Fathers pay price when mothers take children

DESPITE ONE-THIRD of births occurring in non-marital relationships, unmarried Irish fathers remain deeply ignorant of their legal situation.

Under Irish law, such fathers have no automatic right to the day-to-day care of their children (“custody”) or to a say in the upbringing of their children (“guardianship”). What they have is the right to apply to a court, which may then extend rights of guardianship and custody according to the nature of the relationship between the child and the father, a matter almost invariably dictated by the attitude and behaviour of the gatekeeper-mother.

Although mischievous agents propose that the high numbers of Irish unmarried fathers neglecting to apply for guardianship is evidence of indifference, the fact is that many fathers, reluctant to initiate legal proceedings that might create a conflict where none exists, tend to leave well alone.

This leads to extreme difficulties when mothers abduct children to other jurisdictions and fathers find themselves bereft of legal standing.

Almost all European countries now make legal provision for the concept of the “de facto family” – which extends legal recognition in situations in which unmarried parents and their children have lived together in quasi-marital situations. This can enable an unmarried father who has no formal guardianship order to invoke the Hague Convention in the event that his child is abducted. Irish law is noticeably out of step in the recognition of such “inchoate rights”.

The man in the street may attribute this circumstance to oversight. Alas, it arises from the ideological outlook of the Irish State, which is determined to withhold from unmarried fathers anything but the most minimal recognition forced upon it by international law.

The lay person, too, might surmise that, all things being equal, the objective of the Irish State will always be to strive towards just and equitable resolutions, subject only to whatever legal impediments may arise.

Alas, in abduction situations where the abductor is the mother, such an assumption would be mistaken.

In fact, the pattern of behaviour by the Irish central authority in these matters – ie the Department of Justice – is to turn its back on fathers whose children have been abducted, even when the destination country is reluctant to accept jurisdiction.

This policy became clear over the past 18 months, in a case arising from the refusal of a mother to bring her two children back to Ireland after a summer holiday in New York. For six years the father had lived in Ireland with his children, in virtually every respect as though married to the mother. In August 2010, the mother told him she and their two children would remain in New York, where she was moving in with a man she had met on Facebook.

The children had been born in New York, which meant that the father was their legal guardian under US law. He had the right to apply to a New York court, but felt that to do so would be to acquiesce in what had happened.

He wished to have the matter adjudicated in Ireland, where his children had lived almost all their lives. He approached the Department of Justice but was told that, since he did not have guardianship here, there was no legal recourse under the Hague Convention.

Proceedings were initiated in New York by the mother, while the father began seeking guardianship under Irish law. In November 2010, he was granted a guardianship order. Because this application was initiated within a statutory six-month period stipulated by New York law – in effect confirming the children were for legal purposes still habitually resident in Ireland – and since the father continued to reside here, the New York court ruled that the case should be determined by the Irish courts.

All that was required was for an Irish court to issue a temporary custody order in favour of the father, and the New York court could have ordered the return of the children here.

The next step was to persuade the Irish court to do the decent thing. Three hearings, in August, October and November 2011, were adjourned in turn because the judge was away. Although it was implicit in the New York decision that, by issuing a guardianship order, the Irish court had already accepted jurisdiction, the Irish judge refused to communicate with his counterpart in New York.

Instead, in the end, he wrote to the New York court handing over jurisdiction, unwittingly confirming that, contrary to the assertions of the Department of Justice, the Irish court already had jurisdiction. Thus, in December, this Irish father was forced to surrender to the jurisdiction of an American court.

These Irish proceedings, involving 12 court appearances and nine different judges over 15 months, cost this father more than €20,000.

For years I have been meeting men like this, trying to help them deal with the inscrutable processes that “legal advice” forbids me from describing in the only terms I can adequately and reasonably describe them.

I observe with dismay that things are growing worse, not just in the treatment of such men and their children, but even more ominously in the studied avoidance of these matters by other journalists who make much of calling authority to account except here, where the sleep of justice is more implacable than anywhere else.

