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Family Law Matters Volume 2 No 3 Winter 2008

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Family Law Matters Volume 2 No 3 Winter 2008 Family Law Matters Volume 2 No 3 Winter 2008 A balancing act: children, their parents and the law Courts Service Phoenix House 15-24 Phoenix Street North Smithfield Dublin 7 www.courts.ie family law matters Contents Contents Credits Introduction Editorial team: A revealing commentary on life in Ireland . .1 Helen Priestley, John Quirke, David Crinion, Fiona Farrell Reports / Custody and Access Sub-editor: Woman fails in bid for sole custody of daughters . .2 Therese Caherty No Judge could decide this ‘without an expert report’. 3 Court decides when wintertime begins and ends . 5 Photgraphs Courtesy of the Courts Service and The Irish Keep children out of court matters . .6 Times. Father told to take part in disciplining son . .7 Judge gives parent who drinks a chance. .8 Cover Photograph: Report sought on access of drink-dependant mother. 9 The Irish Times Reports / Guardianship Charts and tables by www.gsdc.net Father refuses mediation before return to court. .10 Artwork by www.gsdc.net Printed by Brunswick Press Reports / Judicial Separation / Divorce House sale deferred until children’s future is secure . 12 Reporters’ panel: Marie Ahearne BL, Jackie Business goes to husband, house goes to wife . .13 Byrne BL, Laura Cahill BL, Wife’s financial input valued at €100,000. .14 Susan Casey BL, Cliona Wife fails in bid for extra maintenance . .15 Cassidy BL, Judge adjourns separation case until wife gets a job. .15 Oisin Crotty BL, Caragh Cunniffe BL, Sarah Dever BL, Sonya Dixon Reports / Partition BL, Lynn Fenelon BL, Mark Wife finally agrees to divorce in ‘ample assets’ case . 17 Declan Finan BL, Niamh Gardaí phone mother over whereabouts of children. .19 Ginnell BL, Marie Gordon House division decided on contributions. .20 BL, Kevin Healy BL, ‘Unfair’ to give family home to husband as wife is main provider. .21 Lisa Lingwood BL, Barbara McEvoy BL, Ailionora McMahon BL, Antonia Report / The Hague Convention Melvin BL, Richael Summary return of children - a look at the Hague Convention. .24 O’Driscoll BL, Clare O’Driscoll BL, Sheila O’Riordan BL, High Court / Hague Convention List Lisa Sheahan BL, ‘Cases such as this are black and white: either the children stay Caroline Timmons BL, or are sent back’. .27 Sandra Walsh BL. © The Courts Service of Statistics and Trends Ireland Busy year for family courts . .30 Enquiries relating to the copyright in this document should be addressed to The Interview Courts Service Information Getting the best deal for children from child care services . .39 Office, Phoenix House, 15/24 Phoenix Street North, Smithfield, Dublin 7. Fax Feature / Index 00 353 1 8735250 or email Index of Contents from previous issues . 41 [email protected] family law matters Introduction A revealing commentary on life in Ireland his Winter 2008 edition of Family Law Matters concludes the second year of the pilot project to Treport on family law cases around the country. The six editions published so far include reports on a wide range and variety of matters from many parts of the country. This time around we have taken the opportunity to review the topics covered since the first edition in Spring 2007. The Editorial Team: John Quirke, Fiona Farrell Helen Priestley & David Crinion result is an index which itemises topic and location and links them to the relevant edition of Family Law Matters. the parties on resolving their difficulties, The welfare of children continues to be central to many Family Law Matters Summer 2007 featured an edited family law applications. Issues concerning guardianship, excerpt from a major paper delivered by Judge Conal custody and access have featured in each edition and Gibbons to the 2006 national conference of the Judicial Winter 2008 is no exception. We feature reports from Studies Institute on the subject of child care. He referred to Dublin, Cork and the Northern, Midland, Eastern and child care law as being a “hidden world in the sense that, South-Eastern Circuits and, as in previous issues, highlight like private family law proceedings generally, public law the difficulties facing judges daily in Irish courts. In some child care applications are heard in camera”. cases, matters to be decided are not complex legal ones We interview Finbarr O’Leary, deputy chief executive but do demand of the litigants a measure of reason and officer of the Children Acts Advisory Board, who says the co-operation not always forthcoming. This means judges board is considering how it might report on child care cases sometimes have to adopt a more social – as opposed to in light of the recent amendment to the Child Care Act, legal – role. The reports continue to