
is irrelevant to any complaint of wrongdoing. It can only be relevant as to the present
status of an otherwise known Family Member.
36.3 Where it is claimed a Barring Order is required for a complaint to be made under
Section 17(1)a, two things may be said
a) Her statement of material facts necessary to make a complaint of a breach of the
Barring Order are incomplete.
b) As the Barring Order will be found to be unenforcable its existence is again
irrelevant to any complaint of wrongdoing.
36.4 Also 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 do
so.

37.

Contravention of a Barring Order Requires the Committal of a Crime


37.1 Contravention is where the complainant is complaining of a criminal offence. She
cannot claim anything other than an inconvenience if not a criminal complaint.(see
above At )19 Both my wife and Garda Duggan attempted to make a complaint of a
contravention of a Barring Order. If it shall be a contravention of a Barring Order
where the applicant makes a complaint against the Respondent it has to be a criminal
complaint. A complainant cannot phone the Garda and complain of a contravention of
a Barring Order; it has to be a criminal act in itself. The legislation in the first instance
is for the use of a spouse who has the ability to bring a criminal complaint against their
spouse but chooses not to. The court must be interested in the nature of the crime.
There is no evidence of any crime being alleged.

38.

The Barring Order is on its Face Void For Want of Jurisdiction


38.1 According to the Judicial Separations Act 1989 Section 16(e) a Barring Order can
be granted under Section 3 of the Domestic Violence Act 1996. It states:
Miscellaneous ancillary orders.
16.On granting a decree of judicial separation or at any time thereafter, the
court may, on application to it by either spouse, make any one or more of the

19

42

Molestation or Harrassment by a Persona Non Grata.


38.2

following orders:
(e) an order under section 2 or 3 of the Family Law (Protection of Spouses and
Children) Act, 1981 ;

The Domestic Violence Legislation states at Seetion 3(2):


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.

38.3 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,
In the absence of this in the body of the impugned Barring Order made on the 31st July 2009 it is
on its face void.
39.

43

The Application for the Barring Order Never Reached, and could never reach the
Required standard for the exercise of this Jurisidiction as it could never be satisfied
in circumstances where the Respondent was in Custody.
39.1 As in such circumstances the court could never intend to satisfy this jurisdiction
and since it could only be that it intended otherwise both the alleged Barring Order
and the alleged Production Warrants issued to facilitate the making of its application
were fraudulently made.
39.2 The court had to contrive an appearance in this Family Law matter where (1) both it
the court and the Applicant were aware that the Named Respondent did not wish to
make an appearance as is his right not to and (2) where it was not entitled to cause the
Governor of the prison to produce in court an accused held in custody for any other
reason than the outstanding business of the court in the matter of contempt proceedings
or for the purpose of another criminal prosecution. In fact in the Order of Committal
made on 2nd July 2009 the court had expressly denied to itself taking such an initiative
for the purposes of providing me the opportunity of purging my contempt and had

plainly declared that the initiative was in my hands. I made no such expression of
intent. The Production Order was executed under protest made by myself and in the
end it failed to effect the intended appearance.
39.3 In other words it could never cause such a Production to be made to assist, at the
state's expense, a Private Family Law matter wherein there is no such status of an
Accused and wherein, as in any civil matter, either party is entitled to expect to gain
something from it. In this the Court's actions are marked with corrupt intent for the
third time.20
40.

The Barring Order is on its Face Untrue in claiming the Respondent was
present and is therefore Voidable
40.1
The impugned Barring Order is also fraudulent in that it claims and the
Respondent being present on its face. The record shows on the date that the Barring
order was made I was in custody (in handcuffs actually) and like other prisoners- not
at liberty to enter an appearance in Civil proceedings such as this.
a) Since there are no forms either in the District Court or the Circuit Court Rules upon
which it states where the Named Respondent not being present must mean that
the Court does not have jurisdiction to make orders of this type in such
circumstances.21
40.2
The impugned Barring Order of the 31st July 2009 is also voidable and cannot be
used to enforce proceedings of any nature in that its reference to a Motion of no
specific date deprives it of any possible assistance to anyone, the Applicant, the named
Respondent or the Court.

41.

The Opportunity To Uphold a Claim for Contempt of A Valid Court


Order Has Passed
41.1 Section 17(2) indicates that Subsection (1) is without prejudice to the law as to
contempt etc. Neither the State nor Mrs. Lyons who were both represented before the
Supreme Court on 27th July 2010 when that court found my detention of 13 months
unlawful, believed that it was possible to oppose the grounds given for my appeal
SC/342/2009 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 of these parties believed that there was a sustainable
case for contempt. Had they so believed, they would have then sought to uphold a
claim for contempt where I had not purged it. Instead both the state and Mrs. Lyons
forfeited forever their opportunity of doing so.
41.2 If by depriving themselves of the opportunity to enforce and rely on it and on its
ancillary orders any further, they denied me the opportunity to air the reasons why it
was not valid and enforceable, their silence could only have the practical effect which

20

21

44

Fraud Charges for Fraudulent use of an official instrument with the intention of harassing, of restricting my liberty
and of false imprisonment, Naming Judge Thomas Teehan, Mary Enwright, Registrar, Mr. Niall Murphy of the
Law Centre, the signees of the both documents one alleging to be a valid Production Warrant & the other a valid
Production Order.
See Divorce Fraud Using Court Forms and Court rules p7

my case argued for.