By John Waters – Irish Times | Fri, Jan 6, 2012 | Link to Irish Times Article

Supreme Court strikes down family law orders as excessive

Neutral citation (2011) IESC 40

Supreme Court

Judgment was delivered on October 19th, 2011, by the Chief Justice, Mrs Justice Susan Denham, Mr Justice John Murray, Mr Justice Adrian Hardiman, Mr Justice Nial Fennelly and Mr Justice Joseph Finnegan concurring.

Judgment

A High Court judgment containing various orders in a family law case, in particular an order of €1 million to buy a second house and €600,000 cash sum, was overturned and the case was remitted to the High Court for proper provision to be ordered.

Background

The case concerned an appeal by the husband against a series of High Court orders in a divorce case, which followed a separation agreement containing a “full and final settlement” clause.

The weight to be given to this clause, and the meaning of “proper provision” in the 1996 Family Law (Divorce) Act were considered.

The couple were married in 1977 and lived in a house inherited by the husband. The wife brought £3,000 in savings to the marriage. They had no children and they ran a farm and garage. The husband began to pursue property development, building and selling houses.

The couple separated in 1995 and entered a separation agreement in August 1996, under which the husband agreed to pay the wife £100 a week in maintenance, reduced to £50 after two years. He also gave her a house in the estate he had developed and a lump sum of £70,000.

In 2004 the maintenance was increased to €1,200 a month, pending a hearing of the divorce application. This was further increased to €2,500 a month by the High Court.

The wife claimed she did not enjoy the same lifestyle as her husband and that she incurred debts until the maintenance was increased.

She brought a claim for divorce and that “proper provision” be made for her under the 1996 Act.

In granting the divorce in March 2009, Mr Justice Henry Abbott made a number of orders making further provision for the wife, including an order directing the husband to buy her an annuity worth €600,000; the payment of €300,000 into a pension fund for her; the payment of €100,000 towards her legal costs; maintenance of €54,000 a year until the sum was paid by the annuity; the payment of €1 million so that she could buy a second house and the payment of a further €600,000 in a lump sum; and a payment of half of the balance of her legal costs.

The husband argued that the orders imposed an unreasonable and unfair financial burden on him, amounting to a confiscation of assets, and that it unfairly fettered his use and control of his assets to the detriment of his long-term financial security and business activity.

He also argued that the High Court judge failed to have sufficient regard to the “full and final” clause in the separation settlement.

His lawyers argued that the court had embarked on a redistributive financial process and that it was not the function of the court to reopen the issue of proper provision, but rather to assess the previous provision in the light of current circumstances and, if it was inadequate, correct it.

Decision

The first issue examined was the weight to be given to the deed of separation and what would happen if there had been a change in the circumstances of one or other of the parties.

The Supreme Court pointed out that previous judgments had stated that the Irish law did not establish a right to a “clean break”, but that this was a legitimate aspiration and the objective of seeking certainty and stability was desirable.

Changed circumstances that could lead to a revisiting of a separation agreement could include illness. However, if a person achieved wealth after the separation, and this was unconnected to any joint project of the spouses, there was no automatic right to an increase in the financial provision for the other spouse.

The standard of living of a dependent spouse should be commensurate with that enjoyed when the marriage ended. Assets inherited should not be treated as assets obtained by both parties in a marriage.

At the time of the High Court hearing, the husbands assets were worth about €21 million.

The original separation agreement envisaged the wife’s needs tapering off and her supporting herself.

However, she became ill and could not work and used up her lump sum. Therefore there was no error in the High Court ordering an increase in maintenance.

However, the overall amount of maintenance and financial provision was excessive and an error, in particular the provision of €1 million for an extra house, as she had been given suitable accommodation in the separation agreement.

The lump sum of €600,000 was also excessive.

The standard of living of a spouse, when the other party has subsequently achieved further wealth, is not entitled to be elevated on that basis. Here the husband did increase his wealth after the separation, which was not relevant to the proper provision of the wife, unless there had been a substantial change in her needs.

In this case her needs were met by her increased maintenance and provision for a pension, which should not be finally determined by the Supreme Court in the light of the dramatically changed values of his assets.

The case should therefore be remitted to the High Court, the judgment said.

