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family law matters Introduction

This is the third issue of Family Law Matters, whichis produced as part of the Family Law ReportingPilot Project started by the Courts Service in

October 2006. The project involves generating reports,judgments, trends and statistics in family law for use bythe judiciary, legal practitioners and the general public.Family Law Matters attempts to present this informationin an accessible and reader-friendly format.

This time around there is more material largely thanksto a panel of additional reporters who recently joined theproject. They were drawn from the ranks of newly-qualified lawyers already entitled to attend family lawproceedings under the Civil Liability and Courts Act,2004.

They are also covered by the Regulations which theMinister for Justice, Mr McDowell, made following theenactment of the 2004 Act. These listed those entitled toattend family law proceedings under the Act, in additionto barristers and solicitors, and included people engagedby the Courts Service to prepare reports on family law. Aspart of the family law reporting project they are all boundby the Draft Protocol on Family Law Reporting, designedto protect the anonymity of the parties to family lawproceedings.

Their contribution has made it possible to publish asubstantial volume of reports from District Courts andthey also contributed to certain other reports. Mostapplications about continuing matters in family lawdisputes – domestic violence, guardianship, custody ofand access to children, maintenance – are heard in theDistrict Court which processed almost 21,000 suchapplications last year.

As this issue was in preparation the High Court wasexamining the right of an unmarried father to custody ofhis children in the context of a child abduction case. Hehad not previously obtained guardianship, but hadbrought such an application following the removal of hischildren from the jurisdiction. The case has been fullyreported elsewhere, but in this issue we publish a fewtypical examples of such applications as they occur dailyin the District Court.

We also revisit case progression. In our first issueLimerick County Registrar Pat Meghen described a pilotproject in his area where he held case conferencemeetings with solicitors and/or their clients to isolateissues in dispute before the case went for trial. Thevarious parties tried to agree as many issues as possible

and make progress on others such as the production ofdocuments. I attended some of these meetings and thenobserved cases being finalised in court. The process isdescribed in this issue. This necessitated a slight departurefrom my usual practice of not naming courts outside ofDublin and Cork, but this was unavoidable in thecircumstances and the draft protocol was fully observed.

This issue, like the previous two, also containsjudgements, one from the Circuit and one from the HighCourt, and a statistical analysis of orders from the South-Western Circuit. I have also continued here the practice ofpublishing contributions from people who have an inputinto the family law system, though they may not bedirectly involved in the courts. In issue two PensionsOmbudsman Paul Kenny outlined the problems that canarise with pension adjustment orders and how to deal withthem. In this issue we are very happy to publish an articleby Karen Erwin, president of the Mediators Institute ofIreland, in which she considers why mediation is not usedmore and how that could be addressed.

Dr Carol Coulter

1

Focus on District Court

The District Courts deal with anenormous volume of family lawapplications each year, many

concerning unmarried couples and theirchildren. These include guardianshipapplications from unmarried fathers, custodyand access, usually though not always fromfathers, and maintenance applications,usually from mothers for child maintenance.

Married couples also sometimes go to theDistrict Court, either where a divorce orjudicial separation is pending and they wantinterim orders for children and maintenanceissues, or where they have been granted adivorce or judicial separation in the CircuitCourt and issues of custody, access andmaintenance are referred to the DistrictCourt.

In 2006, of 5,027 applications for custodyand access in the District Court, 3,453 weregranted with 1,417 withdrawn or struck out.Only 157, about 3 per cent, were refused.

Of the 1,742 applications for guardianshipfrom unmarried fathers, 1,268 were grantedand 432 were withdrawn or struck out. Forty-two, or 2.5 per cent, were refused.

There were 4,207 applications formaintenance, 2,652 of them relating tounmarried couples. While 2,909 weregranted, 1,204 were withdrawn or struck outand 94 were refused. In all, there were 10,976applications relating mainly to children in theDistrict Court last year.

The other main area of family-law-relatedapplications in the District Court is domesticviolence where the District Court can makeseveral orders to protect a spouse, a non-marital cohabitee or the parent of an adult

child from violence, the threat of violence orharassment.

The orders are: a barring order whichprevents the person against whom the order ismade from entering the family home orthreatening the spouse/partner or other familymember; an interim barring order which canbe taken out in the absence of the personpending a hearing of the full application – thismust be within a short time; a safety orderprohibiting a person using or threateningviolence in the home, but leaving him/her inthe home; and a protection order pending thehearing of an application for a safety or abarring order.

In 2006, 9,924 applications were madeunder the Domestic Violence Act, 605 ofthese were for interim barring orders 544 ofwhich were granted, 35 were withdrawn orstruck out and 26 were refused. There were3,132 applications for barring orders, ofwhich 1,357 (less than half) were granted, andmore than half (1,682) were withdrawn orstruck out. Ninety-three, about 3 per cent,were refused.

Applications for safety orders showed asimilar pattern with 3,050 applications made,1,221 being granted and 1,726 being struckout. 103 were refused.

A much higher proportion of protectionorders were granted, however, with 3,137applications made, of which 2,845 weregranted. Only 193 were withdrawn or struckout and 99 were refused.

Thus in all there were 20,900 family lawapplications in the District Court in 2006,according to the Courts Service annual report,which were split fairly evenly between

In 2006, of 5,027applications forcustody andaccess, 3,453 weregranted, 1,417withdrawn orstruck out andonly 157, about3 per cent, wererefused

family law matters Reports / District Court

2

Shouldering anenormous caseloadMost of Ireland’s family disputes are resolved in the District Courts –in 2006 alone up to 20,900 family law applications were processed.The reports that follow go some way to providing an overview ofday-to-day business in this highly active arena, writes Carol Coulter

domestic violence and child-relatedapplications. There is no way of knowing fromexisting statistics how many of these related tothe same family dispute or were repeat oralternative applications – but some were.Nonetheless they show the enormous volumeof family law processed by the State’s variousDistrict Courts.

This volume means that 70 or more cases canbe listed on any one day. In a commuter townone judge showed a family law reporter hislists for a period, showing that 70 applicationsin one day were by no means exceptional. Thisjudge said he called through the list andanything that was likely to take less than fiveminutes was given a new number andproceeded with immediately, before thematters requiring a longer hearing. The matterstaking longer were then dealt with in theafternoon.

But this situation was not satisfactory, hesaid, as cases listed for a full hearing couldamount to over 30. Often they had to beadjourned, or were not given adequate time.He told the reporter that this was not asatisfactory service where the organisation ofpeople’s lives and the welfare of children wereat stake. Judges were being put in a positionwhere they could not give cases a long periodfor hearing, leaving people feeling that hugelyimportant matters in their lives were not beingrespected and appreciated by the court system.

The figures above compare with 5,835family law applications (divorce, judicialseparation and nullity) in the Circuit Court andjust 90 in the High Court in 2006. Often suchcases are more complex, sometimes involvingdivision of assets, but this should not obscurethe fact most family disputes in Ireland aredealt with in the District Court.

Many litigants seeking the court’s assistancein a family law dispute, or who appear beforeit as respondents, are unrepresented. They relyon District Court staff to help them fillapplication forms for relief and for informationabout seeking further assistance from theGarda Síochána or the Legal Aid Board.

There are 23 District Court districts, each ofwhich (apart from the Dublin MetropolitanDistrict) can contain anything up to 13 DistrictCourts sittings from time to time. Emergency

family law applications can be brought to anyof them, while the major cities have about aday a week devoted to family law. In theDublin Metropolitan District there are three tofour family courts sitting permanently inDolphin House in the city centre.

It would clearly be impossible for theFamily Law Reporting Project to havereporters present at all family law hearings.Earlier this year, however, a panel of familylaw reporters was assembled by the ReportingProject from the ranks of recently qualifiedlawyers. They have been deployed in DistrictCourts over the past number of months.

Between them they covered 22 DistrictCourts, where almost 400 cases were listed.Almost a third of these cases resulted inagreement between the parties without a courthearing and about the same number wereadjourned or struck out. Of the 156 that wereheard, 61 were matters concerningmaintenance, 42 concerned guardianship,custody, access or a mixture of these, 36concerned domestic violence, 12 were HSEapplications concerning children in care, andfive fell under another heading. A few of thecases involved multiple applications.

What follows is a selection of the reports ofcontested cases from the reporting panel.

Many litigantsseeking the court’sassistance in afamily law disputeare unrepresentedand rely onDistrict Courtstaff for help


3

3.453

157

1.417

Figure 1 Children: Custody and Access

Total: 5,027

GrantedWithdrawn or struck outRefused

Afather sought custody of his child ina northern District Court. The boyhad been living with his maternal

grandparents during the week and spendingweekends with his father in the North ofIreland.

The child’s mother had recently becomeinvolved with a man who was named on thelist of registered sex offenders and acceptedby gardaí to be a paedophile. One afternoon,the mother was expected to collect her sonfrom football practice but had not shown upand her son had not seen her since. She hadleft her parents’ house where she and herson lived.

The boy’s father was applying for solecustody. His solicitor told Judge SeanMacBride that his client feared the mothermight arrive at her parents’ house and ask tosee her son and that the child could beexposed to a paedophile.

He said he had “big fear” of his sonremaining with his grandparents: “Mybiggest concern is his mother turning up.”

He told the judge that the grandfather wasvery close to his daughter [the child’smother] and that the grandfather’s primaryconcern was his daughter and not hisgrandson. He told the court that he did not

have a problem with his son visiting hisgrandparents but he was afraid that if hisformer partner tried to contact them theywould accede to her demands, putting hisson in danger.

The judge asked about the livingarrangements the father envisaged for hischild should he be granted sole custody. Heanswered that he finished work at 5.30 pm,that he would drop his son to school shortlyafter 8 am and that there were breakfastclubs in the local school.

After school there was football and GAApractice twice a week and playgroupsorganised on the other days. He said he wasdue to marry next year and that the threewould live as a family unit. He acceptedthat his son would be starting in a schoolwhere he knew no one and that it would bedifficult for him.

The judge then took evidence from thegrandparents. The grandmother said hergrandson had a lot of friends in school andin the neighbourhood and he was a memberof local soccer and GAA clubs.

“My client is reasonably and fairlyconcerned that your husband [thegrandfather] will facilitate access for thechild’s mother,” the father’s solicitor said.

