The High Court has rejected a challenge to the constitutionality of the law allowing ex parte domestic violence protection orders, refusing all the orders sought in a judicial review application.
M. J. L. argued that section 5 of the Domestic Violence Act 1996 was unconstitutional. He sought to have that ruling invalidate a protection order made against him by Kilkenny District Court in September 2007. The judgment, delivered by Mr Justice Charleton on 11 July 2008, concerned the validity of that protection order; the High Court did not decide the underlying application for a safety or barring order.
The dispute arose amid a separation and disagreements over the schooling and care of the couple’s two youngest children. The judgment records that the children had been home-schooled and that the wife wanted them to attend State schools. Earlier District Court proceedings included orders about schooling and custody. The applicant said he considered those proceedings unfair because they followed an ex parte application.
The protection order barred the applicant from using or threatening violence, molesting or putting the applicant or dependent persons in fear, and from watching or besetting their residence. It was made while an application for a safety or barring order remained undetermined. The High Court said the District Court had set a return date 15 days later.
The applicant relied on a Supreme Court ruling that had invalidated the former provision for an ex parte interim barring order with no statutory time limit. Mr Justice Charleton distinguished that order from a protection order. A barring order can require someone to leave and stay away from their home, while a protection order does not itself prevent a respondent from going home or having ordinary, calm contact with family members.
The judge said a protection order restricts conduct that is already unlawful and ends when the safety or barring order application is decided. He concluded that section 5 was not disproportionate. He also rejected arguments concerning damage to the applicant’s good name and the court’s ability to hear related family-law applications, finding nothing to show that fair procedures had not been followed in this case.
The judgment refused the applicant all relief sought in the judicial review. It did not determine the outstanding safety or barring order application.