AN ESTRANGED father of five has lost his High Court bid to have provisions of the Domestic Violence Act related to the making of protection orders declared unconstitutional.
Mr Justice Peter Charleton yesterday rejected claims by the man that Section 5 of the Domestic Violence Act 1996, which provides for the making of protection orders, is a constitutionally impermissible attack on the family or breaches various other rights under the Constitution, including his right to his good name.
The case arose after the man, who cannot be named for legal reasons, had a protection order made against him at Kilkenny District Court in 2007. Differences had arisen between the couple and the order was sought by the man's wife after he physically tried to take his two younger children away from their home while she was abroad visiting a sick relative.
The younger children were being cared for by their grandmother and older siblings at that time. The 1996 Act provides that a protection order may be issued only if an application for a safety/barring order has also been made. The protection order required the man not to threaten or use violence against the wife and children, put them in fear or watch and beset their home.
Mr Justice Charleton said a protection order is effectively no more than "a warning" indicating a spouse or other entitled person has gone to court and that the court has noted behaviour which, if true, was so unacceptable the respondent must be reminded that proper behaviour is required of them.
As it is never lawful to threaten to use violence against a person, molest them, make them fear dire consequences or watch or beset them, what does the man lose by a protection order being made, the judge asked. While there certainly is a threat that, if he did anything already unlawful, he runs the risk of prosecution, that was the worst that could happen. At best, he may be annoyed.
The judge said the man could apply to have the order overturned at the earliest possible date and, in this case, the District Court had made the order returnable within 15 days. Such a practice was entirely appropriate and accorded with the legislation.
The judge further ruled that a protection order does not have a disproportionate effect on any rights. There was nothing in law preventing a person against whom a protection order is made from making any ordinary use of their family home or from attempting "in a calm way" to reasonably enjoy the society of the constitutional family.
The judge rejected further claims by the man that the order breached his right to his good name. A protection order was not a stain against a person's character. It must be followed up by an application for a safety or barring order and a respondent was entitled to be heard at that point.
The proceedings also occurred in private. A respondent could apply to revoke a protection order and it had no effect on subsequent court proceedings, including for guardianship or related to schooling of children, he added.
In this case, the man had notice of his wife's concerns about his refusal to allow their younger children attend school, and instead have home-schooling, and that she intended to ventilate those concerns before the court. There was nothing to suggest fair procedures were not applied in this case, the judge said.
Earlier, outlining the background, the judge said the man and his wife had home-schooled their children for some years as the man had concerns about the "moral integrity" of certain schools. Unhappy differences arose in 2006 when the man wished to continue home -schooling and his wife favoured sending the children to a State school. The wife later secured court orders to have the children attend schools.
Orders related to custody of the children were later made and the man had access to the children on a twice-weekly basis.
The judge noted the man has made no argument before the District Court relating to custody or access and had taken the view the court proceedings were unfair and unconstitutional. The judge said it was regrettable that marriages break up but the man took the view he was deserted. In a letter to his wife in August 2007, he referred to her "mischievous" court proceedings, accused her of failing to act as a guardian or custodian of the children and said it was "obvious that I, and only I, am of the disposition to make and manage this manly task".
In this case, the only order the man was seeking to challenge was the protection order of August 2007, which was later followed up by a safety order. The judge said the wife had been reluctant to grant the man access in her absence because of his alleged history of mental illness and his refusal to that date to recognise any court orders.