The boy’s motherwas involved witha man listed onthe sex offendersregister


4

Regulating children’s custodyand accessGuardianship applications, often accompanied by applications forcustody or disputes about access, form a significant part of the workof the District Courts

Father and grandparentsgranted joint custody

An unmarried father soughtguardianship of his young son in amidlands District Court. He and the

child’s mother were no longer a couple andhad not been since the birth. He said therelationship had broken down completely.

He told Judge Oliver McGuinness thatsoon after his son was born, the child wasremoved from the hospital without hisknowledge or consent. He later found outthat his name was not recorded on the birthcertificate, an omission that had cost him alot to rectify. He added that he and his familywere excluded from the christening whichwas very distressing for his elderly mother.

The father said he not seen his son for overeight months and that even then he was

allowed to spendonly a short timewith him in acrowded hotellobby. He said thiswas of greatdistress to him andhis extendedfamily. He went onto say that he hadtried several timesto re-establish acivil relationshipbetween himselfand his son’smother but that hefelt her extendedfamily preventedthis fromhappening.

He said that as afather he was nowconcerned for his

child’s welfare because he knew little aboutwhere the child was or who was caring forhim on a daily basis.

The solicitor representing the child’smother told the court how his client and herfamily regularly felt threatened and harassedby the applicant. His client had alreadybrought a case against the father in anothercourt where he had been found guilty ofassaulting her and he was now awaitingsentencing.

Having heard both parties the judge said asthe father of this child the man should haveaccess to his son, but added that hisbehaviour could qualify his right to access.

Judge McGuinness said: “I cannot care lessabout either your or the respondent’s adultproblems, I am only interested in this child’swelfare and I am concerned that this child isbeing used as a football.”

He also felt that one or other or bothparties did not have the child’s best interestsat heart and that one or other or both partieswere not acting in a selfless manner. “Youare both the parents of this innocent childand now find yourselves sitting in court andit is a shame on both of you that this child isbeing deprived of love, be it maternal orpaternal love,” he said.

The judge advised the father that in futurehe should engage a solicitor to fight hisbattles in court. The man explained that asthe matter had gone on for so long, he couldno longer afford representation.

The judge told him the court would makean exception and contact the Legal AidBoard on his behalf. He then adjourned thematter pending the outcome of thesentencing matter and to allow the man tosecure legal representation.

‘I am concernedthat this child isbeing used as afootball’


6

Unmarried father’sguardianship applicationadjourned

1,268

432

42

Figure 2 Children: Guardianship

Total: 1,742



7

In Brief

In a suburban District Court, the parentsof a 15-year old boy appeared with theirson seeking variations of maintenanceand access orders. Judge Brian JosephSheridan indicated that only the motherand father should be present.

Once the youth had left, the father saidthat instead of paying €65 maintenanceweekly he wanted to pay the summonthly on the first Thursday after hewas paid.

The mother was amenable and so thejudge made an order on consent,directing the father to pay €281.66monthly.

When asked what increased access hewanted, the father said his son had toldhim six weeks ago that he wished tospend more time with him.

The original access order in placestipulated that the child would spendevery second weekend with his fatherand any other access that could be agreedbetween the parties. That order had been

varied to allow for joint custody of theirson.

When questioned again on access, hereplied that he would like to have accessto the child benefit payments and sowould need to have an order grantinghim custody of his son for more than 16days a month.

The mother said she had a difficultywith this request. She had never stoppedher son from seeing his father and avariation of the current order was notneeded. She added that his request wasmotivated by money and not by theirson’s best interests. The father respondedthat he wanted to ensure the money wasspent on their son.

The judge directed that he would leavethe order as it stood, adding: “It seemsvery reasonable. The mother does notobject to the father seeing the child. I donot want to put the mother in a positionwhere the child benefit is taken awayfrom her.”

Father wants access to ensure child benefit goes to him

In Dublin District Court, a grandmother,representing herself, sought access to hereight-year-old grandchild. Judge AingealNí Chondúin was concerned that thechild’s mother, who did not attend, hadnot been properly served with the courtsummons.

The grandmother said her son wasthe child’s father and that the motherwas unstable. “She’s a heroin addictand she doesn’t take her methadone.”She added that the father had jointcustody but had not seen his child as“the mother made a claim that [thegrandchild] was abused by her fathertwo years ago, these allegations weretotally false… She [the mother] seems

to know every loophole in the law.” The judge said: “I’m very sympathetic.

The difficulty is if I were to make anorder I want to make it enforceable.There’s nothing to show she was servedwith the summons, the file doesn’tcontain proof of service.”

The grandmother said: “I haveevidence, I have the faxes from thesocial services, the school says she [thegrand-daughter] is dirty and smelly…I’m just desperate; we’ve been messedabout by the court for eight years.”

The judge noted that the mother wasdue in court in three weeks andadjourned the grandmother’s applicationuntil that date.

Mother’s absence delays access application

Acase where a father wanted toenforce an access order covering histhree sons was adjourned so that the

wife’s solicitor could get more detailedinstructions. The man represented himselfwhen the case resumed in a suburban DistrictCourt before Judge Murrough Connellan.

He told the court he had not had accesssince the end of March though he hadattended a Holy Communion ceremony. Theproblem, he said, was the collection point.The matter had been before the court severaltimes and in January an access order hadgranted overnight access from Saturday 6 pmto Sunday 6 pm.

He said: “The respondent’s solicitor toldme to collect the boys at 4 pm instead of6 pm, but when I went to her sister’s house itjust created conflict and in the end not all theboys would come with me. I haven’t seenmy youngest son, who has difficulties, sincelast September.”

When the case resumed evidence washeard from both parties. The father explainedthat an interim access order was made in2007, granting him one overnight eachweekend with the three boys. He said therewere still substantial issues between himselfand his wife and he had been in therapy forthe past few months on his own. He thoughtcounselling might help them to agree mattersconcerning the children more amicably, sothe HSE was sending out an invitation toattend parenting classes.

He said that, despite the order, he had notseen his youngest son, who was six and hadAsperger’s syndrome, since last September.His second son, who was recently diagnosedwith ADHD, epilepsy and autistic traits,sometimes refused to go with him forovernights.

“She keeps accusing me of breaching theorder and not turning up to collect them fromher sister’s house, but in March I got the

gardaí to witness a letter saying that I wasthere and wanting the kids,” he said. “She isthe one breaching the order, that’s why Iissued the summons.”

He suggested that maybe access could startagain with just one Sunday every month andhis father collecting the children.

The mother responded that the boys,especially the youngest, “just screams andscreams. He doesn’t want to go… When hedoesn’t turn up the kids are relieved. I try toencourage them but they don’t want to.” Shesaid she had been keeping a diary and shewas at her sister’s waiting for him on eachoccasion and her sister could confirm that.She got no help from the father in having thesecond child, nine years old, assessed for hisneeds following the diagnosis. He would notsign the consent form.

The judge said: “Having read the report, Ican see that neither of you is a bad parent,but together you have got into a destructivepattern, quarrelling, and this is making itvery difficult for your children to grow up.You have a particularly heavy onus tobehave because you have children withspecial needs. You need to work together oryou will emotionally damage your children.They pick up on any opposition to accessfrom the parents and react accordingly.”

He recommended that they attendmediation and put their own egos aside forthe good of the children. “Emphasis is onagreement. Court is too adversarial to run toevery time over your children’s welfare.”

He would not vary any orders and accessstood as it was but he expected them to agreeon how best to manage it. “I don’t know youor your children and you are asking me tomake far-reaching decisions about themwhen you are two intelligent and ableparents. Any order I make will be as likely tobreak down as this one until the two of youcan learn to agree and work together.”

‘Emphasis is onagreement. Courtis too adversarialto run to… overyour children’swelfare’


8

Mediation recommended inaccess dispute

Unmarried lay litigants came beforeJudge Brian Joseph Sheridan inDublin District Court in a

maintenance dispute. The parties had twochildren. The elder boy lived with the fatherand the younger with the mother who soughtmaintenance arrears. She also wanted to varythe existing maintenance order for theyounger boy.

The court registrar said the father had notpaid 34 weeks of maintenance into theDistrict Court Office as directed the previousOctober. He should have paid €63.49 weeklyand total arrears amounted to €3,301.11. Theregistrar had received €888.08 so the sumoutstanding was €2,412.25.

The judge said the file stated that the orderof payment went back to 1999 when thefather was ordered to pay £50 per child.Payments were made in 1999, but tailed offin later years.

He added that an attachment of earningsorder was made in 2006. This occurs wherearrears are paid and future maintenance isdeducted from the father’s salary. But themother said she had received no moneyfrom then.

The judge asked her: “How much do youthink you’re owed?” “Thousands over theyears,” she replied.

He asked her if the father was working.She did not know and said: “I have a sonwho is 18 in August. I’ve had awful troublewith him so I sent him to live with his father.He has to be earning to be keeping his sonwhere he’s living.”

She added: “I’ve tried to do the right thing.I don’t ask for anything from him. I just wanthim to take care of his boys. I just wanthelp.”

Judge Sheridan said to the father: “Youhave heard what she has said and you haveheard what the registrar has said and you justhave to pay. What are your circumstances?”

The father replied “I started a job threeweeks ago. I’m working on a building site.I’ve brought €300 into court. I just have nothad the money. I’ve worked a day here andthere. I can pay €2,000 in the next twoweeks because I’m due money from tax backin 2005. I haven’t totally neglected to pay hermoney. I paid her cash in 2005, about €100 aweek.”

He added that he was keeping andmaintaining his eldest son. The judge said:“He’ll be self financing. He’ll cease to bedependent in August.”

The mother believed she needed €150 aweek to keep her 10-year-old son off thestreets and to give him some form of

‘You’ve heardwhat she’s saidand what theregistrar has said– you just have topay’


14

Enforcing maintenancepayments

Father fails to paymaintenance for 34 weeks

Maintenance applications range from people seeking small amounts of money from unemployed fathers, to couples eitherseparated or divorced and having maintenance issues dealt with by the District Court

In a spousal maintenance case, a foreignnational woman described being desertedand left with only a ticket back to her

country of origin and an order to quit theapartment.

The parties were married in the Far East in2004 and the applicant was from overseas andrequired an interpreter. The couple had nochildren together, but the woman had a childin the Far East and said the respondent haddeserted her and gave her no maintenance.

She said they had moved to Ireland a yearafter the wedding and lived in an apartment.She worked as a trainee hairdresser earning€250 a week, but her rent was €900 a monthand additional expenses meant she wasalways spending beyond her means. She toldthe court she was devastated the day he left.

