Updated 10.55pm
MANY OF THE cases that fill the family courts up and down the country relate to the aftermath of a relationship breakdown.
Issues regarding, maintenance, guardianship, custody, access and also judicial separation and divorce are heard in the family court.
Cases of these kind have been described as the “bread and butter” of the family court and make up a lot of solicitors’ case loads.
Maintenance
The annual Court Services report shows that maintenance applications are one of the most common to come before the family court. In 2013, there were 1,805 maintenance applications made by married couples and 3,460 by unmarried couples. A total of 5,265 applications came before the courts in relation to maintenance alone.
PhD research on the family courts by Róisín O’Shea, a certified mediator, states that there is “no set formula or guidelines” in regards to how the calculation for maintenance is made by the court.
“Ultimately it is the sole discretion of the court to determine an appropriate amount based on the needs of the applicant spouse and/or the children. The blanket of secrecy shrouding family law proceedings has meant that how such discretion is applied by the courts is unknown”.
In terms of custody and access, in 2013, there were a total of 889 custody and access applications. The courts granted 694, refused 31 and struck out 165.
Custody only applications amounted to 1,410 applications – 745 were granted, 64 were refused and 601 were struck out. In terms of access only outcomes, a total of 4,383 were granted, 140 were refused and over 1,215 were struck out.
There have been criticisms of the overburdened system, namely the costs and the long delays, with many courts having huge call over lists each day.
In their 1996 report the Law Reform Commission said the family law system was in “crisis” adding that the long lists, delays, brief hearings, inadequate facilities and over hasty settlements were too often the “order of the day”.
Just last year, the then Minister for Justice Alan Shatter said that since that report, “the situation has not greatly improved”.
Outcome for men
O’Shea states in her thesis on the family courts that there are particularly bad outcomes for male litigants. What she found striking about the system is the “relative invisibility of children” stating that “where children are caught in the crossfire of marriage and relationship break-down, the child’s perspective is often non-existent”.
Speaking to TheJournal.ie, Eamonn Quinn from the Unmarried and Separated Parents of Ireland – a support group for parents in relationship difficulties said that there was a huge disparity between the rights of women and men in the family courts.
“The biggest issue is expenses. I deal with couples living in the same home for months after they separate, just because it is jut too costly to move out. They are staying at home, where there are hostilities, and that is no place for a child to be.
“However, the other option is for fathers to move out and pay maintenance costs to their spouse,” said Quinn, who added that it is only right fathers support their children, but argued that the brunt of the costs is put on the shoulder of men.
“For example, in access and custody cases, fathers are told that they must have adequate accommodation if they are to have access of custody of their children, which is of course, correct.
“The point is that fathers are in a Catch 22 situation, as they often do not have the resources to pay maintenance towards their spouse and child, as well as paying for a suitable accommodation (usually a two bedroom apartment) in order to gain access or custody,” said Quinn.
Catherine Ghent of Gallagher Shatter Solicitors said there is a perception that the court favours women, but added that in order to ensure equity and justice there needs to be a judicial oversight group established.
“There may well be evaluations that show that the outcome of cases are upheld, but there are legitimate concerns about the conduct in some cases and they need to be investigated,” she said, adding that judicial reviews along with the media reporting of cases in the family court will bring about more confidence in the system, which is to be welcomed, she said.
Mediation
While many couples disagree on access, custody and maintenance, the figures show that many couples will argue up to the point that they are to appear in court – but then reach a last-minute settlement. When that day comes, the power in the situation is handed over to the judge (who will make a binding ruling) so many cases get struck out, largely due to some sort of settlement prior to the case appearing before a judge.
Kathy Irwin, a family law solicitor with Beauchamps Solicitors, said that this can often be the case as couples understands that the final decision will then come down to the judge, adding this is one of the reasons why the focus needs to be on mediation for couples.
Quinn argued that mediation should be compulsory, and that it should be implemented in a balanced way where neither party is “short-changed”.
Family mediation is a service to help married and non-married couples who have decided to separate or divorce, or who have already separated. The end result is that a written agreement is set out between the two parties, which the solicitors draw up into a legal document to be used as the basis for a court order.
Wesley Hudson of Hudson Solicitors in Dun Laoghaire said other jurisdictions operate the family law courts differently and we should be looking to countries like Canada, where there is compulsory mediation.
“This could seriously free-up the backlog in some courts, where there can be 50 to 60 cases on the call sheet for one day,” said Hudson.
Divorce and separation are also heard in the family courts, but the cases are not like they appear on TV shows. In Ireland, the judge is rarely concerned with the reasons behind the divorce and is primarily concerned with the division of the assets.
Last year, there was an increase in divorce applications received at 3,598, from 3,462 in 2012. A breakdown by county in 2011 shows that, unsurprisingly, the majority of divorces were in Dublin, while there were none in County Monaghan.
Hudson said it is difficult to be a satisfied family lawyer as there are rarely any winners in the family court.
“That’s just the nature of it – it seems to be adversarial, when it really shouldn’t be about one against the other. It’s rare that everyone goes away happy in a family law case,” he said.
‘A Week in the Family Courts’ series will be running all this week on TheJournal.ie. Read the cases from the courts here>>>
Tomorrow we will bring you recommendations on how the Family Courts can be improved.
First published 6.30am
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