41.3 The Supreme Court to whom that complete argument was available found that in
living in the Family home I was not in contempt of the Order of the 7th October 2008.
(See Exhibits at p6 No. 31 of Affidavit.)???22 If the order was valid that would be
impossible. I cannot act contrary to a valid order and still not be in contempt.
41.4 In view of the devastating disruption to my Family and myself, the failure of the
Supreme Court to address these issues in the proper context as outlined in my appeal
by means of the Declarations asked of it, is an impermissable dereliction of their duty
of care to my Family. At no stage has any court honoured its committment to the
Paramouncy principle based as it must be upon the presumption first and foremost that
my childrens' welfare is provided to them by virtue of being members of a Family
Founded on Marraige. These principles can never be upheld when the childrens'
welfare is considered only after disruption to the peace and harmony of the Family is
confirmed by other court orders made in an amoral jurisdiction that has no compass
with regard to parental duties and responsibilities to each other and to the children.
The childrens' welfare can only be assured when those court porceedings are based
upon a moral foundation which always retains sight of them.
42.

The Ancillary Barring Order is Invalid as It Seeks the Same Effect as an


Order Alleged to Already Exist but is Itself Unenforcable.
42.1 This is further born out by the expressed intent in seeking the Barring Order. Both
Mrs. Lyons and the state believed that the original order was not enforcable and that
their claim that I was in contempt of it could not be upheld. However, both believe that
it could be otherwise enforced by the use of a Barring Order. This postion is consistent
only with the circumstance that my position does not get an airing and I get released on
some technicality. They failed to notice however that in not standing by the underlying
basis for their committal application for contempt and in relying on the efficacy of the
Barring Order alone, they forfeited their opportunity to do so along with the opportuniy
to oppose my grounds for it not being enforcible. In the Order of the Supreme Court
dated 27th July 2010 it clearly makes reference to the grounds for my appeal as being
the basis for the making of the order.
42.2

The Family Law Act 1995, Section 10(1)a(i) states:

22

45

10.(1) On granting a decree of judicial separation, the court, on application


to it in that behalf by either of the spouses concerned or by a person on behalf
of a dependent member of the family, may, during the lifetime of the other
spouse or, as the case may be, the spouse concerned, make one or more of the
following orders:
(a) an order
providing for the conferral on one spouse either for life or for such other
period (whether definite or contingent) as the court may specify the right to
occupy the family home to the exclusion of the other spouse, ..

What is this referring to?

42.3

Further on in the same subsection at (d) it states:

(d) an order under section 2 or 3 of the Act of 1981,

42.4 At No. 18 of her Affidavits dated the 8th and 14th July 2009 supporting her
application for her Barring Order made on the 31st July 2009 Mrs. Lyons stated:

While the Respondent is currently committed to the Midlands Prison until


such time as he purges his contempt; I believe that he intends to make various
applications to the High Court for his release. I am fearful of what the
Respondent might do should he be released from the Midlands Prison on foot of
any such application(s)...

42.5 The Protection Order that was made on foot of the first of the above affidavits
states as follows at No. 1:

...she [the applicant] having caused an Application to issue for the Court at
Courthouse, Dungarvan, Co. Waterford at 10.00am on the 30th day of July,
2009, contingent upon the Respondent not having purged his contempt prior to
the 30th day of July, 2009, pursuant to the provisions of Section 2 of the above
Act, applying for a Baring Order against the Respondent in respect of the
family home at Courtnabooly West, Callan in the County of Kilkenny which
application has not been determined....

42.6 This means in plain English that my wife was seeking a Barring Order in the
eventuality that I would be released by the High Court without having purged my
contempt. The two eventualities that would effect this reveals an absence of logic or a
contempt of justice.
42.7 As stated above it cannot admit of the eventuality that I was still in contempt but
due to some technicality the court could not justify holding me, as the proper procedure
for the state and my wife in that case would be to seek to enforce the original order and
to seek my recommittal. This was not done.
42.8 If it were an attempt to cover the eventuality that I was to be released where I to be
found not to be in contempt of the unenforcable decree of Judicial Separation made on
the 7th October 2008, it also has to fail, this time on the basis that it would render the
making of a Barring Order ancillary to the Judicial Separation proceedings invalid for
the same reason. (See Correspondence with Garda and CSSO)
42.9 Section 10 provides under its various subsections that the court may where
appropriate, make orders for different and distinct purposes. The very belief that
Section 10(1)(d) in the Family Law Act, providing for the making of a Barring Order,
is there to duplicate the purpose of an Order made under Section 10(1)(a)i of the same
Act is irrational, a nonsense and a cynical attempt to manipulate and pervert the
intentions of the Oireachtas.
42.10 If the decree of Judicial Separation made on the 7th October 2008 were lawful then
the Barring Order made on the 31st July 2009 under Section 10(1)d of the Family Law

46

Act 1995 would be invalid because the matter of who lives in the family home would
have already been dealt with by the order made on the 7th October 2008 under Section
10(1)a(i) of the same Act. To allow this order to form the basis for making a backup
order directed to the same effect would in the first place lay the foundations for
breaking the principle of autrefois acquit.
42.11 If the Order made under Section 10(1)(a)i of the Family Law Act 1995 cannot be
enforced of itself it is redundant and moot. If it is accepted that the applicant for the
order believes she can and has to have a backup order seeking the same effect then it
must be accepted that the order made under Section 10(1)a(i) of the Family Law Act
1995 is indeed not enforcable and that therefore the Judicial Separations decree which
it seeks to enforce is not either.
42.12 I have already shown in the Supreme Court that it is not enforcable and now I have
shown that for those who did not accept this to be the case have themselves, by seeking
a Barring Order to serve the same purpose, confirmed it is not enforcable.
42.13 Any attempt to lay criminal charges upon me now for this same contempt of what is
in effect an unenforcable order along with its ancillaries would be both contemptuous
of the Supreme Court and contrary to the principle of autrefois acquit.

47