“He called me and said there was €200 onthe table and a ticket to go back to the FarEast under the mat in the utility room and he

never wanted to seeme again. He cameback when I was inwork a week or solater and took all hisstuff.” She said theyhad both boughttickets to the FarEast as a holiday buthe cancelled his.

She did not wantto go back to the FarEast but could notafford to live here,he had even tried tomake her leave theapartment. Shebelieved he earnedmore than his payslip stated becausehe was a painter. “Idon’t know anythingabout his loan, and

there is only my family’s house in myhome country. He gave me money once ortwice because my father was sick. I don’tknow why he says there is a house beingbuilt for us,” she said.

The respondent husband then told thecourt that he was now living with hisparents and paid them €200 a week. Hehad a €22,000 loan which was being usedto buy land and build a house for them inher country. She also sent all her wageshome while they were living together. Hesaid she was extremely jealous and used toattack him in public. As a result he wasscared and did not want to tell her he wasleaving in person.

“I thought she’d be happy to go back…family is important for her and her parentsand her son are there.” He told the courtshe had changed the locks and he had hadto get the landlord to let him in to collecthis belongings.

He could not afford to pay maintenancebecause money was so tight, but he wasn’tlooking for any money back from the€22,000. He suggested that rather thanpay such a high rent, she rent a room in ahouse to cut her outgoings. He said shedefinitely earned money on the side bydoing her friends’ hair and from tips.

The judge told the respondent thatmarriage was a serious enterprise andcame with serious responsibilities.“In this case there is additionalresponsibility because you brought her toa strange country and then cruelly desertedher….You are of course liable to paymaintenance to her, I am deeply scepticalthat you pay €200 to your parents everyweek and I believe you have the ability topay.”

He then ordered a €2,000 lump sumpayment and a weekly payment of €90 tobe paid through the District Court.

‘You brought herto a strangecountry and thencruelly desertedher’


16

Wife wins lump sum andweekly payment

94

2,9091,204

Figure 3 Maintenance

Total: 4,207


Afather sought maintenance for twoof his four children from his formerwife, who is currently living abroad.

The pair had four children. After theseparation, the two sons lived with theirfather and the daughters lived with theirmother in a different county. During thistime, the father had paid the mother weeklymaintenance of €300. His annual salary wasabout €90,000.

In the past year, the mother had moved to adifferent country and the daughters hadmoved in with their father. He was nowseeking €300 per week from the mother tomaintain the girls.

The father told the judge that his formerwife had agreed to pay the sum and that onthree previous occasions – in August,November and April – she had told him shewould pay him but he had yet to receive anymoney.

When questioned further by the judge, he

said she had told him she did not have themoney but that when she did, she wouldbegin to pay. The mother had sold her housein Ireland and was using the money to set upa café bar abroad with her partner.

The judge said it was difficult to assess thesituation when the mother had failed toappear. The mother had been served with theproceedings but had apparently informed oneof her daughters that she would not attend.But he said both parties should contribute totheir children’s upkeep.

Based on what the father said, the motherhad indicated that she would paymaintenance. The judge had a certainreticence as the mother had said she wouldpay the sum but did not have it and as suchwas referring to future payments. Withouther appearance it was difficult to know butshe must have assets if she sold the house.On this basis he ordered weekly maintenanceof €300 in favour of the father.

‘Both partiesshould contributeto their children’supkeep’

‘You have twomonths to sort itout or you willserve a prisonsentence of onemonth?


18

Ex-husband secures €300weekly maintenance

Prison likely if arrears of€3,000 are not tackled

Afather appeared before Judge DerekMcVeigh in a midland DistrictCourt for non-payment of

maintenance. The court clerk explained thatthe court office had summoned him toexplain the €3,000 backlog in maintenancepayments.

The father said he had been a self-employed carpenter working on a privatehouse when the owner ran into financialdifficulties leaving him out of pocket by€22,000 and owing money to builders’merchants. That was when the maintenance

problem began. After this, he had to go backworking for someone else and was nowearning considerably less and could notafford to pay the amount the court hadordered.

Judge McVeigh told the father that hispresence before the court today was not toreduce maintenance. He could only deal withthe non payment of maintenance andbacklog. The man said he just could notafford to pay the money after paying his rentand utility bills. He had no idea when hisfinancial situation would improve.

Judge McVeigh told him: “You will haveto get your priorities right and that meansputting your children first.” The fatherreplied “I love my children very much. Theyare the most important thing in the world tome. I have my children every night and mostweekends. I need to keep a roof over myhead to have a home for them.”

Judge McVeigh said he could not deal withthe man’s financial difficulties and that hisduty today was to enforce the court orderand to try to come to some arrangement tohave the money paid. The father said: “WellI just can’t see how I can afford to pay themoney, as I said I am not earning as muchnow and can’t see my situation improvingand I still owe money all over the town.”

Judge McVeigh replied: “I have no choicethen but to impose a prison sentence for yourfailure to comply with the court order but Iwill put a stay on it if you can give me someidea of how long you need to get back onyour feet financially.”

“I can’t give you an idea of time, I wish Icould but I can’t see any way out of thissituation,” the father replied.

The judge said: “Well you have two

months to sort it out or else you will have toserve the prison sentence of one monthwhich I am imposing and what would yourchildren do then if you had to go to prison?”The father replied: “I’m telling you judge Iwon’t have the money in two months. I justcan’t afford it!”

Judge McVeigh advised the man to bringan application before the court to have themaintenance reduced to reflect his change incircumstance but that at present €3,000 hadaccrued and that money had to be paid. Hesaid: “Even if you do serve the prisonsentence in two months’ time you will stillhave to pay the money when you get out soit’s in everyone’s best interest that you try tofind the money in the meantime.”

The man reiterated that he could not getthe money, saying: “Can you not see where Iam coming from judge? What do you wantme to do?”

Judge McVeigh said: “My hands are tied.I can only deal with what is before the courttoday.” The man left the court saying, “Thisis ridiculous, this is a joke. Where do theyexpect me to come up with that kind ofmoney?”

‘I’m going to giveyou the maximumallowed by law,€150 a week foreach child’


19

Mother-of-two seekspayment from abroad

Amother of two children told JudgeJohn Brophy in an eastern DistrictCourt that the father of her two sons

had not supported her financially for 10years. She had recently tracked the man, aforeign national, to a country outside the EUwhere he worked in the catering business.She believed he earned about €30,000 ayear and had the equivalent of over €50,000in a bank account in the country in which henow resided.

The mother, who was applying for amaintenance order for her sons, both infulltime education, produced annual figuresfor a wide range of expenditure including

the mortgage and braces for the children’steeth at €5,000 each.

“What will it cost you per month?” Themother said she was repaying the creditunion at the rate of €127 per month. Thejudge told her the mortgage was notallowable nor could he allow for the cost ofschool field-trips. “Forget about that. It’s aluxury,” he said, pointing out that he onlyneeded the costs of the outgoings for thechildren either on a monthly or weekly basis.

“I’m going to give you the maximumallowed by law, €150 a week for eachchild,” he decided. He asked her how shebelieved his order could be enforced.

She said that a central authority in thisjurisdiction would pass on the order from theDistrict Court to a central authority wherethe father lived and the courts there wouldenforce it.

He directed that the money be paid intoher bank account in Ireland. The mother

asked Judge Brophy about arrears ofmaintenance “after 10 years of nosupport”. “You mightn’t even get this offhim,” he said, referring to the maintenanceorder he was making. “We’ll see whathappens. We’ll send it to the centralauthority.”


20

In Brief

The mother of five young children, the eldestof whom was 10 years old, received nomaintenance from her husband, a DistrictCourt in a northern county was told. Thehusband and wife lived in the same houseand he paid for the groceries. The wife wasseeking a maintenance order.

The wife’s lawyer alleged that the husbandhad made tax returns which stated the wifehad received €18,000 a year from acompany of which she and her husband wereco-directors but said that she never got thismoney. He said she was a token director ofthis company, and he handed in a Revenuereturn claiming the payment.

There were also a number of propertiesinvolved, he said, and the problem was thatthe husband had formed another company.A detailed Affidavit of Means would berequired from the husband. He said therewas a joint bank account but there was nomoney in it. “Money is being used as aweapon,” he said.

The husband’s solicitor said the companyoperated from their home and that the wifehad taken money out of the account. He saidshe had also written cheques drawn on acompany of which she was not a director.He said the husband denied he failed toadequately maintain his wife and children.She was getting over €850 per month inchild allowances and rent from a NorthernIreland property.

He was prepared to pay weeklymaintenance of €200 per week but hewanted to be sure it was used for thechildren as in the past any money given was

spent on herself. She had previously left thefamily home with the children to live inpremises which he provided when she was inanother relationship and she had thenreturned to the family home saying, “I’mstaying here now”.

Judge Sean MacBride told the parties:“You are very foolish if you don’t see realityand sort it out. Otherwise you couldexperience the provisions of the CompaniesActs. There are very serious penalties forfalse accounts. Both of you could be inserious water.” He directed that the husbandand wife provide detailed Affidavits ofMeans before his hearing of the wife’smaintenance application.

“I want no fun and games here. Any illegalactivity will result in that person getting nobenefit. There are allegations and counterallegations as to how the companies were runbut I will only be dealing with properlyvouched accounts and people operating underthe counter will get short shrift,” he said.

He agreed with the wife’s legalrepresentative that it was not right that shegot no money but he said he would make noorder relating to her maintenance pending thefiling of her Affidavit of Means and a fullhearing of her application. He adjourned theapplication for four weeks and he made aninterim maintenance order of €75 per childper week – a total of €375 – with thehusband continuing to pay for the groceries.“They would be both well advised to sitdown with their lawyers. Their kids will needa lot of support over the next 20 years. You’dbe better off trying to sort it out.”

No maintenance being paid for five children

An unmarried mother of two childrenaged five and seven wanted a safetyorder against the father in Dublin

District court. Her solicitor said the motherhad sought a similar order before but had not

proceeded with it. Judge Aingeal NíChondúin asked the father, who was aforeign national: “Do you intend to getrepresentation? Do you understand that asafety order means you can continue to livein the [home]?” He replied: “I’m not livingthere.”

The mother’s solicitor explained that theparents were unmarried and that there weretwo children. Marks had been found on theeldest child’s neck which the mother believedthe father had inflicted and the HSE hadbriefly taken the children into care.