The full judgment is on courts.ie

avid Hegarty SC and Siobhán Gallagher BL, instructed by Micheál Glynn and Co, Limerick, for the appellant; Inge Clissman and Rita Considine BL, instructed by Michael Houlihan and Partners, Ennis, for the respondent.

The Irish Times – Mon, Nov 7, 2011 | Link to article

The marriage break-up: ‘Doubt, panic and loneliness’

The Problem

James (45) was married for 15 years but his relationship “ground to a halt” last year. He has three children with his wife, and over the past few years, the strain of debt, unemployment, illness, depression, loss of intimacy “and probably hope” caused friction, and ultimately the break-up.

He concedes the split was also caused by his wife’s inability to fully trust him after an affair that happened several years before. “We both worked very hard to make the relationship work, but called it a day mostly for the sake of the children. They need an atmosphere free of tension,” he says. “I am depressed, which I suppose is normal, but it is hard to wake up alone without the children. Some days it is unbearable.”

He believes he “may or may not be” addicted to the “first rush of love” and admits that he “seeks solutions in the arms and beds of strangers”. He says he “loves women, needs intimacy, needs to make love”. He wonders whether he is afraid of being completely alone.

“People lose themselves in alcohol, work or hobbies . . . I like sex. I regard it as healthy and normal. Other men my age like golf, GAA, the company of other men, football trips. I don’t. I am a loner who prefers the company of intelligent women. However I seem to attract damaged goods, women who have been abused or beaten by parents . . . I wonder why this is?”

James is currently living with a “very supportive” relative and chasing work all over the country while he waits to find permanent accommodation. “The day we moved from the family home I started crying and I have found it very hard to stop,” he says. He is lonely and misses being part of a family. On a positive note, the couple has managed to salvage a friendship from the relationship which feels “genuine, if fragile”. He says the children are happy although his eldest child is confused slightly by the new living arrangements.

He would appreciate advice on how to deal with the “doubt, panic and loneliness” caused by his situation and on how to handle his desire to rush straight into other relationships. “I am a very good father and my ex is a very good mother. I guess we are trying to figure out how to be friends after all these years, but I think we will manage. We are both selfless, and we love our kids too much to make a mess of it,” he says.

James is a daily meditator which he says helps. He has also been in “talk therapy” most of his life, or at least when he could afford it. He comes from a family of therapists and mental-health professionals, a background that has made him “somewhat cynical” when it comes to professionals who offer counsel. He is healthy, fit and says he has retained his sense of humour despite his personal circumstances.

The Advice

The Marriage and Family Therapist

Owen Connolly

I have met men like James many times in my counselling centre. I always ask the questions “As a young boy, were you a sensitive, cautious child. Did you have a close relationship with your mother? Was your father an important person in your life?”

The influence of a mother is to make the perfect prince, but the fther’s role can often be to prepare him for being a king.

If that has not been part of James’s experience, he might be stuck in the prince state, expecting to give himself over to the woman, expecting her to be responsible for his happiness. James comes across to me as an adult child, physically and intellectually grown-up but emotionally still a child.

James, you may present yourself as confident, good-humoured and charming, but underneath you may still be the sensitive cautious young boy wanting to be minded. You are likely to be attracted to strong women with that in mind, but when she shows her needs, thinking that this confident man will empathise and understand, the prince does not know how to cope and considers that it is a sign of weakness on her part. Hence your commentary on women being “damaged goods”. Often, women who have been hurt in childhood will present themselves as strong and confident just as you appear to do. Trauma of any kind can or may be responsible for this condition. You’ll find that a small number of sessions with a good trauma specialist would do a lot more for you than a year of talk therapy and meditation. I can understand your cynicism towards counsellors given your family background. Those who are close to you and well meaning are not always the best people to go to for advice.

I would have confidence in your fathering role as you are likely to give to your children what may have been missing in your own childhood. Make the most of being able to jointly parent the children. As a sensitive man under the outward confident one, you are aware of the significance of having their intimacy needs met. You know the importance of the unconditional love that can only come from a parent. They need to be comforted and encouraged so their confidence can be built on a foundation of truth.

They need to know that they are priceless, special and loved, just as you are, but may not believe it.

