Raising order from the ruins: A day in the life of family court
IS the forecourt of a service station a proper place to hand over a two-year-old from one parent to the other?
With the procession of cars coughing fumes, and the space that’s required to transfer a child-seat from one vehicle to another, it’s not ideal.
What about the carpark of a well-known public house? When it is full, the transfer would have to be effected on the side of the road, the responsibility and accompanying paraphernalia passed from one parent to another as traffic whizzes by.
That was one of the issues that arose in a recent typical sitting of the family law court in Cork. When disputes arise, detail is important. Orders from the court must be specific. Where emotions are raw, or relations have turned bitter, discretion often has to be eliminated.
The list of grievances brought to court on the day in question is varied:
- One father flies in from the UK, where he is now living, for an access visit, but the mother doesn’t show up;
- A mother despairs that maintenance payments are made through her son in an action that has spite written all over it;
- A father inquires whether he has to cough up maintenance if he wins on the horses;
- A mother worries that the father is relegating his responsibilities now that he has another child with a new partner.
Practically all the cases have one common feature — how to maintain love for the product of a broken relationship in an atmosphere that can vary from co-operative to outright contempt.
Each morning of a family law court sitting in the District Court building on Anglesea St, Cork, the parties and solicitors crowd into the small room that serves as the court. Two tables pulled together facilitate the parties and their solicitors. They face the judge on a slightly raised desk. Judges don’t wear gowns or wigs. The only hint of a formal court sitting is the presence of a witness box.
Once the list is read out, everybody exits to the adjoining waiting room until their case is called.
One of the first cases is attended by only one of the parties, the mother. She is not represented by a solicitor. A growing minority of parties now represent themselves on all but the most serious elements to a case. Rules on legal aid have been tightened and, for those who don’t quality, the cost of a solicitor is more financial grief.
This woman wants the judge to do something about arrears to her maintenance payments. The father owes €610. Last September, he owed more arrears, but has now cleared that. She receives €80 per week, €40 for each of their two children. In addition to the arrears, she wants two one-off payments of €200 ahead of the start of the school year, and for the cost of Christmas.
“Is he working?” Judge Angela Ní Chondúin asks.
“I’ve no idea,” the woman replies. Judge Ní Chondúin grants the request, because she deems it reasonable.
Maintenance is also the subject of the next case. A woman, who gives her evidence in a foreign accent, is applying to have her payments attached to the salary of the children’s father. The man is not in court. The judge wants to know if he’s working.
“I saw him working two months ago,” the mother says. The last payment she received from him was €10 in January.
“Where’s he living?” the judge asks.
The woman explains that she didn’t know, so she called a city garda station inquiring as to his address. The officer told her to follow him home from his place of work. “I tried, but it was dangerous,” she told the court. She went back to the station, and within 10 minutes the garda had procured the man’s exact address for her.
The judge set a date for hearing on the matter.
The failure to pay maintenance is a recurring theme in the children’s court. A rate of maintenance for children is set depending on ability to pay, and taking into account minimum requirements. At a time of recession, payments of all sorts fall behind, except this one has to do with providing for one’s own children.
In any event, it’s not always ability to pay that interferes with rates set by a court order. The bitterness and resentment that can accompany the breakdown of a relationship also often works its ways.
In another case, Judge Ní Chondúin gives the court the benefit of her experience in this area.
“Some men have a bad attitude, some have a very bad attitude, and others are not willing to pay a red cent,” she says.
In other cases, however, the judge readily acknowledges where men are making a serious effort to fulfil their obligations.
Maintenance can be paid directly or through the district court office, the latter option being regarded as the path of least resistance when problems arise.
All of these matters are highly personal, and in recent years, the courts and politicians have given some regard to the sensitivity required. While cases are in camera, reporters have been allowed since the beginning of this year to report on a restricted basis that preserves anonymity of the parties.