The judge asked the father: “Will youconsent to this order? A breach of it givesrise to criminal proceedings.” The fatherreplied: “What does that mean? I’m livingwith my brother.” The judge explained thata safety order protected the mother fromviolence or the threat of violence, saying:

“If you put a foot wrong you’ll bearrested.” The father refused to consent andthe mother then gave evidence. She said hereldest daughter told her: “Dad strangled mewith drink on him.” She told of having tostay in a refuge for battered women and saidher children had been briefly taken into carebecause of concerns about the father.

They then reconciled and the father used to


22

Protecting spouses andparents

26

544

35

Figure 4 Interim Barring Orders

Unmarried mother getstwo-year safety order

Total: 605


Domestic violence generates almost half of all applications to theDistrict Court, with people seeking protection through barring or safetyorders, interim barring orders or protection orders. Apart from spouses,cohabitees and the elderly parents of adult children also apply forprotection. What follows is a selection of typical applications

In a suburban District Court, a foreignnational woman sought either a safety or a barring order from Judge Murrough

Connellan against her boyfriend, also a foreign national, who was representinghimself. She said she was afraid of physicalabuse – and had suffered psychologicalabuse – from the respondent and that aprotection order had been granted threemonths previously.

The judge asked her if anything else hadhappened since and she replied that it hadnot and they were still living together butthis time she wanted a barring order.

The respondent interrupted, saying: “Is itpossible to stay in the house? I can’t affordto move anywhere.” The woman argued thatshe was in court because the respondent

“put my life in fear and my child’s as well.When he drinks he is violent, shouting at meand my child… called me whore and shit infront of child and it is tearing me apart”.

She continued that when her child wasthree months old the respondent came homedrunk and lined up knives on the counter andscared her. She admitted that since theprotection order had been in place he hadbeen quiet. They were not married, but hadbeen living together for three years and hehad always been jealous and suspicious,especially when drinking. They were rentinga house with the applicant’s brother.

The man insisted he was never violent andwas only sometimes jealous and lost histemper. The judge said: “Violence is not onlyhitting someone. It is also putting them infear.” He indicated his severe displeasurethat the father would use the child as a weapon.

He asked him how often he drank. He answered that he worked one week on and one week off and would never drinkwhen he was on. He said the other week he would only drink once or twice.

The judge decided to adjourn the matterfor two months and said that next time the man would have to convince him why a barring order should not be put in place.He advised him that while he refused toaccept he was putting the applicant in fear,there would be no future for him. The judgeexplained that if he wanted to convince himof a change he “could show me you had beento see someone to talk about the violenceand drinking”.

He suggested the man contact theprobation service but in the meantime theprotection order would remain in place andthe applicant could call the gardaí if she feltin fear.

‘Violence is notonly hittingsomeone. It is alsoputting them infear’


24

Man warned overbehaviour as protectionorder stays

99193

2,845

Figure 5 Protection Orders

Total: 3,137


In a midlands District Court a wifeapplied for a safety order against herhusband, claiming he had threatened her.

She told Judge Michael Reilly that they hadseparated in May and she had moved out ofthe family home. She was granted aprotection order in August “because he saidif he can’t have me no one else can… He said he’d run over me or [cut] the brakeson my car”. She said she felt safer since theprotection order was in place.

Her husband replied: “As if I’d go near thebrakes with my kids in the car.” He agreed,however, to the safety order being granted.“If she feels safer with the order, issue it.I’ve nothing to hide,” he told the judge.

In the same court an unrepresented wifemade an emergency ex parte application foran interim barring order against her husband.She said to the judge: “I don’t want him out of his own home, just to know he can’ttouch me.”

Judge Reilly told her that an interimbarring order meant he would have to leavethe house until the full hearing next week.He told her that another option would be toapply for a protection order pending thehearing. “He wouldn’t be put out of thehouse. If he raises a hand or his voice, callthe gardaí and he’ll be arrested,” he said.

The wife told the judge that her husbandwas “bullying and violent. [He] intimidatesme and locks me in a room for hours onend”.

The judge said he could not advise her onwhich course to take and suggested that shego to her local solicitor, seek legal adviceand return to court later in the afternoon.

The wife did as Judge Reilly suggested and came back to court with a solicitor. Sheexplained about her husband assaulting herthe previous Saturday. She applied for, andwas granted, a protection order. The judgethen issued a summons for a safety order.

‘If he can’t haveme no one elsecan’


25

If she feels safer with theorder, issue it, says husband

In Brief

A wife in her late 70s sought a protectionorder in Dublin District Court against herhusband, also in his late 70s. She gaveevidence as her husband was not agreeableto the application.

She said she was living with her sisterand that the husband had made continuousthreats to her that he would “punch her inthe breasts” or “floor her” and would oftenthrow things at her including slippers andother domestic items.

The husband denied the claims, sayinghe had never assaulted her. Judge GerardFurlong put all the wife’s allegations to

the husband, who suffered from mentalillness, and he denied all of them. He handed documents into court.

The judge questioned him on his livingarrangements. He said: “I am living in myhome that I bought and paid for.”The judge asked if the house was injoint names and the husband replied:“Unfortunately yes. She was neverassaulted.” The judge looked over hisdocuments and said to the wife: “I understand that you are in fear and youhave good reason to be.” He granted a safety order for a period of three years.

Violence alleged between elderly couple

An interpreter’s assistance wasrequired in a case heard by JudgeGerard Furlong. The husband and

wife had two children, aged five and 10. The wife obtained a safety order which thehusband broke some days later by grabbingher and beating her. She contacted gardaíwho came and warned the husband that therewas an order in place. Once the gardaí hadleft, he hit her again.

The wife said he was very drunk, wasshouting and that the children were terrified.Later he was arrested and remanded inprison. The wife added that she was terrifiedhe would return to the house and she soughtan interim order, which was granted.

The matter appeared again some days laterbut was adjourned so that an interpretercould be present. When the interpreterarrived the wife said a safety order was notsufficient. The husband said he felt guilty for

hitting his wife and had sought treatment forhis alcohol problem. The husband handeddocuments to the judge.

The judge asked: “When did you last havea drink?” The husband replied: “It mighthave been a week ago, I do not know.” The judge asked: “Why should you go backto the family home?” The husband repliedthat he loved his wife and children.

After clarifying some matters with thehusband including that the gardaí had arrivedto the house, Judge Furlong asked: “How long are you going to seek treatment?”

The husband asked for another chance,saying he wanted to stop drinking altogether.The wife did not accept that he would stopdrinking. The judge said he would have tomake a barring order for one year butreminded the husband that if treatment wassuccessful there was nothing to stop himmaking an application to remove that order.

‘When did youlast have adrink?”


26

Man breaches safety orderand is barred from home

103

1,2211,726

Figure 6 Safety Orders

Total: 3,050



27

In Brief

A wife sought a barring order beforeJudge Murrough Connellan. The matterhad been heard previously and wasadjourned when the husband undertook toattend an addiction centre for treatment forhis alcohol problem and to leave thefamily home until the course wascompleted.

The husband’s counsel said he hadfinished in the treatment centre and theywere happy with him. But the reality ofthe situation was that he had nowhere togo. The wife’s solicitor questioned this,stating that there was a mobile home at hisparents’ house and that before entering thecentre and without telling his wife, he hadcashed in an €8,000 insurance policy thatwas in both their names. She added thatthe wife was very concerned about how hewould cope back in the real world. There was a history to the case in that hehad sought treatment before in 2000 butafterwards had started drinking again.

The husband’s counsel said the mobile

home was his brother’s and had been soldand that the money was in an account andhad been discussed with the wife.

Judge Connellan stated that withoutwanting to anticipate things, the orderstated it would expire when theprogramme was completed and as theprogramme was now completed, thereappeared to be no bar to him returning to the family home. He asked the parties,however, to go out and consider thingsand come back before him later in the day.

They did this and agreed that thehusband would use the €8,000 foraccommodation and that the matter wouldbe put back to September in the hope thatby then he would have shown how hecoped with aftercare. Also the couplewould have made decisions on a judicialseparation.

Judge Connellan made an order for thehusband to use the €8,000 for rent andthat the barring application would proceedon a date in September.

Court adjourns barring application

A frail elderly father made an emergencyex parte application before JudgeMurrough Connellan seeking a protectionorder against his son and sought a summons to be issued for a safety order.

The judge read the information the manhad provided to the court and asked him to confirm it. The information stated thatthe man’s 33-year-old son was living withhim and his wife but that he was notdependent financially as he was receiving social welfare. It stated that he had a problem with alcohol and became abusive when drunk.

It described an incident where the son was swearing and shouting at hismother to come up the stairs despite the fact that she could not due to

a problem with her hip. The son thenthrew a cup of coffee and a can down thestairs at the couple’s daughter who wasdisabled. The information stated that thefather became anxious, with pains in hischest requiring him to take three sprays ofhis medication.

The abuse lasted several hours. Thedoctor was called and the son was taken toa treatment centre. When he returned afterthree days he told them that he did notwant a lecture and continued as before.

The father confirmed this informationand added that his son had been like thisbefore and he was immediately afraid thathe or his wife would come to harm. JudgeConnellan granted a protection order andissued a summons for a safety order.

Father gets protection order

over the income limit for legal aid. His wife,from whom he had been separated for anumber of years and who was living with awoman, was applying for a divorce. Theyhad two teenage dependent children, oneliving with each parent.

The man said the younger boy wanted tolive with him but his working hoursprevented this at the moment. He visited himevery second weekend. The older boy, wholived with him, did not see his mother.

The wife’s solicitor said she wanted jointcustody of the children, maintaining theexisting living arrangements and with accessto the non-residential child for both parents.He pointed out to the man that an olderchild, who had been on a methadonemaintenance programme, had died while inhis care.

The solicitor said there was no reality toanyone seeking maintenance. He said therehad been two barring orders against the manbut he normally tried to avoid barring ordersand would take instructions.

“What about the family home?” asked thecounty registrar.

The man said he had remortgaged it andpaid the wife £15,000 of the agreed £20,000

In Family Law Matters Volume 1Limerick County Registrar Pat Meghenoutlined a pilot project where he

conducted case conferences to preparefamily law cases for hearing. These meetingssought to narrow the issues in dispute and, ifnecessary, make orders on the time for filingdocuments, interim orders and orders formatters such as discovery. The countyregistrar is also responsible for listing casesin the Circuit Court and will give priority tocases which have gone through this processand where contentious issues have beenisolated.

The registrar convened case talks for sixfamily law cases during the Trinity law termand Family Law Matters attended with theagreement of the parties or theirrepresentatives. All cases were then listed forthe end of July. Of the six, two cases werelater settled without going to court, one wassettled after a part hearing, and one was stillongoing after orders were made in thecounty registrar’s court. The court decidedtwo.

