Judicial Procedure

HotHHead

Family Law court.

I know that a district court Judge can not amend, vary, discharge a circuit court order or make any changes/additions to it.
I am looking in the Irish Statue Book but I can't find this rule, could someone direct me in the right direction please?

uberalex

It's not in statute, it arises from Stare Decisis[1], which is the principle that decisions 'stand'.


[1]http://en.wikipedia.org/wiki/Precedent#Verticality

This might be a useful guide https://lawinireland.wordpress.com/irish-legal-system/

HotHHead

Thanks for that, I am re reading them over to let all the information sink in! but still having issues applying it to my issue.

If I give a bit of a background maybe you could tell me what you think?

My husband has an access order and a maintenance order from the Circuit Court, he is due back in Circuit Court in April. This date was filled for last year, it was the earliest date he could get. Since then 6 times to be exact he has been summoned to the District Court, maintenance and access issues. His x failed to turn up on 5 of these occasions. When we received the last summons. My husband tried to apply for a vary of maintenance through the District Court, they wouldn't allow him to apply for this as they stated all the orders are from the Circuit Court! We asked the clerk how was the X able to send all these summons to my husband if that was the case and we were told he couldn’t comment on that but this was judicial law, that a District Court judge cannot make a decision on Circuit Court matters.
On the last appearance the Judge awarded an attachment of earnings order against my husband, when he explained he hadn't been allowed to apply to vary the maintenance as this was District and the order was Circuit, the judge told him tough, he was enforcing the Circuit Court order and that was that.

We’re looking to write a letter of complaint about this judge, I want to use the proper legal jargon so to speak, as he didn’t follow procedure etc? Any help?

Pro Hoc Vice

HotHHead wrote: »

Thanks for that, I am re reading them over to let al the information sin in! but sill haling issues applying it to my issue.

If I give a bit of a background maybe you could tell me what you think?

My husband has an access order and a maintenance order from the Circuit Court, he is due back in Circuit Court in April. This date was filled for last year, it was the earliest date he could get. Since then 6 times to be exact he has been summoned to the District Court, maintenance and access issues. His x failed to turn up on 5 of these occasions. When we received the last summons. My husband tried to apply for a vary of maintenance through the District Court, they wouldn't allow him to apply for this as they stated all the orders are from the Circuit Court! We asked the clerk how was the X able to send all these summons to my husband if that was the case and we were told he couldn’t comment on that but this was judicial law, that a District Court judge cannot make a decision on Circuit Court matters.
On the last appearance the Judge awarded an attachment of earnings order against my husband, when he explained he hadn't been allowed to apply to vary the maintenance as this was District and the order was Circuit, the judge told him tough, he was enforcing the Circuit Court order and that was that.

We’re looking to write a letter of complaint about this judge, I want to use the proper legal jargon so to speak, as he didn’t follow procedure etc? Any help?

You and your husband are misunderstanding two different issues. The circuit court has made orders if either party want to vary then by right must be in the circuit court. If either party wants to enforce the order of the circuit court say, then that can be done in the district court. Might be an idea to seek legal advice especially when the matter relates to court orders, misunderstandings can lead to custody.

notthedoctor

You have no business in sticking your nose into this matter. It issue is beteween your husband (are u really married?) and his ex.

There's no such thing as we complain about the judge. If something has to be done in this matter is up to HIM to act, not you, a stranger!

It p*** me off these interfeering hoes trying to interefe in family law orders.

You have 2 children for God sake, mind your own business and support your own children by yourself.

HotHHead

We have had no access in 5 months and could not apply for an enforcement order through the District Court they wouldn't allow us to, this is what he is due in Circuit Court for in April.

We can not afford a solicitor, he does however have a meeting with FLAC at the end of next week so hopefully they can, shed some light on the issues we're having.

Pro Hoc Vice

HotHHead wrote: »

We have had no access in 5 months and could not apply for an enforcement order through the District Court they wouldn't allow us to, this is what he is due in Circuit Court for in April.

We can not afford a solicitor, he does however have a meeting with FLAC at the end of next week so hopefully they can, shed some light on the issues we're having.

Your husband sould contact free legal aid board, straight away if he can not afford to pay for a solicitor legal aid will provide one.

Pro Hoc Vice

notthedoctor wrote: »

You have no business in sticking your nose into this matter. It issue is beteween your husband (are u really married?) and his ex.

There's no such thing as we complain about the judge. If something has to be done in this matter is up to HIM to act, not you, a stranger!

It p*** me off these interfeering hoes trying to interefe in family law orders.

You have 2 children for God sake, mind your own business and support your own children by yourself.