* Owen Connolly is a consultant psychologist and marriage and family therapist in private practice in Stillorgan, Co Dublin. See counsellor.ie

The Career Coach

Jane Downes

James, I need to say straight out that perhaps the single most important part of my job as a career coach is to know the difference between coaching and counselling. It would be unprofessional – and presumptuous – of me to offer you advice on your issues around sex, intimacy and relationships. Not that I don’t sympathise hugely with you on account of your struggles in these areas, just that I need to be careful not to overstep the ethical mark here.

That said, the career coach in me cannot help but notice the key role played in your story by work- and finance-related difficulties.

Debt and unemployment are no joke at the best of times. To have struggled with both at a time of relationship breakdown must have been positively hellish. And now, to be chasing scraps of work up and down the country while trying to get your head around a personal landscape that has altered almost beyond recognition – well, I wouldn’t wish that kind of pressure on my worst enemy. You must feel like your head is going to explode.

Now I cannot speak directly to your heartbreaking family situation, nor to your feelings of isolation and inadequacy. But I can urge you not to allow these problems to block your problem-solving ability in the career and financial area. You need to split up “I’m lonely and broke”, into two sentences: “I’m lonely. I’m broke.” Otherwise you risk being overwhelmed by a generalised feeling of helplessness. And my hunch is that you’re not going to be in a safe enough place to really face up to the “lonely” bit until you’ve addressed the “broke” bit. When we’re living hand-to-mouth, as so many people in Ireland currently are, the world feels like a horribly Darwinian place. It’s very hard to let go into gentleness, intimacy, trust and love when you can hear the wolf scratching at the door.

So all this energy you’ve been so understandably investing in feelings of sorrow and anxiety – you need to re-channel it into the task of designing a compelling future for yourself on the career front. Like a lot of 45-year-olds, you probably feel ancient in career terms. But you’re not. It’s still all to play for, believe me.

As a first step towards moving from crisis management to vocational renewal, I would like you to make an appointment with me at your earliest convenience for a free career coaching session. Let’s see if we can’t turn this thing around.

* Jane Downes is the owner of Clearview Coaching Group and author of The Career Book- Help for the Restless Realist. See clearviewcoachgroup.com

The Psychologist

Allison Keating

You have had a very difficult time, James. Life has taken it toll with debt, unemployment and your break-up. These life events cause a lot of stress, strain, and have a major impact on our reserves of hope, which unfortunately often leads to a sense of helplessness and isolation.

Perhaps this is why you crave the initial passionate intimacy but real whole-hearted living means that to truly connect with someone you need to share your vulnerabilities. This is real intimacy – to allow the other person to see the real you.

It is interesting and yet somewhat unfortunate that it seems that you are looking for the passion and yet vulnerability in the women you are seeking comfort from. If you are not sharing about your own vulnerability then it still leaves you disconnected. You may feel in control, but ultimately it must feel lonely.

You say that you crave intimacy, and yet I wonder do you really understand what intimacy is? One part of intimacy is the sexual and passionate aspect, but another side is the ability to form an attachment whereby you feel connected and cared for by the other person.

The delicate balance to feel securely attached is to be able to maintain interdependence, feel connected and that you belong to the relationship.

You say that you have been in talk therapy most of your life. Perhaps you need to find a more solutions-focused approach that allows you to look at the psycho dynamics of your relationships past and present.

Psychological insight through therapy allows you to see into your patterns that are not working for you. To allow you to have a perceivable gap between it happening again and to have the foresight to recognise your reaction to certain life events before it is too late.

The core of this is what is going on for you? There is a lot of personal conflict. You say that you love women, but can you really connect emotionally in a dual-functioning and emotionally satisfying manner? Even though it sounds like you are in great pain, rather than rush into the next “fix”, ask yourself the questions “what do you need?” and “what do you want?”.

If you experience some sexual impulsiveness it might be worth engaging in the process of examining what emotions you are trying to recapture in sexual experiences?

Best of luck, and I hope that you venture on this inner journey of self-discovery and perhaps this could be done in a supportive, empathic and effective therapeutic setting.