The first case dealt with in the registrar’soffice involved a lay litigant who said hecould not afford a solicitor and who was just

‘A lay litigant whosaid he could notafford a solicitorand who was justover the incomelimit for legal aid’

family law matters Reports / Circuit Court

30

Preparing family lawcases for hearing –case-conferencing inactionCarol Coulter attends several meetings held by Limerick CountyRegistrar Pat Meghen to improve family law proceedings andobserves how the cases fare later in court

Not a 50/50 situation

When the case opened later before JudgeJames O’Donohoe, counsel for the wife saidshe wanted a €50,000 lump sum – half theequity in the house – less the £15,000 shehad received. She wanted the house soldwhen the older boy, who was 16 and livingwith his father, was 18.

The man responded: “She left seven yearsago because she was gay. I worked every dayof my life. She never worked. I gave her£15,000 to take her name off the house andshe never did it. I paid the mortgage. She never contributed.”

The wife told the court that she left thefamily home because the husband wasabusive and violent. They had had fivechildren and two were still dependent. The couple had gone to mediation andconcluded that the three older children wouldlive with their father and the two youngerones with her. She agreed to take her nameoff the house but then her husband got sickand was hospitalised and could not work fora year. She moved back into the familyhome, gave up her job and cared for the fivechildren so the agreement broke down.

The judge did not think this was a 50/50situation, rather a two-thirds/one thirddivision. A third of the net equity would beabout €42,000, and she had already receivedthe equivalent of about €20,000, leaving€22,000. The man said he had no way ofraising this sum.

The case adjourned for discussions whichdid not lead to a settlement. When the caseresumed Judge O’Donohoe awarded a lumpsum of €30,000 to the wife. He also madeorders for joint custody and access for bothparents and granted a decree of divorce.

‘Bullying and hectoring’

Another case first discussed with the countyregistrar concerned a couple who had beenseparated for 18 years and who wanted adivorce. The only issue was the house, whichwas in the husband’s name.

“She is intransigent,” the wife’s solicitor

told the county registrar and the husband’ssolicitor. “She raised the family in the house.He was barred and didn’t contribute.”

Asked about affidavits of means, thehusband’s solicitor said his client was 66, ona pension and living in rentedaccommodation. “Our case will be that heleft the family home because of bullying andhectoring and got the thin end of the stick upto now,” he said. He said his client wanted50 per cent of the house. “He won’t getthat,” said the wife’s solicitor.

Mr Meghen said the case could take one-and-a-half to two hours and he listed it forthe end of July.

When Judge O’Donohoe heard it, thewife’s counsel said she was claiming morethan half the house based on his conduct andher contribution to the family.

The husband’s counsel said he had beenbarred and had stayed away from the familyhome. He had bought it at the outset for£1,300. He had built an extension and it wasworth about €230,000. He now wanted tobuy out his wife’s share. He had savingsamounting to €60,000, which he wasoffering for her interest, and he wanted tomove back into the house.

The wife’s counsel said the couple hadboth worked in England and she had savedher salary which went towards buying thehouse. She had been living in it since 1971.

She gave evidence that the couple hadmarried in 1967 and had four children, allnow adult. She said her husband was verycontrolling and jealous and did not agreewith the children being educated.

“Even if your husband is a mass murdererhe’s entitled to something,” said JudgeO’Donohoe.

“I did up the house. I spent €60,000 on it,”said the wife, adding that she had borrowedthis from the credit union. She also fundedthe children’s education, three of whom hadthird level qualifications.

Asked if there was any way she could buyout her husband’s interest in the house, shesaid she had savings of €44,000 and herdaughter, who was a professional woman,could help her.

‘Even if yourhusband is a massmurderer he’sentitled tosomething’


32

Pat Meghen,Limerick CountyRegistrar


33

Her husband told the court that his wife hadbeen violent to one of the children and droveher from home. He was in contact with thisdaughter. He said he had always intended tomove back into the house.

He agreed that his wife had had to seekmaintenance orders against him and that hehad had those reduced so that he paid £70 a week in maintenance for the children. He accepted he had not contributed to theirthird-level fees.

“I propose giving you a third of the netequity in the house, that is €57,000. I’mgoing to allow you hold on to your pensionand your €60,000. You should be able to getsomewhere to live out of that,” said JudgeO’Donohoe, granting a decree of divorce andorders extinguishing succession rights andnominal pension adjustment orders.

‘A totally settle-able case’

In another case the husband’s solicitor toldthe county registrar that he had difficultiesgetting instructions from his client. He was a professional man who had bought anotherbusiness and now had a drink problem. His wife wanted a judicial separation and a protection order had been made againsthim.

The wife’s solicitor said they had sixchildren, five of whom were dependent. She was rearing them and wanted theissues resolved.

The husband’s solicitor said he hadfiled an affidavit of means. The countyregistrar wanted the man’s businesspremises valued and said he couldissue an order to allow aninspection within three weeksif that was acceptable. Thehusband’s solicitor agreedand agreed that the familyhome be valued as well.The valuations would behanded into court and no further evidencewould be necessaryon them.

The wife’s solicitor accepted that the manwas paying €1,300 a month in maintenancefor the dependent children. His wife worked.“This is a totally settle-able case. I could seethis not taking time,” he said. Joint custodyof the children was already agreed with themliving with the mother and access agreed.

“We’ll need details of SSIAs, pension, anup-to-date figure for redemption of themortgage on the business premises, accountsfor three years. It seems to me that if shegets the house, the business premises couldbe sold, he continues paying maintenance forthe children, and it could be settled,” said thecounty registrar.

“In theory it is very straightforward,” saidthe man’s solicitor. “It’s a question of gettinghim to engage. When he is sober he is a really nice man.”

“Absolutely,” said the wife’s solicitor.The court was told the case had settled

when it came up subsequently for hearing inJuly. The couple had agreed on a judicialseparation with joint custody of thedependent children, who would live withtheir mother. The father would have liberalaccess, and would continue to pay €1,500 amonth, €300 for each child while they weredependent. The family home would beassigned to the wife who would give up any

interest in the business premises.He would take over the

mortgage on it.

‘I could see thisnot taking time’

Dividing up the family home

In another case a couple could not agree ondivision of the family home which wasworth €557,000. The parties had agreed itshould be sold. The wife’s solicitor told thecounty registrar she wanted more than 50 percent because of the husband’s conduct. Shewas seeking 52.5 per cent, along with halfhis pension which was worth €50,000. She was also unhappy with the maintenancefor the dependent child set at €150 a weekin the Circuit Court and which, shecomplained, was not being paid.

At the meeting with the county registrarthe husband’s solicitor said his client wanteda reduction in maintenance. The wife’ssolicitor said the husband was self-employedand there was a huge cash element in thebusiness. If necessary the wife could giveevidence on this to the court.

Mr Meghen said accounts should beproduced for the past three years. The wife’ssolicitor said his client had only beenworking for the past few months and shecould not afford a mortgage. She would belooking for 55 per cent of the house andwould then relinquish her claim on thepension. Mr Meghen said he could make a property adjustment order and an order forthe sale of the house if it would help.

After consulting his client, the wife’ssolicitor said his client agreed on an order tosell the house, with a reserve of €557,000 onit, and she would accept 52.5 per cent of thenet proceeds of the sale. She would not lookfor a share of his pension but would accept a lump sum of €15,000 instead. There wouldbe an issue of stamp duty payable on anyhouse she would buy.

The husband’s solicitor consulted his clientand said he would agree to everything butnot the €15,000, and the case was listed forhearing.

Mr Meghen reminded the parties that theproperty sale had been agreed, the husbandwould have to produce three years’ accountsand the wife a statement of her earnings forthe last year, along with the valuation of thepensions. Joint custody was settled.

The parties agreed to explore the taxtreatment of the house sale.

When the case came up for hearing bothsides told Judge O’Donohoe that the casehad come very close to settlement and theyoutlined what had been agreed. The wife’sbarrister said that because of relationsbetween the parties and difficulties with themaintenance, she wanted it capitalised into a lump sum along with money to compensatefor her giving up any claim on the pension.The dependent child was expected to go tocollege and would be dependent for anotherfive years.

The case was adjourned for discussions,and when it resumed it was agreed that thewife would receive 52.5 per cent of thehouse value along with €35,000 in lieu offuture maintenance and any claim on thepension.

Bitter dispute over land

Another case discussed with the countyregistrar concerned a bitter dispute aboutland. The couple had parted seven yearsearlier and a judicial separation was in place.The husband now wanted a divorce. Thewife claimed that maintenance wasinadequate and also that her husband wasinterfering with the sale of land granted toher following the separation and wantedfurther provision. There was also a disputeabout access to the children.

The husband’s solicitor said that in thedispute over what was being spent on thechildren he was willing to increasemaintenance. He was farmer and ran a smallbusiness. His wife also had a business.

“Can you get a valuation on his house andfarmland?” asked Mr Meghen. “Also on hersand hand them in. If there is a difficultycome back to me. Also get figures for landboth sides sold, along with up-to-dateaffidavits of means. Custody is not an issue.Access is. We may need to meet again.”

The husband’s solicitor said the case wouldtake a day if it dealt with allegations that theland sale was interfered with. “If the land has

‘Custody is not an issue.Access is.’

family law matters Reports / Case conferences

34

‘An undertonehere of assets notbeing disclosed’

family law matters Reports / Case conferences

36

the estate saying he was considering thirdparty discovery in the context of properprovision in a divorce application. There would also have to be avermentsconcerning the land compulsorily purchased.

“I feel there is an undertone here of assetsnot being disclosed and no judge will makeorders without all information,” he said.

“My client will be very surprised if he isnot a beneficiary of his father’s will. He wasthe apple of his father’s eye and they did alot of business together,” the wife’s solicitorsaid.

The husband’s solicitor said his client hadserious concerns about where the moneyfrom the taxi plates went.

An estate of €10 million

The case came before the countyregistrar’s court at the end of July when thewife’s solicitor said four affidavits of meanshad been filed by the respondent, with moreassets revealed each time. A copy of theprobate report showed the husband’s fatherhad an estate of €10 million. There weresiblings and the husband’s mother was quiteelderly so he should expect to inherit at least€2-€3 million.

A solicitor representing the husband’s

mother said she did not want to be involvedin the case as the inheritance concerned washers.