On the wider front, sensitivity is in short supply. The family law court in Anglesea St is located in an annex of the main district court building, which now hears only criminal cases. There is a separate entrance for the family law court but, ahead of hearings, the door is locked, and parties are forced to stand outside in the grounds, their presence visible to passing pedestrian or vehicular traffic.
There is a plan to move the court to the main Washington St building, where more discretion and better facilities may be possible, but that’s some way off yet.
Another case of arrears involves a mother of three, whose self-employed husband has a record in falling behind. “Sometimes, it’s not paid through direct debit but through one of our sons,” she tells the court. “Using my sons… brown letters with money in it.” Their sons are 24 and 19 and there is also a daughter. The youngest son lives with his father now, who doesn’t show up for the hearing, although he’s represented by a solicitor.
The judge concludes the father is not living up to his responsibilities. “I’m delighted he’s got a job but I want a statement of means,” she says. “He’s paying in a makeshift way. If he’s in financial difficulty let’s see a statement of means. No messing with me. If he doesn’t do his homework by September, I’ll offer him custody.”
The woman has one other request. “The maintenance going through the children, if it could stop,” she asks.
Another maintenance problem has both parents in court. The father had fallen into arrears with payments, so the maintenance order was adjusted from €70 per week to €50 per week, plus another €20 towards paying off the arrears. Payments have been going all right for the last few months, but the mother is apprehensive about the future.
“My problem is that he’s got a new daughter [with his new partner],” she tells the judge.
“A son,” the father corrects her.
“Sorry,” she says. “But I’m afraid that he has this new responsibility.” She also wants a one-off annual payment of €200 for back-to- school expenses.
The judge agrees and instructs him to keep up the payments, and to come forward straight away if he comes into any more money to pay off the arrears. He says he wins sometimes on the horses.
“I don’t care whether it’s the horses of the dogs, I want to know. These women who come in here want consistency,” says Judge Ní Chondúin.
If maintenance is one staple of the family court, access is the other.
A man who is now based in the UK, travelled home the previous Friday on the understanding that he could have a visit with his daughter. When he presented himself at his former partner’s home, the child wasn’t there.
The judge orders that the mother be issued with a summons for breaching the court order. She is told that the nearest date for a hearing is September 15. “Maybe the summons will shake things up,” she says.
And that’s another key element to family law. Often, the threat of court can ensures that one or other of the parties acts speedily before a judge steps in to issue another order.
Most of the afternoon on the day in question is taken up with a hearing into a single case, where access, maintenance, and guardianship is at issue. The story is not uncommon; a couple in their twenties have a child, now two, but the relationship doesn’t last long.
The financial fall-out saw both returning to live with parents. Now, the mother is back in the city and back at work. She wants the maintenance increased from €250 a month to €500.
The court hears of details of earnings and living expenses for both parties. Some of his expenses are unusual, such as €60 a week for lunches, which he says is connected to a diet to enhance his gym work. He claims €330 a month for petrol, even though he lives five minutes from his place of work. Then there’s the repayment of a loan to his father, for which there’s no paperwork.
The judge is not impressed. She orders that the maintenance be increased to €450 per month. The other matters are dealt with, including where to hand over their daughter for weekly visits. There is to-ing and fro-ing over the times of pick-up and drop off at weekends.
“I want him to have quality time [with their daughter] but I want quality time too,” she says.
The mother wants them to attend mediation to better ensure their co-operation in raising their daughter.
“There is still some bitterness there from the breakdown of the relationship,” she says.
He says he needs some money to make his room more appealing to their daughter on her weekly visits. He still lives at home, and he wants to add things “to make the room more girlie”.
The judge orders maintenance to be increased to €450 per month. Other details have to be ironed out, like holidays. “You’re not going to be going on unusual holidays, as I understand that you don’t have much money,” she says.
One of the solicitors asks what if both see a great deal advertised and want to bring the daughter with them.