* Allison Keating is a registered psychologist and the director of the BWell Clinic in Malahide, Co Dublin. See bwell.ie

The Relationship Counsellor

Lisa O’Hara

There are many reasons why people have affairs but usually at the root of them is fear, hurt and/or anger: fear that if you let yourself get too close to someone, you will become too vulnerable; hurt because you somehow feel rejected or unloved; and anger because your partner cannot or will not meet your needs. Sex does provide an element of comfort and relief when we are distressed. It can help us to feel connected to another and not entirely alone. It is also the most intense expression of physical intimacy between a couple and an important form of communication because when they feel physically close, they are often at their most open with each other.

When a person hasn’t learned to handle their more difficult feelings, they are more likely to engage in destructive behaviours such as drinking, drugs or infidelity in order to numb those feelings.

Unfortunately, this can affect relationships adversely as anxiety becomes their constant companion. It removes the trust that is the bedrock of a relationship and crucial to the survival of that relationship through difficult times.

James is now left with some of the feelings that may have driven him to have an affair in the first place, and it is important that he addresses these as honestly as he can; otherwise he will be led by these feelings to seek a new relationship, rather than a desire to be with someone because he actually likes, respects and values them.

As he is into meditation practices, a particularly helpful way to gently explore his feelings might to be to try a “focusing” meditation, which he can do on his own, or by finding a focusing therapist who can help him get started (see focusingireland.org).

He will continue to have a co-parenting relationship with his ex-wife and he recognises the importance of this for his family. Many people get caught up in their own pain not realising that the children are struggling inside, even if they seem okay. It’s important to reinforce the fact that they are still a family, even if the couple are no longer together.

* Lisa O’Hara is a therapist with counselling agency Relationships Ireland (formerly the Marriage and Relationship Counselling Services). See relationshipsireland.com

James’s Reaction

“Owen you have NOT met many men like me. You lost me (briefly) with that generalisation. Moreover, the ‘prince’ and ‘king’ stuff is for my four-year-old. However, kudos for perceiving that I am and will be a good father. I do not require a trauma specialist but some of the women I’ve met do. I take your point about ‘strong’ women hiding under masks. I perceive a committed practitioner, and a degree of (hippy) wisdom. Thanks.

“I like Jane’s honesty. And when I move into my own space I will call. Interesting and enormously revealing that she was the only one to offer her services free.”

“Allison was well-intended but vaguely off-putting due to her baseless presumption that I do not know how to ‘connect’. I was married for 15 years and faithful for 14, despite my ex having a debilitating illness.

“Lisa’s response highlights the pitfalls of this experiment. It really is hard without a face-to-face meeting. Again, however, there is an almost Patrician attitude to sex and f***ing. That said, I perceive an experienced practitioner; as she correctly points out, my children are, and must remain, the focus. I could talk to this (seemingly wise) woman relatively easily, but have more pressing things to spend my money on: feeding my kids. However, thanks.

Tips for all coping with separation

This is a significant loss in your life even if you wanted it to end. The grief feelings that come up with the loss can be overwhelming, even though they are quite natural. If you feel stuck it might be time to consider getting professional help, such as counselling.

Choose your confidantes wisely. You may be upset and not know what to do next. A wise person will know that you need to be heard without necessarily taking sides or having the answers, unless they are an expert in the area.

Try to find out as much information as you can about how the separation might affect you, your family and your resources. Write down a list of things you want to know more about so that if you are going to a professional, you are well prepared.

It is an upsetting time for all the family, and children are struggling to adjust to a new structure. Routines may be cast aside, but it is precisely at this time that as much structure and order as possible are maintained for everyone’s sake. It gives you a rock to hang onto when you’re all feeling at sea.

Be realisticabout the time it takes to move on from separation. It is often much longer than you could ever imagine.

– Lisa O’Hare

When a relationship ends: Surviving the emotional rollercoaster of separation,by Lisa O’Hara will be published by Orpen Press in October

By Roisin Ingle – Irish Times | Tue, Aug 30, 2011 | Link to Irish Times Article

Maintenance reduced in order to reflect changed circumstances

The amount a man must pay to his former spouse and their two children was reduced to €3,000 a month because of a reduction in his income.

H -v- D

Neutral Citation (2011) IEHC 233

High Court

Judgment was delivered on June 7th, 2011, by Ms Justice Mary Irvine.