The county registrar said this caseconcerned proper provision in the context ofa divorce application. It would be necessaryto discover what assets the father had beforehe died, what assets the mother held whollyor jointly with either her husband or therespondent before her husband’s death, sothat when the court sat it would have all theinformation relating to the assets.

He said there would be a family law call-over in September when a motion could bebrought relating to any other matter.

At the family law call-over in September,the parties had agreed on a valuer for theproperties and sought a ruling on who wouldpay for the valuations. The case was listedfor November with a further caseprogression meeting likely in the meantimeto ensure all discovery matters were dealtwith.

All other contested cases described asready for hearing have been put in formeetings with the county registrar, 32 in all,which would be dealt with in September.Family law is listed for hearing for October30th to November 15th and it is anticipatedthat all case-conferenced cases will be heardthen, according to Mr Meghen.

Such access was taking place in the child’shome on Saturdays between 11 am and 3 pm. People were available to act assupervisors.

The mother’s barrister agreed there wasacrimony, but added: “This is in a situationwhere Mr… has assaulted my client, myclient’s father, my client’s brother-in-law.She is very worried about the child’s welfareand what Mr… might do.”

“Access is the right of the child,” JudgeButtimer said.

“What if the child does not want access?”asked the mother. “My child is afraid of thatman.”

“I can’t accept this any more,” the fathersaid. “Supervised access came in because my son was abducted to [another part of thecountry] and I had to get him back. This woman is controlling the access andshe’s not supposed to do so. I don’t wantpeople investigating my background anyfurther.

“I would like the HSE to check the

suitability of supervised access.”“I would like to know why unsupervised

access was not recommended,” said thejudge.

“I protected [my son] in the past becausehe was left with drug dealers who abusedhim,” the father said. “She assaulted mysister. I’m attending a parenting course. I want to be there for my son to help himalong in his childhood. I’ve co-operated fully with the HSE. I’ve done everything,including being degraded by having to sit in her house and ask her father if I can takemy son for an ice-cream.”

“Will he have to take a knife to my heartbefore you take me seriously?” the motherasked the judge. “This is all one-sided. She [the judge] has her mind made upbefore you go in.”

After an adjournment the judge ordered supervised access to continue with a nominated supervisor and remindedthe father that he was not meant to takethe child out when on supervised access.


41

Aright of residency in the familyhome pending a divorce applicationwas granted to the wife in a judicial

separation case on the South-Eastern Circuit.Judge Olive Buttimer refused to grant thehusband’s application for a 50 per cent sharein the house and adjourned this issue untilMarch 2008.

The couple had been married for 39 yearsand separated in 2004 when the wifediscovered the husband was having an affair.He was aged 60 and she was 62 and therewere eight children of the marriage, allindependent. The husband was self-employed, the wife suffered from healthproblems and was no longer working though

she had worked throughout the marriage.The family home, the main issue in dispute,was worth about €250,000 and there wereabout €50,000 owed in debts.

The wife alleged that there had beenserious violence in the marriage, and herhusband had threatened to murder her.Following the separation, she foundcatalogues for headstones in the house whenher husband had been there.

She described the circumstances of theseparation, saying that when she was ill inhospital her son told her he had come homefrom work and that his father was backdrinking and there was a lady involved. Later she found the bed had been slept in,

Wife wins right of residencybefore divorce action

‘Access is theright of the child’

she found condom wrappers and two tabletsshe now knew to be Viagra. “He wasn’tusing them for me anyway,” she said.

She said her husband worked in the blackeconomy, earning up to €5,000 a month anddid not accept his claim that he earned only€100 a week.

The husband’s barrister said her clientdenied all the claims of violence and madeclaims of violence against the wife. The wifesaid her daughter was prepared to come inand give evidence about the violence, butJudge Buttimer said: “I don’t want to draw inthe child of the marriage.”

The husband said he had stopped workingrecently following surgery. He said he hadno security of tenure in his girlfriend’shouse where he was now living. He hadattempted to talk to his wife about theirmarital problems but she had refused. Then when she found out about the affairthe marriage ended. “It had been dying for a long time.”

Asked about the Viagra and the condomwrapper he said: “I got the Viagra from thedoctor for a friend. The condom wrappers

were from a tenant. It’s completelyridiculous. Why would I need a condom witha woman of 53?”

He said he wanted half the net value of thehouse in order to buy a barge. His wife coulduse the other half to find somewhere else tolive.

“Perhaps it would be best to give Mrs…the right to reside until further down the roadand perhaps some of the children may wantto do something,” suggested the judge.

“We oppose that suggestion,” said thehusband’s barrister.

“I have no intention of putting Mrs… outof her home, none,” said Judge Buttimer.

The wife’s barrister said that it was herintention to seek a divorce when this becamepossible after four years’ separation inMarch 2008.

“I grant a decree of judicial separation andthe exclusive right of residence to Mrs….There is to be no sale of the family homeuntil further orders of the court. It might beuseful to add I don’t see it as a 50/50 split.Mr and Mrs… have vastly different livingcircumstances,” the judge said.


42

Awoman who left the family homewith another man 20 years ago wasgranted €25,000 by Judge Olive

Buttimer in a South-Eastern Circuit Courtfor her interest in the family home whichwas still in joint names.

The couple met in 1967 and had fivechildren. In 1987 the wife left, obtained adivorce in another jurisdiction and marriedthe other man who was 22 at the time. She was then aged 40 and her husband was58. The wife told the court that she had lefther husband on other occasions before the

marriage eventually broke up, but wasalways told by her family to return. She hadalways planned to leave when the youngestchild was 16 and believed the only way todo so was to go away.

She said she thought she was entitled tohalf the family home after rearing fivechildren. She agreed she had left 20 yearsago with another man and had led a totallyindependent life since. Asked why shewanted to realise an interest in the familyhome now, she said: “I always said I wouldnot take the roof from over my kids’ heads.”

Woman who left familyhome 20 years before gets€25,000

‘I have nointention ofputting Mrs… out of her home,none’

‘She givesevidence. Youhave the right tocross-examine’


44

In Brief

Judge Donagh McDonagh refused to rulea consent divorce in Dublin Circuit Courtbecause he did not consider the termsmade proper provision for the wife.Having heard the couple, both laylitigants, he agreed he was prepared torule it if they reduced their understandingto writing.

The issue was the manner in which thefamily home, worth €500,000, was beingdivided. The couple had agreed that thewife would get €120,000 for her interestin it and that their only child, a son, would inherit the house eventually. In the meantime the husband would have it.

“We have managed to come this far andbe amicable with each other,” the wife said.“I feel that the settlement was fair and just.”

“There is nothing to stop Mr… sellingthe property in two or five years’ time and

moving to Spain, leaving [the son] highand dry,” Judge McDonagh said. “I thinkit would be better if it were reduced towriting. Your son’s name should be on thetitle deeds.”

“We did look at that but it would costabout €22,000,” the wife said.

“If it was between the two of you I would not consider €120,000 to beproper provision out of a house worth€500,000,” the judge said. “That is beforeyou bring your son into it. When that istaken into account it may well be properprovision. The agreement between youabout your son’s interest should bereduced to writing. You should see a solicitor about that.

“I’ll refuse the application but leave the case stand and you can come back to me during the day, when you’ve seen a solicitor.”

Agreement on son’s inheritance ‘must be in writing’

An unmarried mother was grantedsupervised access to her youngson by the Dublin Circuit Court

when she appealed a District Court orderthat had granted sole custody to herformer partner, with no reference toaccess. Both parents came to the courtunrepresented.

“The way this works is as follows,”Judge Donagh McDonagh told the father.“She gives evidence. You have the right tocross-examine. You will have the right togive your evidence and she will have theright to cross-examine you.”

“We split up about six weeks after our

son was born because he was hitting me,”the mother said. “I went back to memam’s. I had post-natal depression whichwas not diagnosed. The nurse thought itwould be better if the baby was with [mypartner] while I was depressed. He wentfor sole custody. I didn’t turn up in theDistrict Court, I was afraid of him.

“The social worker said I should havethe baby on Fridays. About two weeks ago[my partner] asked me to take him and I had him for three days then I gave himback. I have not seen him since.”

“What are you looking for now?” askedthe judge.

‘The child is entitled tosee his mother‘


46

In Brief

Judge Donagh McDonagh refused to varya District Court order that a father’saccess to his children should be exercisedin the house being occupied by themother, pending proceedings to decide onhow the house would be divided.

The two were not married and had twochildren, aged eight and six. They hadbought a house together and partitionproceedings were now being broughtconcerning the house. The children livedin the house with the mother who, underthe court order, moved out from Sundayto Tuesday so that the father could spendtime with them.

The mother’s barrister said her clientfound the arrangement entirelyunworkable and the conditions attached toit were not being observed. Theseincluded the children being in bed at a settime and dinner between 5 pm and 6 pm.They were eating take-aways, or beingtaken out. Access was meant to be withtheir father alone and there were frequentvisitors to the house including a woman,she said. The house was meant to be keptclean and tidy but dishes were left in thesink and the laundry was not done. Gasand electricity bills were being run up.She said her client would have noproblem with access in the father’smother’s house, where he was living.

The father’s barrister said that this orderhad been made by Judge Furlong in theDistrict Court on consent two years ago.When the case came back to him earlierthis year he refused to vary the order.

“[My client] looks after the childrenextremely well. Ms… won’t leave thesituation alone. She is driving up to thehouse and flashing the lights at 7.30 pm.She wants him away from the house sothat she can get on with her life. We have

no problem with Ms… having herboyfriend in. We know there’s a manliving in our house.”

She added that access in her client’smother’s house would not suit as it wasnot close to the children’s school.

“I think both parties are cuckoos withproperty issues left unresolved for twoyears,” the judge said. “Nothing hasbeen done since February on the house.The Defence and Counter-claim are tobe served by this day week. In themeantime we have a situation whichseems not to be working.

“There is no alternative place for Mr… to have access at the moment.Ms… enjoys the house as her principalresidence. How many bedrooms arethere?”

The barrister said there were three,one of which was kept locked. Therewere bunk beds in one room which thechildren shared when their father wasin the house and he slept in the thirdbedroom.

“If a schedule can be written outconcerning the children getting up,homework, dinner and bedtime, and it’spatently obvious he must leave thehouse spick and span, it’s a restrictionon Mr… to say he can’t bring anyonein. I don’t think it’s too much of arestriction to say he is not to bringanyone in without prior notice andagreement. There is to be no smokingin the house whatsoever, given that oneof the children has asthma, theirwelfare must be paramount.