“Mother’s holiday takes priority,” the judge says. What, the father’s solicitor asks, if he spots a deal and tells the mother, but then she then claims she had already spotted that deal. The judge asks for common sense. “There has to be give and take,” she says. “They’re not the worst parents we have in here.”
At the hearing’s end, both file out with their solicitors, little passing between them. An agreement is now in place, backfilling the void that exists after relations broke down, ensuring that at least their daughter’s welfare will take priority, even though the law had to be accessed to arbitrate.
THE evolution of the family unit has added complications when relationships break down.
One case heard in a recent sitting of the family law court in Cork involved a man, who may or may not be the biological father of two children, and a stepmother. The children’s biological mother is dead.
The court heard that the man was allowed supervised access to the children but, following an incident outlined to the court, Judge Angela Ní Chondúin suspended access. The man had agreed at a previous sitting to a DNA test, but the court heard that, five months on, there was still no result to that process.
The case included allegations that the children were afraid of the father, and that the stepmother was “priming” the children to fear their father.
These type of allegations from both sides are not uncommon when bitterness takes hold. As always, the plight of the children is the primary concern of the court.
That primacy is one of the reasons that the in camera rule persisted for so long. The welfare of the children, including their anonymity, was regarded as sufficient reason to exclude any examination of the court’s workings by the media or any other body.
It was never ideal. Any process that is closed from outside examination is bound to attract controversy, particularly when matters as primal as family were at issue.
One recurring theme down through the years has been whether or not fathers got a raw deal in the family law courts.
Anecdotally, some fathers certainly appear to have got a raw deal, particularly when it came to areas such as access.
Until recent years, some of this could have been attributable to cultural issues. Most of the judges traditionally were male — and, in particular, without training — and they may have been inclined to view disputed matters through a lens that ascribed traditional roles to mother and father. In this view, the mother nearly always has primacy over the welfare of the children.
Equally, when a court order was broken persistently by the mother, judges were reluctant to imprison the children’s primary carer. When the father was the offender in this regard, they risked being imprisoned. As a result, some men felt they were at a complete disadvantage in the courts.
On the other side of the ledger, the lack of transparency ensured that some fathers portrayed themselves as victims while the actual details, which might have thrown the matter into a different light, were not available.
The in camera rule also meant that the family law court was entrusted with the power to imprison members of the public behind closed doors.
None of this was ideal, but despite concerns expressed in a Law Reform Commission report going back as far as 1995, the status quo was maintained on the basis that the welfare of children demanded no less.
A new regime was finally introduced last January by former minister for justice Alan Shatter on foot of a pledge in the Programme for Government.
Now, reporters are permitted in courts under the strict condition that no material is published that could lead to the identity of children or parties to the court being disclosed.
The law includes provision of a fine of up to €50,000 or three years in jail for any member of the media, or media outlet, for breaching the provisions.
Commenting on the law last January, Mr Shatter pointed out that it was in the public interest that there be greater knowledge of the administration of the family law courts.
“These reforms will provide valuable information to the public, judiciary, and legal professionals on the operation of the law by our courts,” he said.
“However, the public’s right to know has to be balanced with a family’s right to privacy. It will be strictly prohibited to report any information likely to identify the parties to the proceedings or any child to whom the proceedings relate.”
Judges still retain the right to exclude the media in certain circumstances, and it is open to parties to object to the presence of a reporter in court.
Training for judges in this sensitive area is another issue that frequently crops up.
A recent study for the Department of Justice into family law in the Circuit Court found that judges were requesting training to deal with young children and parental conflict.
The study, which was funded by the Irish Research Council, interviewed a number of judges and also found that breaches of access orders were a “persistent problem”.
The research also found that the system is overburdened, with a huge caseload leading to “intense pressure” for parties to settle cases.
While there have been some advances in family law, there is some distance still to go in recognising the sensitivity and care required to properly deal with this growing area.
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