Sadly in family law it very much become second partners problrms, rarely is it an issue just for two people. The rest of your post is just rude.

HotHHead

Pro Hoc Vice we had sent the application for FLA in just before Christmas when he was given the date for Circuit Court, it came back and they were looking for over 1200 don't have the exact figure to hand! as its Circuit Court its more expensive. Thanks for your advice though!

Pat Mustard

notthedoctor wrote: »

You have no business in sticking your nose into this matter. It issue is beteween your husband (are u really married?) and his ex.

There's no such thing as we complain about the judge. If something has to be done in this matter is up to HIM to act, not you, a stranger!

It p*** me off these interfeering hoes trying to interefe in family law orders.

You have 2 children for God sake, mind your own business and support your own children by yourself.

Mod:

Uncivil.

Banned.

HotHHead

HotHHead wrote: »

Pro Hoc Vice we had sent the application for FLA in just before Christmas when he was given the date for Circuit Court, it came back and they were looking for over 1200 don't have the exact figure to hand! as its Circuit Court its more expensive. Thanks for your advice though!

Just to save you some time and hassle. You have no genuine grievance with the District Court judge whatsoever and any complaint you may make will fall on deaf ears. I know it's not what you want to hear but your misunderstanding was the cause of the issue here, not the actions of the judge.

Janesx

I can't provide advice on this particular matter but I'd like to let you know you are not alone...

[snip]

I know we are not allowed to ask for a follow up but that would be great if you could return and give us an update on what happened in the case...

Pat Mustard

Mod:

notthedoctor/ janesx, duplicate accounts are not allowed.

Both of your accounts have now been banned permanently.

conorh91

uberalex wrote: »

It's not in statute, it arises from Stare Decisis[1], which is the principle that decisions 'stand'.

Minor quibble, but it comes under the doctrine of res judicata, not stare decisis.

Decisions of the Circuit Court will not be binding on the District Court, even if the former are usually followed. Under res judicata, the District Court has no jurisdiction in cases already disposed of by the Circuit Court.

HotHHead

conorh91 wrote: »

Minor quibble, but it comes under the doctrine of res judicata, not stare decisis.

Decisions of the Circuit Court will not be binding on the District Court, even if the former are usually followed. Under res judicata, the District Court has no jurisdiction in cases already disposed of by the Circuit Court.

So in my husbands case,is a District Court Judge allowed to enforce an Circuit Court order? our issue as well is that this attachments should have been heard in the Circuit Court not the District as the maintenance order is Circuit Court ordered? thanks

HotHHead

HotHHead wrote: »

So in my husbands case,is a District Court Judge allowed to enforce an Circuit Court order? our issue as well is that this attachments should have been heard in the Circuit Court not the District as the maintenance order is Circuit Court ordered? thanks

Can't give specific legal advice however, in general, it works like this:

Circuit Court makes an order.

If you want to enforce that order then you use the District Court.

If you want to amend, vary or set aside that order then you must return to the Circuit Court.

Basically, the District Court is perfectly entitled to say "the Circuit Court told you to do this and now I'm going to make sure you do" whereas it's not entitled to say "the Circuit Court told you to do this but i'm going to change it." The District Court is below the Circuit Court in the hierarchy of Courts and therefore while it can follow Circuit orders it cannot change them.

234

HotHHead wrote: »

So in my husbands case,is a District Court Judge allowed to enforce an Circuit Court order? our issue as well is that this attachments should have been heard in the Circuit Court not the District as the maintenance order is Circuit Court ordered? thanks

You really need to get a solicitor to look at this properly. But generally, lower courts can and do enforce the orders of higher courts. Attachment of earnings is a method of enforcement as it depends on a previous judgment being in place.

If you aren't convinced by internet musings, and you probably shouldn't be, then you really need to get professional legal advice.

conorh91

HotHHead wrote: »

So in my husbands case,is a District Court Judge allowed to enforce an Circuit Court order?

There is no problem with the District Court enforcing a judgment of a higher court, it simply has no jurisdiction in varying the decision of that higher court.

HotHHead

Thank you all! I definately understand things a tad more now. Husband has an appointment with FLAC this week so hopefully, he will be better prepared for his next court appearance.

foggy_lad

HotHHead wrote: »

Thank you all! I definately understand things a tad more now. Husband has an appointment with FLAC this week so hopefully, he will be better prepared for his next court appearance.

He may have done this before but if not recently then he should make up a full itemised statement of all income/earnings and expenditure/outgoing monies in his household, a statement of means, this will most likely be needed for both the free legal aid and also for the circuit court.