“The other party must not visit thearea around the house while they areout of it. This is to be the regime untilthe partition proceedings. Theseproceedings should be expedited.”

Father’s access order to continue unchanged

a settlement rate of about 86 per cent, slightlybelow the average for Dublin for the samemonth, and in contrast for Cork in that period,when all were settled.

One reason for the lower settlement rate inTralee was due to a higher proportion of thecases being judicial separations. This is thefirst point at which a marriage breakdownbecomes regulated by law. Often by the timea divorce is sought a judicial separation willhave been granted or a separation agreementwill be in place, resolving most issues.

A contributory and probably linked factor tothe more contentious nature of cases in Traleeis that a higher proportion included decisionsinvolving dependent children. There were 17such cases in Tralee, out of a total of 32, thatis over half of all the cases, but only 13 inLimerick out of a total of 47, just over aquarter.

It is also possible that in that particularmonth a number of contentious cases,previously adjourned, were heard.

Longer marriages ending inLimerick

This may be accounted for by the fact that inLimerick 19 cases involved marriages morethan 25 years old while in Tralee only ninecases involved couples married more than 25years. The children of couples in the olderage-range are unlikely to be still dependent sotheir future and welfare will not be an issue ina judicial separation or a divorce.

There was also a difference between the twocentres over the family home and other assets.In Limerick the family home was not an issuein 16 cases. In four cases this was becauseeach party already had a house, usuallybecause a divorce followed a judicialseparation which laid the basis for each partyestablishing an independent life. In 12 cases,however, the family home was not an issuebecause one or both of the parties lived inrented accommodation or with relatives. InTralee both parties already had houses in sixcases and neither had one in seven.

In the two weeks of family law in the South-Western Circuit a total of 79 cases weredisposed of, which compares with 50 cases inCork in two weeks in the same month. Eightwere judicial separations in Tralee, and two inLimerick. There were 24 divorces in Traleeand 43 in Limerick. Limerick also heard onerecognition of an English divorce and onedeclaration of parentage, both on consent.There were no District Court appeals,guardianship applications or nullities.

As has been seen in Dublin and Cork, therewas a wide spread of age-group among thoseseeking judicial separation and divorce. Whiledates of birth are not on the files, the dates ofthe marriages are, showing the length of themarriage and providing a rough indication ofthe ages of the parties.

Five of the 32 applications in Tralee and 11of the 48 in Limerick came from couplesmarried less than 10 years; 11 in each centrecame from couples married between 11 and20 years; 10 in Tralee and 12 in Limerickwere from couples married 21 to 30 years,while six marriages in Tralee and 13 inLimerick ended formally after more than 30years. It was clear from the orders than in

family law matters Statistics and Trends / Circuit Court

48

13

913

1519

1

9

Figure 1 Length of marriage ending in divorce

Less than five years6-10 years11-15 years16-20 years21-25 years25-30 years31-35 years

some cases, but not in most, this happenedafter many years of separation. In a significantnumber of divorce cases a judicial separationor a separation agreement was already inplace and the divorce merely finalised the endof the marriage.

Children emerge as focal point

Children emerged as a contentious issue withfive of the nine cases that went to a fullhearing in Tralee involving children. Therewere 17 child-related cases in Tralee in all and15 in Limerick.

There was some difference in outcomebetween the cases in Tralee and those inLimerick which may have resulted fromdifferences in the social base from which theparties were drawn. Joint custody, with eitherno primary residence specified or primaryresidence with the mother, was by far the mostlikely outcome in Tralee (10 out of the 17cases). Sole custody to the mother was theoutcome in five out of the 17 cases in Tralee,with the children living with the father in onecase, and some children with each parent inanother. In Limerick in six out of the 15 casesthe mother was granted sole custody, withjoint custody granted in nine cases, six ofthem specifying that the primary residencewas with the mother.

In two of the sole custody cases it wasspecified that the father was not to havecustody in any circumstances, including thedeath of the mother, and in one of these hewas to have no access to the child, a teenager.

Access was generally “as agreed”, thoughthis did not necessarily mean it had beenagreed in advance. In some cases involvingaccess the father did not appear in court andwhile access was to be agreed, disputes aboutit were to go to the District Court. Access wasshared jointly in two of the Tralee and one ofthe Limerick cases.

Maintenance of the children arose less thanmay have been expected with no maintenanceorders made in ten of the Tralee cases or fourof the Limerick cases. Where maintenancewas agreed or ordered, the amounts rangedfrom €30-€50 per week per child (nine

cases) to €50-€100 (four cases). It wasreferred to the District Court in three casesand in two a lump sum was paid in lieu.Maintenance of spouses was relatively rare(only agreed or granted in five of the 79cases).

Family home: dividing the assets

In most divorces and judicial separations themain asset is the family home. Varioussolutions emerge in its disposition, probably(though this is not clear from the paper files)linked to whether or not there are dependentchildren. These solutions can include oneparty buying out the other’s interest, thefamily home being transferred to one or otherparty without payment, but usually with thisparty taking over the payment of themortgage, or the sale of the family home andthe distribution of the proceeds. In some


49

13

9

10

19

5

4

7

Figure 2 Family Home

Total where FH referred to: 67

No order madeTransferred FH and mortgage to wifeEach owned a houseTransferred to wife on payment of sumSold and dividedTransferred to husband on payment of sumHouse remained in joint names

divorce cases the family home has alreadybeen disposed of in judicial separationproceedings and the parties now each havetheir own homes.

There is also a group of people who do notown a family home, where the couple hasnormally lived together in local authority orprivate rented accommodation. Occasionallya couple may have lived with relatives,usually in-laws. Sometimes another familymember may have contributed to theacquisition of the family home and theirinterest is recognised when it comes to bedisposed of.

In a few cases substantial assets have to bedistributed of which the family home is onlyone. In such cases it is common for one partyto get the family home without compensatingthe other party for his or her interest while theother party gets other family assets, for

example land, a public house, rentalproperties or other investments.

In seven of the Tralee cases and six of theLimerick cases the family home wastransferred to the wife without her paying forher husband’s interest, but usually with hertaking on the mortgage. In four of the Traleecases and five of the Limerick ones the housewas transferred to the wife by her buying outher husband’s interest; in one Tralee case andfour Limerick cases the opposite occurred.

The house was sold and the proceedsdivided (usually, but not always, 50/50) intwo of the Tralee and five of the Limerickcases. In six Tralee cases each party had his orher own house, while this was the case in onlyfour of the Limerick cases. In contrast, therewas no family home at issue in 12 of theLimerick cases because neither party owned ahouse, while this was the case in only seven ofthe Tralee cases. The house was left in jointnames in one case in Tralee and three inLimerick, with one party having the right toreside in it for a specified period of time andthe parties’ respective shares allocated.

Other financial assets were divided in threeTralee and six Limerick cases. Pensions didnot emerge as a major issue in either centre,with no significant allocation of a pension inTralee and only one in Limerick. Nominalpension adjustment orders were made in ahandful of cases.

Contested cases

It was not entirely clear from the files whysome cases went to a full hearing and ajudicial decision. Of the 11 where thathappened, four were judicial separation andseven divorce applications.The family homeand children appeared to be the mostcontentious issues. In one case where the onlyorders made concerned the family home thehusband was allocated €60,000 of its valueby the Circuit Court. He appealed to the HighCourt where he was given €65,000.

In another contested case the court orderedthe transfer of the family home to the wife’ssole name without any payment. It also madean order extinguishing the husband’s


50

20

3

1

2

51

1

Figure 3 Children: Access

Total: 32

AgreedAccording to scheduleShared equallyReferred to District CourtNo access allowedNot mentioned

Awoman failed in her bid in a South-Western Circuit Court to be paid anadditional lump sum following a

divorce based on consent between the partiesthat was granted and the consent made a ruleof court in 2002. This in turn followed aseparation agreement in 1988.

The facts

The wife returned to court earlier this yearseeking an additional lump sum from JudgeTerry O’Sullivan, claiming she had receivedinappropriate legal advice during the divorceand that the circumstances had changed.

“Proper provision was made,” said thehusband’s counsel. “She consented.

“Now there is an application for a lump sumorder. The change in circumstances in fact isvery strongly in my favour. Mrs...’scircumstances have improved since thedivorce. A direction was given by the court togo into my client’s accounts. There is noexplanation given as to why this was not dealtwith at the divorce stage.”

The case was then referred to the countyregistrar for an examination of banklodgements and invoices. He found thelodgements during the period in question didnot reflect the entire proceeds received by thehusband’s business.

“He was only asked to look at the source oflodgements in two accounts. He went outsidethat,” said the husband’s counsel. JudgeO’Sullivan said he took the lodgementsevidence as a given.

The husband’s counsel said the countyregistrar had also sought documentaryevidence from the wife on payments forcounselling for the children of the marriage.“We got receipts only this morning, unsigned,which indicate that the two children attendedthis person on dates when the son was inAmerica. It troubles me. The person whogave the receipts engages in something calledKi-esh. It is not psychological counselling asI understand it. Did it take place at all? Is itserious counselling? Mr… has married in themeantime which may affect the orders thatmight be made.”

He agreed with the judge when he said:“Your argument is that Judge Moran’sdecision in 2002 essentially bolts the door onanything else.”

The husband gave evidence that the couplehad separated in 1988. The house was soldand the proceeds divided equally and theyeach received £13,500. He received socialwelfare and then worked in England for a yearor so.

The children lived in a town in the south-east with their mother who “took up withanother fellow”. The children got on well withhim and addressed him as “dad”, and he didnot see much of them after that. He paid nomaintenance between 1988 and 1996. Hestarted a relationship with the woman whowas now his wife.

The wife later applied for maintenance fromhim. In 1996 maintenance was fixed in theDistrict Court at £20 per week per child whichwas varied in 1999 to £40 each. When theolder child was no longer dependent it went

family law matters Judgments / Second bite

53

Woman’s post-divorcebid for another lumpsum fails A former wife’s claim of poor legal advice and changed circumstancesfails to persuade the judge that she is entitled to a ‘second bite’

way it precludes a fresh application.”The husband’s barrister said: “He has had a

few good years. He never breached any orderof the Court. Everything that went before hasbeen dealt with. The essence of this caseseems to be that because of what happenedbetween 1988 and 1996 he should bepenalised now.