Judgment

The levels of maintenance payable by a man to his former wife and their two children were reduced to the amount of €3,000 a month set in 2005 because of a reduction in his income. The payments had increased since 2005 in line with the consumer price index. The man was ordered to supply his wife with documentary evidence of his income on an annual basis.

Background

The couple were married in 1998 and had twin daughters who were 10 years old when the application was made. The marriage broke down when the children were infants, and the couple obtained a divorce in December 2005.

Under its terms, the applicant husband paid €3,000 a month, €1,000 for each child and €1,000 for the respondent wife. In November 2010, it was altered so that three-quarters went for the children and one quarter for the wife. The sum was adjusted in line with the consumer price index.

The husband was seeking to have the level of maintenance reduced on the basis that his income had been reduced from €90,000 net a year, and by the imposition of Government levies.

The overall effect left him with a net income of €86,000 for 2009 and €73,000 for 2010, allowing for a tax-avoidance payment of €17,000. His take-home pay slip showed a monthly income of €5,221.45, which would amount to €62,650 this year, and he also expected to receive a bonus of between €5,000 and €10,000.

Ms Justice Irvine calculated the bonus would be €7,500 after tax, pointing out that the bonuses were €22,980 in 2009 and €18,494 in 2008, although there had been none in 2010.

She also said his net income was less than any of the last seven months in 2009. Therefore she would proceed on the basis that his income for the year would be €70,157, plus the bonus. She also pointed out he had €58,000 in the bank, which he could dip into until his bonus was paid.

Decision

“Even if it be the case that the court accepts that the applicant’s income may have reduced by 21 per cent since the original order was made, that does not entitle him to an automatic proportionate reduction in his maintenance payments unless he can demonstrate that the maintenance so reduced would be sufficient to meet the reasonable ongoing needs of the respondent and their two children,” Ms Justice Irvine said.

The respondent had no savings and had done all she could to reduce her outgoings. She had had difficulty in paying her mortgage and the applicant was of great assistance to her here. All the facts suggested she was struggling on her present maintenance.

She added it was significant that, as a result of an injunction by the applicant, she was obliged to live in Dublin so that the applicant could play an active role in parenting the children. This meant the wife had to rear her daughters as a single parent in a city where she had no family support whatsoever.

Her parents and siblings all live in Cork, where she would much prefer to live, and if she had been able to do so, she could have been able to work full-time with the support of her family and become financially independent of the applicant. She had difficulty in meeting work commitments when one or other child was sick and she had difficulty finding and paying for childcare during the school holidays.

Ms Justice Irvine said she therefore rejected the suggestion made on behalf of the applicant that the respondent could be working either part time or full time, especially while the children were in primary school. “It is all very well to say she should get help [when a child is sick], but where do you get it when your child has a temperature at 7am and you have to be at work by 9am if you have no partner or family to call upon?”

While the respondent was very well qualified, in the present economic climate it could not be assumed she could walk into a job tomorrow, as she had had practically no work experience for the past 10 years. There was also the problem of childcare.

She also rejected a suggestion from the wife that the applicant should take in a lodger or forego contributing to his pension.

Having considered all the evidence, she said she was satisfied there should be some amelioration in the maintenance payable under the December 2005 court order, notwithstanding that this would impose a degree of hardship on the wife.

She considered the appropriate maintenance was €3,000 a month – €750 for the wife and the balance divided between the children, subject to consumer price index adjustment from June 2012.

She said it was important that the wife could monitor with accuracy the husband’s income over the next few years so she could seek to renegotiate an increased maintenance payment if his salary increased above what formed the basis for the current order.

She therefore made an order that on January 14th each year he furnish his wife with copies of all wage slips for the previous year; a copy of his P60 for the previous year; details of any bonus payments due; details and proof of any payment made by him as a tax-avoidance measure in the previous year and a statement from his employer confirming the information provided.

The full judgment is on courts.ie

Paul McCarthy BL, instructed by Heather Lennon solicitors, Dublin 2, for the applicant; the respondent represented herself

Irish Times | Mon, Jul 25, 2011 | Link to Irish Times Article