provide a revealing 1991. The board was set up, inter alia, to advise ministers commentary on life in Ireland today, providing a powerful on policy relating to the co-ordination and delivery of snapshot of how people live. services under the Child Care Act and the Children Act, Reports in Winter 2008 are not confined to issues 2001. We note the intention outlined by the Minister for affecting Irish citizens. Our feature article sheds light on Finance in the recent budget to subsume the board into the the Hague Convention and the subject of “child abduction”. Office of the Minister for Health and Children as part of The convention, which has been adopted by 84 countries, the rationalisation of State agencies. is primarily concerned with securing the return of children Our look at statistics includes information from the wrongfully removed from, or wrongfully retained, out of Courts Service Annual Report 2007 on trends in a variety their country of habitual residence, back to that country. of family law areas such as divorce, judicial separation, It is implemented into Irish law by the Child Abduction nullity, guardianship, custody, access and maintenance. and Enforcement of Custody Orders Act, 1991. In many Most applications for both divorce and judicial separation convention cases the “abductor” is not a stranger but is are made in the Circuit Court. Statistics on the gender often the custodial parent or guardian of the child. Given breakdown of applicants reveal that wives bring more the nature of the subject matter it is not surprising that applications for both judicial separation and divorce in the convention obliges national courts, “except where the Circuit Court than husbands. Additional family law exceptional circumstances make this impossible”, to issue statistics are available in the annual report which can be its judgment no later than six weeks after the application accessed on the Courts Service website: www.courts.ie is lodged. Our article examines how the Irish courts meet We are grateful to all who have assisted in the preparation this challenge. of material for this edition most especially the court We also feature a case under the convention where a reporters whose are listed in the panel on the Contents father’s application for the return of children was settled on page. terms approved by the court with the judge congratulating John Quirke, Fiona Farrell family law matters Reports / Custody and access Woman fails in bid for sole custody of daughters A woman argues that her estranged husband promised to return their children to her after her house was refurbished – the husband vehemently denies this. In a case concerning day-to-day care of children, Judge Con Murphy says his main concern is their welfare n Cork Circuit Court a woman failed in years before she left. She recalled telling her her bid to have the day-to-day care of her husband that she was having a miscarriage. Ichildren transferred back to her. Judge She said he told her that he would call a taxi Con Murphy heard that she and her husband for her instead of bringing her to the hospital ‘I don’t want had married in 1996 and had two daughters. himself. The marriage went downhill from to hear of any The children had been mainly living with there. The couple tried counselling but to no fighting in the their father because when the couple avail. They went on holidays and decided separated the wife left the family home and between them that the marriage just could mean time, as the left the children with her husband. She then not be saved. The wife claimed they agreed girls are getting moved into a house which needed a lot of that she should move out because the family older they’ll work. She claimed that her husband had home was owned by her husband’s mother agreed to give the children back to her once and that her daughters would move in with need a strong the house was done up. Her husband said he her when September came around. By that relationship with had agreed to no such thing. stage her house would be done up and the their mother’ The wife generally had her daughters for children could start school in her locality. the weekends, her previous solicitor had told When September arrived her husband her that she was entitled to have the children refused to hand over the girls. The woman full time and acting on this advice she did not broke down as she said: “I’m their mum, return the girls one Sunday. Her husband then I should be minding them. They will have took her to court where he was left as the things that they need to talk to their mother main carer for the children and his wife was about. When they’re sick other people mind formally granted weekend access and later them.” The wife intended to return to college was granted a week night also.
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