“Mrs... has been most ruthless in pursuit ofmy client. We have been dragged through thefigures on a wild goose chase that provednothing. It has been highly oppressive of myclient. Where is the money going to comefrom? His only asset is the family home, co-owned with his wife. He has another child.Mrs... is the sole owner of her home. Sheworks part-time, earning €30,000 a year. Inthe light of today’s circumstances she is betteroff than my client. He can only raise money bymortgaging his home and disadvantaging hischild.”

The man’s second wife, who was also thebook-keeper for his business, gave evidenceof its affairs. It had one employee on a three-day week, and turned over a profit of€40,000.

A friend of the former wife said that, duringher divorce proceedings, he had been awitness to a conversation with her thensolicitor who told her that, because she hadobtained an English divorce in 1992 withoutfulfilling the residency requirements, shecould face a criminal prosecution. This haddevasted her.

The husband’s counsel said that in the HighCourt recently Mr Justice Henry Abbott hadlaid down a “catastrophe” as the benchmarkfor changing an order made in granting adivorce. There was no catastrophic change inher circumstances.

Ruling against the wife’s application, JudgeO’Sullivan recalled that a divorce had beenconsented to in 2002. Under the terms of the1988 separation agreement the family homehad been sold. Mr… agreed to paymaintenance but had not adhered to this.“Unfortunately there was a lack of support forthe children until 1996 from when he paidunder court order.

There was not much emotional or othersupport for Mrs... at this time. This is

something I would ordinarily take into accountin making proper provision.

“She had her own life. The reason shesought a divorce in 1992 was to try toregularise her own position. If I wereapproaching this matter de novo I would beopen to making financial adjustment orders infavour of Mrs... .

“It has been suggested that she receivedunfortunate legal advice from her thenadvisers, that she would face criminalsanction. Having heard the evidence I’m notsatisfied with it. It must have been given inOctober 2001 or when the defence andcounter-claim was filed, which made no claimfor financial relief. I’m satisfied that at thetime of the hearing there was no unfair duress.So if she wished to make a claim for financialrelief she should have done so and she did not.

“If I were to interfere now I would have todo so on the basis of something that happenedsince. If anything circumstances are somewhatbetter for her and somewhat worse for herhusband.

“He has an injury. He has obligations nowthat he did not have in 2002. There is nothingcatastrophic, as Mr Justice Abbott put it.”

“My client’s circumstances have changedfor the worse,” her counsel said. “She had totake out a mortgage to repay her sister€100,000 she borrowed to support herself andthe children.

“Her sister was not pressing her for it, buthas now fallen on hard times.”

“We were told in 2005 she owed €20,000 toher sister,” the husband’s counsel said.

“You all know what my decision is,” JudgeO’Sullivan said. “If you want to make a freshapplication I can make a ruling that this doesnot bar an application arising from themortgage [on the wife’s home]. I’m not happythat you substitute one debt for another. Shedidn’t owe the sister €20,000. I would need tobe very strongly convinced that the mortgagewas required.”

Following a brief adjournment, he said afresh application could be brought but hewarned:

“It will have to be a de novo application.Whoever wins this motion will get their costsfrom the other side.”

‘Whoever winsthis motion willget their costsfrom the otherside’

family law matters Judgments / Second bite

55

‘I never divorcedmy wife. I nevergave Ms… a ring.I was neverengaged to Ms…’

family law matters Judgments / High Court

56

Aman separated from his partner of 27years failed in a High Court bidbefore Mr Justice Henry Abbott to

halt an action by the woman on the basis thatthe couple had been engaged. She wasseeking a portion of his assets while he wasclaiming there could not have been anengagement.

The facts

The man argued that as they were bothlawfully married to other people during thetime they lived together, they were prohibitedby Irish law and the Constitution from beingengaged to each other, so her action wasfrivolous and vexatious and should bedismissed.

The woman’s barrister said the engagementwas lawful as they had lived together formany years and had three children. Both theirnames appeared on the deeds to property andshares. When the relationship broke down thewoman was anxious to regularise alloutstanding issues between herself and Mr….This included, she argued, her legal right tosome of the assets of the relationship. Thusshe was applying to the High Court todetermine her interest in these properties.

All her client had to do, she said, wasestablish a cause of action.

She added: “Breach of promise has been

done away with by the 1981 Act and myclient’s action was to sort out the conse-quences of a long-standing relationship.”

Furthermore she argued that her clientwould be prejudiced if the judge did not allowher claim as she would be deprived fromcertain presumptions afforded under the 1981Act and Section 44 of the Family Law(Divorce) Act 1995 such as that of thedoctrine of advancement.

The man, who represented himself, said themain difference between Ireland and Englandwas that Ireland had a Constitution withinwhich special emphasis was placed upon thefamily. Therefore, he argued, Mr JusticeAbbott could not rely upon the position of theEnglish courts on the rights of engagedcouples as they did not have to constrict theirviews to a Constitution.

He emphatically denied that an engagementhad ever occurred. “The Family Law(Divorce) Act gives rights to those peoplewho are legitimately engaged. I neverdivorced my wife. I never gave Ms… a ring.I was never engaged to Ms…,” he stated.

In the UK, he argued, the courts haddecided again and again on grounds of publicpolicy that married men were not entitled tobecome engaged to unmarried women andthat Ms…’s claim against him should bedismissed on similar grounds.

He referred to Mr Justice Peter Kelly’sjudgment in Ennis v Butterly where it was

Man fails to haltformer partner takingcase over assetsWhen two people have lived together for 27 years and are lawfullymarried but not to each other what constitutional standing does theirrelationship have when things fall apart? The High Court considers an unusual but pivotal case

family law matters

58

Mediation is a process in which animpartial and independent thirdparty facilitates communication

and negotiation and promotes voluntarydecision-making by the parties to a dispute toassist them to reach a mutually acceptablesolution. The parties to any dispute or conflictmay agree to use mediation although it hastraditionally been associated with familiesexperiencing separation or divorce.

Benefits of mediation

In family cases parties choose mediationrather than litigation as it can be less dauntingto them and they retain control of the processand outcome. With the assistance of theneutral mediator, the parties can arrive atagreements that have been individuallytailored by themselves to their own and theirfamily’s needs – this gives a flexibility that isnot available through litigation. The process isalso quicker and more cost effective thanproceeding through the courts.

The balanced interests of all familymembers can be achieved by using mediation.In arriving at agreement the parties can planhow to move forward after separation, whichenables family members to start the process of

developing their relationships in therestructured family unit. Mediation enablesboth parents and, where appropriate, thechildren, to have an input into and to agreehow the children can continue to have ameaningful life and relationship with bothparents. Parents can come to agreementswhere their living arrangements facilitate thatrelationship.

Mediation’s real benefit is that it encouragesthe parties to work together for the commongood of themselves and their families.

This enables the parties to take control oftheir futures and their future relationship andcan help them to move on more quickly thanif they had been to court. It can be by far a lessfraught experience for all parties than theroute through the litigation process.

Awareness of mediation

There is an apparent lack of awareness on thepart of parties and their advisers of theavailability of mediation, how it works andthe benefits it can bring over litigation. One ofthe best ways to get this information across isthrough solicitors, who are usually the firstport of call for couples wishing to separate.

Although solicitors are obliged by statute to

Opinion and Analysis / Mediation

More disputes couldgo to mediationUp to 1,500 couples used theFamily Mediation Service in 2006to resolve their disputes whichcompares with more than 27,000who went to the District and Circuit Court. Karen Erwin,president of the Mediators Instituteof Ireland, outlines measures thatcould increase use of the service in family law

‘The balancedinterests of allfamily memberscan be achievedby usingmediation’

development; and that their professionalpractice is properly regulated.

The Mediators Institute of Ireland (the MII)recognises the importance of the need for thepublic and other professionals to have fullconfidence in the standards of its mediatorsand has just finished a complete review of allof its requirements for the training andassessment of mediators together with rulesfor ongoing practice requirements includingadherence to the Code of Ethics. It has alsointroduced revised complaints, disciplinaryand appeal procedures.

The MII believes its accredited mediatorsare up to international standards and that therecan be confidence in them.

Family mediators are available bothpublicly, through the Family MediationService (FMS), or privately. There is nocharge for the publicly funded mediator butthere may be waiting lists depending on thelocation. Private mediators can be foundeasily on the MII website (www.themii.ie)where the parties or their advisers can accessprofessional information about the mediatorto inform their choice.

Due to competition law there is noinformation on fees available but it willusually be based on an hourly rate.

In the FMS, the practice is to conduct themediation over a number of one-hour sessionswith the parties. In a private mediation thiswill depend on the mediator, the issues andthe parties.

More public sector funding should be madeavailable to employ more mediators.

Confidentiality

Confidentiality is a core principle ofmediation and to feel confidence in theprocess, the parties must be satisfied thatmediators will keep the informationconfidential even if the mediation is notsuccessful and the case will appear in court.

The entitlement to confidentiality in allmediations should be enshrined in law. It isimportant to note though that an exception toconfidentiality may arise if risk to a child isdisclosed during the process.

family law matters Preserving anonymity: a draft protocol for family law reporting

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‘Parties choosemediation as itcan be lessdaunting to themand they retaincontrol of theprocess andoutcome’

Enforcement

The enforceability of mediated agreements isoften of concern to solicitors and theirclients.

At present an agreement arrived at inmediation may be binding on the partiesdepending on what they agree.

Some parties want a separation agreement toground an application for divorce.

Some may just want their parenting planswritten up for their own use.

Given that the courts have the discretion toamend any agreement in family proceedings,there should be a provision that an agreementarrived at in family mediation is binding onthe parties if they so choose. To satisfy thecourt the parties would either have to havebeen advised by their solicitors on their rightsor declare that they had such an opportunitybut declined.

A statutory provision recognising theenforceability of mediation agreements couldspeed up the enforcement process rather thanthe parties having to rely on a breach ofcontract action, which is the case at present.

Conclusion

Mediation is the preferred process for theresolution of family disputes given its non-adversarial approach, its concentration on thefuture and well-being of all in the family, andthe retention of control of the dispute withinthe parties.

To increase the use of mediation thefollowing measures are necessary:• mediators should be trained to a

high standard and be regulated by a professional body like the MII;

• there should be an awareness campaignabout mediation for both the public andsolicitors;

• mediation should remain a voluntaryprocess and that, together with theconfidentiality protection provisions,should be enshrined in law;

• agreements arrived at in familymediation should be recognised by thecourts and directly enforceable.

family law matters - courtswebfiles... · by the courts service to prepare reports on family law....

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